Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 1 of 42

ORIGINAL Me~.c..C~. %I"s ma

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA JUN 242D"6

ROME DIVISION

LUTHER D . THO MAS, Ci srk
By : DeOuty Cleric

WENDY WHITAKER, JOSEPH LINAWEAVER, JANET JENKINS ALLISON, JAMES VICTOR WILSON, JEFFERY YORK, DEWAYNE OWENS, AL REGINALD MARKS, LORI SUE COLLINS, REV. JOEL JONES,

Plaintiffs,
V.
SONNY PERDUE, Governor of the State of Georgia in his official capacity, A

CIVIL ACTION No .
06 CNT ...

140

THURBERT E . BAKER, Attorney General of the State of Georgia in his official capacity,
SCOT DEAN, Chief of Probation, Cedartown, Polk County, Georgia in his official capacity,
ROBERT SPARKS, Sheriff of Polk County in his official capacity,

COMPLAINT-CLASS ACTION FOR INJUNCTIVE RELIEF
JURY TRIAL DEMANDED

Defendants .

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 2 of 42
PRELIMINARY STATEMENT 1.
Plaintiff WENDY WHITAKER and others bring this suit to prevent people on Georgia's sex offender registry - including the elderly and disabled - from being deprived of their homes and livelihoods due to the unfair and arbitrary provisions of Act No . 571, Ga. Laws 2006 (HB 1059), codified at Ga . Code Ann. § 42-1-15 (2006) {"the Act") . When the Act goes into effect on July 1, 2006, the result will be catastrophic . Thousands of people on Georgia's sex offender registry will be forced, by legislative fiat, to evacuate their homes, leave their jobs, cease attending their churches, and abandon court-mandated treatment programs . Plaintiffs have been convicted of crimes - some of them when they were teenagers for conduct a judge found was not a threat to public safety and did not warrant any time in prison - but they have paid the price and today live law-abiding lives as productive members of the community . Now they are being punished again . The Act prohibits anyone on the registry from living within 1,000 feet of any one of the hundreds of thousands of school bus stops in Georgia . This provision alone renders nearly all urban areas off-limits to people on the registry . Plaintiffs cannot find anywhere to live, though many have spent weeks driving hundreds of miles in search of a residence that complies with the Act . If HB 1059 goes into effect, it will drive many people on the registry to sleep in parks, under bridges, or in their cars, or to set up tents or trailers in the woods .
2

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 3 of 42
2. There are approximately 11,000 registered "sex offenders" in Georgia, about 9,000 of whom live in the community . Unlike the sex offender residency requirements of many other states, Georgia does not differentiate between people convicted of violent sexual offenses, such as rape, and people who violated the law by having consensual sexual relations when they were teenagers with someone under the age of consent . Georgia treats everyone like the worst offender . Georgia already has a law governing where people on the registry can live. See Ga . Code Ann. § 42-1-13 (2006) (prohibiting residency within 1,000 feet of schools, child care facilities, and areas where minors congregate, including parks, recreation facilities, skating rinks, neighborhood centers, gymnasiums, and similar facilities providing programs or services directed toward children) . HB 1059, signed into law by the Governor on April 24, 2006, substantially revises § 42-1-13, turning the law from one tailored to keep offenders away from children into one that essentially drives every person on the registry from all urban areas and many rural areas .
3. The ostensible purpose of HB 1059 is to keep Georgia's children safe from sexual offenses . No one would dispute that this is a laudable goal . Yet the Act imposes its residency restrictions and other significant penalties on all people on the registry - even those like Plaintiff Wendy Whitaker who is o n the registry
3

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 4 of 42
because, at age 17, she had a single consensual act of oral sex wiih a 15-year-old boy. For this one act, committed ten years ago, the now 26-year4old Ms. Whitaker and her husband have been forced from one home and now will likely be forced from another . Plaintiff Joseph Linaweaver was 16 when he had a single consensual act of oral sex with a 14-year-old girl . For this act, Mr. Linaweaver is being driven from his home . Plaintiff Janet Allison was convicted of being "party to a crime of statutory rape and child molestation" because she did not prevent her 15-year-old daughter from becoming sexually active . Due to this conviction, Ms. Allison and her family will have to leave their home .
4. Although they have nowhere to go and little prospect of finding a residence that is not within 1,000 feet of a school bus stop, if Plaintiffs and others on the registry do not leave their homes by July 1, 2006, they will be subject to arrest and prosecution . The punishment for failure . to comply with the Act's residency and working restrictions i s a minimum of 10 years imprisonment and a maximum of 30 years imprisonment .
5. The Act will also prohibit anyone on the registry from working within 1,000 feet of a church, child care facility, or school . Hundreds, if not thousands, of people on the registry will lose their jobs .
4

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 5 of 42
6. In addition to imposing onerous residency and employment restrictions, the Act impermissibly interferes with the practice of religion . It will require church halfway houses - but not sectarian halfway houses - to expel residents who are on the registry, even if the residents are low-risk offenders complying with the terms of probation . In addition, the Act impermissibly chills the right to exercise one's religion by making it a felony punishable by a minimum of 10 years imprisonment to "loiter" at or near a church or other place of religious worship. Plaintiffs in this case and others on the registry rationally feel that they cannot go to church on Sunday, attend Wednesday or Friday night prayer groups, or go to weddings or funerals for fear that they will be thought to be loitering at a place of public religious worship . The penalty for loitering is simply too severe to risk participation in religious activities .
7. Plaintiffs are persons subject to the residency, working, and loitering restrictions of HS 1059 . Plaintiffs bring this putative class action on behalf of themselves and all persons subject to the Act. Plaintiffs respectfully ask this Court to preliminarily and thereafter permanently enjoin Defendants from enforcing such portions of the Act as are necessary to protect Plaintiffs' constitutional rights.
5

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 6 of 42
8. The Act's enforcement should be enjoined for the following reasons : a. The Act violates the Ex Post Facto Clause ; b. The Act violates the procedural component of the Due Process Clause ; c. The Act violates the substantive component of the Due Process Clause
and the right to family privacy; d . The Act violates the Religious Land Use and Institutionalized Persons
Act, 42 u.s.c.s. § 2000(c)(c) (2006);
e. The Act violates the Free Exercise Clause and the right to freedom of association;
f. The Act violates the Takings Clause ; g. The Act violates the right to interstate and intrastate travel ; h. The Act violates the Eighth Amendment by imposing cruel and unusual
punishment and by impermissibly punishing Plaintiffs based upon their sta tus.
6

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 7 of 42
PARTIES Plaintiffs
9. Plaintiff WENDY WHTTAKER is a 26-year-old woman who lives in McDuffie County, Georgia . She is a full-time student studying criminal justice at Augusta Technical College . She has been married for six years.
10 . Ten years ago, when Ms . Whitaker was a 17-year-old high school student, she engaged in a consensual act of oral sex with a 15-year-old male while on school property . Ms . Whitaker is white ; the other student was African-American . Ms. Whitaker was arrested, charged with sodomy, and advised to plead guilty, and she ultimately completed five years on probation . Her conviction required her to register as a sex offender .
11 . Ms. Whitaker and her husband have already been required to comply with the current sex offender registration law, Ga . Code Ann. § 42-1-13 (2006) . Earlier this year, the police made Ms . Whitaker leave her home in Harlem, Georgia . The residence sat within 1,000 feet of a church, and unbeknownst to the Whitakers when they bought the home, a day care program operated inside the church . The Whitakers still own their home and must pay their mortgage on it, but they can no longer live there .
7

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 8 of 42
12 . The Whitakers have since moved in with Mr . Whitaker's brother and his daughter in Thomson, Georgia . They must pay rent and expenses in addition to mortgage, causing them financial strain . The Whitakers' niece will be starting school in the fall and she will take the school bus . Presumably, the bus will stop within 1,000 feet of the house, making the Whitakers' present residence an unfit accommodation under HB 1059 .
13 . If the Whitakers have to leave their current residence in Thomson, they do not know where they will go . Because of his work, Mr . Whitaker will not be able to leave the Augusta area . Ms . Whitaker has not been able to find another affordable residence anywhere in the area . The married couple will have to separate and live in different places .
14 . Plaintiff JOSEPH LINAWEAVER is a 22-year-old man who lives with his mother and father in Columbia County, Georgia . His mother works at Walgreeri s and his father is an electrician . Mr. Linaweaver is looking for a job, but his status as a "sex offender" has made it difficult to find one .
8

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 9 of 42
15 . In 2000, when Mr . Linaweaver was 16, he engaged in a consensual act of oral sex with a 14-year-old female classmate while on a school bus . Mr. Linaweaver pled guilty to sodomy and was sentenced to five years on probation . Because of the conviction, he had to register as a sex offender.
16 . On June 1, 2006, the Columbia County Sheriff's Department notified Mr . Linaweaver that he must move from his family's home by June 30th . Mr. Linaweaver's whole family lives in the Augusta area . He cannot find anywhere to live in this area that meets the Act's requirements ; nor has he found employment at any job that does not violate the Act's provisions . He plans to leave his family and move to Wisconsin rather than face being homeless and jobless in Georgia . Even his plans to move out of state, however, are uncertain at this point . Before leaving the state, Mr . Linaweaver has to arrange to transfer his probation, a process that can take six months in the best of circumstances . As probation offices across the state are being inundated with hundreds of requests to move and/or transfer probation, the interstate compact arrangements will likely take at least nine months . In the interim, Mr. Linaweaver has nowhere to go .
9

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 10 of 42
17 . Plaintiff JANET JENKINS ALLISON is a resident of Lumpkin County, Georgia. She is married and is the mother of five children, ages ~5, 23, 20, 19 and 17. Ms. Allison lives with her husband and one of her sons . She formerly worked as the manager at the Huddle House in Dahlonega, Georgia but had to take a leave of absence after suffering an injury at work . Her husband is a diesel mechanic at Eagle Point Landfill Company.
18 . Ms. Allison was convicted of being party to a crime of statutory rape and party to a crime of child molestation in 2002 . Ms. Allison has a teenage daughter who was sexually active and became pregnant at age 15 . The indictment alleged that Ms. Allison did not do enough to stop her daughter's sexual activity . It also alleged that Ms . Allison permitted her daughter's teenage boyfriend to move into the house after her daughter became pregnant and the young couple decided to marry. (They later did marry .) For this, Ms . Allison is a registered sex offender . She was sentenced to fifteen years of probation .
19 . On June 15, 2006, a deputy from the Lumpkin County Sheriff's Office came to Ms. Allison's door and told her she must leave her home of four years by duly 1 because she lives within 1,000 feet of a school bus stop . Ms. Al ison does not know where her family will go . In the last week, they have driv~n around White,
i 10

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 11 of 42
Pickers, Dawson, Lumpkin, and Gilmer counties looking for a new home . They have not found any home they can afford that complies with HB 1059's requirements . They have looked in several mobile home parks, but found most of them will not be suitable because of playgrounds, swimming pools, and school bus stops .
20 . Ms. Allison must attend counseling as a condition of probation . Ms. Allison's court-ordered treatment provider told her and other members of the treatment group that under the Act, they may not be able to attend church because they could be prosecuted .
21 . Plaintiff JAMES VICTOR WILSON is a 23-year-old resident of Fulton County . He is a senior at Georgia State University pursuing a dual degree in accounting and finance . Mr. Wilson, who is due to graduate in December 2006, has worked at Miller, Ray, Houser & Stewart, an accounting firm in Atlanta, for three years . The firm has offered him a position upon graduation .
22 . In 2002, as a freshman at New York University in New York City, Mr . Wilson pled guilty to sexual abuse in the first degree for inappropriately touching an adult female college friend while highly intoxicated at a freshman party. The court sentenced him to five years of probation, which he is due to
11

