In Mann v. Georgia Department of Corrections,653 S.E.2d 740 (Ga. 2007), the Georgia Supreme Court held that a state statute prohibiting registered sex offenders from living or working within 1,000 feet of any facility where minors congregate, see Ga. Code Åò42-1-15, constituted a taking of property as applied to a sex offender who was forced to move after a child care center opened a facility within 1,000 feet of his home. The court noted that “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.” 653 S.E.2d at 755. Moreover, the effect of the statute “is to mandate appellant’s immediate physical removal from his . . . residence.” The court noted “the strong governmental interests that are advanced by the residency restriction” on sex offenders, but also found that the law effectively allowed “private third parties” to establish child-centered uses and thereby “force a registered sex offender . . . to forfeit valuable property rights in his legally-purchased home.”
The Seventh Circuit just came to the opposite conclusion in an opinion written by Judge Diane S. Sykes. Vasquez v. Foxx, 2018 U.S. App. LEXIS 18839 (7th Cir. 2018), partly because they did not exhaust their state law remedies and partly because the statute had been enacted before the two sex offenders had acquired their home and thus put them on notice that they would have no right to stay in an apartment or house if a school, playground, or child-care center were later established nearby. The fact that they were not in violation of the statute when they acquired and moved into their home was irrelevant since the statute settled what their legitimate expectations could be and defined those expectations as defeasible if the facts changed, i.e., if otherowners established the protected uses near their home. "A properly focused inquiry looks to the effect of the 2008 amendment on the plaintiffs' property-rights expectations. And because the amendment was on the books when Cardona purchased his home and Vasquez leased his apartment, its terms were necessarily part of any property-rights expectations they could have held. That's enough to doom this takings claim on the merits."In effect, their possessory rights in their home are similar to defeasible fees and they had no property rights that were defined as protected under state law. The court also held that this statute was rationally related to legitimate government interests and thus not a violation of due process of law; nor did it violate the Ex Post Facto clause that prohibits criminal punishment for acts that occurred before those acts were defined as crimes.
These cases are interesting because they pit the property rights of the sex offenders against the property rights of the neighbors. The sex offender claim a right to acquire property and a home somewhere and to have stable access to it even if surrounding uses change. The neighbors claim a right to acquire and enjoy property free from the "nuisance" of having a sex offender nearby that threatens the children they serve and thus a right to push sex offenders out without regard to whether the sex offenders have some place where they are free to find housing or to find housing that will be stable and free from defeasance given how uses nearby change.