SCHR:
Litigation Challenging HB 1059: Georgia's Sex
Offender Law
Overview of Whitaker v. Perdue,
Civil Action No. 4:06-cv-140-CC (N.D. Ga. 2006)
1. Background on Georgia’s Sex Offender
Residency & Work Restrictions:
The Law Before July 1, 2006
In June 2003,
Georgia’s General Assembly passed a law prohibiting people on the sex
offender registry from living in certain locations. According to this law,
which remains in effect today, no one on the registry may live within 1,000
feet of the following locations: schools, child care facilities, and areas
where minors congregate, including public and private parks, recreation
facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums,
and similar facilities providing programs or services directed towards
persons under 18. Several people on the sex offender registry challenged
portions of this law in state and federal court. Unfortunately, courts
upheld the law each time it was challenged.
2.
HB 1059: The Law After July 1, 2006
In April 2006, Georgia’s General Assembly passed another law, HB
1059, that changed many aspects of the criminal law concerning people
convicted of sex offenses. In particular, HB 1059 imposed even more
restrictions on where people on the registry could live. It did this by
adding the requirement that no one on the registry may live within 1,000
feet of any church, swimming pool, or school bus stop. (The 1,000 feet is
measured from the property line of the restricted location to the
property line of the residence where the person on the registry lives).
In addition, under HB 1059, no one on the registry can work at or
within 1,000 feet of a child care facility, school, or church. The penalty
for knowingly living or working in any of the prohibited locations is a
minimum of ten and maximum of thirty years in prison.
The law was to take effect on July 1, 2006. In May and June,
2006, sheriffs’ offices across Georgia made preparations to enforce the
law. Many people received notices telling them to leave their homes and
cease their employment.
3. Whitaker v. Perdue
a. What the Lawsuit Is About
On June 20, the Southern
Center for Human Rights (“SCHR”), and the American Civil Liberties Union
(“ACLU”) filed a class action lawsuit on behalf of everyone on the sex
offender registry challenging the residency and working restrictions of HB
1059. The lawsuit was filed in the United States District Court for the
Northern District of Georgia in Atlanta. The defendants in the case are
Governor Sonny Perdue, Attorney General Thurbert Baker, and all of the
sheriffs in Georgia.
The named plaintiffs in the
case are eight people on the sex offender registry and a reverend who runs a
ministry that provides shelter to women on the registry. The plaintiffs
brought the lawsuit on behalf of a class of all persons on the sex offender
registry. In a class action lawsuit, the plaintiff class is a large group
of people who all have something very specific in common and are subject to
the same treatment or circumstances. In Whitaker v. Perdue, the
plaintiff class has been defined as “all persons who are registered, are
required to register, or in the future will be required to register as sex
offenders pursuant to § 42-1-12.” The Court certified the plaintiff
class on July 28, 2006. If you are on the registry, you are automatically a
part of the plaintiff class. You do not need to request to be included in
the lawsuit.
In the lawsuit, the
plaintiffs claim that HB 1059’s residency and work restrictions violate many
provisions of the United States Constitution, including: the Ex Post Facto
Clause, the Due Process Clause, the Free Exercise Clause, the Takings
Clause, and the Eighth Amendment. Plaintiffs also claim that HB 1059
violates a federal law called the Religious Land Use and Institutionalized
Persons Act.
b. The Temporary
Restraining Order (“TRO”) from June 29-July 25
Two days after the lawsuit
was filed, on June 22, SCHR and the ACLU filed a Motion for a Temporary
Restraining Order (“TRO”) to stop the enforcement of the portion of HB 1059
that prohibits registered sex offenders from living within 1,000 feet of a
school bus stop or a church. On June 29, Judge Clarence Cooper temporarily
stopped the school bus stop provision from being enforced. The Judge stated
in his order that he was granting the TRO with respect to the school bus
stop provision because that provision was likely to force people from their
homes before the Court could determine whether the law was constitutional.
He also stated that plaintiffs were likely to succeed on their claim under
the Ex Post Facto Clause.
