In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13‐1225, 13‐1233
TOBIN J. MUELLER and GREGORY D. DEANGELIS,*
Plaintiffs‐Appellees / Cross‐Appellants,
v.
RICK RAEMISCH, Secretary of the Wisconsin Department of
Corrections, et al.,
Defendants‐Appellants / Cross‐Appellees.
____________________
Appeals from the United States District Court for the
Eastern District of Wisconsin.
No. 10‐C‐911 — William C. Griesbach, Chief Judge.
____________________
ARGUED SEPTEMBER 12, 2013 — DECIDED JANUARY 24, 2014
____________________
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
POSNER, Circuit Judge. Before us are cross‐appeals in a
case in which two convicted sex offenders challenge aspects
* In the original caption of this case, the plaintiffs were referred to as
“John Doe of Connecticut” and “John Doe of Florida.” We have replaced
those pseudonyms with the plaintiffs’ real names because, as explained
at the end of this opinion, we do not think this a proper case in which to
allow litigants to litigate under pseudonyms.
2 Nos. 13‐1225, 13‐1233
of Wisconsin’s statutory scheme of sex offender registration,
notification, and monitoring as violating the prohibition in
Article I, section 10 of the federal Constitution against states’
enacting ex post facto laws, that is, retroactive criminal pun‐
ishments. The scheme, which we’ll call the monitoring act,
was enacted after the plaintiffs committed and were convict‐
ed of the sex offenses that made them subject to it, though
before they’d finished serving their sentences.
The district judge disposed of the case on summary
judgment. 895 F. Supp. 2d 897 (E.D. Wis. 2012). He ruled that
the $100 annual registration fee that the monitoring act im‐
poses on convicted sex offenders such as these plaintiffs is a
fine, which is a form of punishment and so cannot constitu‐
tionally be imposed on persons who committed their sex
crimes before the fee provision was enacted. Id. at 909. He
upheld the other provisions of the act. Id. at 913. The state
appeals his ruling on the registration fee, and the plaintiffs
his ruling upholding the act’s other provisions that they had
challenged.
Plaintiff Mueller, who now lives in Connecticut, had been
convicted in Wisconsin in 1993 of two counts of sexual con‐
tact with a girl under 16 when he was 37 years old. He had
been sentenced to four years in prison (but that part of his
sentence had been suspended) followed by six years of pro‐
bation, which he completed without incident in 1999. He is
married and has four adult children. Plaintiff Deangelis,
who lives in Florida, had been twice convicted in Wisconsin
of sexual assaults, one that he had committed in 1985 (when
he was 20 years old) and the other in 1993. He was sentenced
to five years in prison the first time and one year the second
time. Recently widowed, he has two young children, one
Nos. 13‐1225, 13‐1233 3
adult child, and several stepchildren (children of his de‐
ceased wife).
The Supreme Court upheld a similar sex offender moni‐
toring act (Alaska’s) in Smith v. Doe, 538 U.S. 84 (2003); see
also American Civil Liberties Union of Nevada v. Masto, 670
F.3d 1046, 1052–53 (9th Cir. 2012); Doe v. Bredesen, 507 F.3d
998, 1005 (6th Cir. 2007); A.A. ex rel. M.M. v. New Jersey, 341
F.3d 206, 213–14 (3d Cir. 2003); cf. United States v. Leach, 639
F.3d 769, 773 (7th Cir. 2011). But Wisconsin’s monitoring act
contains impositions and restrictions not found in Alaska’s
act. The registration fee is one. Others include a prohibition
against working or volunteering in jobs that would require
the offender “to work or interact primarily and directly with
children under 16 years of age,” Wis. Stat. § 948.13(2)(a) (this
provision applies only to child sex offenders, however, and
therefore not to Deangelis); filming or photographing chil‐
dren under 17 without the written, informed consent of the
children’s parents or guardians, § 948.14(2)(a); and changing
one’s name, or using a name other than the name by which
one is designated in the records of the Wisconsin Depart‐
ment of Corrections, § 301.47(2). Other lifetime impositions
and prohibitions challenged by the plaintiffs are having to
give notice of any change of address before moving to the
new address; having to report all email addresses, websites,
and internet screen names; and having to respond to all cor‐
respondence from the Department of Corrections by mail
within 10 days. §§ 301.45(2)(a)(6m), (2)(g), (4m).
Not only do the plaintiffs no longer live in Wisconsin;
they say they don’t intend ever to return to that state, how‐
ever briefly. And they don’t express concern that if they
were on a flight to Chicago diverted for reasons of weather
4 Nos. 13‐1225, 13‐1233
to Milwaukee, they might fall into the clutches of the Wis‐
consin Department of Corrections for failure to comply with
some provision of the monitoring act. What then have they
to gain from a decision invalidating the act? If nothing, the
district court had no jurisdiction over their suit.
