Karen Pilarski

Milwaukee Journal Sentinel

The City of Brookfield has repealed and recreated its sex offender ordinance to ensure the city is able to enforce its ordinance and prevent the city from a costly federal lawsuit if it is deemed unconstitutional. The Common Council approved the ordinance unanimously on Tuesday, Jan. 15.

City Attorney Jenna Merten said in a memo the new ordinance recreates the code based upon a 2017 federal court case which was Hoffman vs. Village of Pleasant Prairie. On April 17, a federal court ruled the village's restrictions on where sex offenders could reside were too prohibitive and therefore unconstitutional.

A judge determined the tight restrictions were simply another layer of punishment for sex-offender crimes, which the convicted should not have to suffer, according to federal court records.

In the case, a federal judge issued an order finding that Pleasant Prairie’s sex offender ordinance violated the Ex Post Facto clause and the Equal Protection clause of the Constitution.

The ordinance was declared unconstitutional due to the following factors: "90 percent of the village was off-limits to offenders, the allowable area for residence was mostly non-residential, most of the low-income housing was excluded, the village did not obtain or consider any studies or data regarding this," the memo said.

Shortly after the lawsuit was filed, the village amended its ordinance to allow offenders to live in areas comprising 25 percent of its residential area and exempted offenders whose latest conviction was 10 or more years old, city documents said.

Upon legal review of the City of Brookfield’s ordinance, Assistant City Attorney Scott Post and Merten determined that portions of the ordinance were likely unconstitutional in light of the Hoffman decision.

Specifically, the amount of available residences, which is currently 7.5 percent of the city, is much too low to pass constitutional muster, and the city does not have an appellate process to evaluate the sex offender who is trying to move into the city.

The new ordinance would allow sex offenders to reside in 24 percent of the city. Merten is proposing the following changes outlined in city documents:

1. A provision specifically setting forth the studies and court rulings that examine the safety risk of allowing child sex offenders to live near certain locations within a municipality.

2. Adding and amending definitions for clarity.

3. Removing aquatic facilities open to the public (this does not include pools within a park or school), recreational trails, parkways (not parks in themselves), and specialized schools for children (e.g. gymnastics, dance, or music academy) from the definition of prohibited places to comply with constitutional requirements. They would no longer be prohibited from living by a pool as long as it is not in a park or school.

4. Removing the loitering provision.

5. Adding an appeal provision for exemptions.

The new ordinance also adds an Administrative Appeals Board under a separate ordinance, so if there is an offender that is prohibited from a certain area of the city, he or she can appeal to the Administrative Appeals Board making it more constitutional.

The board would look at a variety of things, such as the offender’s history, recent convictions, whether they are working, their ties to community, etc.

The board then determines if the applicant can live in the city. Merten said the city can't enforce the current sex offender ordinance and recommended to adopt the revisions, city documents said.

A map released by the city showed areas where the offenders could live are scattered throughout the city.

"The areas that are yellow are the areas where sex offenders, who do not have an exception to the prohibition, could live," Merten said.

There are 18 registered sex offenders in Brookfield, according to the Wisconsin Department of Corrections Sex Offender Registry.