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 12 of 42
complete in August 2007 . Mr. Wilson was designated a level I sex offender, the lowest possible designation, reflecting the unlikeliest possibility of re-offending . He has never been arrested before or since and has complied with all terms of his probation . His criminal case file contains letters from approximately 40 individuals (former teachers, employers, professors, friends, etc .) attesting that the incident was an aberration and out of character for Mr . Wilson .
23 . Mr. Wilson is a ca-owner of his home with his parents . It is within 1,000 feet of a school bus stop . His work place is within 1,000 feet of a building listed as a church in the telephone directory and on the Internet . Unless the Act is enjoined, Mr . Wilson will have to leave his home and he and his family will have to sell it. He will also have to give up his job and forgo his firm's offer of fulltime, steady employment because his employer is within 1,000 feet of a church .
24 . For the last six weeks, Mr . Wilson and his family have searched the metro Atlanta area for any accommodation that would comply with FIB 1059 . All he could come up with is a motel in Clayton County, in an industrial area . He believes this motel meets the requirements of HB 1059, but he has not been able to determine whether there is a school bus stop within 1,000 feet of it . In addition, he knows school bus stop locations will change in six weeks with the coming school year.
12

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 13 of 42
25 . Plaintiff JEFFERY YORK is a 22-year-old resident of Polk County . He lives with his grandmother and brother in Cedartown, Georgia . He is a painter and a writer .
26 . When Mr. York was 17 years old, he dated a 15-year-old male . In 2003, Mr. York pled guilty to one count of sodomy for engaging in a consensual act of oral sex with the 15-year-old . He was sentenced to five years of probation .
27 . Mr. York has received two letters from the Polk County Sheriff's Department stating his home may be within 1,000 feet of a bus stop . If it is, he will have to move immediately .
28 . Plaintiff DEWAYNE OWENS is a 21-year-old male who is incarcerated at Calhoun State Prison in Calhoun County, Georgia .
29 . In 1998, when Mr . Owens was 13 years old, he was convicted of incest for allegedly having sex with his sister . Mr. Owens served nearly four years in a juvenile facility and was released . He has never been charged with any additional crime before or since . He was fond, however, to have violated the terms of his probation in 2004 by : (a) looking at a magazine with sexual content,
13

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 14 of 42
and (b) being in the presence of his young cousins (no allegations of inappropriate conduct) . Mr. Owens is currently incarcerated at Calhoun State Prison where he has an excellent behavioral record .
30 . Mr . Owens has a tentative parole date of December 2006 . He must submit a home plan to the Board of Pardons and Paroles . The Act's residency restrictions prohibit Mr . Owens from living with any of his family members . He does not have money to rent or buy his own accommodation . Because of the Act's residency restrictions, his counsel has been unable to find a single halfway house or shelter in the State that can accept a male on the sex offender registry . Without a parole residence, Mr . Owens will remain in prison for the next seven years, despite any wish the Board of Pardons and Paroles may have to see him released and returned to the community .
31 . Plaintiff AL REGINALD MARKS is a 20-year-old male who lives in Cobb County, Georgia . Mr. Marks is a student at Chattahoochee Technical College where he studies computer science . He works seven days per week at McDonald's and is training to become a manager . Mr. Marks lives with his mother, Carol King, and his father, Alfonzo Marks . Alfonzo Marks is a lieutenant in the Georgia Department of Juvenile Justice and a former New York City police officer.
14

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 15 of 42
32 . In 2000, when he was 14-years-old, Al Reginald Marks was charged with hand-to-genital and mouth-to-genital sexual contact with the seven-year-old male son of a family friend . This was a one-time incident with no allegations of force . Mr. Marks pled guilty to child molestation and was sentenced to probation . He has served five years on probation without incident .
33 . The Marks family has already had to move from their home once to comply with Georgia's sex offender residency restrictions . In 2003, after Georgia passed its first residency restriction law, authorities notified the Marks family that their house sat within 1,000 feet of a swimming pool . When informed of the problem, the Marks family moved to their current home in Cobb County . It took the family one-and-one-half years to pay their debt from breaking the lease .
34 . Now the Marks family will have to move again . In a letter dated May 24, 2006, the Cobb County Sheriff's Department informed Mr. Marks he must leave because his home is within 1,000 feet of a school bus stop .
35. For the past three weeks, the Marks family has been searching for a place to live that complies with FIB 1059's requirements . They have spent days driving around the State of Georgia, using at least one tank of gas per day and visiting
15

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 16 of 42
potential locations in Dekalb, Paulding, Douglas, and Bibb counties . So far, they have not found a residence that would comply with the Act .
36 . If the family cannot find a residence that complies with HS 1059 by June 25, Al Marks plans to seek a 30-day travel pass to visit his grandmother in New York for July . He will have to postpone his college studies and give up his job .
37 . If the Marks family cannot find a home in Georgia, they will move to New York . Alfonzo Marks will have to quit his job of 14 years, and the family will be without income or health insurance until they have settled in New York and found other employment .
38 . Plaintiff LORI SUE COLLINS is a resident of Rockdale County . Ms. Collins lives at the Door of Hope Ministry, a faith-based halfway house for people recently released from prison. Ms. Collins is now the residential program director at Door of Hope . She is a volunteer prayer partner at Trinity Broadcasting Network . She also ministers to female inmates in the Henry County jail.
16

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 17 of 42
39 . In 2002, Ms . Collins was convicted of statutory rape for having consensual sex on one occasion with a 15-year-old boy . Ms. Collies, who was 39 at the time, served three years in prison for her offense . While in prison, Ms . Collies lived in the honor dorm, served as assistant to the chaplain, edited a religious newsletter, and received a college diploma with honors .
40 . In June 2006, Ms. Collies received a letter from the Rockdale County Sheriff's office explaining she would have to leave Door of Hope because a school bus stop was within 1,000 feet of the residence . For three weeks, Ms. Collies has spent nearly every waking moment trying to find a new place to live . She drove around five counties (Hall, Barrow, Newton, Rockdale, and Henry) in search of a residence conforming to the requirements of HB 1059 . She searched the Internet . She searched newspapers . She could not find anything . At one point, she thought she had found a place to live in an industrial area in Covington, Georgia . It turned out, however, that there was a school bus stop within 1,000 feet of the house .
17

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 18 of 42
41 . Ms. Collies considered staying with various family members . There is a school bus stop within 1,000 feet of her daughter's home . A school bus stop also prevents her from living with her aunt in Augusta . Her grandparents, who live in a rural area outside of Augusta, offered to take her in, but there is a school bus stop within 1,000 feet of their property as well .
42 . Ms . Collies has a second daughter who lives in South Carolina . Ms. Collies asked her probation officer if she could move to South Carolina . She was told she would have to ask for a transfer of probation under an interstate compact and that this could take up to six months .
43 . Just days ago, Ms . Collies finally found a temporary residence . She will be moving to the Door of Hope's other residential ministry in Polk County, Georgia . Ms . Collies' probation officer told her the Door of Hope in Polk County is not currently within 1,000 feet of a school bus stop . He specifically told her, however, that this may change in six weeks when school bus routes are reassigned for the coming school year .
18

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 19 of 42
44 . In addition, Ms . Collies may not be able to stay at the Door of Hope in Polk County because it conducts religious programs and services . Every Friday night, for example, there is a prayer watch during which congregants engage in praise, music, and singing. The ministry also hosts religious conferences, prayer, and worship. Even though children generally do not attend these events, the Act, on its face, prohibits Ms . Collins from living at Door of Hope because public worship occurs on the premises .
45 . If Ms . Collies has to leave Door of Hope, she does not know where she will go. She will likely become homeless and have to sleep in a shelter or on the street.
46 . Plaintiff REVEREND JOEL JONES is a minister in Henry County, Georgia . He serves on the Board of Directors of the Door of Hope Ministry in Rockdale County, Georgia . Door of Hope is a faith-based half-way house that ministers to women who have been released from prison . Residents attend Bible study and church and participate in other structured activities. Reverend Jones's spiritual beliefs compel him to provide assistance and spiritual leadership to people
Reverend Jones is not a member of the Plaintiff class . 19

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 20 of 42
released from prison and jail . In addition to running Door of Hope, Reverend Jones ministers to inmates in the U .S. Penitentiary and the Clayton County Jail. Lori Collies, who currently resides at Door of Hope, is on the sex offender registry . As the residential program director, she ministers to the other women in the home . Reverend Jones would like to continue to provide a residence and spiritual guidance to Ms . Collies as she transitions into the community. The Act will prohibit him from doing so . Under the Act, Door of Hope will no longer be able to house women on the registry because residents engage in religious worship and because the ministry's Rockdale location is within 1,000 feet of a school bus stop.
Defendants 47 .
Defendant SONNY PERDUE is the Governor of the State of Georgia . As chief executive of the State of Georgia, he has the duty to "take care that the laws are faithfully executed ." Ga. Const. art. V, § 2, 1 11. He is sued in his official capacity . Plaintiffs ask that Defendant PURDUE be enjoined from enforcing the Act .
20

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 21 of 42
48 . Defendant THURBERT BAKER is the Attorney General of the State of Georgia. He is charged by law with enforcement of the Georgia Code and the defense of the constitutionality of the laws of Georgia . He is sued in his official capacity . Plaintiffs ask that Defendant BAKER be enjoined from enforcing the Act .
49 . Defendant SCOT DEAN is the Chief Probation Officer in Cedartown in Polk County, Georgia . He is charged with supervising probationers, including Plaintiff York and Plaintiff Collies . Georgia law authorizes Defendant DEAN to arrest a probationer if he believes the probationer has violated probation in a material respect, including by violating a law such as the Act . See Ga . Code Ann. § 42-8-38 (2006) . Defendant DEAN is sued in his official capacity . Plaintiffs ask that Defendant DEAN be enjoined from enforcing the Act.
50. Defendant ROBERT SPARKS is the Sheriff of Polk County and he resides in Polk County . He is charged with the common law and statutory duties of the office of sheriff to enforce the laws of Georgia . He is sued in his official capacity . Plaintiffs ask that Defendant SPARKS be enjoined from enforcing the Act .
21

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 22 of 42
JURISDICTION AND VENUE 51 .
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 133 and 1343 because the action arises under and is brought under the Civil Rights Act of 1871, 42 U .S.C. § 1983, the Fourteenth Amendment to the United States Constitution, a nd the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U .S.C .A. § 2000(c)(c) .
52 . Venue is proper in this District under 28 U .S.C. § 1391(b)(1) because at least one Defendant resides in this judicial district . This District also is an appropriate venue for this action under 28 U.S.C. § 1391(b)(2) because at least one Plaintiff lives in the district.
22

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 23 of 42
ALLEGATIONS 53 .
Under Georgia law, anyone who is convicted of a criminal offense against a minor or who is convicted of a "sexually violent offense" against any person must register as a sex offender . See Ga . Code Ann . 42-1-12(b)(1)(a)(i) (2006) .2 Such persons must register with the sheriff in the county where they live, work, and/or attend school . All such persons must have their photographs, addresses, and other identifying information posted on the website of the Georgia Bureau of Investigation .
54 . In June 2003, Georgia's General Assembly passed a law restricting the locations where people on the sex offender registry can live . See Ga. Code Ann. § 42-1--33 (2006). According to this law, which remains in effect today, no one on the registry may live within 1,000 feet of the following locations : schools, child care facilities, and areas where minors congregate, including public and private parks, recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, and similar facilities providing programs or services directed
2 Under current law, a "sexually violent offense" includes : rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, or aggravated assault with intent to rape . See Ga . Code Ann . 42-1-12(a)(7) (2006) .
23

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 24 of 42
towards persons under 18 . Under the current law, the penalty for knowingly violating the residency restrictions is imprisonment from one to three years .
55 . Many people on the registry, including Plaintiff Al Reginald Marks, were required to leave their homes to comply with the terms of the 2003 law, Ga . Code Ann. § 42-1-13 (2006) .
56 . HB 1059 was passed with the purpose of forcing a1110,000 people on the registry to leave the State . House Majority Leader Jerry Keen, the chief sponsor of HB 1059, stated : "We want those people running away from Georgia. Given the toughest laws here, we think a lot of people could move to another state ." • "If it becomes too onerous and too inconvenient, they just may want to live somewhere else . And I don't care where, as long as it's not in Georgia ." • "Candidly, Senators, they will in many cases have to move to another st ate ."
57 .
However, the legislators were not fully informed . People on the registry who are on probation and parole cannot simply move to another state . They must acquire the permission of their probation or parole officers, and arrangements must be made for their supervision in another state before they may leave
24

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 25 of 42

Georgia. Thus, the Act does not force people out of the State ; it f~rces them into the street .
58 .

