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Evenstad v. City of West St. Paul

United States District Court, D. Minnesota

January 25, 2018


          Adele D. Nicholas, LAW OFFICE OF ADELE D. NICHOLAS, for plaintiff.

          Monte A. Mills and Clifford M. Greene, GREENE ESPEL PLLP, for defendants.



         Plaintiff Thomas Wayne Evenstad filed a motion for a preliminary injunction in this constitutional challenge against the City of West St. Paul, its mayor, and several Doe defendants (collectively, “the City”). Evenstad argues that a West St. Paul ordinance restricting sex offenders from residing within 1200 feet of schools, day care centers, and group homes (the “Ordinance”) violates the Ex Post Facto Clause.[1] The City's response that Eighth Circuit precedent forecloses Evenstad's argument is unavailing, because the Ordinance is significantly more restrictive than those upheld by the Eighth Circuit. Because Evenstad shows that the equities are strongly in his favor and that he is likely to succeed on the merits, the Court will grant his Motion for a Preliminary Injunction.


         The West St. Paul City Council passed the Ordinance in December 2016 by a unanimous vote. (Decl. of Peter J. Nickitas (“Nickitas Decl.”) ¶ 3, Ex. 1, Sept. 29, 2017, Docket No. 17.) The findings and intent section of the Ordinance states:

Repeat predatory offenders, predatory offenders who use physical violence and predatory offenders who prey on children and vulnerable individuals are predators who present a threat to the public safety. . . . It is the intent of this chapter to serve the city's compelling interest to promote, protect and improve the health, safety and welfare of the citizens of the city by creating areas around locations where children and vulnerable individuals regularly congregate wherein certain predatory offenders are prohibited from establishing a primary or secondary address.

IX West St. Paul City Code (“City Code”)) § 97.01.

         The public record surrounding enactment of the Ordinance, as made available by the City, is largely consistent with its stated intent. A memo prepared by the City's police chief in advance of the first reading of the Ordinance contrasted “the Council's desire to establish a business and residential growth direction” with forces that “tend to change neighborhood character overnight, ” including group residential housing and predatory offenders. (Decl. of Ben Boike (“Boike Decl.”) ¶ 2, Ex. 2 at 22, Oct. 27, 2017, Docket No. 39.) The memo focused on the safety threat posed by “a rapid influx of predatory offenders, ” and noted the chief's concern “about what is on the horizon when the state begins to deinstitutionalize those offenders currently being held in [civil] confinement.” (Id.) The chief proposed “a safe-zone around those institutions where potential victims are likely to congregate, ” and explained that he had “considered varying differences including 1, 000, 1, 500 and 2, 000 feet and found 1, 200 feet to be a good balance in protecting the public's interest while still allowing areas where predatory offenders may reside.” (Id. at 23.)

         At the first reading of the Ordinance, the police chief's presentation included a “detailed account of predatory offenders and the risks and danger to our community.” (Boike Decl. ¶ 1, Ex. 1 at 13.) Three council members spoke - one supporting of the Ordinance, and two wondering if it could be stricter - and a fourth voted to second the motion to approve the reading. (Id.) There was an opportunity for public comment at the second reading, but no one spoke. (Boike Decl. ¶ 3, Ex. 3 at 29.) The Ordinance was approved without further deliberation. (Id.) Neither the memo nor the meeting minutes reflect the City's reasoning for including group homes in the Ordinance or discussion of including offenders who victimized adults without individualized risk assessment.

         As enacted, the Ordinance prohibits any designated offender from living within 1200 feet of schools, licensed day care centers, and state licensed residential care or housing with services establishments. (City Code § 97.03(A).) It also prohibits renting to such an offender. (Id. § 97.04.) Violations of the Ordinance may result in “a misdemeanor or administrative citation.” (Id. § 97.03(D).) It excepts certain offenders - minors, those who offended and were convicted as minors, those living with family, those domiciled in a restricted area prior to the Ordinance's enactment, and those domiciled in an area that becomes restricted due to a new facility. (Id. § 97.03(E).) Based on a map provided by the City, Evenstad estimates that the restrictions cover approximately 90% of the total area and as much as 95% of the residential area of the city. (See Nickitas Decl., Ex. 1 at 5.) The City submits that there are 69 rental units in unrestricted areas. (Second Decl. of Ben Boike (“2d Boike Decl.”) ¶ 5.) The City does not dispute Evenstad's claim that 60 of those units are in a building that, as a matter of policy, does not rent to felons.

         The Ordinance does not define “designated offender, ” but it defines “predatory offender”[2] by reference to two other sources:

Any person who [1] is required to register as a predatory offender under [Minnesota Statute] § 243.166, or [2] has been convicted of a designated sexual offense, regardless of whether the adjudication has been withheld, in which the victim of the offense was less than 16 years of age.

