# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 30, 2018 *

Decided July 30, 2018

Before

DIANE P. WOOD, Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 17

‐ 2426

PATRICK JAMES WERNER,

Plaintiff

‐ Appellant

,

v

.

CITY OF GREEN BAY,

Defendant

‐ Appellee

. Appeal from the United States

District Court for the Eastern District

of Wisconsin.

No. 15

‐ CV

‐ 216

Nancy Joseph,

M agistrate Judge

.

O R D E R

Patrick Werner, a sex offender who is now incarcerated, challenges municipal

ordinances that restricted where he could reside while he was on parole. The district

court entered summary judgment for the City. Because the ordinances do not impose

retroactive punishment and Werner was not deprived of due process, we affirm the

judgment.

* We agreed to decide this case without oral argument because the briefs and the

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 2426 Page 2

Our decision in Werner’s prior appeal recounts his struggle to secure housing as

a sex offender. See Werner v. Wall

, 836 F.3d 751 (7th Cir. 2016). As relevant here, Werner

was convicted in 1999 of second

‐ degree sexual assault of a child and attempted child

enticement. Since being paroled initially in 2004, he has been reincarcerated at least four

times for violating conditions of supervision. When Warner has not been incarcerated,

his probation officers have required him to live in Brown County (Wisconsin), the

county where he was convicted. See id. at 754; W IS

. S TAT

. § 301.03(20)(a)(1). But Werner’s

housing options there have been limited since 2007, when the City of Green Bay enacted

residency restrictions for sex offenders. See G REEN B AY M UN

. C ODE § 27.620 (repealed).

The relevant ordinance prohibited sex offenders from residing within 2,000 feet of

certain designated places where “children are known to congregate.” It exempted

residences that offenders share with relatives, and it contained procedures for seeking

additional exemptions from the City’s Sex Offender Residence Board.

On several occasions from 2009 to 2012, Werner sought permission to live at a

particular halfway house within the restricted area. Each time the Sex Offender

Residence Board, after a hearing, denied Werner’s request. These denials affected

Werner most significantly beginning in March 2010, when his inability to find

appropriate housing resulted in his being detained in the Brown County Jail for more

than a year beyond his scheduled release date. During that period, Werner was let out

of jail for four hours each weekday to look for housing and employment, yet not until

July 2011 did Werner finally secure housing in Bellevue, a village just outside of

Green Bay. In 2012 Green Bay replaced its ordinance with a similar one that

categorically exempts halfway houses from the residency restrictions. G REEN B AY M UN

.

C ODE § 27.622. Werner later moved to the halfway house in Green Bay, where he lived

until his most recent parole revocation in January 2013.

Werner alleges in this suit under 42 U.S.C. § 1983 that the application of these

ordinances to him violates both the ex post facto clause of the Constitution and his right

to procedural due process. A magistrate judge, presiding by consent, entered summary

judgment for the City. The judge ruled that although the ordinances applied

“retroactively to his convictions,” that did not pose an ex post facto problem because

the effects of the ordinance were not punitive. See Smith v. Doe

, 538 U.S. 84, 92–106

(2003). The judge also rejected Werner’s due

‐ process claim, reasoning that he was not

entitled to due process regarding the enactment of the ordinances, see Conn. Dep’t of

Pub. Safety v. Doe

, 538 U.S. 1, 7–8 (2003), and Werner’s hearings before the Sex Offender

Residence Board comported with the basic requirements of due process, i.e., notice and

an opportunity to be heard, see Goss v. Lopez

, 419 U.S. 565, 579 (1975).No. 17

‐ 2426 Page 3

On appeal Werner maintains that the ordinances are impermissible ex post facto

laws and violate his right to procedural due process. But we recently rejected nearly

identical arguments in Vasquez v. Foxx

, No. 17

‐ 1061, 2018 WL 3372403 (7th Cir. July 11,

2018). In Vasquez we considered a challenge to an Illinois statute that made it a felony

for a sex offender to live within 500 feet of a day

‐ care home. Id. at *1. After noting that

“a statute is not an impermissible ex post facto law unless it is both retroactive and

penal,” id

. at *3 (citing United States v. Leach

, 639 F.3d 769, 773 (7th Cir. 2011)),

we explained that the Illinois statute raised no ex post facto concerns because it had no

retroactive effect at all; it applied “only to conduct occurring after its enactment—

i.e., knowingly maintaining a residence within 500 feet of a child day

‐ care home or

group day

‐ care home,” id. After considering the factors in Smith

, we added that the

statute was not punitive. Id. at *3–5. And responding to the plaintiffs’ procedural due

‐

process argument that the statute was enforced against them without a hearing to

assess whether they actually posed a threat to children, we concluded that no hearing

was required because the statute applied to “ all child sex offenders regardless of their

individual risk of recidivism.” Id. at *6.

Werner’s challenges to the Green Bay ordinances fail for the same reasons.

That the City of Green Bay enacted the ordinances after Werner’s convictions does not

pose an ex post facto problem because the ordinances have no retroactive effect. See id.

at *3. Moreover, the penalty for violating the ordinance—a $500 fine—is minor

compared to the possible three

‐ year prison sentence faced by the plaintiffs in Vasquez

, underscoring that the Green Bay ordinances were not punitive. Id. at *3–5.

Likewise, Werner is wrong when he asserts that the Board’s denial of his

requests “to reside at one specific residence

... requires a finding of [the] denial of due

process.” Werner is not entitled to any “hearing for an individualized risk assessment.”

See id. at *6; see also Conn. Dep’t of Pub. Safety

, 538 U.S. at 4. Yet here the Sex Offender

Residence Board gave Werner several such hearings, and eventually the City changed

its residency restrictions to categorically exempt the halfway house where Werner

wanted to live. Moreover, Werner does not articulate any coherent argument for why

he thinks the Board’s procedures were inadequate.

AFFIRMED