The editor posts this one with some trepidation.  Some will say it's "off topic" - not a real estate matter - and that's true to a degree.  But the editor feels that those of us concerned about property rights and just regulation should be thinking about the broadest implications of those issues, at least occasionally.

Some will say that the topic is "too inflammatory."  That depends in part on how we react to the case.  As is well known, the editor will squelch discussion that tends to run too far into political rhetoric or even that will tend to make people mad.  There's definitely that risk here, and the editor walks a line in editing discussion because he simultaneously might be censoring those with differing views. 

The editor found the case sufficiently thought provoking to run the above risks, but promises that the list will not get a steady diet of these sorts of cases. 

And, no, the editor is not now, and has never been, a convicted sex offender and in fact doesn't know that he is acquainted with one, and is not trying to cover one up.

Daily Development for Friday, October 28, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu

CONSTITUTIONAL LAW; RESTRICTIONS ON RESIDENCY: State may constitutionally limit convicted child offenders from residing within 2000 feet of schools, even when the consequence might so narrow residential options as to constitute an effective banishment from the state.

Doe v. Miller, 405 F. 3d 700 (8th Cir. 2005);  petition to stay ruling pending appeal rejected  418 F. 3d 950 (8th Cir. 2005)

According to the court, this case represents one of first impression in U.S. courts.
                               
In 2002, in an effort to protect children in Iowa from the risk that convicted sex offenders may reoffend in locations close to their residences, the Iowa General Assembly passed, and the Governor of Iowa signed, a bill that prohibits a person convicted of certain sex offenses involving minors from residing within 2000 feet of a school or a registered child care facility. The district court declared the statute unconstitutional on several grounds and enjoined the Attorney General of Iowa and the ninety-nine county attorneys in Iowa from enforcing the prohibition.

On appeal, the Eighth Circuit Court of Appeals panel reversed.  The court ruled unanimously that the residency restriction is not unconstitutional on its face. A majority of the panel further concluded that the statute does not amount to unconstitutional ex post facto punishment of persons who committed offenses prior to July 1, 2002, because the appellees have not established by the "clearest proof," as required by Supreme Court precedent, that the punitive effect of the statute overrides the General Assembly's legitimate intent to enact a nonpunitive, civil regulatory measure that protects health and safety.

It should be noted that the statute defines “sex offender” to include only persons found guilty of sexual crimes involving minors.

“For purposes of this section, "person" means a person who has committed a criminal offense against a minor, or an aggravated offense, sexually violent offense, or other relevant offense that involved a minor.”

The editor recalls that the statute was a response to a kidnapping and death of a minor child carried out by a neighbor who was a convicted sex offender. 

The statute was promptly challenged in a class action brought by persons affected by the statute for themselves, other similarly situated, and other convicted sex offenders who might plan to move to Iowa.  In reaching its decision that the statute was unconstitutional, the trial court first analyzed the scope of impact.  It reviewed maps and heard testimony from a county attorney, and found that the restricted areas in many cities encompass the majority of the available housing in the city, thus leaving only limited areas within city limits available for sex offenders to establish a residence. In smaller towns, a single school or child care facility can cause all of the incorporated areas of the town to be off limits to sex offenders. The court found that unincorporated areas, small towns with no school or child care facility, and rural areas remained unrestricted, but that available housing in these areas is "not necessarily readily available."

After hearing the testimony experts from both sides concerning the possible effectiveness of the law in protecting children, and hearing from several  individual plaintiffs, the district court declared that the statute was unconstitutional on several grounds: that it was an unconstitutional ex post facto law with respect to offenders who committed an offense prior to July 1, 2002; that it violated the plaintiffs' rights to avoid self-incrimination because, coupled with registration requirements elsewhere in the statute  it required offenders to report their addresses even if those addresses were not in compliance its requirements; that it violated procedural due process rights of the plaintiffs; and that it violated the plaintiffs' rights under the doctrine of substantive due process, because it infringed fundamental rights to travel and to "privately choose how they want to conduct their family affairs," and was not narrowly tailored to serve a compelling state interest. Al!

 though
 the district court believed the law was punitive, the court rejected the plaintiffs' final argument that the law imposed cruel and unusual punishment in violation of the Eighth Amendment. Having found the statute unconstitutional, the district court issued a permanent injunction against enforcement.

As indicated, the appeals panel felt differently.  It noted that the statute did not require individual determinations that persons subject to its ambit were themselves dangerous to children.  The court concluded that the classification made by the statute was adequately clear and did not require an elaborate process of identifying those subject to its control. 

