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November 21, 2007

Georgia’s sex offender residency ban struck down: no grandfather clause

Filed under: lawyer news or ethics — David Giacalone @ 4:25 pm

update (Dec. 13, 2007): The Georgia Supreme Court today changed a few words in its Mann opinion, which struck down the state’s residency restrictions as applied to a homeowner who would have been forced to move.

Georgia Supreme Court Press Release

SUPREME COURT ISSUES SUBSTITUTE OPINION IN SEX OFFENDER RULING

Atlanta, December 13, 2007 — The Georgia Supreme Court today made a slight change to its recent ruling in Mann v. Georgia Department of Corrections et al. (S07A1043). In its order of November 21, the Court wrote, “We therefore find that OCGA § 42-1-15 (a) is unconstitutional because it permits the regulatory taking of appellant’s property without just and adequate compensation.” In today’s order, the Court substituted the word, “because” with the phrase, “to the extent that.” The rest of the 16-page order remains unchanged.

According to an article in the Atlanta Journal Constitution, “AG: Sex offender law only applies to homeowners” (Dec. 13, 2007), the State Attorney General had asked for the clarification and claims that the change means the opinion protects homeowners from having to move, but not renters or other nonowners. “Sarah Geraghty, a lawyer for the Southern Center for Human Rights, disagreed with the attorney general’s office’s interpretation of the decision. ‘Courts in Georgia have repeatedly held that people who rent their homes have a property interest protected by the Fifth Amendment,’ Geraghty said in a statement”

noYabutsSN From the very first of our two dozen postings since last June on sex offender residency restrictions, we’ve been arguing here at f/k/a that — at the very least — it is unconstitutional to ban sex offenders from living near schools, day care centers, playgrounds, etc., without including a grandfather clause that would prevent their eviction from current homes that are too close to current or future locations of child-centered activities. This morning, the Georgia Supreme Court agreed, in Mann v. Dept. of Corrections (SO7A1043, decided Nov. 21, 2007, 17-pp pdf; via How Appealing and The Parson)

According to the The Atlanta Journal-Constitution, the highest Court in Georgia “tossed out the state’s restrictions on where sex offenders can live if they own the property, saying it is unconstitutional to force them to move if a child care facility, school, church or other place that attracts children locates within 1,000 feet of their homes after they have moved there.” “Ga. court overturns restrictions on where sex offenders live” (Nov. 21, 2007)

Similarly, the Associated Press reports, in “Ga. Court Overturns Sex Offender Law” (AP, Nov. 21, 2007):

“It is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected,” read the unanimous opinion, written by presiding Justice Carol Hunstein.

. The Georgia Supreme Court ruling said even sex offenders who comply with the law “face the possibility of being repeatedly uprooted and forced to abandon homes.” It noted that the offender would be in violation of the law whenever someone opts to open a school, church or other facility serving children near the offender’s home.

At his Sex Crimes weblog, Prof. Corey Yung excerpted this important section of the decision, and provides important commentary on the limited scope of the case:

“Unlike the situation in the typical regulatory takings case, the effect of OCGA § 42-1-15 is to mandate appellant’s immediate physical removal from his Hibiscus Court residence. It is “functionally equivalent to the classic taking in which government directly . . . ousts the owner from his domain.” Lingle, supra, 544 U.S. at 539. As long as the day care center remains in its current location, appellant cannot reside in his home until he is released from the registration requirement by a superior court, OCGA § 42-1-12 (g), which cannot occur until a minimum period of ten years has passed after his release from probation.”

“It’s important to note [says Prof. Yung] that this decision was entirely premised on a takings challenge because the Georgia statute as applied didn’t “grandfather” existing residences. As the opinion itself makes clear, most other states have not followed the Georgia approach. So, in itself, this decision doesn’t call into question most residency restrictions across the nation. Still, it’s a big victory for the Southern Center for Human Rights and for those who question the efficacy of residency restrictions in general.”

It was the fact that Schenectady’s original SORR had no such grandfather clause that got me interested in this topic last June. See, e.g., our post NYCLU Letter threatens lawsuit over Schenectady County sex offender law (Aug. 7, 2007). A long-time lawyer for neglected and abused children, I had never before advocated on behalf of sex offenders, but the blatant unfairness of these laws piqued my conscience, and their likely ineffective and counter-productive results stirred my logical mind.

The Georgia Mann decision is one more thing to be thankful for this holiday season. The “property right” to remain in one’s chosen home should be an important bar to retroactive application of residency bans that would evict people from their homes based on their sex offender status. Courts and legislators in New York State have recognized an “individual’s interest in not being displaced involuntarily” from a residence, when the exercise of police power makes his or her use of the property unlawful. See Village of Valatie v. Smith, 36 NY2d 102 (1975). I believe that these right should apply to tenants to the same extent as to homeowners.

p.s. A Googling visitor came to this website two days ago inadvertently, but I hope he or she had an open mind and learned something about sex offender restrictions. The query was /articles that proove that sex offenders should be named and shamed/. And, thank you Mr. Google, the #1 result was our Schenectady’s PanderPols vote to evict sex offenders.”

3 Comments

  1. What folks don’t seem to understand is that:
    1 First time sex offenders have the lowest rate of recidivism in the country.

    2 A predatory sex-offender will not offend next to where he lives, as a general rule.

    3 The VAST majority of sex-offenses occur with a parent, step parent, parental authority or close friend of the family and the victim.

    4 There is a difference between sex-offenses and sex-offenders. I forget the 4 types but the most common are situational and pathological. The latter has to be contained in an institution. The former needs only stay away from a similar situation. In my own case, it was Mother/Daughter, where the mother and I lived together and I offended on her teen-aged 15 year old daughter. Me, I will just stay away from a similar situation in the future. Prison is no joke. The first hour in a holding tank in jail was enough.

    Comment by Rickey Moore — February 21, 2008 @ 11:09 pm

  2. I HAVE A QUESTION FOR YOU? I HAVE A COURT ORDER SAIDING .I DO NOT HAVE TO REGISTER AS A SEX OFFENDER IN FLA. I WOULD LIKE TO MOVE TO GEORIGIA. CAN GA, MAKE ME REGISTER IF I HAVE A COURT ORDER FROM ANOTHER STATE.

    Comment by JOE — January 25, 2009 @ 11:34 am

  3. Joe, I do not know the answer to your question and I do not want to guess. But, I bet someone at Southern Center for Human Rights, which brought the case discussed above, will be able to help you. Write to them at 83 Poplar St. NW, Atlanta, GA 30303, or phone 404.688.1202

    Comment by David Giacalone — January 25, 2009 @ 11:45 am

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