State v. Corey T. Rector, 2023 WI 41, 5/23/23 affirming a case certified by the court of appeals, 2020AP1213; case activity (including briefs)
Rector pleaded to five counts of possessing child pornography in a single case. He’d never been convicted of anything before. The sentencing judge ordered that he be placed on the sex offender registry until 15 years after the end of his sentence or supervision. The Department of Corrections then wrote the judge to say that, in its view, any two or more convictions of registry-eligible sex offenses trigger mandatory registration for life. The judge stuck to his guns and reiterated the 15-year registry requirement. The state appealed, and the court of appeals certified the case. The state supreme court now holds, 4-3, that Rector is not required to register as a sex offender for the rest of his life.
UPDATE: Well, that was short-lived. 2023 WI Act 254 erases the impact of this decision, as it restores us to an older understanding of the law. As summarized by Adam Plotkin, SPD’s Legislative Liaison, the bill makes the following changes to our law, in direct response to this decision:
(1) Modifies the meaning of “two or more separate occasions” for the purposes of lifetime sex offender registry and notification requirements and codifies an AG Opinion, establishing that when counting convictions, each conviction or finding is counted separately even if they were part of the same proceeding, occurred on the same date, or were included in the same complaint;
(2) Requires the DOC to identify and notify individuals who were released from sex offender registry or global positioning system tracking requirement after Sept. 1, 2017, but who would have been subject to the pertinent requirement had the bill been in effect; and
(3) Requires that persons who are notified that they must register would have 30 days to register after receiving notice or they would be guilty of a Class H felony.
The law effectively codifies AG Schimel’s 2017 opinion and makes this statute retroactive to September 2, 2017 so as to line up with the release of that 2017 opinion.
As we said in our posts on the court of appeals’ certification and SCOW’s grant of review, the question is what’s meant by Wis. Stat. § 301.45(5)(b)1., which mandates lifetime registration for a person who’s been convicted of a qualifying sex offense “on 2 or more separate occasions.” Rector urged as a matter of plain English that it could not refer to multiple convictions entered at the same time in the same case.
The state’s counterargument relied principally on State v. Wittrock, 119 Wis. 2d 664, 350 N.W.2d 647 (1984), and State v. Hopkins, 168 Wis. 2d 802, 484 N.W.2d 549 (1992), which construed a virtually identical phrase in the misdemeanor repeater statute to encompass convictions entered at the same time. The state noted that these cases came before the legislature amended the registry statute to include the same phrase, and so argued it must have meant to incorporate the holdings of Wittrock and Hopkins.
A bare majority of the Justices agree with Rector. Justice Karofsky writes for herself and Justices A.W. Bradley, Dallet and Hagedorn. The majority opinion briefly concludes that the plain meaning of “separate occasions” does not include events that occur at the same time. It goes on to hold that Wittrock and Hopkins do not shed much light on the meaning of § 301.45(5)(b)1., as they concerned a not-terribly-closely related statute (§ 939.62(2)) and depended heavily on that statute’s legislative history.
The dissent, written by Justice R.G. Bradley and joined by Ziegler and Roggensack, argues that Wittrock and Hopkins made “separate occasions” a term of art, and that the prior construction canon of statutory interpretation means the court ought to read the phrase the same way across the statutes. The majority rejects that view, noting that the misdemeanor statute and the lifetime registry statute concern very different subjects and adding:
Even in its strongest form, the prior-construction canon merely creates a presumption that the legislature intended to incorporate the court’s prior interpretation of a word or phrase in closely related statutes. But that presumption is not meant to counteract our oft-quoted principle that “statutory language is given its common, ordinary, and accepted meaning” and “if the meaning of the statute is plain, we ordinarily stop the inquiry.” See State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. The presumption is meant to add clarity, not sow confusion. In other words, fundamentally, we must presume that the legislature means what it says. See Heritage Farms, Inc. v. Markel Ins. Co., 2009 WI 27. ¶14 n.9, 316 Wis. 2d 47, 767 N.W.2d 652.
