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Sex Offender Residency Restriction

Village of Menomonee Falls v. Jason R. Ferguson, 2011 WI App 73 (recommended for publication); for Ferguson: Daniel P. Fay; case activity

Ferguson’s guilt for violating local sex offender residence-restriction ordinance upheld, as against argument that he fell within grandfather clause exception. The ordinance bars registered sex offenders from living within 1500 feet of any facility for children, but excepts an offender who had established and reported a residence prior to the ordinance’s effective date. Ferguson  initially fell within the exception by having a pre-enactment residence within the Village, but his post-enactment move to a different residence, albeit a short distance away, placed him outside the exception. The grandfather clause exception, in other words, applies to the address and not the person.

¶21      The Iowa Supreme Court further explained that if it applied the grandfather clause exemption to the individual instead of the residence, it would cause an absurd result:  allowing sex offenders to move in and out of the same prohibited zone with impunity.  Id. It stated that the purpose of the residency restriction statute was to “reduce the high risk of recidivism posed by sex offenders,” and the purpose of the grandfather clause was to “avoid the harsh effect of the retroactive application of the two thousand foot rule.”  Id. If the court were to interpret the grandfather clause exemption to apply to the individual over the residence, it would undermine the purpose behind the residency restriction statute.  See id.

¶22      Similarly, if this court were to interpret the Village Ordinance’s grandfather clause to apply to Ferguson as an individual instead of his residence, the purpose of the Village Ordinance would be undermined.  The purpose and intent behind the Village Ordinance is to address recidivism “reducing opportunity and temptation” for sex offenders and “to protect children where they congregate or play in public places.”  Village of Menomonee Falls, Wis., Code of Ordinances § 62-51(a)(1).  To achieve the ordinance’s purpose and intent, “certain sexual offenders and sexual predators are prohibited from establishing temporary or permanent residence” in areas around locations “where children regularly congregate in concentrated numbers.” Sec. 62-51(a)(2).  Several municipalities surrounding the Village of Menomonee Falls passed sex offender residency restriction ordinances with language similar to that of the Village Ordinance, including its grandfather clause exception.  See generally City of Brookfield, Wis., Municipal Code § 9.34.030 (2011); Village of Brown Deer, Wis., Code of Ordinances § 34-3 (2010); Village of Germantown, Wis., Municipal Code § 9.50 (2010).

¶23      We agree with the rationale of the Iowa Supreme Court in Finders.  If we were to interpret the Village Ordinance’s grandfather clause exception to extend to an individual sex offender instead of his or her residence, it would lead to an absurd result undermining the very purpose of the Village Ordinance.  We will not adopt such an absurd interpretation.  Though we could end our discussion here, it is relevant to note that our interpretation of grandfather clauses in Wisconsin zoning ordinances also supports a narrow interpretation of the Village Ordinance’s grandfather clause.

Residence restrictions are a very blunt instrument – even in Iowa. You have to wonder, too, about a policy which says, in so many words, A sex offender must register his residence, else be guilty of a serious crime; but we will make it well-nigh impossible to find a residence. Sound to you like competing policies? We will see how the supreme court resolves the tension.

Assume nonetheless that the ordinance indeed advances public safety: keep in mind that the effect may be sufficiently punitive to trigger ex post facto and related criminal law protections, e.g., State v. Pollard, 908 N.E.2d 1145 (Ind. 2009); People v. Mosley, 116 Cal.Rptr.3d 321, 188 Cal.App.4th 109 (2010). (Granted, the grandfather clause exception in this ordinance may have saved it from such a construction; in any event the argument wasn’t raised.) Even if not amounting to “direct” punishment, the restriction is sufficiently severe that you will want to add it to the ever-increasing list of counseling as to consequences once but no longer thought of as “collateral” such as deportation. Can a guilty plea be withdrawn because the defendant didn’t know that he would be virtually unable to live anywhere within some area? (The question is imprecise because there is presently no state residence-restriction statute, only local enactments, ¶16.) Perhaps one day we will find out.

UPDATE. The California Court of Appeal has upheld a constitutional challenge (“as-applied” violation of the right to intrastate travel) to sex offender residency restrictions, In re Taylor, Cal. App. 4th Dist., Div. One, D059574, 9/12/12. The statute at issue makes it illegal for any registered California sex offender “to reside within 2000 feet of any public or private school, or park where children regularly gather.” The challengers, it should be stressed, created a very strong and detailed factual record, demonstrating that the law subjected them to a sort of internal banishment. Despite debilitating medical conditions, they were forced to live hand-to-mouth in alleys and river beds, because medical care facilities were located in exclusion zones. For that matter, virtually all of San Diego County (the particular locus of this suit) was off-limits:

Nonetheless, the residency restriction prevents petitioners from living in large areas of San Diego County. …

…  There are so few legal housing options in urban areas in the county that many offenders face the choice of living in rural areas or becoming homeless.

We find the blanket residency restriction, as applied in San Diego County, excessive and unduly broad in relation to its purpose—namely, to establish predator free zones around schools and parks where children gather.  The statute limits the housing choices of all sex offenders identically, without regard to the type of victim or the risk of reoffending.

In light of these findings, we conclude the blanket residency restriction exceeds the scope of its stated objective─the protection of children─because as applied it eliminates nearly all existing affordable housing in San Diego County for sex offender parolees, in essence banishing them from living within most if not all of the County (see Alex O. v. Superior Court, supra, 174 Cal.App.4th at p. 1183), and because it treats all parolees the same regardless of whether his or her crime involved the victimization of children or adults (and thus the need for the residency restriction in the first place). ws they are more apt to receive other needed and vital services.

Also see, U.S. v. Collins, 684 F.3d 873 (9th Cir 2012); utilizing what was in effect an as-applied analysis, the court invalidated a condition of supervised release that essentially tracked the California statutory residency restriction, which the court characterized as “effectively prevent(ing) Collins from living in any urban area.”

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