No issue of standing was raised in the district court, or in
the briefs in this court that the parties filed initially; and so
we asked the parties to advise us “whether the plaintiffs
have standing to sue in federal court under Article III of the
Constitution, given that neither plaintiff is domiciled, lives,
works, attends school, or is physically present in Wisconsin.
The answer may depend on (a) whether Wisconsin requires
non‐residents who lack a current connection with the state to
register with its system; (b) whether Wisconsin’s criminal
provisions governing registered sex offenders, including
Wis. Stat. § 301.47 (prohibiting registered sex offenders from
changing their names), § 948.14 (restricting registered sex
offenders from photographing children), and any other sub‐
stantive restrictions apply as a matter of state law to conduct
that occurs wholly outside Wisconsin by non‐residents with
no current connection to the state; (c) whether, if present in
state law, either a duty to register or substantive limitations
on registrants’ conduct would be unconstitutionally extrater‐
ritorial; and (d) whether—however the foregoing questions
are answered—the state’s threat to prosecute the plaintiffs
itself creates standing.”
The state advises us that “where, as here, a registrant
commits the covered sex offense in Wisconsin and then
moves out of state, the law requires continued registration”
until their death if, like the plaintiffs in this case, their crimes
“trigger[ed] lifetime registration.” The registration require‐
Nos. 13‐1225, 13‐1233 5
ment can, the state argues, be applied to persons with no
current connection to Wisconsin without violating the prin‐
ciple that a state cannot in general regulate conduct that oc‐
curs outside its borders, see, e.g., State v. Cardwell, 718 A.2d
954, 963 (Conn. 1998); People v. Blume, 505 N.W.2d 843, 845–
46 (Mich. 1993); Simpson v. State, 17 S.E. 984, 985 (Ga. 1893),
because Wisconsin residents retain an interest in keeping
track of past sex offenders wherever the offenders now live.
For example, it may help restore peace of mind to the victim
of a sex offense to learn where the offender is living—or in‐
duce precautionary measures if the victim discovers that the
offender, although no longer a Wisconsin resident, lives just
across the Wisconsin border, in Michigan, Illinois, Iowa, or
Minnesota.
Whether Wisconsin is right or wrong in arguing that it
has constitutional authority to enforce its registration re‐
quirement against nonresidents is not the immediate issue,
however. For there to be standing, it is enough that the state
intends to enforce the requirement against the plaintiffs and
that its grounds for thinking it has the constitutional authori‐
ty to do so are not so preposterous that the plaintiffs can
simply ignore the state’s threat to prosecute them if they
don’t keep on registering annually till death shall part them
from the Wisconsin registry of sex offenders. The plaintiffs
have received frequent letters from the Department of Cor‐
rections reminding them that they must comply with the
registration requirements for life and that failure to do so is a
felony. So there is some danger they’ll be prosecuted if they
fail to comply, and a threat of harm is sufficient to confer
standing to sue, Babbitt v. United Farm Workers National Un‐
ion, 442 U.S. 289, 298–99 (1979); 520 South Michigan Ave. As‐
sociates, Ltd. v. Devine, 433 F.3d 961, 963 (7th Cir. 2006), while
6 Nos. 13‐1225, 13‐1233
their decision to pay the $100 annual fee is a rational re‐
sponse to the threat and is therefore an actual harm caused
them by the challenged law.
The state acknowledges limitations on its power to pun‐
ish violations of other provisions of the monitoring act, such
as working with and photographing minors. Wisconsin law
provides that a person is subject to “prosecution and pun‐
ishment” for conduct that occurs wholly outside the state
only if, so far as bears on this case, “the person does an act
with intent that it cause in this state a consequence set forth
in a section defining a crime.” Wis. Stat. § 939.03(1)(c). This
provision applies straightforwardly to the registration re‐
quirement, because a nonresident’s failing to comply has a
criminal consequence in Wisconsin—namely a failure to reg‐
ister with the state’s Department of Corrections. But the state
acknowledges that “the plaintiffs could not be prosecuted
for wholly out‐of‐state acts of working with minors, or of
intentionally capturing a representation of a minor. The de‐
fendants are not aware of a prosecution having been at‐
tempted under these statutes for wholly out‐of‐state con‐
duct” (citations omitted). The state further acknowledges
that “no prosecution would occur going forward, if the con‐
duct was wholly out of state.” And the plaintiffs do not al‐
lege any intention of engaging in conduct in Wisconsin that
would have “a consequence set forth in a section defining a
crime.” The combination of disclaimers by the state and dis‐
claimers by the plaintiffs negates standing to challenge these
two provisions of the monitoring act. Compare Mink v.
