Law That Requires Sex Offender Move From Home is a Regulatory Taking

Thanks to both Patty Salkin's Law of the Land blog and Gideon Kanner's Gideon's Trumpet, we've been alerted to a regulatory takings case from the Georgia Supreme Court that presents an unusual fact pattern.  In Mann v. Georgia Dep't of Corrections, No. S07A1043 (Nov. 21, 2007), the court struck down as an illegal taking a Georgia law that prohibited convicted sex offenders from living within 1,000 feet of a school or child care facility. 

Mann, an offender, was living legally in a home he owned, when a child care facility located within 1,000 feet.  The Department of Corrections ordered Mann to leave upon pain of arrest.  Professor Salkin summarizes the case here, and Professor Kanner adds his analysis here.  They both sum up the facts and holding of the case very thoroughly. 

The court noted that the effect of the Georgia statute was not simply to interfere with the owner's property rights, but to dispossess him of his home:

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.

Slip op. at 8.  What was interesting about the decision was that the court utilized the "ad hoc" test for a regulatory taking from Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978).  The "Penn Central" test applies three factors:

The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See Goldblatt v. Hempstead, supra, at 594. So, too, is the character of the governmental action.

Id. at 124.  I don't think the court needed to use the ad hoc test to find a taking.  Because the regulation involved a physical invasion of Mann's property, this case should have been analyzed as a per se taking, and the court should have found a taking as a matter of law, regardless of the economic impact of the regulation on the owner, or his "distinct investment-backed expectations." 

The Georgia statute in effect invited anyone but Mann to occupy his house, and had the effect of evicting him.  On the scale of wrongs, this seems worse than the classic physical invasion cases such as Kaiser Aetna v. United States, 444 U.S. 164 (1979) (government invited public recreational boaters to enter a private lagoon) (a case litigated by my Damon Key colleagues Charlie Bocken and Diane Hastert, by the way), Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (regulation required placement of cable TV box on rooftop), and Nollan v. California Coastal Commission, 483 U.S 825 (1987) (government demanded conveyance of a public easement across Nollan's land). 

A property owner's interest in physical possession of their property is so important, it does not matter how compelling the asserted governmental interest is.  When the government tells someone to "get out" of his property, it must provide just compensation.  When the regulation does not, the regulation is unconstitutional.