The plaintiffs argued that the State faced a higher level of justification because the statute implicated “fundamental rights.  The court rejected that claim as well:

We do not believe that the residency restriction of § 692A.2A implicates any fundamental right of the Does that would trigger strict scrutiny of the statute. In evaluating this argument, it is important to consider the Supreme Court's admonition that " '[s]ubstantive due process' analysis must begin with a careful description of the asserted right, for '[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.' (Citations omitted).  While the Court has not directed that an asserted right be defined at the most specific level of tradition supporting or denying the asserted right, the Does' characterization of a fundamental right to "personal choice regarding the family" is so general that it would trigger strict scrutiny of innumerable laws and ordinances that influence "personal choices" made by families on a daily basis. The Supreme Court's decision in Griswold and the plurality opinion in Moor!

 e did
recognize unenumerated constitutional rights relating to personal choice in matters of marriage and family life, but they defined the recognized rights more narrowly, in terms of "intimate relation of husband and wife," Griswold, 381 U.S. at 482, 85 S.Ct. 1678, or "intrusive regulation" of "family living arrangements." Moore, 431 U.S. at 499, 97 S.Ct. 1932 (plurality opinion).

Although the plaintiffs cited several actual examples where the living restrictions would have prevented individuals from residing with family members, the court concluded that the impact on intimate family relationships was not “direct” and not of a character implicating fundamental rights. 

Perhaps the greatest “fundamental rights” obstacle for the State was the argument that the statute violated the right to travel (remember that the consequence of the statute was that there were few places in Iowa where a sex offender could reside at all.  The restriction on the right to travel had been a basis of the trial court’s finding that the statute was unconstitutional.  Here the court’s analysis focused more on the effect of the statute, as the fundamental right clearly existed.  But the court concluded, somewhat summarily that there was no unacceptable impact on the right to travel here.  It stated, more or less, that the fact that a person could find few places to reside in Iowa didn’t mean that a person could not travel there:

“The Iowa statute imposes no obstacle to a sex offender's entry into Iowa, and it does not erect an "actual barrier to interstate movement.". . .  There is "free ingress and regress to and from" Iowa for sex offenders, and the statute thus does not "directly impair the exercise of the right to free interstate movement." [citations omitted] Nor does the Iowa statute violate principles of equality by treating nonresidents who visit Iowa any differently than current residents, or by discriminating against citizens of other States who wish to establish residence in Iowa. We think that to recognize a fundamental right to interstate travel in a situation that does not involve any of these circumstances would extend the doctrine beyond the Supreme Court's pronouncements in this area. That the statute may deter some out-of-state residents from traveling to Iowa because the prospects for a convenient and affordable residence are less promising than elsewhere does not implicate a fund!

 amenta
l right recognized by the Court's right to travel jurisprudence.”

Later: 

“The Iowa residency restriction does not prevent a sex offender from entering or leaving any part of the State, including areas within 2000 feet of a school or child care facility, and it does not erect any actual barrier to intrastate movement. . . . The Does also urge that we recognize a fundamental right ‘to live where you want.’ This ambitious articulation of a proposed unenumerated right calls to mind the Supreme Court's caution that we should proceed with restraint in the area  of substantive due process, because ‘[b]y extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.’”

Having concluded that there was no “fundamental right” challenged by the statute, the court had a much easier time dismissing plaintiffs’  due process and equal protection attacks.   The statute had a clear public purpose of protecting children from attacks by sexual criminals and the court concluded that the state’s choice to pursue that purpose as it did was “rational.”

The court also dealt quickly with the claim that the statute requires individuals to incriminate themselves, since they are already required to register their residences with local law enforcement, and now, by doing so, might admit that they are in violation of the residency restriction.  The court concluded that the argument was “misdirected and premature,” as there was no evidence that Iowa would treat a registration as an immediate admission of a violation of the statute. 

The judicial panel split on whether the provision of the statute reaching back to restrict the conduct of persons convicted of sex crimes subsequent to July 1, 2002 created an ex post facto law, adding additional punishment to crimes already charged and sentenced.  The majority ruled that the statute here had a civil, not a punitive purpose, and that this was sufficient to avoid the claim that it was an unconstitutional ex post facto law.  But there was still the question of whether the statute had a punitive effect in that it worked a form of “banishment” on convicted offenders.  The majority ruled that the impact of the statute did not extend that far:

“While banishment of course involves an extreme form of residency restriction, we ultimately do not accept the analogy between the traditional means of punishment and the Iowa statute. Unlike banishment, § 692A.2A restricts only where offenders may reside. It does not "expel" the offenders from their communities or prohibit them from accessing areas near schools or child care facilities for employment, to conduct commercial transactions, or for any purpose other than establishing a residence. With respect to many offenders, the statute does not even require a change of residence: the Iowa General Assembly included a grandfather provision that permits sex offenders to maintain a residence that was established prior to July 1, 2002, even if that residence is within 2000 feet of a school or child care facility . . . .”

Although the court acknowledged that there was some evidence that the statute would present a severe restriction on living accommodations for some individuals, the court concluded that the state’s only burden was to show that this restriction was rationally consistent with the civil purpose of the enactment.  The court cited evidence in the record that convicted sex offenders generally are not fully deterred by punishment and cannot be cured.  Consequently, it was rationale for the state to protect its children by separating them as a class from places where children congregated. 