FIB 1059 was signed into law by Governor Sonny Perdue on April 26, 2006 . The Act, set forth at Ga . Code Ann. § 42-1-15 (2006), states in pertinent part :

(a) No individual required to register pursuant to Code Section 42-1-12 shall reside or loiter within 1,000 feet of an child car facility, church school or area where minors con e ate . Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the outer boundary of the property of the child care facility, church, school, or area where minors congregate at their closest points .

(b)(1) No individual who is required to register under Cc shall be employed by any child care facility, school or
ify that is located within 1,000 feet of a school, or a church .

Section 42-1-12 urch or by any
care raclilty, a

The statute defines ""areas where minors congregate" as :

"all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus toys, and public and community swimming pools . See Ga . Code Ann . § 42}1-12 (3) (2006).

59.

HB 1059 severely restricts the locations in which people on the registry can

live. It does this by adding the requirement that no one on the registry may live

within 1,000 feet of any church, swimming pool, or school bus top . In addition,

under the Act no one will be able to work at or within 1,000 feet of a child care
i i
25

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 26 of 42
facility, school, or church . Under the Act, no one on the registry will be able to loiter within 1,000 feet of a child care facility, church, school, public or private park, recreation facility, playground, skating rink, neighborhood center, gymnasium, school bus stop, public swimming pool, or community swimming pool .
60 . Unlike sex offender residency restrictions in other states, HB 1059 does not contain any exception to protect the rights of those who already own or rent homes in restricted locations . C.f. Iowa Code § 692A .2A (2006) (exempting those who already lived within 2,000 feet of school from its sex offender residency requirements) .
61 . HB 1059 applies to everyone on the registry without exception . There is no procedure to apply for a hardship exemption based on illness, advanced age, financial hardship, or disability .
62 . The Act will have a profound effect on the elderly and disabled people who are now given just weeks to relocate . This is next to impossible for people like Jeff Kennedy who is blind ; William Evans, who is missing a leg, had a heart attack, and is in a wheelchair; a man in northwest Georgia who is 91 years old, in a nursing home, and confined to a wheelchair ; and Herman Williams, who is 80
26

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 27 of 42
years old, has numerous health problems, and cannot find anywhere for him and his 77-year-old wife to live . One of the persons on the registry is 100 years old and will have to move to comply with the Act. About 25 people on the registry are in nursing homes. The Act makes no exception for people who are elderly, sick, or disabled and who cannot reasonably be expected to move at short notice .
63 . HB 1059 does not provide for individualized justice . It provides no process to distinguish between people on the registry who are dangerous to children and those who are not. The exact same residency restrictions apply to Plaintiff Weedy Whitaker, convicted of consensual sexual activity with a boy of like age when she was 17, and adult felons convicted of violent crimes such as rape . The Act contains no "safety valve" provision to permit persons such as Plaintiffs Whitaker, Linaweaver, Allison, and others to appeal to a court to determine whether the residency restrictions are appropriate for them. By imposing punishment without an individualized showing of dangerousness or an individual opportunity to obtain an exception to the law, the Act deprives Plaintiffs of their property and livelihood without due process of law .
27

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 28 of 42
64 . Some sheriff's departments have notified people on the registry that they must leave their homes by July 1 . Plaintiffs Whitaker, Linaweaver, Allison, and Collies have been ordered to leave their homes .
65 . Many sheriff's departments, however, have only just begun to notify persons on the registry that they will have to leave their homes and/or quit their jobs . Accordingly, many people will have two weeks or less actual notice that they must break their leases, sell their homes, and find another residence . People have nowhere to go . Even temporary accommodations, such as motels, are offlimits under the new law since motels often have swimming pools . See Ga. Code Ann. § 4-1-12 (a)(15) (2006) (prohibiting anyone on the registry from residing within 1,000 feet of a swimming pool, including a motel swimming pool) .
66 .
The provision of the Act that prohibits people from living within 1,000 feet of a school bus stop, Ga. Code Ann. 42-1-15(a) (2006), is particularly arbitrary, unreasonable, and punitive . The Act's prohibition against living within 1,000 feet of a school bus stop virtually guarantees that no one on the registry will be able to live or work in urban areas . Bibb County has roughly 4,700 bus stops . Approximately 227 of 230 people on the registry will be forced to move .
28

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 29 of 42
Rockdale County has roughly 4,000 bus stops . Approximately 48 of 51 people will be forced to move . Forsyth County has about 1,200 school bus stops . A1167 people on the registry will be forced to move .
67 . School bus stops change frequently depending on when children move into and out of neighborhoods, get cars of their own, and change schools . This renders it virtually impossible for anyone on the registry to buy or rent a home . If a child moves into the neighborhood or reaches school age, a bus stop may force the registrant to move .
68 . School bus stops are usually unmarked . The measurements of a school bus stop are unclear; there is no way to know where a stop begins and ends so that one may measure 1,000 feet from it . In many rural areas, school buses stop at the end of the driveways of children's houses .
69 . In many Georgia counties, it has been impossible to get a list of school bus stops from the sheriff's department, the probation office, the local department of education, or any other state or local office . Currently, no listing of school bus
29

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 30 of 42
stops is available in some counties because it is being revised during the summer months .
70 . HB 1059 will make it impossible for registrants in certain professions construction, roofing, and truck driving - to maintain their jobs, as they cannot predict or control where their jobs will take them .
71 . The Act is breaking families apart. Many parents will no longer be able to live with their children . People taking care of elderly parents or terminally ill spouses will have to leave home.
72 . In many cases, instead of banishing people beyond state lines, HB 1059 will simply render people homeless and unaccounted for within the State of Georgia . Many probationers cannot leave the county or the state without their probation officers' approval . Yet there will be nowhere for people on the registry to move in many Georgia counties . Urban areas are generally off-limits . And law enforcement is so backed up with requests to approve new residences that people on the registry are not able to initiate relocation to different counties. People on the registry are stuck in an impossible situation : they are subject to prosecution if
30

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 31 of 42
they stay in their homes, they cannot find alternative residences, and they cannot leave the State without prior approval .
CLASS ACTION ALLEGATIONS 73 .
Plaintiffs bring this class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure on their behalf and on behalf of a class similarly situated and affected during the pendency of this lawsuit and in the future . The class is defined as all persons who have registered as sex offenders pursuant to Ga. Code Ann . § 42-1-12 (2006), or must so register in future, and who are harmed by the Act's residency, working, and loitering provisions .
74 . The requirements of Rule 23(a) are met with respect to the class .
75 . The members of this class are so numerous that their joinder is impractical . The class consists of approximately 11,000 people.
76 . There are questions of law and fact common to the class, specifically whether the Act violates rights secured by the United States Constitution . The questions of law and fact common to the class as a whole concern the
31

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 32 of 42
constitutionality and lawfulness of the Act . For example, there are common questions of law and fact concerning the lawfulness of each of the following matters :
a. whether the Act violates the Ex Post Facto Clause ; b. whether the Act violates the procedural component of the Due Process
Clause ; c. whether the Act violates the substantive component of the Due Process
Clause and the right to family privacy ; d . whether the Act violates the Religious Land Use and Institutionalized
Persons Act; e. whether the Act violates the Free Exercise Clause and the right to
freedom of association; f. whether the Act violates the Takings Clause ; g. whether the Act violates the right to interstate and intrastate travel ; and h. whether the Act violates the Eighth Amendment by placing an
unconstitutional punishment on persons based upon their status .
32

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 33 of 42
77 .
The Act challenged in this action applies with equal force to the named Plaintiffs and all members of the class so that the claims of the named Plaintiffs are typical of those of the class . All class members will be subject to the Act's restrictions absent the requested relief .
78 . The named Plaintiffs will fairly represent and adequately protect the interests of the class as a whole . Plaintiffs are persons on Georgia's sex offender registry . Plaintiffs, like others in the class, are required to move from their homes, leave jobs, and/or cease attendance at religious services . They possess the requisite personal interest in the subject matter of the lawsuit and possess no interests adverse to other class members .
79 . Plaintiffs are represented by counsel experienced in civil rights class action litigation . The named Plaintiffs and the class members are represented by attorneys at the Southern Center for Human Rights, a privately funded, nonprofit organization with extensive experience in complex class action litigation, and the American Civil Liberties Union, a nonprofit law office with extensive experience litigating class action lawsuits . Plaintiffs' counsel have the resources, expertise, and experience to effectively prosecute this action .
33

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 34 of 42
80 . The requirements of Fed . R. Civ. P. 23(b)(2) are met. Defendants have acted in a way generally applicable to the class the Plaintiffs represent, thereby making preliminary and permanent injunctive relief and corresponding declaratory relief appropriate for the class as a whole pursuant to Fed . R. Civ. P. 23(b)(2) .
CLAIMS FOR RELIEF COUNT ON E
VIOLATION OF EX POST FACTO CLAUSE 81 .
Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the allegations of ¶ ¶ 1-50, ¶ ¶ 53-61, T ¶ 66-67, and ¶ ¶ 70-72.
82 . The Act punishes Plaintiffs for crimes for which they have already been punished by forcing them to sell their homes, break their leases, leave their families, and give up their jobs, the source of their food and shelter . The Act banishes Plaintiffs from their homes and communities .3 Application of the Act to the named Plaintiffs and others who were convicted of offenses before July 1,
3 Plaintiffs are not raising any state constitutional claims, including, but not limited to banishment .
34

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 35 of 42
2006 will violate the Ex Post Facto Clause of the United States Constitution, U .S. Const. art. I, § 10.
COUNT TWO VIOLATION OF PROCEDURAL DUE PROCESS CLAUSE
83 . Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the allegations of I ¶ 1-50, ¶ ¶ 53-69, and ¶ ¶ 72 .
84 . The Act violates Plaintiffs' right to procedural due process of law under the Fourteenth Amendment to the Constitution of the United States, U .S. Const. amend. XIV, § 1, as applied to the states and enforced through 42 U .S.C. § 1983 (2006) .
COUNT THREE VIOLATION OF SUBSTANTIVE DUE PROCESS :
THE RIGHT TO FAMILY PRIVACY 85 .
Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the allegations of ¶ 1 1-50, 1153-61, ¶ ¶ 63, 1 165-68, and T 171-72.
35

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 36 of 42
86 . The Act is unconstitutional because it impinges on Plaintiffs' fundamental right to family privacy -- specifically the right to cohabit with one's family.
87 . Therefore, the Act violates Plaintiffs' right to substantive due process of law under the Fourteenth Amendment to the Constitution of the United States, U.S. Const. amend. XIV, § 1, as applied to the states and enforced through 42 U.S.C. § 1983 .
COUNT FOUR VIOLATION OF THE RELIGIOUS LAND USE AND INSTITUTIONALIZED
PERSONS ACT, 42 U. S.C.A. § 2000(c)(c) 88 .
Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the allegations of ¶¶ 1-50 and ¶¶ 53-61 .
89 . The Religious Land Use and Institutionalized Persons Act, 42 U .S.C.A. § 2000(c)(c)(a)(1) (West 2006) ("RLUIPA") states : No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religiousi exercise of a person, including a religious assembly or institution, unless the
36

