In Koch v. Village of Hartland, the court (St. Eve/Kirsch/Jackson-Akiwumi, with St. Eve writing and Kirsch concurring) addresses the application of laws and ordinances meant to exclude people convicted of sex crimes from various aspects of life. At issue in Koch was an ordinance prohibiting anyone convicted of a sex crime from residing within the Village of Hartland in Wisconsin. The plaintiff had challenged the ordinance on the grounds that it violated the Ex Post Facto Clause. The district court had found that the law was not retroactive, dooming the Ex Post Facto Clause claim. (To succeed on an Ex Post Facto claim, the plaintiff must prove that the law at issue is both retroactive and punitive.)

In reaching its decision, the district court relied on two earlier Seventh Circuit decisions, United States v. Leach, 639 F.3d 769 (7th Cir. 2011), and Vasquez v. Foxx, 895 F.3d 515 (7th Cir. 2018). Those cases construed ordinances like the one at issue here as non-retroactive, because they implicated only current desires (i.e., the desire to move to the village). In Koch, the Seventh Circuit overturned the rule announced in these prior cases that a law targeting conduct undertaken after its enactment is not retroactive. Instead, the court announced that for purposes of retroactivity, “the critical question is whether the law changes the legal consequences of acts completed before its effective date.” Slip Op. at 16 (cleaned up). In Koch’s case, the ordinance was retroactive for the same reasons that many of these so-called sex offender laws are retroactive: because they create additional burdens on people convicted of sex crimes that did not exist at the time those crimes were committed (here, a prohibition on establishing residency in the village). The court remands on the question of whether the ordinance is punitive. Judge Kirsch concurs in the result, concluding that the panel could have found the village’s ordinance retroactive without disturbing Leach and Vasquez based on an analysis that asks whether the law is based on postenactment dangers. Judge Kirsch would find that in Leach and Vasquez, there were postenforcement dangers supporting the laws passed in those cases, rendering them non-retroactive, where in this case, there was no postenactment danger articulated.