It was on this point, however, that the dissent parted company with the other two judges.  The dissenting judge concluded that the statute swept too broadly, and imposed a “banishment” result on persons who did not present the high level of threat to children that the statute was designed to address:

“There is no doubt a class of offenders that is at risk to re-offend and for whom such a restriction is reasonable.  However, the restriction also applies to John Doe II, who pleaded guilty to third degree sexual abuse for having consensual sex with a fifteen-year-old girl when he was twenty years old. The restriction applies to John Doe VII, who was convicted of statutory rape under Kansas law. His actions which gave rise to this conviction would not have been criminal in Iowa. The restriction applies also to John Doe XIV, who pleaded guilty to a serious misdemeanor charge in 1995 after he exposed himself at a party at which a thirteen-year-old girl was present. John Doe XIV was nineteen at the time of his offense. The actions of these and other plaintiffs are serious, and, at least in most cases, illegal in this state. However, the severity of residency restriction, the fact that it is applied to all offenders identically, and the fact that it will be enforced for the rest!

  of th
e offenders' lives, makes the residency restriction excessive.

In my view, four factors weigh in favor of finding the statute punitive, while only one weighs in favor of finding the statute nonpunitive. The analysis leads me to the conclusion that the residency restriction is punitive. . . . [T]he imposition of the residency requirement " 'changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. . . .'”

Comment 1: One is tempted to say that this decision will not be reviewed by the high Court and that, whatever the merits of the technical arguments here, the society will not accept a court’s meddling with the way that society protects its children from sex offenders.  Yet, as prior courts have pointed out many times, the true test of the extent of our liberties is whether they extend to those least valued by society.  We are taught constantly that to permit overreaching by government in one case involving very unpopular victims  invites similar overreaching to reach only somewhat unpopular victims, and eventually to reach everyone who falls outside the majority viewpoint.  If an eighteen year old who had sex with her fifteen year old boyfriend and was convicted of statutory rape can effectively be banned from residing most places in Iowa on the argument that she poses a threat to Iowa’s children, can the state similarly restrict anyone convicted of selling liquor to minors?!

   All
persons convicted of possessing child pornograAll registered Libertarians?  All registered Democrats? 

Comment 2: The decision to review this case en banc also was a split decision, with five judges voting to take the case.  There was also a split on whether the decision ought to be stayed pending Supreme Court review.  Ultimately, the court concluded that review at this stage was unlikely because the issue was one of first impression on which there had been no disagreement among the circuits or between the state court and federal courts.  (The Iowa Supreme Court reached a similar result in a parallel challenge to the statute.)

Clearly many judges are troubled by the implications of this case, and so is the editor.  Perhaps the theory of the statute is acceptable, but the consequences of it are troubling, and the editor believes that much more analysis is required to conclude that the statute is properly drawn and that alternatives have been fully weighed. 

Comment 3: Is this a “property law” case or a “sex offender case?”  The editor obviously believes that the principles here could reach far beyond the case of sex offenders, and it is worth contemplating whether our society should be able to restrict specially any individual’s choice of residence except in extreme circumstances.

Items reported here and in the ABA publications
are for general information purposes only and
should not be relied upon in the course of
representation or in the forming of decisions in
legal matters.  The same is true of all
commentary provided by contributors to the DIRT
list.  Accuracy of data and opinions expressed
are the sole responsibility of the DIRT editor
and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality
issues.

ABOUT DIRT:

DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5  15 messages per work day.

Daily Developments are posted every work day.  To
subscribe, send the message

subscribe Dirt [your name]

to

listserv@listserv.umkc.edu

To cancel your subscription, send the message
signoff DIRT to the address:

listserv@listserv.umkc.edu

for information on other commands, send the message
Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only
commercial and general real estate matters but also focuses specifically upon
residential real estate matters.  Because real estate brokers generally find
this service more valuable, it is named “BrokerDIRT.”  But residential
specialist attorneys, title insurers, lenders and others interested in the
residential market will want to subscribe to this alternative list.  If you
subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as
BrokerDIRT carries all DIRT traffic in addition to the residential discussions.

To subscribe to BrokerDIRT, send the message

subscribe BrokerDIRT [your name]

to

listserv@listserv.umkc.edu

To cancel your subscription to BrokerDIRT, send the message
signoff BrokerDIRT to the address:

listserv@listserv.umkc.edu

DIRT is a service of the American Bar Association
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law.  Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.

DIRT has a WebPage at:
https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://cctr.umkc.edu/dept/dirt/

*************************************

Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA.

To change your e-mail address or remove your name from any future general distribution e-mails you can call us at 1-800-285-2221, or write to: American Bar Association, Service Center, 321 N Clark Street, Floor 16, Chicago, IL 60610

If you are an ABA member, log in to the ABA Web site at https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://www.abanet.org/abanet/common/MyABA/home.cfm to edit your member profile. Otherwise, complete the form located at https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=https://www.abanet.org/members/join/coa2.html

To review our privacy statement, go to https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://www.abanet.org/privacy_statement.html.

If you have any problems, please contact the list owner at
dirt-dd-request@mail.abanet.org.