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 37 of 42
government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling interest; and (B) is the least restrictive means of furthering that compelling governmental interest.
RLUIPA further states : No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution . 42 U.S.C.A. § 2000(c)(c)(b)(1) (2006) . 90 . The Act explicitly prohibits anyone on the registry from living in churches
or religiously affiliated halfway houses where public worship takes place . The Act violates RLUIPA by placing an impermissible land use restriction on ministries and churches that house people on the registry, including the Door of Hope Ministry in Congers, Georgia.
91 . The Act violates RLUIPA by prohibiting people on the registry from living in halfway houses sponsored by churches while not imposing the same burden on secular halfway houses .
37

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 38 of 42
COUNT FIVE VIOLATION OF FREE EXERCISE CLAUSE AND RIGHT TO FREEDOM OF ASSOCIATION
92 . Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the allegations of ¶¶ 1-50, and ¶¶ 53-6 1.
93 . The Act prohibits all people on the registry from living or working at or within 1,000 feet of a church . The penalty for loitering at or within 1,000 feet of a church is a minimum of 10 years and a maximum of 30 years in prison . The Act creates an impermissible chilling effect on the right to attend a house of worship . The Act violates the Free Exercise Clause, U .S. Const, amend . I, and the right to freedom of association, see U .S. Const. amend. I.
COUNT SIX VIOLATION OF TAKINGS CLAUSE
94 . Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the allegations of ¶¶ 1-50, ¶¶ 53-61, ¶T 63-69, and ¶¶ 71-72 .
38

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 39 of 42
95 . By requiring Plaintiffs immediately to sell their property, break their leases, and leave their homes, the Act violates the Fifth Amendment's prohibition on takings without just compensation, U .S. Const. amend. V, as applied to the states and enforced through 42 U .S.C. § 1983 (2006) .
COUNT SEVEN VIOLATION OF RIGHT TO INTERSTATE AND INTRASTATE TRAVEL
96 . Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the allegations of ¶ 1 1-50, ¶ ¶ 53-61, I¶ 65-69, and 1 72 .
97 . The Act violates the right to interstate and intrastate travel . See U.S . Const. amend. XIV, § 1, as applied to the states and enforced through 42 U .S.C. § 1983 .
COUNT EIGHT VIOLATION OF EIGHTH AMENDMENT
98 . Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the allegations of ¶ ¶ 1-50, ¶ ¶ 53-63, and ¶ ¶ 65-72 .
39

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 40 of 42
99 . The Act violates the Eighth Amendment, U .S. Const. amend. VIII, by imposing cruel and unusual punishment and by placing an unconstitutional punishment on Plaintiffs based upon their status as people on the sex offender r egistry .
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court : 1 . Assume jurisdiction over this action ; 2. Determine by Order pursuant to Rule 23 of the Federal Rules of Civil
Procedure that this action be maintained as a class action ; 3. Enter a preliminary and thereafter a permanent injunction enjoining
the portions of the Act that violate the rights of Plaintiffs and the class they represent; 4. Declare that the portion of the Act prohibiting residence within 1,000 feet of a school bus stop is vague and overbroad ; 5. Declare that the Act violates : the Ex Post Facto Clause ; the procedural component of the Due Process Clause ; the substantive component of the Due Process Clause and the right to family privacy; the Religious Land Use and Institutionalized Persons Act ; the Free Exercise Clause and the right to freedom of association ; the
40

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 41 of 42
Takings Clause; the right to interstate and intrastate travel ; and the Eighth Amendment. 6. Enter judgment in favor of Plaintiffs ; 7. Award Plaintiffs the costs of this lawsuit and reasonable attorneys' fees pursuant to 42 U.S.C. § 1988 ; and 8. Order such other and further relief as this Court may deem just and proper . Respectfully submitted this 20th day of June, 2006 .
SOUTHERN CENTER FOR HUMAN RIGHTS s/ Sarah Geragh#X Stephen B . Bright (Ga . Bar No . 082075) Lisa Kung (Ga . Bar No . 430302) Sarah Geraghty (Ga. Bar No . 291393) Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Tel: (404) 688-1202 Fax: (404) 688-9440 sbright@schr .org lkun schr.orZ s o raghty@schrTorg
41

Case 4:06-cv-00140-HLM Document 1 Filed 06/20/2006 Page 42 of 42
AMERICAN CIVIL LIBERTIES UNION OF GEORGIA Gerald R . Weber (Georgia Bar No. 744878) Margaret F . Garrett (Georgia Bar No. 255865) Beth Littrell (Georgia Bar No. 454949) American Civil Liberties Union 75 Piedmont Avenue, Suite 514 Atlanta, GA 30303 Tel: (404) 523-6201 Fax: (404) 577-0181 gweber@ac_ Iuga.org mgarrettQacluga .org Blittrell@acluga•or~
42

 
 Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

WENDY WHITAKER, et aI.,

)

)

Plaintiffs,

)

)

v.

)

)

SONNY PERDUE, et ai.

)

)

Defendants.

)

-------------------------)

CIVIL ACTION No.4:06-140-CC

BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs seek to enjoin Defendants from enforcing the portion of Georgia

law, scheduled to go into effect on July 1, 2006, that would prohibit people on the

sex offender registry from living within 1,000 feet of anyone of Georgia's

hundreds of thousands of school bus stopS.l If this law goes into effect, it will

render nearly all urban areas and most rural areas in Georgia off-limits for the

11,000 people on the registry. Hundreds, if not thousands, of Georgia citizens -

including children, the elderly and disabled, and residents of nursing homes -

will become homeless. In addition, because designated school bus stops are

subject to change, Plaintiffs will be unable to resettle with any permanency.

See Act No. 571, Ga. Laws 2006 (HB 1059), codified at Ga. Code Ann. § 421-15 ("the Act").

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 2 of 26
Plaintiffs also seek a preliminary injunction with respect to the portion of the Act that prevents people on the registry from living within 1,000 feet of a place of religious worship, upon penalty of 10 to 30 years imprisonment. This portion of the Act impermissibly bars people on the registry from living at faithbased shelters, halfway houses, and assisted-living facilities.
Plaintiffs seek a preliminary injunction on behalf of themselves and others on the registry. Absent an injunction, Plaintiffs will be irreparably harmed. They will be forced from their homes and communities in violation of the Ex Post Facto Clause, the procedural Due Process Clause, and the substantive Due Process Clause. In addition, Plaintiffs' religious rights will be impermissibly burdened in violation of the Religious Land Use and Institutionalized Persons Act, the First Amendment, and the right to freedom of association. The balance of interests and public policy considerations weigh heavily in favor of granting a preliminary injunction to prevent Plaintiffs and others from becoming homeless while this matter is being litigated.
2

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 3 of 26
STATEMENT OF FACTS There are approximately 11,000 people on Georgia's sex offender registry, about 9,000 of whom live in the community.2 Georgia law already imposes substantial restrictions on where they may live. See Ga. Code Ann. § 42-1-13 (prohibiting residency within 1,000 feet of schools, child care facilities, parks, recreation facilities, skating rinks, neighborhood centers, gymnasiums, and similar facilities providing services to children). The penalty for violating Ga. Code Ann. § 42-1-13 (2006) is one to three years imprisonment. HB 1059, signed into law by the Governor on April 24, 2006, substantially revises Ga. Code Ann. § 42-1-13. It transforms a law tailored to keep offenders away from children into a law that essentially forces every registered sex offender in Georgia from all urban areas and many rural areas. The Act states: (a) No individual required to register pursuant to Code Section 42-1-12 shall reside or loiter within 1,000 feet of any child care facility, church, school, or area where minors congregate. Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the outer boundary of the property of the child care facility, church, school, or area where minors congregate at their closest points. (b)(1) No individual who is required to register under Code Section 42-1-12 shall be employed by any child care facility, school, or church or by any business or entity that is located within 1,000 feet of a child care facility, a school, or a church.
2 Of the approximately 11,000 people on the registry, 14 are designated "sexually violent predators," meaning that they have been deemed to have a propensity to re-offend.
3

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 4 of 26
Ga. Code Ann. § 42-1-15 (2006). The Act defines"areas where minors congregate" as:
"all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, and public and community swimming pools" Id. § 42-1-12(3) (emphasis added). The Act defines "school bus stop" as: "a school bus stop as designated by local school boards of education or by a private school" Id. § 42-1-12 (a)(19). The ostensible purpose of HB 1059 is to keep Georgia's children safe from sexual offenses. Yet the Act imposes its residency restrictions and other significant penalties on all people on the registry - even those like Plaintiff Wendy Whitaker who is on the registry because, at age 17, she had a single consensual act of oral sex with a 15-year-old boy. For this act, committed ten years ago, Ms. Whitaker has been forced from one home and will be forced from another.3 Plaintiff Janet Allison was convicted of being "party to a crime of
3 On July I, HB 1059, the very same Act that is driving Ms. Whitaker from her home, will revise Georgia's criminal code to provide that a 17-year-old who engages in consensual sexual activity with a 15-year-old, as Ms. Whitaker did ten years ago, will be guilty of a misdemeanor and will not have to register as a sex offender. See Ga. Code Ann. § 16-6-2(d). The Act does not, however, provide an exemption for Ms. Whitaker; she must still leave her home absent an injunction.
4

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 5 of 26

statutory rape" for not preventing her 15-year-old daughter from becoming sexually active. Absent an immediate injunction, Ms. Allison and her family will be forced by HB 1059's school bus stop provision to leave their home.
Many states have sex offender residency restrictions, yet HB 1059 goes Significantly farther than any other such law. HB 1059 applies to everyone on the registry without exception.4 There is no provision for a hearing or any opportunity for someone like Ms. Allison to show she is not a danger to children. There is no procedure to apply for a hardship exemption based on illness, advanced age, or disability. Unlike sex offender residency restrictions in other states, HB 1059 does not contain an exemption to protect the rights of those who already own or rent homes in restricted locations.s Most significantly, rather than limit residency restrictions to schools, playgrounds, and other similarly discrete areas, the Act's prohibition against living within 1,000 feet of a school bus stop renders nearly all of Georgia off-limits to anyone on the registry.6 Although they have nowhere to go, if Plaintiffs do not leave their homes by July

4

Cf. Ark. Code Ann. § 5-14-128(a) (applying sex offender residency

restrictions only to level 3 and 4 sex offenders).

S See, e.g., Iowa Code § 692A.2A (stating that new statute prohibiting sex offenders from residing near school may not be enforced against persons who were already established in a residence when the statute went into effect).