The TRO was only a temporary
order designed to stop enforcement of the law until the Court could hold a
hearing. On July 11 and 12, we went before Judge Cooper again, this time
for a hearing for preliminary injunction hearing. Over the course of two
days, Judge Cooper heard arguments from both parties as well as testimony
from a number of witnesses including law enforcement officers, school board
officials, persons on the registry, and mental health professionals
specializing in the treatment of sex offenders. At this hearing, we sought
to show the Court that enforcement of HB 1059’s residency restrictions –
particularly the school bus stop provision – would render most (if not all)
of Georgia off-limits to all of the 12,000 people on the sex offender
registry. We argued that this law would force thousands of families from
their homes unjustly. We urged the Court to continue to stop enforcement of
the school bus stop provision and to stop enforcement of the church
provision.
c. Court Rules:
No “Designated” School Bus Stops in Georgia
On July 25, Judge Cooper
denied our Motion for Preliminary Injunction. HB 1059 defines “school bus
stop” as “a school bus stop as designated by local school boards of
education or by a private school.” Judge Cooper ruled that our Motion was
“premature” due to the fact that there was no evidence that any school board
in Georgia had officially “designated” its school bus stops. The Court’s
order explained that law enforcement officers could not legally enforce the
school bus stop provision of HB 1059 until the actual members of the school
board (as opposed to other school board employees) officially designated bus
stops. As a result of this order, people on the registry who had been
notified that they would have to move because they were within 1,000 feet of
a school bus stop did not have to move from their homes.
d. Bus Stop
Provision Stopped in Bulloch, Chatham, and Columbia Counties
On July 25, the same day
Judge Cooper issued this order, the board of education in Columbia County
voted to designate its school bus stops. At least 30 people in Columbia
County were on the verge of being evicted from their homes. The next day,
we went back to Court. We asked Judge Cooper to grant a TRO preventing the
Columbia County Sheriff from enforcing the school bus stop provision. We
were able to reach an agreement with the Sheriff of Columbia County that he
would not enforce the school bus stop provision until the Court ruled on
whether it is constitutional. We obtained a “Consent Order” to that effect.
On August 10, the school
board in Bulloch County voted to designate its county’s school bus stops.
Again, we asked the Court to stop Bulloch County officials from enforcing
the school bus stop provision. On August 15, plaintiffs obtained a consent
order stating that the Bulloch County Sheriff will not enforce the school
bus stop provision pending a ruling on whether the law is constitutional.
On September 6, the school board of Chatham County designated several
thousand school bus stops. On September 11, the plaintiffs obtained a
consent order stating that the Sheriff of Chatham County will not enforce
the school bus stop provision until further order of the Court.
e. Current Status of the Lawsuit
To date, only three school boards of education (Chatham,
Columbia, and Bulloch) have officially designated their school bus stops.
The Sheriffs in those counties have been restrained from enforcing the
school bus stop provision of HB1059 until further notice from the Court.
For the moment, no one on the registry can be forced to move from his or
her home nor can he or she be arrested for living within 1,000 feet of any
school bus stop in Georgia. If other school boards officially “designate”
their school bus stops, we will go back to court to ask that the law be
enjoined.
Unfortunately, all of the other residency and work restrictions currently
stand and can be enforced. This means that no one on the registry may
knowingly live within 1,000 feet of: a church, public or community swimming
pool,
school, child care facility, public or private park, recreation facility,
playground, skating rink, neighborhood center, gymnasium, or other place
“where minors congregate.” In addition, no one on the registry may work
within 1,000 feet of a school, church, or daycare center. Anyone who
knowingly violates this law can be arrested and will face 10-30 years in
prison. We urge everyone on the registry to take this law very
seriously. Even though the Whitaker lawsuit is still in
progress, many sheriffs’ offices are enforcing the church, swimming pool,
park, and other provisions. Many people on the registry have been arrested
for living in prohibited locations. For the moment, those who live near
school bus stops do not have to move. If you are on the registry, live in
one of the other prohibited locations, and have been notified that you must
move and/or cease your employment, we advise you to do so immediately.
When we originally filed a
challenge to HB 1059, we asked the Court to enjoin both the church provision
as well as the school bus stop provision. While the Court has taken action
on the school bus stop issue, he has yet to make a ruling on the church
provision. During the last several months, many people have been told they
must move and/or quit their jobs because they either live or work within
1,000 feet of a church.
Over the course of our
investigation, we learned of nine elderly, severely disabled plaintiffs,
most of whom live in nursing homes, who were in danger of being evicted
because they live within 1,000 feet of a church. One man is terminally ill
and has been given a prognosis of 6 months or less to live. Two men have
advanced Alzheimer’s and can barely recognize their families at times.
Another man’s Huntington’s disease is so severe that he can barely talk and
cannot walk without the assistance of the attendants at his nursing home.
On October 12, we filed a
motion for a preliminary injunction asking the Court to prevent these men
from being evicted from their homes and nursing homes. The nursing home
stories are a way to show how irrational the church provision is. We want
to remind the judge, the General Assembly, and the community at large that
there are real stories behind each person on the registry, and that the
impact of the law can be extremely severe.
Much more will need to be done to eliminate the church
provision. We are not forgetting about other class members who are affected
by the church provision; rather, we must make strategic decisions at all
times on the basis of what would be most helpful for the class as a whole.