Suthers, 482 F.3d 1244, 1254–55 (10th Cir. 2007), with St. Paul
Area Chamber of Commerce v. Gaertner, 439 F.3d 481, 485–86
(8th Cir. 2006), and New Hampshire Right to Life Political Ac‐
tion Committee v. Gardner, 99 F.3d 8, 16–17 (1st Cir. 1996).
Nos. 13‐1225, 13‐1233 7
True, the disclaimers the state has made to us are not
found in the letters that the Department of Corrections sends
the plaintiffs. It’s also true that the Supreme Court of Wis‐
consin interprets Wis. Stat. § 939.03, the statute that defines
the territorial reach of Wisconsin criminal law, broadly. Only
one element of a crime (for example, intent to kill, in a homi‐
cide case) need occur in Wisconsin for the state to assert ju‐
risdiction to punish the crime. State v. Anderson, 695 N.W.2d
731, 746 (Wis. 2005); see also Poole v. State, 208 N.W.2d 328,
330–31 (Wis. 1973); State v. Inglin, 592 N.W.2d 666, 672 (Wis.
App. 1999). But another way to interpret the letters to the
plaintiffs is as reminders of what the plaintiffs may face if—
but only if—they return to Wisconsin. One can imagine an
argument that if they interacted with or photographed a mi‐
nor outside Wisconsin who happened to be a Wisconsin res‐
ident they could be accused of having committed an element
of the crime (under Wisconsin law) in Wisconsin. But they
don’t argue that. They argue that Wisconsin might try to ex‐
tradite them for interacting with or photographing minors
who had no actual or potential contact with the state—and
that is an unreasonable fear. Younger v. Harris, 401 U.S. 37, 42
(1971); J.N.S., Inc. v. Indiana, 712 F.2d 303, 305–06 (7th Cir.
1983); Seegars v. Gonzales, 396 F.3d 1248, 1252 (D.C. Cir.
2005); Mangual v. Rotger‐Sabat, 317 F.3d 45, 56–57 (1st Cir.
2003).
The state insists that it can enforce against the plaintiffs
the prohibition against a Wisconsin sex offender’s changing
his name, irrespective of any intent by him to cause a for‐
bidden consequence in Wisconsin, for the same reasons that
the state argues that it can enforce the registration require‐
ment itself—indeed, the prohibition of name changing is,
like the $100 fee, a part of that requirement. But the plaintiffs
8 Nos. 13‐1225, 13‐1233
do not have standing to challenge this prohibition, because,
while opposing it, neither of them expresses any intention of
changing his name.
They have standing to complain (as they do) about the
bother of having to comply with the monitoring act’s re‐
quirements of continual updating of information that they
supply to the sex offender registry. But these requirements
are deemed not to be punitive (and hence not to trigger the
constitutional prohibition of ex post facto laws), Smith v. Doe,
supra, 538 U.S. at 97–102, unlike the state law that we invali‐
dated in Doe v. Prosecutor, Marion County, 705 F.3d 694, 699,
703 (7th Cir. 2013), which forbade access to social‐
networking websites.
But what about the $100 annual registration fee? The
state calls it a fee, the plaintiffs a fine. Fee and fine are two
quite different animals. A fee is compensation for a service
provided to, or alternatively compensation for a cost im‐
posed by, the person charged the fee. By virtue of their sex
offenses the plaintiffs have imposed on the State of Wiscon‐
sin the cost of obtaining and recording information about
their whereabouts and other circumstances. The $100 annual
fee is imposed in virtue of that cost, though like most fees it
doubtless bears only an approximate relation to the cost it is
meant to offset. A fine, in contrast, is a punishment for an
unlawful act; it is a substitute deterrent for prison time and,
like other punishments, a signal of social disapproval of un‐
lawful behavior.
Labels don’t control. A fine is a fine even if called a fee,
and one basis for reclassifying a fee as a fine would be that it
bore no relation to the cost for which the fee was ostensibly
intended to compensate. That is a common basis on which a
Nos. 13‐1225, 13‐1233 9
fee is reclassified as a tax. Empress Casino Joliet Corp. v. Bal‐
moral Racing Club, Inc., 651 F.3d 722, 728–30 (7th Cir. 2011)
(en banc); Schneider Transport, Inc. v. Cattanach, 657 F.2d 128,
132 (7th Cir. 1981). But it seems acknowledged in this case
that if the $100 annual fee is not a bona fide fee, it is a fine
rather than a tax.