(¶40). The majority also responds strongly to the dissent’s accusation that its decision “trivializes heinous crimes against children”:
There is no disagreement in this case that Rector’ crimes were serious. The statutory language of Wis. Stat. § 301.45(5)(b)1., however, does not hinge on whether this court concludes that Rector’s crimes were serious. It is undisputable that all sex offenses covered by the sex offender registration statutory scheme are heinous in nature, thus necessitating the use of the registry for the protection of the public. However, within that scheme, the legislature, not this court, made policy decisions regarding which offenders are categorically required to comply with registration requirements for life and which are required to comply for 15 years. Our job is to faithfully interpret the words of the statute in order to discern the legislature’s policy choice, not to impose our own policy choices.
(¶44).
The final comment of this post states that it “remains to be seen how the Department of Corrections will go about identifying the people who, under this decision, are no longer mandatory lifetime registrants.”
Is anyone working on changing their client’s status with the DOC in response to this decision? My client was convicted of two sex offenses from the same incident. The DOC has interpreted these two offenses as separate occasions. Because of that, they have designated him as an SBN, Special Bulletin Notification. This designation significantly curtails his permissions and his freedom. I’m going to challenge this designation, but I’d love to talk to anyone who is also working on this or has done it in the past. If someone sees this comment in the future, please feel free to reach out.
Yes Jorge, are you a lawyer? I’m in the same boat as your client, except I no longer live in Wisconsin, after having just recently moved to Massachusetts. So I’m exempt from gps monitoring, SBN, and even public listing since my new state considers my one time offense low risk. However, I still have lifetime status which can affect me in other ways such as not qualifying for subsidized disability housing. Wisconsin DOC’s legal team is looking into whether or not my status has changed because of the decision. If they find it hasn’t, I’m definitely going to challenge them.
Jorge Fragoso, I was on the original lawsuit with the state. I have already contacted the registry and what I got back is they are looking into it. Wow really. You gave me one week to get the bracelet on or go to prison?!?! And you charged me thousands of dollars to be monitored. I have had 19 units on my leg in 4.5 years. At over $1k for each unit. Tax payers have spent $20k on equipment to monitor me!!! Lol!!!! Ridiculous!!!
I was waiting on this decision, I got a notification i the mail saying b/c of this stupid opinion by then attorney general brad schimmel, I was changed to life. Let’s see if they want to reverse this, because knowing them, they will fight this shit tooth and nail b/c it’s nothing but a money ploy. There is no justice with the DOC, it’s how can we scrape and deprive the lowest on the totem pole of any semblance of dignity and money. Can’t wait to file a lawsuit if they don’t overturn my life-time status that was retroactively applied.
My son is in the exact same boat as Corey Rector was. We want to fight this tooth and nail for him as well. Reinterpretation of the law by one man is not justice. Each case should be evaluated on an individual basis. Someone needs to band us together to get this changed once and for all. Any lawyers willing to take this on? Atty. Hinkle I have reached out privately as well.
I was charged in 2006 with three different counts but I only have one case I did four years on the street without a bracelet and then the law changed because of the wording and I became SBN and have a bracelet for life does this mean that I may get my bracelet off now if I only have one case
So how does this work? I wonder if now I can get off life time as I was convicted in 2006 with one count and placed on lifetime registration. It would so help me out to change my legal name as I’m intersex ” transgender”.
The DOC was quick to put everyone on this ankle bracelet but going on 3/4 months later nothing. 2 accounts 1 case nothing else on my record and still waiting! Please if there is a law suit against this state please let me know. Otherwise I’m already in talks and 4 different attorneys told me, we would love to take this on. I will keep everyone informed as I proceed with what’s the best fit attorneys for this case unless the state starts to take these bracelets off I will be actively getting justice for 1 case people Good luck everyone and please no more getting in trouble we only have one life and life inside is not a WAY……..
I just got off of the phone with my rep at the DOC and she had told me they are beginning to review all of the cases to see who this affects and who it doesn’t. They had to wait to see if the DOC would appeal the Rector decision, which they are not. They are starting with the people who are currently off of probation, then working towards more recent cases. She was unable to give me a time frame but told me they are working quickly to get it taken care of.
