You understand that there are just some cases where a certain analysis and outcome appeal to your intellect, but your gut goes "ick," and you'd bet that a judge's (or judges') reaction would be similar. Thus, intellectual analysis takes a backseat to the gut. (What one of our mentors referred to as "the widow plaintiff" scenario.)
The Kentucky Court of Appeals' opinion in Doe v. Dean, No. 2023-CA-0844-MR (Sep. 20, 2024) is just one of those.
Kentucky law prohibits registered sex offenders from residing, working, loitering, or otherwise being within 1,000 feet of certain child-related operations such as daycare facilities, schools, or playgrounds. The plaintiff Doe is a registered sex offender, having "pled guilty to one felony count of possession of matter portraying a sexual performance by a minor[.]" Slip op. at 2.
Apparently, he's been toeing the line since then, and "Doe has not been subject to active supervision since 2010 and has had no reported violations of his probation or registry conditions." Id. In 2022, he and his wife bought a house which at that time was outside the no-live zone.
But that changed in 2022, when a daycare operation opened within 1,000 feet of his property. Slip op. a 3. The statue has no exception if the registrant was there first, and if a new operation opens within 1,000 feet, the registrant has 90 days to move. Thus, "Doe was told he had to move." Id.
He sued, asserting that what is labeled the "anti-grandfather clause" in the Kentucky statute violates the Due Process and Takings clauses of the U.S. and Kentucky constitutions. The trial court dismissed and the Court of Appeals affirmed. And here's where our intellect clashes with our gut.
Skip down to page 13 of the slip opinion for the (substantive) due process analysis, which turns on what level of scrutiny the court is going to give this thing. And once the court settles on rational basis review, you know where this is headed: the court rejecting the argument that prohibiting someone from living in his or her home based on "unsubstantiated fears about a class of people" isn't rational:
The criticisms of Dr. Socia [Doe's expert] may be thought provoking. Legislators may benefit from taking a serious look at what does and does not work in the context of residency restrictions, since we now have had decades of experience to consider results and future best practices.But, as a court and not a legislature, our task is to review for any rational basis, not demand the best possible practice or even a good “fit.” “[A] statute does not have to be perfect to pass constitutional muster.” Cornelison v. Commonwealth, 52 S.W.3d 570, 573 (Ky. 2001). We agree with the Commonwealth that the residency restrictions are at least rationally related to the legitimate state interest of protecting children. It does not offend due process and is not an arbitrary exercise of state authority.
Slip op. at 15.
Next, the takings analysis.
First, the court rejected the approach of the Georgia Supreme Court in Mann v. Georgia Dep't of Corrections, 653 S.E.2d 740 (Ga. 2007), a case we covered here. Yes, the facts in Mann and this case are similar, but the Kentucky court concluded that Mann misapplied the Penn Central factors, which "do not support Doe's claim of a taking." Slip op. at 19.
Overall, the court rejected the Penn Central takings claim because the statute does not deprive Doe of "all" beneficial uses of his property. Yes, "Doe's forced relocation may cause a negative economic impact on him, [but] it does not rise to the level of a taking." Slip op. at 21. He can sell or rent his home. To us, however, whether a regulation deprives an owner of all economic use should not be determinative, unless the owner is making a categorical Lucas claim. Thus, instead of concluding that the Kentucky statute doesn't work a taking because Doe could sell or rent, the court should have acknowledge the severe economic impact and then weighed it along with the other Penn Central factors.
Next, the court held that Doe's expectations of continuing to live in his home were weak because he purchased the home after the statute was adopted. Slip op. at 21-22 ("While his expectation was to live in the home, Doe was always aware of the possibility that he may have to move if a childcare facility opened within 1,000 feet of the home.").
The court also concluded that the public interest in keeping registered sex offenders away from children is "clearly a 'common good.'" Slip op. at 22. Thus, the "character" factor weighed heavily in the state's favor. But we'd argue that this is a mischaracterization of the "character" prong, which should not ask whether the government action is a valid exercise of power (of course it is, if the claim is a taking). Instead, the character factor asks about the nature of the impact on the property owner. Is this like a physical invasion? And here, this statute works an ouster, something that to us looks an awful lot like a plain-old taking by eminent domain. Indeed, it even operates like a quick-take: get out, and get out now.
Getting back to our intellect vs our gut. Yes, it looks like the court misapplied the Penn Central factors, and never addressed the what appears to us to be the most obvious issue: the statute seems to work a physical ouster, which to us looks like a very good analogue to physical invasion analysis. But the court appears to have gone with the "ick" factor, which doesn't pay a lot of attention to the rights of registered sex offenders.
Doe v. Dean, No. 2023-CA-000844-MR (Ky. Ct. App. Sep. 20, 2024)