We are hopeful that a positive outcome for these nine men will aid us as we
continue to press this case on behalf of all people on the sex offender
registry in Georgia. We are glad to report that as of today, six of the
nine disabled men will be able to remain in their homes and nursing homes.
(We are still working on the other three).
We also understand that many
people have had to leave their jobs because their place of employment is
within 1,000 feet of a church. At this time, we will not be seeking
emergency relief to challenge HB 1059’s employment restrictions. We
encourage anyone who has lost his/her job and been denied unemployment
benefits to contact Georgia Legal Services for help with an unemployment
appeal. Their website is
www.glsp.org. Here is a list of their regional offices:
Albany
Area: (229) 430-4261/1-800-735-4271
Augusta
Area: (706) 721-2327/1-800-248-6697
Columbus Area: (706)
649-7493/1-800-533-3140
Dalton
Area: (706)
272-2924/1-888-408-1004
Gainesville
Area: (770) 535-5717/1-800-745-5717
Macon Area: (478)
751-6261/1-800-560-2855
Metro Atlanta
Area: (404) 206-5175/1-800-498-9469
Piedmont Area: (404)
894-7707/1-800-822-5391
Savannah
Area: (912) 651-2180/1-888-220-8399
Valdosta
Area: (229) 333-5232/1-800-546-5232
Waycross/Brunswick Area: (912) 264-7301/1-877-808-0553
f. Next Steps
The State has filed a motion
asking the Court to dismiss the case. We have responded to that motion and
asked the Court to deny it. We will continue to seek emergency relief
regarding the school bus stop provision as needed. We will continue to seek
emergency relief regarding the church provision. We will continue to
litigate the other provisions in hopes of securing a permanent injunction at
a later date. We do not know when/if the case will go to trial.
4. Frequently Asked Questions
a. Does the Whitaker case challenge all parts of HB
1059?
No. HB 1059 is a poorly drafted law with many unfair and
unreasonable provisions. The Whitaker lawsuit addresses only some of
the problems with the law: the residency and work restrictions.
The lawsuit does not challenge the provision that requires some
people to be on the sex offender registry for life. It does not challenge
the special restrictions imposed upon the very small number of people
classified as “sexually dangerous predators.” Neither does the lawsuit
challenge the mandatory minimum terms of imprisonment that will apply to
people convicted of certain crimes after July 1, 2006.
b. Will the Whitaker lawsuit affect people on the
registry who are
currently in
prison?
We hope it will. We know that Georgia’s sex offender residency
restrictions make it very difficult for people in prison to find a parole
residence. This law is keeping people in prison, in some cases for a year
or more after they have been paroled. We do not think this is fair. One of
the named plaintiffs in the lawsuit is a person on the registry who is in
prison and cannot find a parole residence that meets the law’s
requirements. We hope that this lawsuit will help this problem.
Unfortunately, at this time, we do not know of any halfway houses that
accept males on the sex offender registry.
c. Can SCHR or the ACLU help me with my criminal
case?
Many people on the registry have written to us with questions
about their individual criminal cases. Others have asked for assistance in
getting off the registry. Unfortunately, we are not able to assist you with
your individual criminal case, nor will we be able to advise you about
whether/when you will be removed from the registry. We wish we could
provide assistance with these very important matters, but we simply do not
have the resources to provide individualized advice to people regarding
their criminal cases. If you have specific questions regarding your
criminal case or whether you are eligible to be removed from the registry,
you may wish to hire an attorney to assist and advise you.
5. More Information About HB 1059 and
the Whitaker Lawsuit
We have set up two mechanisms to distribute information about
the Whitaker lawsuit. The first is our website:
www.schr.org. Please click on “Latest News” and you will be directed to
a page with a link to the lawsuit page. Here we have posted articles,
updates, press releases and legal documents for your review.
We have also created an
e-mail listserv through which we send updates, articles and other useful
information by e-mail. If you or a loved one has access to e-mail and would
like to be on this listserv, please follow the above instructions to get to
the lawsuit page on our website. Once there, you can follow a link to
submit a request to become part of the listserv.
6. Conclusion
We hope this letter has answered some of your questions about HB
1059 and the Whitaker lawsuit. We understand that this is a very
difficult time for you and your family and wish you all the best. Please
know that we are continuing to work as hard as we can to challenge this
poorly drafted and unjust law.
Sincerely,
The
Whitaker legal team at the Southern Center for Human Rights
Sarah Geraghty, Attorney
Sara Totonchi,
Public Policy Director
Lisa Kung, Director
Mica Doctoroff,
Paralegal/Investigator
Atteeyah
Hollie, Paralegal/Investigator
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