Fyi. I am one of these people who were required to be on lifetime GPS and SBN because of multiple COUNTS in the same case. I received a call this morning from the DOC (I am no longer even on probation) that they WILL be removing bracelets on the individuals who were required to wear them for life under the “multiple offense” in same case convictions…. They are removing my bracelet this week
I’m thinking a private investigator could be hired to connect Shimel to the firms that act as vendor of bracelets. These are private enterprises being allowed to be inserted into the people’s duty to protect themselves. They are hired men and not public servants. They literally play the role of Mr. Schindler, where as he used ( fictionally) the slave labor to produce profit. We see it in private prisons, bracelets, SOR databases and we see it in our war machine. States have been using private lawyers to fight their battles too. That too is a duty that belongs to the people, and not to private contractors. IMO, America devolves into neofascism by these conflicts of interests. Like anything else, ya gotta follow the money. I remind folks in summation, the Federal Byrne Grant folks insisted on a threat of withholding a percentage of funding for non compliant States. ( OMNIBUS94: Crime and Control Act) That kind of financial coercion isn’t necessary if the regime is constitutional and sound.
Any further updates? I received a letter from WIDOC saying I am no longer SBN. I was out of confinement and not on supervision when they applied the bracelet and said I was wearing it for life. One case, one day, multiple counts. I emailed my SORP and all they said was they are working on case reviews.
I am currently waiting for my call. They were quick to put me on this when I got out and take me off or work release in prison. Now wait for this wait for that. Law suit is looking really good right now..
Anyone have updates? I’m in the same boat.. bracelet retroactively applied after confinement amen I was not on parole or supervision. I received a letter stating I was no longer SBN but now I’m told they are reviewing cases when I asked about bracelet removal.
Got a letter today saying I was reviewed and turned my lifetime back into the 15 year. Words cannot express the absolute joy and happiness this has brought into my life. I’ve been depressed and suicidal over a 5 minute mistake I made 20 years ago as a teenager for years since scumbag schimel decided to retroactively punish myself and thousands of others.
I am an out of state ex-con no parole but was a year from finishing registry requirements when told I was a lifetime member. On the 17th of August I received an info notice stating I was off the registry as of Oct 20, 2020. The letter was worded like the SOR folks did nothing wrong and as if I had asked for the info and was never on for life.
Do anyone have info on who I should contact in regards to reviewing my lifetime GPS and registration? I am still currently on supervision but am in the same spot as a lot of other commenters. 1 case, multiple counts on the same day. Any info would be greatly appreciated
Did they take this back?
According to family member’s po this is no longer happening?
Can anyone confirm?
No they are not taking it back. They can not take it back only thing they can do is appeal it. They are not going to appeal. If they did they would lose again. Your family members p.o is not telling him or her the truth or family matter is lieing. I talked to my p.o Sept 6 and she told me they are releasing people in my area. My p.o told me late Oct or late November.
Update:
Probation and parole agents have no clue what’s going on, until they are told what to do in regarding to clients on their caseload. Nor can they do anything until madison tells them otherwise.
The people to contact is the wisconsin sex offender registry. You can find the number on their website.
It is stated that there are currently over 30,000 registered sex offenders in wisconsin. They are going over each case one by one to determine changes. Yes they are starting with the people not currently on supervision. After that they will work on the people that are on probation or parole.
To get answers and to apply the pressure in the appropriate avenue lawyers and family members and people on supervision have to contact SORP in madison
It’s definitely still happening. Just spoke with my agent last week and she confirmed it with me and said I just have to be patient until they review my case.
thanks for all the quick responses
My agent says they hear there is progress but only with the folks who were already off supervision or probation. My case is identical to Mr. Rector. I look myself and him up weekly in the registry and nothing changes. My agent also said the DOC can and will say they are “provisionally” keeping the GPS units on…as if I have suddenly become more of a risk. This use of creative wording screams for a lawsuit. Not to mention no due process as noted in a previous lawsuit. Also, how will we all get our money back for the time we have paid? That seems like a good class action thing, all for one, one for all. Finally, the SBN designation means notification publicly, often door to door for everyone within a certain range of my house. I was never supposed to have that…wondering if defamation or degradation of character (stating I’m more risky that actually am) could be legal grounds for a suit? I’ve tried to have a good attitude but all of this is a vast over reach of authority. I love the constitution, the law, and feel the State is a wonderful place to live, be employed, etc. But the State needs to learn it cannot overstep authority without a cost.