The burden of proving that it is a fine is on the plaintiffs,
and since they have presented no evidence that it was in‐
tended as a fine, compare Smith v. Doe, supra, 538 U.S. at 92;
Taylor v. Rhode Island, 101 F.3d 780, 782–83 (1st Cir. 1996),
they cannot get to first base without evidence that it is gross‐
ly disproportionate to the annual cost of keeping track of a
sex offender registrant—and they have presented no evi‐
dence of that either. They haven’t even tried. They could
have sought discovery of the cost structure of the sex of‐
fender registration system, but didn’t do so. In our order re‐
questing supplemental briefing we invited them to search
for such evidence in the public domain, specifying infor‐
mation that “shows either the incremental or the average
annual cost to Wisconsin of an additional registrant.” All
that the plaintiffs came up with are two reports by the De‐
partment of Corrections to the Wisconsin legislature explain‐
ing the Department’s decision to fix the fee initially at $50
(2006), raised to $100 in 2008 (the maximum fee authorized,
Wis. Stat. § 301.45(10)). The reports list fees in other states,
do not discuss costs, and—the part fastened on by the plain‐
tiffs—indicate that the fee would reduce the amount of mon‐
ey that the state would have to allocate to the Department of
Corrections to finance its activities. Obviously if the De‐
partment had no fee income, it would need a higher appro‐
priation; we don’t see how that elementary point bears on
the reasonableness of the fee. Moreover, the implication, if
10 Nos. 13‐1225, 13‐1233
the fee income is being used to defer other expenses of the
Department of Corrections, is not that it is a fine but that it is
a tax.
Wisconsin’s $100 fee is the same as that of a neighboring
state, Illinois, albeit higher than the fees charged by Idaho
($80) and Massachusetts ($75). See 730 ILCS 150/3(c)(6); Ida‐
ho Code § 18‐8307(2); Mass. Gen. Laws ch. 6, § 178Q. This
sample of states—all we’ve been given—is too small to allow
an inference that $100 is so high that it must be a fine. The
Department of Corrections lists the tasks involved in main‐
taining the sex offender registry, and the list is formidable. It
includes gathering information, notifying registrants of re‐
quired updates and verifications, processing the responses to
the notifications, allocating the information across potential
users that have different rights of access (for example, law
enforcers versus the general public), and maintaining and
updating data that the Department makes available to the
public. We don’t know how close the average annual cost
per registrant is to $100, and thus whether it falls so far short
as to support an inference that it’s really a fine.
There is an illuminating contrast with the fee issue in a
case argued before us on the same day that this case was ar‐
gued. At issue in Cerajeski v. Zoeller, 735 F.3d 577 (7th Cir.
2013), was Indiana’s practice of taking custody of unclaimed
property, trying to find the owner, and if it finds him return‐
ing the property to him—but if the unclaimed property is an
unclaimed interest‐bearing bank account, keeping the inter‐
est that has accrued. This we held a taking of property, not a
fee for service, because the relation between accrued interest
and the services provided by the state with respect to un‐
claimed property was completely arbitrary (the state did not
Nos. 13‐1225, 13‐1233 11
attempt to defend the taking of the interest income as a tax).
We are given no reason to think that the same is true of the
$100 annual fee at issue in this case.
The district judge thought it a fine because it is intended
“to offset the cost of providing a service that is intended
solely for the benefit of the general public. The fact that the
assessments are used to offset the costs of monitoring the of‐
fenders does not eliminate the penal aspect of the assess‐
ment. … To be sure, the State has a non‐punitive purpose for
wanting to collect money for such a purpose, but to single
out only individuals who have prior convictions for sexual
assaults as the sole source of such funds can only be seen as
punitive.” 895 F. Supp. 2d at 909. We disagree. The fee is in‐
tended to compensate the state for the expense of maintain‐
ing the sex offender registry. The offenders are responsible
for the expense, so there is nothing “punitive” about making
them pay for it, any more than it is “punitive” to charge a fee
for a passport. If there were no passports, there would be no
passport office, and no expenses of operating such an office.
The state provides a service to the law‐abiding public by
maintaining a sex offender registry, but there would be no
service and hence no expense were there no sex offenders.
As they are responsible for the expense, there is nothing pu‐
nitive about requiring them to defray it. See In re DNA Ex
Post Facto Issues, 561 F.3d 294, 299–300 (4th Cir. 2009); Taylor
v. Rhode Island, supra, 101 F.3d at 782–84; cf. Slade v. Hampton
Roads Regional Jail, 407 F.3d 243, 251–52 (4th Cir. 2005); Till‐
man v. Lebanon County Correctional Facility, 221 F.3d 410, 420–
21 (3d Cir. 2000).