(City Code § 97.02.) Thus, the first category includes anyone who is required by the state of Minnesota to register as a sex offender. Notably, the Minnesota registration requirement applies to offenders who victimized adults. See Minn. Stat. § 243.166, subd. 1b. The Minnesota registration requirement generally persists for ten years after an offender's release from confinement; as such, the Ordinance's residency restrictions apply to individuals in this category for ten years after their release. See Minn. Stat. § 243.166, subd. 6. The second category includes anyone convicted of a “designated sexual offense” against a victim less than 16 years of age. The Ordinance defines “designated sexual offense” to include several state crimes, including first through fourth degree criminal sexual conduct, solicitation of children, incest, indecent exposure, or any of three child pornography crimes. (City Code § 97.02.) There is no time limitation for individuals in this category; as such, the Ordinance's residency restrictions for offenders who victimize children under 16 apply for life. See id.

         Evenstad, 52, falls into the first category: he was convicted in 1999 of First Degree Criminal Sexual Conduct using force or coercion and causing personal injury to an 18-year-old victim. (Nickitas Decl. ¶ 3, Ex. 2 (Decl. of Thomas Evenstad (“Evenstad Decl.”)) ¶ 2, Sept. 29, 2017, Docket No. 17.) On August 21, Evenstad was released from jail and moved into an apartment in a West St. Paul residence. (See Id. ¶ 3.) Three days later, City police informed Evenstad's landlord that Evenstad was prohibited from living there and warned both that they would be subject to criminal charges if Evenstad did not vacate by September 5. (Id. ¶¶ 5-6.) The building is within 1200 feet of at least one day care center and two group homes. (See Nickitas Decl. ¶ 3, Ex. 3 at 1.)

         On August 31, Evenstad filed a pro se complaint and motion for preliminary injunction. (Compl., Aug. 31, 2017, Docket No. 1; Mot. for Prelim. Inj., Aug. 31, 2017, Docket No. 3.) The next day, police agreed to give Evenstad until September 30 to vacate the duplex. (Evenstad Decl. ¶ 11.) After obtaining counsel, Evenstad filed the Motion for a Temporary Restraining Order and Preliminary Injunction that is now before the Court. (Ex Parte Mot. for Prelim. Inj., Sept. 29, 2017, Docket No. 13.)



         The Court considers four factors in determining whether to issue a preliminary injunction: (1) the likelihood that the moving party will succeed on the merits, (2) the threat of irreparable harm to the moving party, (3) the balance of harms as between the parties, and (4) the public interest. See Grasso Enters., LLC v. Express Scripts, Inc., 809 F.3d 1033, 1036 n.2 (8th Cir. 2016) (citing Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc)). “At base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Dataphase, 640 F.2d at 113.


         “In balancing the equities no single factor is determinative.” Dataphase, 640 F.2d at 113. As such, likelihood of success “must be examined in the context of the relative injuries to the parties and the public.” Id. However, likelihood of success on the merits is the most significant factor in considering a preliminary injunction. S.J.W. ex rel. Wilson v. Lee's Summit R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012).

         A. Required Showing

         The likelihood of success factor ordinarily requires the moving party to prove only a “fair chance of prevailing, ” which may mean “something less than fifty percent.” Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 730 (8th Cir. 2008) (en banc). When the matter at issue is a law that was the product of “government action based on presumptively reasoned democratic processes, ” however, the moving party must show that they are “likely to prevail on the merits.” Id. at 732-33. With a city ordinance, the question is “to what extent the challenged action represents ‘the full play of the democratic process.'” Id. at 732 n.6 (quoting Able v. United States, 44 F.3d 128, 131-32 (2d Cir. 1995)); see also Johnson v. Minneapolis Park & Rec. Bd., 729 F.3d 1094, 1098 (8th Cir. 2013) (applying the “likely to prevail” standard to a park board's speech restriction).

         Evenstad alleges that the Ordinance was passed by a unanimous vote of the City Council, signed by the previous mayor, and enforced under the current mayor, and that others in the City's government assisted in developing it. (Compl. ¶¶ 12-14.) The City submits evidence of the first and second readings of the Ordinance at council meetings and documents circulated prior to the first reading. (Boike Decl. ¶¶ 1-3, Ex. 1-3.) The Court finds that the Ordinance was enacted pursuant to a “presumptively reasoned democratic processes, ” if not a terribly deliberative one. As such, Evenstad bears the burden of showing that he is “likely” to prevail on the merits.

         B. The Ex Post Facto Clause

         In support of his Motion for Preliminary Injunction, Evenstad argues that the Ordinance's restrictions on all “designated offenders, ” regardless of date of offense, are retroactive ...

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