6 See, e.g., Ala. Code § 15-20-26(a) (prohibiting sex offenders from living near a school or child care facility).

5

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 6 of 26
1, 2006, they will be subject to arrest, prosecution, and mandatory imprisonment of 10 to 30 years.
ARGUMENT AND CITATION OF AUTHORITIES Plaintiffs seek preliminary injunctive relief barring enforcement of the Act. To be entitled to a preliminary injunction, Plaintiffs must show: (1) irreparable harm to the plaintiff unless the injunction issues; (2) a substantial likelihood of success on the merits; (3) that the threatened injury to the plaintiff outweighs the harm to the defendant if the injunction issues; and (4) that the injunction will not disserve the public interest. See MacGinnitie v. Hobbs Group LLC, 420 F.3d 1234, 1240 (11th Cir. 2005). Plaintiffs satisfy this standard. I. PLAINTIFFS WILL SUFFER IRREPARABLE HARM UNLESS THE ACT IS ENJOINED. Attached to the Motion for Preliminary Injunction as Exhibits 1-8 are detailed declarations by Plaintiffs describing the harm that will befall them absent an injunction? If HB 1059 goes into effect, many Plaintiffs will be made homeless in nine days. Plaintiffs cannot find anywhere to live, though many have spent weeks driving hundreds of miles in search of a residence that complies with the Act. Plaintiff Collins has searched Hall, Barrow, Newton,
7 See Declaration of Wendy Whitaker (Exhibit 1); Declaration of Joseph Linaweaver (Exhibit 2); Declaration of Janet Allison (Exhibit 3); Declaration of James Wilson (Exhibit 4); Declaration of Jeffery York (Exhibit 5); Declaration of Al Marks (Exhibit 6); Declaration of Lori Collins (Exhibit 7); Declaration of Joel Jones (Exhibit 8).
6

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 7 of 26
Rockdale, and Henry counties without success. Plaintiff Marks searched Dekalb, Douglas, Madison, and Paulding counties, but cannot find a residence. Plaintiff Allison searched White, Pickens, Dawson, Lumpkin, and Gilmer counties, but has not found a residence. Plaintiff Wilson searched Fulton, Dekalb, and Clayton counties and found only a temporary-stay motel in an industrial area. HB 1059 will also require Plaintiffs and others to leave their jobs, lose their health insurance, and abandon court-mandated treatment programs. Unless enjoined, the Act will force many people on the registry to sleep on the streets or in their cars, or to set up tents or trailers in the woods. II. PLAINTIFFS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS
ON THE MERITS. A. The Intent and Effect of HB 1059 Is to Punish Plaintiffs, Violating
the Constitution's Prohibition Against Ex Post Facto Laws. The Ex Post Facto prohibition against retroactively increasing the punishment of a crime is essential to our constitutional system, reflecting the fundamental values of fairness to individuals and limited government. See Calder v. Bull, 3 U.S. 386 (1798). This Court recently considered an Ex Post Facto challenge to Georgia's current sex offender residency restrictions, Doe v. Baker,
2006 WL 905368 (N.D. Ga. April 6, 2006) (Thrash, J.), where the plaintiff was
required to move from his home in Cobb County because it was within 1,000 feet of a school. Doe claimed he had been "banished," though he was able to find another home in the same county. This Court held that the Ex Post Facto Clause
7

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 8 of 26
was not violated on these facts. The Court specifically stated, however, that a more restrictive law that would make it impossible for a person to live in his community would result in an Ex Post Facto problem:
The Court takes judicial notice that Cobb County is primarily a suburban county where it would be relatively easy to find an affordable residence that is more than 1,000 feet from a school or daycare center. It is undisputed that the Plaintiff has found a residence in the county where he can live without violating the Residence Act. Therefore, he has no standing to claim that the effect of the act is to banish him from residence in the community. A more restrictive act that would in effect make it impossible for a registered sex offender to live in the community would in all likelihood constitute banishment which would result in an ex post facto problem if applied retroactively to those convicted prior to its passage. Baker, 2006 WL 905368 at *4 (emphasis supplied). HB 1059 is just such a law. As anticipated by the Baker opinion, HB 1059 retroactively imposes one of the oldest and most severe forms of societal punishment: banishment from the community. See Smith v. Doe, 538 U.s. 84, 98 (2003) (holding that statutory requirement to register as a sex offender did not violate Ex Post Facto Clause because it was not "punishment," but characterizing "banishment" as a punishment with deep roots in our nation's criminal jurisprudence); Kennedy v. Mendoza-Martinez, 372 U.S. 144,170 n. 23 (1963) (stating that "banishment and exile have throughout history been used as punishment"); Doe v. Miller, 405 F.3d 700, 720-21 (8th Cir. 2005) (finding that Iowa's sex offender residency statute did not impose banishment because it allowed people to maintain residences established before the statute's effective
8

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 9 of 26
date, and because the statute did not'"expel' the offenders from their communities.").
At the preliminary injunction hearing, Plaintiffs will show that HB 1059 essentially banishes everyone on the sex offender registry from all urban areas and many rural areas. HB 1059 not only forces people from their homes, it forces them from their communities and makes it impossible to resettle anywhere in the State. There are hundreds of thousands of school bus stops in Georgia; Atlanta alone has at least 40,000. School bus stops change frequently, depending on when children move into and out of neighborhoods and graduate to different schools. HB 1059 effectively banishes Plaintiffs from the State by making it impossible for anyone on the registry to buy or rent a home in Georgia.
There is little doubt the intent of HB 1059 was to punish individuals who committed sex offenses by banishing them from the State. House Majority Leader Jerry Keen, the sponsor of HB 1059, repeatedly and explicitly announced that the intent was to banish people from Georgia:
• "This legislation will probably make Georgia one of the toughest in the nation on sex offenders. No sex offender is ever going to want to live here. 1'd be mighty happy to see that happen."
• "We want those people running away from Georgia. Given the toughest laws here, we think a lot of people could move to another state."
• "If it becomes too onerous and too inconvenient, they just may want to live somewhere else. And I don't care where, as long as it's not in Georgia."
9

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 10 of 26
• "There is no place in our society for those who prey on innocent children." • "Candidly, Senators, they will in many cases have to move to another
state." Insofar as the legislative intent was to retroactively punish people on the registry by banishing them from Georgia, HB 1059 violates the Ex Post Facto
clause and must be struck down. See Smith v. Doe, 538 U.s. at 92 ("If the
intention of the legislature was to impose punishment, that ends the inquiry[,]" and the statute must be overturned.).
Even without an explicit legislative intent to punish, HB 1059 is unconstitutional because it is punitive in its effect. See Kansas v. Hendricks, 521
u.s. 346, 361 (1997) (a statute may violate the Ex Post Facto Clause if it is so
punitive in effect that it negates any intent to deem it "civil"). Courts consider the following factors to determine if a statute is punitive: (1) whether it promotes the traditional aims of punishment; (2) whether it imposes an affirmative disability or restraint; (3) whether the law was regarded in history and tradition as punishment; (4) whether it has a rational connection to a non-punitive purpose; and (5) whether it is excessive with respect to that purpose. See Smith,
538 U.S. at 97 (quoting Mendoza-Martinez, 372 U.s. at 168-69).
In all respects, HB 1059 imposes punishment, as defined by the MendozaMartinez factors. The Act ostensibly promotes the traditional aims of punishment, including deterrence and retribution; the Act imposes an affirmative
10

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 11 of 26
disability by depriving people of their homes and livelihoods; and the Act banishes thousands, not just from their homes, but from their communities.
HB 1059 may have the non-punitive purpose of promoting public safety, but it is not rationally related to that purpose. In fact, the Act diminishes public safety. HB 1059 does not provide for closer monitoring of people on the registry. Rather, it will dramatically disrupt the monitoring required by the existing law by removing people from stable locations to homelessness.
Finally, HB 1059 is clearly excessive. Unlike the sex offender residency restrictions of other states, Georgia does not differentiate between people convicted of violent sexual offenses, such as rape, and teenagers who violated the law by consensual sexual activity with someone of like age. Georgia treats everyone like the worst offender, making the punitive effect of the law not only excessive, but arbitrary as well. For example, Joseph Linaweaver - who is on the sex offender registry because he had consensual sexual relations at age 16 with his 14-year-oldgirlfriend - is being forced to leave Georgia, six years after his conviction, because he cannot find anywhere to live. Mr. Linaweaver and other Plaintiffs who pled guilty to minor crimes and received probation now face the additional and extraordinary punishment of banishment.
11

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 12 of 26
Whether by intent or by effect, newly imposing the punishment of banishment on everyone on Georgia's sex offender registry would violate the Ex Post Facto clause. Enjoining the Act's residency and work restrictions, but particularly the bus stop provision, is necessary to avoid this result.
B. HB 1059 Deprives Plaintiffs of Their Homes and Employment without Any Procedural Safeguards and in a Manner That Is Arbitrary and Irrational, in Violation of the Procedural and Substantive Components of the Due Process Clause.
1. Procedural Due Process
The Due Process Clause, u.s. Const. amend. XIV, prohibits states from
depriving persons of property without adequate procedural safeguards. Where, as here, plaintiffs have a constitutionally protected interest in life, liberty or property, see Mikeska v. City of Galveston, 419 F.3d 431, 435 (5th Cir. 2005) (individuals have a constitutionally protected right in their homes); Greene v.
McElroy, 360 U.s. 474,492 (1959) ("The right to hold specific chosen employment
and to follow a chosen profession free from umeasonable governmental interference comes within the 'liberty' and 'property' concepts of the Fifth Amendment...") , and state action such as HB 1059 causes a deprivation of that interest, the Court must inquire into the adequacy of procedures accompanying the deprivation. See Bank of Iackson County v. Cherry, 980 F.2d 1362, 1365 (11th Cir. 1993). As a general rule, due process requires at least notice and an
12

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 13 of 26
opportunity to be heard by a neutral decision-maker. See Goldberg v. Kelly, 397 U.S. 254,268 (1970).
The Supreme Court requires consideration of three factors when determining whether procedures attendant upon a deprivation of property are constitutionally sufficient: (1) the private interest to be affected by the action, (2) the risk of erroneous deprivation of that interest through the procedures that were used and the probable value of added procedures, and (3) the government's interest, including the fiscal and administrative burdens of added procedures. See Mathews v. Eldridge, 424 U.s. 319,335 (1979).
Plaintiffs' private interests in their homes and livelihood are profoundly affected by HB 1059. The Act's prohibition against living in proximity to school bus stops is forcing them to leave their homes and jobs. The Act will have a particularly profound effect on the elderly and disabled, who are given just weeks to relocate. This is next to impossible for Jeff Kennedy who is blind; William Evans, who is missing a leg, had a heart attack, and is in a wheelchair; a 91-year-old man in north Georgia who is in a nursing home, and confined to a wheelchair; and Herman Williams, who is 80 years old, has numerous health problems, and cannot find anywhere for him and his 77-year-old wife to live. One person on the registry is 100 years old and will have to move. About 25 people on the registry live in nursing homes and now must move.
13

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 14 of 26
Courts tolerate exceptions to the rule requiring pre-deprivation notice and hearings only in "extraordinary situations." See United States v. Tames Daniel Good Real Prop., 510 U.S. 43, 53 (1993) (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971); Fuentes v. Shevin, 407 U.S. 67, 92 (1972) (listing"extraordinary situations" that "justify postponing notice and opportunity for hearing," including to collect internal revenue, to meet the needs of a national war effort, to protect against the disaster of bank failure). Yet HB 1059 provides no procedure whatsoever before depriving people of their homes and employment.
The remaining Matthews factors inquire into the value and burden of added procedures prior to deprivation. The value of added procedures to HB 1059 would be enormous. Despite its severe infringement on the right to property, HB 1059 does not provide for individualized consideration of dangerousness. 8 The same residency restrictions apply to Plaintiff Whitaker,
8 HB 1059 contains a process for the Sexual Offender Registration Review Board to make individualized determinations of whether a person should be classified as a "sexually dangerous predator," and as such, be subject to lifetime electronic monitoring. See Ga. Code Ann. § 42-1-13, 42-1-14. The Board, composed of professionals "knowledgeable in the field of the behavior and treatment of sexual offenders" as well as law enforcement officials, is charged with making individualized determinations of dangerousness. Persons considered sexually dangerous predators have an opportunity for a hearing to present testimony and evidence. Without commenting on the sufficiency of these procedures as applied to lifetime electronic monitoring, Plaintiffs contend that the loss of homes and employment caused by the school bus stop provision are at least as serious as the loss of liberty caused by lifetime electronic monitoring. This is especially true since many people will be on the registry their entire lives.
14