Troy if your case has no gps or sbn they can not mean can not keep you on a ankle bracelet or sbn you. The doc can not change a judges order. This was passed by shemel and his opinion at the time. Just was never put in effect til 2018. Now the law has change and his ruling was wrong . Voted on by the court. So if your judgment read no gps or sbn it will change. Will not change your s.o registration that the judge gave you.
What about a writ of mandamus to get things moving? A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.
It is outrageous that the DOC is taking so long to get these units off of the people who should not be wearing them. Every time I check they say they are working on it and starting with the people who are not on supervision anymore. I have a very simple solution to getting this issue fixed in a timely manner. Instead of having people at the DOC shuffle through records to find the people who are eligible, every agent knows which people under their supervision are wearing a GPS unit. At an upcoming visit with the offender, the agent could simply look up their record on line (it is very simple and takes about 1 minute) and confirm that they only had one conviction and then send their results in to the DOC with a request to have their records updated to remove the SBN, change the lifetime registration to 15 years and request removal of the unit. This seems like a much more efficient way to tackle the problem, but the DOC is not known for being creative, especially if it will benefit an offender.
As for the Writ… if you are still on supervision, the court will say that monitoring can be a condition of supervision and will not do anything. If you are NOT on supervision, the Writ would work.
Was convicted in 95 because I was 2 and half years older than her. Was only suppose to register for 15 years. Then probation got revoked and doc changed it to lifetime. Only got this one charge. Can I file to get off the registery myself?? Thank you if anyone can help me out.
Does anyone know of an attorney who would be interested in getting involved in trying to move this issue forward with the DOC? My attorney is just telling me that the DOC works on their own timetable and I just need to be patient. That sounds fine to someone who isnt wearing one of these devices after the courts have ruled they need to come off.
My former attorney is the 1st post in this thread…recently appointed to Mil Cty bench… he never tackled this issue as pledged above but told me to be patient, we need to give the DCC time…no judge is going to grant an injunction until they have had a reasonable amount of time to figure out how to proceed…well it has now been 5 months! lawyer who represented in the Ortiz/Harrell case to compel the DOC to follow the law in withholding 25% of prison $…18 months later the DOC is still withholding 50%…There is nothing for the DOC to decide, the ruling is crystal clear TAKE The BRACELET OFF NOW!!! looking for an atty to file the Writ of Mandumus or Injunction I have 80% complete…Looking for an attorney in WI that will put the law first I am a legally/factually innocent wrongfully convicted SO with a multi issue meritorious appeal yet the circuit court will not grant my evidentiary hearing!!! So discouraged by lack of judicial oversight in WI…so disheartened by charging practices of WI D.A.’s, so confused by the lack of ethical will by attorneys, so ashamed of WI DOC/DCC practices that I have experienced firsthand…I am available at [email protected] (please label your email GPS Writ) we are going to have to handle this ourselves…
I’m on the GPS for life and my crime is from 1989-1990 I had no other crime before and sense and from 1999 to 2019 I was no threat to the public and now I am, I went through the 980 law and it was just looked at no interview at all, so I have one victim and I have 3 counts in just that one so how and why do I qualify for this
I think everyone wearing a GPS unit should stop paying their monthly fees. If the revenue flow stops, it will make it much harder to justify the staffing for the monitoring centers. If the DOC can drag their feet on removing them, we can drag our feet on paying for them.
No one is getting the bracelet cut off until they are off probabtion. I was told this today by my PO. These people in the DOC have no rules to follow and need to be stopped. I wish I knew where to go from here as my case is as cut and dry as they come.
I can confirm that those with Truth In Sentencing cases will get the gps off upon completion of extended supervision. An acquaintance of my father has just finished his ES and it was removed as well as his registration being moved back from lifetime to 15 years. Still, the rest of us wait. I have stopped paying, and let my PO know why. I don’t want to have to fight the state to get my money back. I still pay ahead on my supervision fees. If nothing has changed by March I will be hiring an attorney to assist in a suit, writ, re-entering, etc. Whatever angle I can best use.
Talked to my agent a week ago. Told me that the d.o.c sent a list of requirements for people on e.s. Having to finish there program needs and stable jobs for 6 months and stable housing for over 6 month. Then also looking at any violation of e.s. But all of the people off of e.s should be done. If not required by a judge they have no rights to keep you on it.