The last question we put to the parties in our order ask‐
ing for supplemental briefs was “whether the plaintiffs may
12 Nos. 13‐1225, 13‐1233
be permitted to litigate anonymously, given that their con‐
victions are matters of public record and that both plaintiffs
are currently registered in Wisconsin, which makes their
names and other information freely available. It would help
the court if the parties stated how the public obtains access
to information about offenders registered in Wisconsin’s sys‐
tem.”
The defendants in their supplemental brief state, as they
have stated throughout this litigation, that they have no ob‐
jection to the plaintiffs’ litigating pseudonymously. But nei‐
ther, they add, do they have any objection to the plaintiffs’
being required to litigate under their actual names. And they
point out in answer to the second part of our question that
the names of sex offender registrants are available from a
variety of public sources, including the Department of Cor‐
rections’ website or its 24‐hour automated phone service, or
by calling the sex offender registry office during business
hours, or by accessing the website of “Family Watchdog,” a
private service (and not the only one) that enables the viewer
to search for sex offender registrants by address, zip code, or
name.
In support of their request for permission to litigate
pseudonymously the plaintiffs state that they “and their
families had experienced shunning and harassment after
they were publicly listed as registered sex offenders.” But in
tension with that submission they argue that the existing
sources of information about their sex offender status “are
simply not comparable to the notoriety that would arise
from being a named plaintiff in a lawsuit challenging sex of‐
fender laws.” No doubt a sex offender’s filing a suit chal‐
lenging a sex offender law attracts fresh attention to him, but
Nos. 13‐1225, 13‐1233 13
even if the increment in notoriety is substantial we don’t
think he should be permitted to litigate anonymously. Secre‐
cy in judicial proceedings, including concealment of parties’
names, is disfavored. See, e.g., Doe v. Elmbrook School District,
658 F.3d 710, 721–24 (7th Cir. 2011), affirmed, 687 F.3d 840,
842–43 (7th Cir. 2012) (en banc); see generally GEA Group AG
v. Flex‐N‐Gate Corp., Nos. 13‐2135, ‐2594, 2014 WL 97289, at
*8 (7th Cir. Jan. 10, 2014). Secrecy makes it difficult for the
public (including the bar) to understand the grounds and
motivations of a decision, why the case was brought (and
fought), and what exactly was at stake in it. Sometimes these
concerns are overridden, as in (most pertinent to this case)
cases in which the plaintiff is a victim of sexual abuse, espe‐
cially a child victim; disclosure could induce the unwanted
attentions of other sexual abusers or gawking or ridicule by
other kids. Yet even in such cases we’ve required some evi‐
dence of an incremental effect on the victim of disclosure of
his or her name in a judicial opinion. Doe v. Smith, 429 F.3d
706, 710 (7th Cir. 2005).
The plaintiffs in this case are not victims of sexual abuse,
but perpetrators of it. The social value of their claim to pri‐
vacy is therefore weaker than that of victims. And the bene‐
fits of pseudonymous litigation are bound to be smaller to
perpetrators. The names of victims of sexual offenses do not
appear in a sex offender registry, while even if the name of a
sex‐offender plaintiff does not appear in the caption of a
lawsuit, information provided in the judicial decision—age
and marital and family status of the plaintiff, state of his cur‐
rent residence, dates and nature of his crimes and sentenc‐
es—will often be sufficient to enable the curious to obtain
the plaintiff’s name from the web. The plaintiffs’ complaint
about the publicity that their status as sex offenders received
14 Nos. 13‐1225, 13‐1233
in the states in which they now live, and of how that publici‐
ty had disrupted their personal and working lives, leaves us
to wonder what additional harm the revelation of their being
named plaintiffs in this case could do.
What is true is that if the plaintiffs had prevailed and
thus knocked out the registration provisions, access to in‐
formation about them would shrink because an online
search of the registry would no longer find their names, and
so the benefits to them of litigating pseudonymously would
be greater. But these would be private rather than social
benefits; anyway they lost.
To summarize, the judgment of the district court is re‐
versed insofar as the annual registration fee is concerned;
and is modified to place dismissal of the plaintiffs’ other
challenges to the Wisconsin monitoring act and its imple‐
mentation on grounds of standing, and to make the dismis‐
sal without prejudice. Otherwise the judgment is affirmed.
Finally, we have reformed the case caption to replace the
“John Does” with the plaintiffs’ names.