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 15 of 26
convicted of consensual sexual activity with a boy of like age when she was 17, and adult felons convicted of violent crimes such as rape. The burden of requiring a particularized finding of dangerousness before depriving someone of their home and job is minimal. It is certainly no larger than the extraordinary burden placed on local law enforcement to enforce the Act's school bus stop restrictions.
The Supreme Court has made it clear that due process is central to our constitutional structure. Ruling for the plaintiffs in a case involving repossession of a stove and a stereo without a hearing, the Court stated:
The prohibition against the deprivation of property without due process of law reflects the high value embedded in our constitutional and political history that we place on a person's right to enjoy what is his, free from government interference. Fuentes v. Shevin, 407 U.s. 67,81 (1972). If it is necessary for a state to provide process before depriving a person of a stove and a stereo, a process must also be accorded to a person being forcibly ejected from his home. If the State is unwilling or unable to provide such process, the school bus stop provision must be enjoined from being enforced.
15

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 16 of 26
2. Substantive Due Process HB 1059 also violates the substantive component of the Due Process Clause because to the extent that the Act imposes restrictions that have no rational relationship to its purpose. See Lewis v. Brown, 409 F.3d 1271, 1273 (11th Cir. 2005) (the right to substantive due process protects people from" arbitrary and irrational" action by state officials). The Act casts its net far too broadly. HB 1059 will force people out of their homes for having engaged in consensual sex as teenagers. It will drive people who are severely disabled, bedridden and incapable of re-offending from nursing homes without any logical reason. The state can offer no rational reason why persons such as Wendy Whitaker must be banished from their communities. HB 1059, the very same Act that will force Ms. Whitaker from her home, also changes the criminal law of sodomy, transforming the act she committed ten years ago (sexual contact between teenagers, ages 17 and 15) into a misdemeanor. See Ga. Code Ann. § 16-6-2(d). If Plaintiffs York, Linaweaver, and Whitaker had been convicted of the same offenses after July 1, 2006, they would not even have to register as sex offenders, let alone be subject to forced displacement from their homes. To the extent that HB 1059 lacks a rational relationship to a legitimate government welfare concern, see Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208 (11th Cir. 1995), it must be overturned.
16

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 17 of 26
C. Because HB 1059 Is Not Reasonably Tailored to Protect Children, It Violates Plaintiffs' Fundamental Right to Live with Their Families.
The Fourteenth Amendment provides that states shall not"deprive any person of life, liberty, or property, without due process of law." U.s. Const. amend. XIV, § 1. This guarantee includes a substantive protection "against government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.s. 702,720 (1997) (citing Reno v. Flores, 507 U.S. 292, 301-02 (1993)). Infringement of a fundamental right requires strict scrutiny review, meaning that a law will be constitutional only if it serves a compelling state interest and is narrowly tailored toward that interest. See Flores, 507 U.s. at 302.
The Supreme Court has recognized that the right to co-habit with family is a fundamental right. See Roberts v. U.S. Iaycees, 468 U.s. 609, 619 (1984) (describing the life activities entitled to constitutional protection as "those that attend the creation and sustenance of a family," including "cohabitation with one's relatives") (citations omitted); Moore v. City of East Cleveland, 431 U.S. 494,503 (1977) ("the institution of the family is deeply rooted in this Nation's history and tradition"); Cleveland Bd. of Educ. v. LaFleur, 414 U.s. 632, 639-40 (1974) nF]reedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment."). As the Court declared in Moore, "when the government
17

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 18 of 26
intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation." 431 U.S. at 499.
While HB 1059 does not explicitly forbid people on the sex offender registry from living with their relatives, the statue will, in effect, prohibit families from living together. The law will expel Plaintiffs, not just down the block or across town, but, in some cases, to distant parts of the state or across the country. Husbands, wives, and children of people on the registry will be faced with the Hobson's choice of moving hundreds of miles away - perhaps to a trailer in the woods - or being separated. Economic realities dictate that this"choice" is often not a choice at all. Joseph Linaweaver's family, for example, cannot afford to move to Wisconsin with their son. Wendy Whitaker's husband cannot afford to leave his job, and yet the couple also cannot afford to pay for two homes. The married couple will have to separate.
With Plaintiffs' fundamental right to live with their relatives thus infringed, the State has the burden of showing HB 1059 is "narrowly tailored to serve a compelling state interest." Flores, 507 U.s. at 302. The State can point to no interest that the challenged provisions of HB 1059 actually serves, much less is narrowly tailored to serve.
18

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 19 of 26
Defendant Purdue, in official statements regarding HB 1059, suggests the Act is designed to improve public safety, particularly the safety of children. The provisions Plaintiffs ask this Court to enjoin - particularly the school bus stop restriction - will do exactly the opposite, by forcing individuals on the registry to abandon treatment programs, leave stable homes, and abscond from the registry.
The bus stop provision also makes the Act too broad to withstand strict scrutiny. There is no conceivable reason to impose such substantial restrictions on Ms. Whitaker, Mr. Linaweaver, and others who were teenagers when they committed their consensual sex "offenses" with other teenagers. They pose no threat to public safety, yet HB 1059 will utterly derail their lives. A properly tailored law would limit the bus stop restrictions to people who have been determined by a competent review board to be at risk of harming children. As the Act burdens Plaintiffs' fundamental right to live with their family members and is not narrowly tailored toward the purported state interest, the Court should strike it down as unconstitutional.
19

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 20 of 26
D. HB 1059 Is an Impermissible Restriction on Churches and Burdens Religion in Violation of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The Religious Land Use and Institutionalized Persons Act CRLUIPA"), 42 U.s.CA. § 2000cc (West 2006) protects religious activities and practices from being substantially burdened by government action. HB 1059 violates RLUIPA by impermissibly restricting churches from housing people on the registry. 1. HB 1059 Violates 42 U.s.CA. § 2000cc(a)(1). Attending church and living at a faith-based ministry are both protected by RLUIPA as "exercises of religion." 42 U.S.CA. § 2000cc-5(7). HB 1059 burdens these protected activities by prohibiting anyone on the registry from living at or within 1,000 feet of any church or place of worship. See Ga. Code Ann. § 42-115(a), (b). Such a burden is permissible only if it is the least restrictive means of furthering a compelling government interest. See 42 U.S.CA. § 2000cc(a)(1). In fact, the Act works to impede rather than further the common interest in protecting children. Many churches offer residences and services to people on the registry, and often churches and ministries are the only entities offering such services. Plaintiff Reverend Joel Jones, for example, wishes to provide residence, services, and spiritual guidance to Plaintiff Lori Collins and others. Under the Act, he cannot. Under the Act's church restrictions, ministries providing scarce housing, stability, and guidance to people on the registry will be forced to evict
20

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 21 of 26
their parishioners, severing people from precisely the stabilizing forces that are necessary to make children safer.
Moreover, while protecting children is a compelling interest, the Act's church restrictions are not narrowly tailored to such an interest. Church halfway houses will be forced to expel even residents who are low-risk offenders complying with the terms of probation. The Act permits no exceptions or exemptions. It would forcibly displace a completely disabled person in a faithbased shelter, extended care facility, or nursing home. Therefore, the Act violates 42 U.S.CA. § 2000cc(a)(1).9
2. HB 1059 Violates 42 U.S.CA. § 2000cc(b)(1). Additionally, by prohibiting churches but not other institutions from housing and employing people on the registry, HB 1059 illegally treats a religious institution"on less than equal terms with a nonreligious assembly or institution." 42 U.5.CA. § 2000cc(b)(1). It is impermissible to permit secular halfway houses to take in people on the registry while forbidding faith-based halfway houses to do the same. See Primera Iglesia Bautista I-Iispana of Boca Raton, Inc. v. Broward County, 2006 WL 1493825, at *9 (11th Cir. 2006) (noting that regulations violate
9 For the same reasons, HB 1059 violates the Free Exercise Clause and the right to freedom of association. See Employment Division v. Smith, 494 U.S. 872, 881-82 (1990) (Free Exercise claim is entitled to strict scrutiny review when it is asserted in conjunction with other constitutional protections).
21

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 22 of 26
RLUIPA if they"separate[] permissible from impermissible assemblies or institutions in a way that burdens'almost only' religious uses"). III. THE BALANCE OF HARDSHIPS AND PUBLIC POLICY
STRONGLY FAVOR A PRELIMINARY INJUNCTION. The balance of hardships weighs in favor of Plaintiffs because: (A) without an injunction, they will be expelled from their homes and communities in just days; (B) Georgia already has a stringent law governing where sex offenders can live; and (C) enforcing the school bus stop and church provisions of HB 1059 will diminish public safety. A. Plaintiffs Will Be Forced From Their Homes and Communities. When HB 1059 goes into effect, Plaintiffs and thousands of others will be forced to evacuate their homes, leave their jobs, cease attending their churches, and abandon court-mandated treatment programs. Plaintiffs cannot find anywhere to live, though many have spent weeks driving hundreds of miles in search of a residence that complies with the Act. The Act will make Plaintiffs and others homeless. B. Georgia Law Already Imposes Substantial Limitations On
Plaintiffs. Georgia already has a law governing where people on the registry can live. See Ga. Code Ann. § 42-1-13 (2006) (prohibiting residency within 1,000 feet of schools, child care facilities, parks, recreation facilities, skating rinks, neighborhood centers, gymnasiums, and similar facilities providing programs or
22

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 23 of 26
services directed toward children). C. HE 1059 Threatens Public Safety. People who have previously committed criminal offenses are significantly
less likely to re-offend when they have stable homes and employment, and appropriate access to treatment. See Declaration of Kevin Baldwin, Ph.D. (Exhibit 9), Declaration of Candice Osborn, M.A., L.P.c. (Exhibit 10). HB 1059 is counterproductive to these goals. The Act will cause thousands of people on the registry to lose their homes. It will force them into unemployment so that they cannot support themselves and their families. Many will have to sleep on the streets because they do not have money or resources to move to other states. In addition, the law will severely inhibit participation in court-ordered treatment programs - a crucial component of rehabilitation for persons convicted of sexual offenses.
The State of Iowa's experience with sex offender residency restrictions strongly suggests HB 1059 will do more harm than good.10 Iowa's statute was a public safety disaster. The number of sex offenders who absconded from the registry's oversight tripled in just months. In January 2006, Iowa's district attorneys' association issued a statement strongly opposing the residency restrictions due to their negative impact on public safety.
10 See Declaration of Kevin Baldwin, Ph.D (Exhibit 9, Attachment A). 23

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 24 of 26
The balance of hardships and public policy strongly favor the Court entering a preliminary injunction.
IV. GRANTING AN INJUNCTION WOULD SERVE THE PUBLIC INTEREST.
Granting an injunction would serve the public interest by preventing
thousands of families from being made homeless pending the adjudication of this
action. WHEREFORE, Plaintiffs respectfully pray that this Court will enter a
preliminary and thereafter a permanent injunction enjoining the portions of HB 1059 that prohibit Plaintiffs from:
a. living within 1,000 feet of a school bus stop; and b. living within 1,000 feet of a church. Respectfully submitted this 21st day of June, 2006.
SOUTHERN CENTER FOR HUMAN RIGHTS sl Sarah Geraghty Stephen B. Bright (Ga. Bar No. 082075) Lisa Kung (Ga. Bar No. 430302) Sarah Geraghty (Ga. Bar No. 291393) Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Telephone: (404) 688-1202
24

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 25 of 26
Fax: (404) 688-9440 sbright@schr.org lkung@schr.org sgeraghty@schr.org AMERICAN CIVIL LIBERTIES UNION OF GEORIGA Gerald R. Weber (Georgia Bar No. 744878) Margaret F. Garrett (Georgia Bar No. 255865) Beth Littrell (Georgia Bar No. 454949) American Civil Liberties Union 75 Piedmont Avenue, Suite 514 Atlanta, GA 30303 Telephone: (404) 523-6201 Fax: (404) 577-0181 gweber@acluga.org mgarrett@acluga.org Blittrell@acluga.org Attorneys for the Plaintiffs
25

Case 4:06-cv-00140-CC Document 7 Filed 06/21/2006 Page 26 of 26
CERTIFICATION OF COMPLIANCE WITH L.R. S.IB Pursuant to L.R. 7.1, I, Sarah Geraghty, hereby certify that this brief has been prepared in compliance with Local Rule S.IB. Dated this 21st day of June, 2006.
sl Sarah Geraghty
Sarah Geraghty (Ga. Bar No. 291393) Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Tel: (404) 688-1202 Fax: (404) 688-9440 sgeraghty@schr.org
26

 
 Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

WENDY WHITAKER, et al., Plaintiffs,
v. SONNY PERDUE, et al.,
Defendants.

