Seventh Circuit Announces a New Standard for Analyzing Violations of the Ex Post Facto Clause

Those who practice municipal law in the three states that make up the Seventh Circuit now have a new standard to consider when arguing that a law violates the Constitution’s Ex Post Facto Clause.

Laws that are both retroactive and penal run afoul of the Ex Post Facto Clause. Until recently, courts in the Seventh Circuit decided the first prong of that analysis—that is, whether a law was retroactive—by applying a rule adopted in United States v. Leach, 639 F.3d 769 (7th Cir. 2011), and Vasquez v. Foxx, 895 F.3d 515 (7th Cir. 2018). The upshot of the Leach-Vasquez rule was that a law was not retroactive if it applied “only to conduct occurring after its enactment.” Vasquez, 895 F.3d at 520.

Courts within the Seventh Circuit applied that rule consistently, even as decisions in other circuits and states around the country moved away from that narrow understanding of retroactivity. The Supreme Court had adopted a broader rule—finding a law to be retroactive whenever it “changes the legal consequences of acts completed before its effective date”—as far back as 1981 in Weaver v. Graham, 450 U.S. 24, 28 (1981), and it reaffirmed that view more recently in Vartelas v. Holder, 566 U.S. 257 (2012), a case that considered whether Congress’s 1996 Illegal Immigration Reform and Immigrant Responsibility Act was retroactive given its application to lawful permanent residents who committed crimes of moral turpitude before the Act’s effective date.

But, as of earlier this month, Leach-Vasquez is no longer good law in the Seventh Circuit. The court took the opportunity to overrule it in Koch v. Village of Hartland, No. 22-1007 (Aug. 8, 2022), admitting in somewhat stark terms that its caselaw “had departed from this history and judicial consensus” that began in Weaver.

At issue in Koch was an ordinance passed by the Village of Hartland in Wisconsin that placed a moratorium on new sex offenders moving into the village. While the district court had concluded that the ordinance was not retroactive under Leach-Vasquez because it applied only “to conduct occurring after its enactment” (namely, the sex offender’s act of moving into the village), the Seventh Circuit reversed and found that the ordinance violated the Ex Post Facto Clause because its effect, in the language of Weaver, was to change the “legal consequences of acts completed before its effective date.”

Judge St. Eve wrote the decision, joined by Judge Jackson-Akiwumi. Judge Kirsch concurred in the judgment only and wrote separately because he believed that the majority’s decision relied on an outdated analysis from Weaver. Vartelas, in Judge Kirsch’s view, had narrowed Weaver’s holding, making some laws with retroactive application constitutional so long as they addressed “postenactment dangers.” Without that important limitation on Weaver, Judge Kirsch believed that laws like 18 U.S.C. § 922(g)(1) or (g)(4) would violate the Ex Post Facto Clause.

As in all cases where a panel of the Seventh Circuit proposes to overrule circuit precedent, the panel, pursuant to Circuit Rule 40(e), circulated its proposed opinion among the active members of the court to determine whether the case should be heard en banc. Here, a majority did not vote in favor.

The court reversed the district court’s judgment and remanded for further determination of whether the village’s ordinance met the punitive prong of the analysis.

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