GA- New front opens in battle over sex offender law

Effectively, what is happening in Georgia is the state is practicing "constructive evictions" by making the residence uninhabitable by enacting a law to prevent the owner from residing in the property. Further, by virtue of her marriage, of an earlier date, she has a vested interest in that property, and assuming they file joint tax returns even the IRS would support this. There is no doubt she is at least part owner, and the fact that the law (as applied) tries to cut her out of the property, it violates ownership and is also ex post facto.

7-28-2008 Georgia:

ATLANTA -- Ongoing litigation over the state's stringent restrictions on sex offenders recently opened up a new wrinkle in the controversial law.

At what point does a registered sex offender actually own a home?

In filings this week in federal court, Harlem resident Wendy Whitaker, the lead plaintiff in a lawsuit seeking to defeat the restrictions, is asking a judge to issue an preliminary injunction prohibiting the Columbia County Sheriff's Office from kicking her out of a home she moved to in February.

Whitaker has already moved twice due to the restrictions, and dreads the thought of having to do so again.

"Now I'm ready to pack a bag at a moment's notice," she said. "I'm just hoping and praying that it is going to be all right. I'm tired of moving."

Whitaker, 28, pleaded guilty to sodomy after having consensual oral sex with a 15-year-old classmate when she was 17. She was sentenced to probation and required to register as a sex offender.

In January 2006, she and her husband purchased the home, not knowing it was within 1,000 feet of a church with a day care center, a fact that forced her to move.

The couple moved across the border to South Carolina until the Georgia Supreme Court struck down the restrictions late last year.

A revised law that took effect this month remedied that issue by exempting offenders who owned their home as of July 1, 2006, from the restrictions.

But Whitaker's name was not added to the deed until 2007. A sheriff investigator called her last week and told her she would have to move within 48 hours or face arrest. Offenders convicted of violating the restrictions can be sentenced to upward of 10 years in prison.

Both Whitaker and Columbia County Sheriff Clay Whittle -- along with 158 other sheriffs -- have agreed to hold off on enforcing the restrictions until the judge decides whether they are unconstitutional.

"They just want instructions," said Augusta attorney David Hudson, who represents the sheriffs. "And until they get some instructions in Ms. Whitaker's case, they are not going to enforce it against her until the court rules one way or the other."

Attorneys for the state are asking the judge to ignore that request, saying sex offenders have a propensity to reoffend, and that Whitaker should press the issue in state court rather than federal court.

Sarah Geraghty, Whitaker's attorney, said exactly what constitutes homeownership under the law is one issue in the case.

"But the broader issue is whether the Legislature can pass a law retroactively evicting Wendy from her home," Geraghty said.

In November, the state's highest court ruled that forcing offenders who already owned a home to move was unconstitutional because it amounted to unlawful taking of property.

To fix that, lawmakers added the exemption for offenders if they established property ownership.

Whitaker said she and her husband pay the mortgage on their home through a joint bank account, which she says gives her ownership rights.

Moreover, Geraghty contends that restrictions should be more nuanced, with different requirements for serious offenders and those like Whitaker, who participated in consensual sex.

"The concern is that Georgia's registry is bloated with people who don't need to be there," she said.

Proponents of the restrictions say they prevent offenders from reoffending by barring them from living, working or volunteering within 1,000 feet of schools, churches and other places children gather.

Opponents say there is no proof the restrictions protect anyone, and that they actually increase the chances of a new offense because they keep offenders from reintegrating into society.

The restrictions have come under various challenges this year. A Jefferson store owner whose business was close to a building that doubled as a church asked a judge to exempt him from the restrictions because he did not work the same time the church was in session. He later withdrew the request.

A group of sex offenders is also challenging the restriction that keeps them from volunteering at church, saying it criminalizes their practice of religion.

Offenders can apply to be removed from the registry 10 years after they complete their sentence, including probation. But they must gain approval from a judge, who considers their criminal record. ..News Source.. by By Brandon Larrabee, Morris News Service