: : : : : Civil Action : No. 4:06-140-CC : : :

PROPOSED ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs, all but one of whom is a registered sex offender in the State of
Georgia, seek to enjoin the Defendants from the enforcement of the school bus
stop provision of the Georgia Sex Offender Residency Statute (hereinafter
Residency Statute) enacted by Act 571, HB 1059, codified at O.C.G.A. § 42-1-15
(hereinafter “Act”). They claim that portion of the Act is unconstitutional. The
relevant portion of the statute provides that:
O.C.G.A. § 42-1-15.
(a) No individual required to register pursuant to Code Section 42-1-12 shall reside or loiter within 1,000 feet of any child care facility, church, school, or area where minors congregate. Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 2 of 37
outer boundary of the property of the child care facility, church, school, or area where minors congregate at their closest points. A school bus stop, which is included within the definition of “where minors congregate,” is defined as one which is “designated by local school boards of education or by a private school.” O.C.G.A. § 42-1-12(a)(19). After issuing a Temporary Restraining Order, the Court set a hearing date for July 11, 2006. The Plaintiffs and the Defendants presented evidence at the two-day hearing. After considering the evidence presented and the argument on both sides the Court denies the motion as Plaintiffs have failed to meet their burden.
FINDINGS OF FACT Plaintiffs presented testimony from personnel in eight sheriffs’ offices in regard to their role in enforcing the Sex Offender Registry Statute. None of these witnesses knew whether the school bus stops they relied upon were designated by the local school board. Further, none of those witnesses testified that any sex offender would be banished from a particular county or from the State of Georgia. Sheriff Ted Paxton of Forsyth County testified that there were 60 registered sex offenders living in his county; based on information he obtained from the transportation department at the local board of education, all sixty would be required to move because of proximity to school bus stops. (T. 23, 32). Sheriff Paxton had no personal knowledge whether the list of school bus stops had been
2

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 3 of 37
designated or approved by the board of education. (T. 32-35). He acknowledged however that based on this list of school bus stops, there were two small areas in the county where sex offenders could live. (T. 25).
Investigator Russell Finley from the Cobb County Sheriff’s Office testified that there were 200 registered sex offenders in Cobb County and that all but four would have to move based on their proximity to school bus stops. (T. 36-38). Finley admitted he presumed that the list of school bus stops he obtained from a supervisor of bus routes in the Cobb school system was an official list. (T. 41). He did not know how the list was developed and was unaware of any resolution or other official action taken by the Cobb Board of Education in regard to school bus stops. (T. 42). Finley was surprised to read in a letter to the Plaintiffs (Defendants’ Exhibit 16) that the Cobb Board of Education had not yet designated school bus stop locations and that “bus stop locations are undetermined at this time.” (T. 42). Finley conceded that all locations of school bus stops on his map (Plaintiffs’ Exhibit 4) did not mean a thing in the absence of designation by the board. (T. 43, 44).
Captain David Davis of the Bibb County Sheriff’s Office said that 200 sex offenders in Bibb County could be affected by the new law. (T. 49). All but eight would have to move. (T. 50). Captain Davis did not testify that any of the
3

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 4 of 37
registered sex offenders in Bibb County would have to leave the county, only that they would have to move from their current residence. Davis had no knowledge of whether the Bibb County Board of Education had taken any official action on the list he was using. (T. 53, 54). Davis based his estimates on the presumption that the school bus stop list he was using had been officially designated as such by the Bibb County Board of Education. (T. 53, 54). Davis identified a map of Bibb County (Plaintiffs’ Exhibit 5), based on the same list, showing the school bus stops and a 1,000 foot buffer around each location. (T. 49). Davis conceded that the list he was using may be different from the list designated by the Board of Education. (T. 54). Davis also conceded that even using his map, there were many places in Bibb County where registered sex offenders could live and that the areas marked on the map as “A” through “G” were specific areas where sex offenders would not be prohibited from residing. (T. 55-58).
Corporal Steven Lifland from the DeKalb County Sheriff’s Office testified that all 490 registered sex offenders in DeKalb County would have to move. (T. 62). Lifland identified two maps (Plaintiffs’ Exhibits 6 and 7) but neither map was a map of school bus stops. Instead, the maps showed the residences of registered sex offenders. (T. 63, 64, 67, 68). Lifland had no personal knowledge about whether the DeKalb County Board of Education had taken any action in approving
4

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 5 of 37
or designating the list of school bus stops upon which he was relying. (T. 69). Even using his list, Lifland conceded that there were areas in DeKalb County where registered sex offenders could live. (T. 68). Thomas Lucky, from the DeKalb County mapping division (graphic information systems) followed Corporal Lifland and produced a map of school bus stops, Plaintiffs’ Exhibit 15. (T. 74). Like Corporal Lifland, Lucky did not know whether the DeKalb Board of Education had approved or designated the list of school bus stops he was using. (T. 75, 76). Even presuming Plaintiffs’ Exhibit 15 was an accurate map of designated school bus locations, Lucky admitted that there were quite a few places in DeKalb County that would not be restricted for registered sex offenders. (T. 7883). There were at least ten circled areas on the map that were not restricted. (T. 79).
Corporal Karen Pirkel from the Gwinnett County Sheriff’s Office testified that 277 out of 278 registered sex offenders in Gwinnett County would have to move. (T. 85). She did not talk to the Gwinnett County Board of Education and had no knowledge about whether the Board had officially designated school bus stops. (T. 89). She had received her information from someone in the school district transportation office. (T. 88). Corporal Pirkel did not identify any map of
5

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 6 of 37
Gwinnett County and there was no evidence presented to show that sex offenders could not live anywhere in Gwinnett County under the new residency restriction.
Sergeant Jay Baker from the Cherokee County Sheriff’s Office testified that 88 out of 95 registered sex offenders in his county would have to move. (T. 132). This was based on comparing a list of sex offenders with information on school bus stops he had obtained from the bus stop department at the Cherokee County school district. (T. 131, 135). Baker did not know if the bus stop information he obtained was designated or approved by the Cherokee County Board of Education. (T. 136, 137). No evidence was presented that any sex offender would be required to leave Cherokee County.
Charlene Giles of the Houston County Sheriff’s Office had looked into the situation of 75 of the 136 registered sex offenders in her county and determined that all but four of the 75 would be required to move. (T. 141). Her conclusion was based on the list she had obtained from Ms. Alford and Mr. Rodriguez at the local Houston County schools office. (T. 144, 145). When shown the definition of “school bus stop” contained in the sex offender law, Ms. Giles said that her office did not follow that definition but used their own definition. (T. 144, 145). Further, no proof was offered that the registered offenders would be required to move out of Houston County.
6

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 7 of 37
Lt. Ezell Brown of the Newton County Sheriff’s Office testified that 98% of the county’s 127 registered sex offenders would be affected by the new law. (T. 147, 148). Lt. Brown had considered the ability of offenders to find another place to live. He said it would be “somewhat difficult” for sex offenders to find a place to live in Newton County but they were not banished from the county and could find places mostly in rural areas of the county. (T. 149, 151). Lt. Brown obtained his information about school bus stops from the transportation personnel at the school office and had no knowledge of whether the Board of Education had been involved or how they came up with their information; he thought it might be any place a bus stops. (T. 150, 151).
Deputy Glenn Hoover of the Fulton County Sheriff’s Office testified that he had reviewed 345 sex offender locations in Fulton County and 295 would have to move based on the information reviewed up to that point. (T. 172-173). The Fulton County Sheriff's Office did not tell any registered sex offenders that they would have to move for living within 1000 feet of a school bus stop. (T. 176). Officer Hoover had no personal information and could not confirm that the Fulton County School Board had actually designated the school bus stops obtained from the county website. (T. 178).
7

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 8 of 37
Investigator Gene Higdon of the Rockdale County Sheriff's Office testified that his office notified 51 of 52 sex offenders in the county that under HB 1059 they would need to move from their residence, which was within 1000 feet of a school bus stop. (T. 159-160). However, Higdon could not confirm that the list of school bus stops had been designated by the local school board. (T. 163).
Plaintiffs also called personnel from two local school districts to testify about designation of school bus stops. Robin Blackburn, the Transportation Director from Seminole County Schools, testified that although he assumed he was authorized to set up bus routes, he had received no direction from the Board of Education and that the Board had not been involved in regard to designation of school bus stops. (T. 94, 95). He said there were no fixed designated school bus stops in Seminole County and looking at the definition contained in the sex offender law, none of their school bus stops had been designated by the Board of Education. (T. 94). He identified Plaintiffs’ Exhibit 16 as a list of bus routes although the list also indicated stops. (T. 96). According to Blackburn, in Seminole County busses run like a taxi service; the bus goes down the road to pick up children at their homes and there are no stops separate and apart from those homes. (T. 96, 97). Seminole County is 325 square miles and the pick-up spots for children could change from morning to afternoon. (T. 97). No evidence was
8

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 9 of 37
presented about the impact of the new statute on registered sex offenders in Seminole County.
Janice Barrett, the Transportation Director for Lumpkin County schools, in north Georgia, testified that her county more or less did house-to- house pick up and had no designated stops. (T. 103, 105). She said Plaintiffs’ Exhibit 17 was a bus route map although it did have stops on it. (T. 104). She said routes were different from stops, that their buses do not always stop at the same place, and that they go wherever the child is. (T. 107, 108). The Board of Education was not involved at all in designation of stops. (T. 107, 110).
Defendants also called three school officials in regard to the designation of school bus stops. Steve Dunn, the Superintendent of the Pelham, Georgia independent school system said Pelham City Schools has 1,550 students in the 25 square mile south Georgia city and that there are no designated school bus stops. (T. 114-116). No bus service is provided. (T. 116).
Sheila Garrett, Transportation Director for the Bremen City Schools, testified that Bremen City Schools, like those in Pelham, provide no regular bus service for students. (T. 125, 126). Of the 1,700 students in the Bremen school system, only 8 special education students are provided transportation. (T. 125, 126). All others use parents, car pools, or walk to school. (T. 126).
9