I seen my agent first week in Dec he was told by the d.o.c that all of the people on gps that are off e.s are first. Which he told me almost complete. Then there will be a review for those on e.s still. Three things he told me was all out programming must be complete. Have steady employment for 3 months and permanent residence for more then 6 month. But as I see it if it is not a law anymore there is no way they can enforce it. Don’t know why a lawyer wouldn’t take it?
I am currently on lifetime gps. My roommate has his SBN completely taken off. I am in the situation. Please help
Bernard, what did your roommate what steps did your roommate take to get his SBN removed? Was there a certain person he contacted? Also is he on E.S. or is he done with E.S.?
I am working through the process with no success… every step forward is 2 back…I wrote Madison and they removed my SBN status…I asked my Extended Supervision agent (Washington county) what this means?… in practical terms…she said absolutely nothing you are now a discretionary SBN no longer a statutory SBN so no difference…I also received a letter stating that to have the bracelet removed I would need to apply to a formal review and have met conditions such as completion of Sex Offender Treatment, stable housing, impeccable behavior, ect…so once again when the D.O.C. gets caught breaking the law, they just shift the rules…now there is supposedly a review process…there is no reason to believe that this process will lead to removal of the bracelet…people get active, get involved look what they are doing at GB&Waupan…there is no end in sight – those men are suffering everyday…we need to get vocal – this is an election year…It’s now or never…what’s stopping you…
For those of you fretting over your GPS monitor, don’t worry the state legislature is on it. How long did anybody think the legislature was going to take to “correct” the Supreme Court’s ruling? I present to you Wisconsin Senate Bill 874, introduced on January 5, 2024, it effectively changes the law to reflect the Attorney General’s interpretation, return everyone to Lifetime Registration, and since it is going to be a retroactive law, it will most likely add new people to GPS monitoring. Those of us with a 15 year registration requirement will now be lifetime again, no recourse, no relief. Also lifetime registrants are ineligible to petition for a pardon in Wisconsin.
Here’s the bill in it’s entirety,
https://docs.legis.wisconsin.gov/2023/related/proposals/sb874
This Senate Bill has already been signed in? Or they are just trying to? Sorry I don’t fully understand all of this.
No, as of today it has only been introduced and referred to a committee. Those interested can track any future progress here:
https://docs.legis.wisconsin.gov/2023/proposals/reg/sen/bill/sb874
Update: the bill is now set for a public hearing this coming Tuesday, January 30 in the State Capitol building in Madison.
I urge everyone to contact Governor Evers and tell him to veto this bill if it gets to his desk.
Everyone should contact Governor Evers and tell him to veto this bill if it gets to his desk. He should know that this is an attempt by the legislature to circumvent the Supreme Court ruling and that making it retroactive proves it is not for safety issues but for retribution. The link to reach him is as follows:
https://appengine.egov.com/apps/wi/governor/voice-an-opinion
This bill has currently been laid on the table in the assembly (as of 2/16/24). Not sure why, but it has at least stopped the rapid movement towards approval. NOW IS THE TIME TO CONTACT THE GOVERNOR OR YOUR REPRESENTATIVE TO TELL THEM TO DROP OR VETO THIS BILL! Once it reaches the governors desk, we are out of time to try to persuade him one way or another. I am writing EVERY DAY. The more feedback he gets, the better our chances. It’s worth taking the time on something that will effect people for the rest of their lives!
The bill has not been tabled it is enrolled to see the governor. The confusion is that there are multiple bills on the same subject bill 874 and bill 944 both bills are identical so bill 944 got tabled because they don’t need 2 of the same thing while bill 874 is now enrolled to see the govoner….the bill is also retroactive which means any sex offender in the state of Wisconsin on probation, parole or whom have completed their supervision will now be on the bracelet if you have more then one count for the rest of your life in wisconsin
As amended, retroactive to September 2,2017. Although I’d expect them to apply it to the entire year. This makes it effective to the date of the Attorney General’s interpretation in 2017.
The realist,
Where did you see this information? I just like to build up my arsenal for my lawyer when I need it
Thanks you
I found it the realist section 5 initial applicability at the end of the amendment