September 20, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15-CV-131 -
Ronald A. Guzman, Judge.
Manion and Kanne, Circuit Judges, and Miller, District Judge.
Miller, District Judge
felony conviction for stealing $12 worth of meat branded
Anthony Johnson a "sexual predator" under Illinois
law and subjected him to burdens and responsibilities he
didn't have before that conviction. He filed suit
contending that the United States Constitution's ex
post facto clause makes at least some of those burdens
and responsibilities unconstitutional. The district court
dismissed Mr. Johnson's complaint for failure to state a
claim on which relief could be granted. Mr. Johnson appeals.
We affirm, after first reviewing the appellee's challenge
to Mr. Johnson's standing to pursue this case after
moving to Wisconsin.
Johnson was convicted of rape, deviate sexual assault and
aggravated kidnaping in 1983, when he was 19 years old.
Illinois law required him to register as a sex offender for
ten years because of that conviction, and he did so. In 2011,
Illinois amended its Sex Offender Registration Act to define
as a "sexual predator" a person who had been
convicted of any felony offense after July 1, 2011, and had
been required to register as a sex offender under a
conviction that required registration for more than ten
years. 730ILCS 150/2(E)(7); 730ILCS 150/3(c)(2.1). By 2011,
Illinois offenders who committed rape or deviate sexual
assault were required to register for life. So when Mr.
Johnson was convicted of felony theft in 2013, he became a
"sexual predator" for purposes of Illinois' Sex
Offender Registration Act. His term of required registration
for the 1983 rape conviction had long expired, but sexual
predators must register for the rest of their lives.
sexual predator in Illinois must register in person as often
as four times a year (weekly if he has no permanent address)
and whenever he changes his residence, employment, telephone
number (including cell phones), or school. 730 ILCS 150/6.
The offender must tell authorities his email address, any
internet communications identity including instant messaging,
any URL registered to him, and any new blogs or internet
sites he maintains and to which he has uploaded content or
posted messages. Id. An offender who expects to be
away from home for more than three days must notify
authorities (and provide his itinerary) in the jurisdictions
of both his residence and his destination. 730 ILCS 150/3(a).
When Mr. Johnson received the label, sexual predators
couldn't be present in or loiter near a park, 720 ILCS
5/11-9.4-1 (a-c), but that statute has been found
unconstitutional. People v. Jackson, N.E.3d, 2017IL
App (3d) 150154, ¶ 29 (111. App. Ct. Sep. 12, 2017).
Johnson bore none of those obligations until his felony theft
conviction. He sued the Illinois state officials who enforce
these obligations on the propositions that as applied to him,
the burdens violated his right to substantive due process,
his right against double jeopardy, and his right to be free
from ex post facto laws. The district court
dismissed his second amended complaint for failure to state a
claim on which relief could be granted. On appeal, Mr.
Johnson presents only his ex post facto claim. Since
the case presents only questions of law, our analysis must
start from the beginning. Glascoe v. Bezy, 421 F.3d
543, 546 (7th Cir. 2005).
the district court's ruling but before the appellate
argument, Mr. Johnson moved from Illinois to Wisconsin. The
appellee state officials contend that because Wisconsin
enforces its own registration requirements on sex offenders,
Mr. Johnson left his standing to complain about his Illinois
obligations behind him in Illinois. We invited supplemental
briefing. We have no power to decide the case if the
appellees are right about that, see Gubala v. Time Warner
Cable, Inc., 846 F.3d 909, 911 (7th Cir. 2017) (no case
or controversy when plaintiff has no standing to sue), so we
start with the standing issue.
person seeking relief, Mr. Johnson must show that he has
standing by demonstrating an injury-in-fact that is fairly
traceable to the defendants' action and capable of being
redressed by our decision. Libertarian Party of Illinois
v. Scholz, 872 F.3d 518, 522 (7th Cir. 2017). Mr.
Johnson explains that because Illinois required him to
register throughout his life as a sexual predator, Wisconsin
law makes him do so, too. Wis.Stat. § 301.45(lg)(f). His
1983 rape conviction would not, by itself, require him to
register in Wisconsin. See Wis. Stat. §
301.45(lg)(g). He must register in Wisconsin because Illinois
designated him a sexual predator. Were we to order the
Illinois officials to expunge that designation, Mr. Johnson
would no longer be required to register in Wisconsin as a sex
appellees focus on arguments that Mr. Johnson made when he
lived in Illinois. In Smith v. Doe, 538 U.S. 84
(2003), the Supreme Court considered an Alaska statute that
required registration based on sex offense convictions that
took place before the statute was enacted. The Court
evaluated the obligations imposed by the statute and after
considering a series of factors, concluded that those
obligations-or, from the offender's viewpoint,
burdens-were part of a civil, nonpuni-tive regulatory scheme
rather than so punitive as to trigger the ex post
facto clause. Id. at 90-91. When he lived in
Illinois, Mr. Johnson argued before the district court that
the Illinois statute imposed burdens that went so far beyond
the Alaska requirements as to be punitive rather than
regulatory-and so was prohibited by the ex post
facto clause because his new status relied on a
one living in Wisconsin, with no intent to return to Illinois
shown in this record, Mr. Johnson isn't subject to those
Illinois -specific obligations that might have made his
circumstances different from Mr. Smith's situation in
Alaska. He no longer has to register in Illinois. Compare
Mueller v. Raem-isch, 740 F.3d 1128, 1132 (7th Cir.
2014) (Wisconsin required continuing registration in
Wisconsin even after offender moved out of state). Illinois
doesn't bar Mr. Johnson from Wisconsin's parks,
bikeways or trails, require Mr. Johnson to register in person
in Wisconsin, or limit where in Wisconsin Mr. Johnson can
work, live, or loiter. Compare Does #1-5 v. Snyder,
834 F.3d 696, 703 (6th Cir. 2016).
addressed similar standing issues in Mueller v.
Raem-isch, 740 F.3d 1128 (7th Cir. 2014). The plaintiffs
had been convicted of child sex crimes in Wisconsin, and
required to register there, then moved out of state. The
state claimed that its statute still required the plaintiffs
to register in, and to pay an annual fee to, Wisconsin. We
held that the claimed reach of the Wisconsin statute gave the
plaintiffs standing to challenge the statutory fee and
requirement of keeping their registrations up to date. But
they had no standing to challenge statutory prohibitions
against being with or photographing children, because
Wisconsin couldn't prohibit those activities beyond its
own borders. Id. at 1133.
appellees make no claim that the Illinois statute has
extra-territorial impact on Mr. Johnson. They make no claim
that they can require Mr. Johnson to register in person
several times a year or upon changing his residence,
employment, telephone number, or school; or that he must
disclose to Illinois officials his email address, internet
communications identities, his internet sites to which he
uploaded content or posted messages, or his travel
itineraries. They don't claim that they can keep Mr.
Johnson off or away from Wisconsin's bikeways, trails, or