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 10 of 37
Dr. Lula Mae Perry, the Superintendent of the Jeff Davis County school district, testified that in 335 square mile Jeff Davis County there are no school bus stops designated by the Board of Education. (T. 118-119). She explained that in rural south Georgia, the bus simply goes down the roads and highways and picks up the children, and where it stops can change from day to day. (T. 120). Dr. Perry said she had no stops that met the definition in the new sex offender law. (T. 121).
Plaintiffs presented testimony from Tony Mitchell, Department of Corrections, Cedartown Probation Office. Officer Mitchell testified he did not notify any of his registered sex offenders that they would have to move in light of HB 1059 and the school bus stop provision. (T. 189). Officer Mitchell further testified that he did not know whether the local school board had officially designated any bus stops, and that the information he had was furnished by the Polk County Sheriff’s Office. (T. 190). Officer Mitchell testified that Plaintiff Lori Collins is currently in compliance with HB 1059. (T. 191). Officer Mitchell further testified that Plaintiff Jeffrey York is currently in jail on drug possession charges. (T. 191).
Next, Plaintiffs offered the testimony of Dr. Kevin Baldwin. Dr. Baldwin testified that sex offender treatment is similar to the treatment of alcoholism from
10

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 11 of 37
the perspective of keeping the offender or alcoholic away from the temptation of re-offending or drinking. (T. 221). According to Dr. Baldwin, the issue with sex offenders is like alcoholics in that it is a management issue and not one of “cure.” (T.221). Not even treatment would eliminate reoffending and there is no way to predict which offenders will re-offend. Further, Dr. Baldwin acknowledged that decreasing access to children is a well-intentioned method of protecting children. (T. 224-228, 236). Dr. Baldwin did testify that disruption of residence or employment could increase the risk of reoffending. Further, however, the recidivism rate of sex offenders according to at least one study is between 10 and 15%.
Defendants’ expert, Dr. Mario Dennis, confirmed that there is no known cure for those who commit sexual offenses, and that the tools for controlling reoffending would be risk reduction and self-management. (T. 324). Dr. Dennis also testified that a residency restriction would be a helpful external control for sex offenders. (T. 327). He encourages offenders he treats to stay away from children to reduce the likelihood of reoffending and to reduce the possibility of allegations of illegal conduct. (T. 326). Dr. Dennis further testified that the most important factor in preventing recidivism is to control access to children. (T. 332).
11

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 12 of 37
There was testimony from both experts about the effectiveness of residency restrictions. While Dr. Baldwin provided information about the lack of effectiveness in a few states, Dr. Dennis’ testimony that the residency restrictions are too new to have significant empirical data for the short term is more reasonable.
Plaintiffs also presented the testimony of Amy Whitaker (not a named Plaintiff) and Lori Sue Collins. Both testified about the difficulties they were having finding a suitable residence. (T. 243, 258). Both further acknowledged that they did not take into account the definition of a school bus stop that is present in the statute. (T. 244, 258-259).
Plaintiffs offered the testimony of Peter Wagner, a consultant who created maps of six counties using information provided by a 2000 U.S. Census, a 2003 road map of Muscogee County, and data provided by several counties school districts. (T. 260-291). (While Plaintiffs’ counsel stated Wagner made six maps, only three were presented in court.) Wagner could not confirm that the data provided by the county school boards contained school bus stops designated by the local school boards. (T. 284-85, 289). Even based on Wagner’s testimony, there are areas in Muscogee, Richmond, and McDuffie counties where sex offenders
12

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 13 of 37
could live, although they are quite limited in Richmond County under his analysis. (T. 268-69, 288-89).
Defendants presented testimony from Laura Tate, program operations manager for the sex offender registry maintained by the Georgia Bureau of Investigation, regarding the composition of the registry and the increase in the number of registered offenders since the inception of the registry. (T. 296-300). The number of sex offenders added to the registry since its creation in 1996 has steadily increased, (T. 299), and currently there are roughly 12, 000 sex offenders on the registry. (T. 299). The number of sex offenders added to the registry between 2003 and 2005 has nearly doubled for those convicted of sex crimes in general, and for sex crimes against children. (T. 299-300).
Defendants presented testimony from Michele Knox, Manager, Sex Offender Administration unit, Department of Corrections. (T. 301-305). Knox testified to the reconviction rates of sex offenders generally and specifically persons originally convicted of sexual offenses against minor victims in particular. The charts identified by Knox (Defendants’ Exhibits Nos. 13 and 14) showed that the reconviction rate for certain categories of crimes was as high as 16%. (T. 30304).
13

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 14 of 37
Defendants also presented testimony from Richard Oleson, program manager, Pardons and Paroles. Oleson testified that of the 333 sex offender parolees 52% were not being forced to leave their homes as a result of HB 1059. (T. 309).
CONCLUSIONS OF LAW Plaintiffs have argued that a school bus stop is “anywhere a bus stops,” and that as a result of the large number of school bus stops, individuals on the registry cannot comply with the residency requirement and are effectively banished from the community. Defendants argue that Plaintiffs have neglected to recognize the definition of school bus stop as provided by the legislature and as a result have offered no evidence to support their argument that the requirements of the statute, when properly applied, constitute a violation of constitutional rights. Defendants further argue that, even accepting Plaintiffs’ definition of school bus stop, Plaintiffs have failed to meet their burden for issuing a preliminary injunction. The Court agrees with the Defendants. First, it is important to note that if there are two possible interpretations of a statute, one of which is constitutional and the other which is not, the Court is obligated to accept the interpretation that is constitutional. See Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001).
14

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 15 of 37
Here the Court has two definitions to choose from. The first, proffered by the Plaintiffs, is that a school bus stop is wherever a bus stops; this results in numerous fluid and ever-changing locations which, if Plaintiffs are correct, could result in a lack of notice to potential offenders. The second definition requires some affirmative act by a locally elected governing body and is the definition contained within the statute. Plaintiffs have not attempted to argue or put forth evidence that suggests a constitutional problem with this second definition. The only thing they have argued is that the definition provided in the statute is not the definition that should be applied. In support of this argument they have alleged, but not proven, that no county in the state has school bus stops that are designated by a local school board. Defendants counter that even if it were true that no school board currently designates school bus stops, the legislature has provided local school boards with a tool that can be used to protect the children riding the school bus. They suggest that many school boards have chosen door to door service as a means to protect their students and others may choose to formally designate school bus stops as an alternative to protect children from persons known to commit sexual assault. The Court finds this argument compelling.
The Georgia legislature provided a definition of a school bus stop. The legislature has used similar definitions in other statutes which have resulted in an
15

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 16 of 37
appropriate board or official body taking affirmative action. See, e.g., O.C.G.A. §§ 40-6-54; 40-14-17; 40-14-3. Legislators are, or at least should be, familiar with practices at the local level and are presumed to know how school children are transported to school in their constituencies. It cannot be argued that the definition of school bus stop is simply surplusage in the statute. Since a definition of school bus is provided, the Court is obligated to use it. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) ("It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.") (internal quotation marks omitted); Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) ("[C]ourts should disfavor interpretations of statutes that render language superfluous."); Bouchard Transp. Co. v. Updegraff, 147 F.3d 1344 (11th Cir. 1998) ("[W]e avoid statutory constructions that render provisions meaningless.").
In order to prevail on a preliminary injunction Plaintiffs must show: (1) a substantial likelihood of prevailing on the merits; (2) that Plaintiff will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damages the proposed injunction may cause the opposing party; and (4) that if issued, the injunction would not be adverse to the public interest.
16

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 17 of 37
Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988); Levi Strauss and Company v. Sunrise International Trading Inc., 51 F.3d 982 (11th Cir. 1995).
Since the Plaintiffs have provided no evidence to support any of these prongs using the appropriate definition of school bus stop, their motion must be denied. Moreover, even if Plaintiffs’ definition of school bus stop is correct, they have failed to meet their burden.
The Court notes that “a preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion.” Canal Authority of Florida v. Callaway, 489 F.2d 567, 573 (11th Cir. 1974). Moreover when, as here, a movant seeks to enjoin a government agency, “his case must contend with the well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own affairs.” Rizzo v. Goode, 423 U.S. 362, 378-379 (1976). Applying the four prongs to the evidence shown, the Court finds that Plaintiffs have not met their burden.
I. PLAINTIFFS HAVE NOT SHOWN A SUBSTANTIAL LIKELIHOOD OF PREVAILING ON THE MERITS.
Plaintiffs have not shown a substantial likelihood of prevailing on the merits. Plaintiffs raise several claims in their complaint. They have focused the entirety of their evidence and argument on their claim that the statute violates the Ex Post
17

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 18 of 37
Facto Clause of the United States Constitution. In addition the Court asked the parties for additional briefing on whether the statute is void for vagueness. Despite Plaintiffs’ focus on only one of their claims the Court will address all the claims as presented in their complaint.
A. PLAINTIFFS HAVE NOT SHOWN AN EX POST FACTO VIOLATION
Plaintiffs allege the Residency Statute imposes retroactive punishment in violation of the Ex Post Facto Clause. The clear and stated purpose of the legislature was to regulate the behavior of sex offenders rather than to punish them. Legislation that is merely regulatory does not violate the Ex Post Facto Clause. Smith v. Doe, 538 U.S. 84 (2003). The goal of lessening the potential for those offenders inclined toward recidivism “to have contact with, and possibly victimize, the youngest members of society,” is an important one. Doe v. Baker, 1:05-CV2265-TWT (N.D. Ga. 2006) citing Mann v. State, 278 Ga. 442, 443-44(2004). “Where a legislative restriction is an incident of the State’s power to protect the health and safety of its citizens, it will be considered as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment.” Smith v. Doe, 538 U.S. at 93-94 (2003); See also Doe v. Baker, 1:05-CV-2265-TWT (N.D. Ga. 2006).
18

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 19 of 37
In determining whether a statute is truly regulatory, the Court must determine whether the punitive effects outweigh the regulatory intent by applying the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)(whether the law was regarded in history and traditions to be punishment, whether it promotes the traditional aims of punishment, whether it imposes an affirmative disability or restraint, whether it has a rational connection to a non punitive purpose, and whether it is excessive with respect to that purpose). See Miller, 405 F.3d at 719, citing Smith v. Doe, 538 U.S. at 97. The ultimate question is whether any punitive effect of the law is so severe as to constitute the “clearest proof” that a statute deemed to be regulatory and non punitive should nonetheless be deemed to impose ex post facto punishment. Id. The United States Supreme Court has never held that a law with a non punitive purpose violated the Ex Post Facto Clause in light of the Mendoza-Martinez factors.
The first factor for consideration is whether the law is regarded in history and tradition as punishment. Plaintiffs assert that the Residency Statute is the functional equivalent of banishment which constitutes a historical and traditional form of punishment. However, “banishment” refers to being sent away from a city, place, or country for a specified period of time or life, United States v. Ju Toy, 198 U.S. 253, 269-70 (1905), or “expulsion from a country.” Doe v. Miller, 405
19

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 20 of 37
F.3d 700, 719 (8th Cir. 2005) (citing to Black’s Law Dictionary 154, 614 (8th ed. 2004)). Historically, banished persons were permanently expelled from their community and prevented from returning. Smith v. Doe, 538 U.S. at 98.
The Residency Statute does not prevent Plaintiffs from accessing those identified areas at any time of the day or night for any purpose other than establishing residence. The Residency Statute contains no restriction against owning, visiting, conducting business upon, or leasing the property, nor does the statute prohibit Plaintiffs from going to places which may be within 1000 feet of one of the identified areas. As such, Plaintiffs are not “expelled” from the community nor are they prohibited from being in the community. Even assuming Plaintiffs’ definition of school bus stops is correct they have failed to show that individuals will be unable to find a home in the majority of Georgia’s counties. At most they have demonstrated that they may have difficulty in finding a place to live in some of the metropolitan areas but they have not shown a single county where they will not be able to find anywhere to live. In looking at the correct definition of the statute, Plaintiffs have not shown that even a majority of individuals on the registry will have to move let alone be banished from the community.
20

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 21 of 37
The second Mendoza-Martinez factor is whether the law promotes the traditional aims of punishment, i.e., deterrence and retribution. The mere presence of a deterrent impact of a law should not be overemphasized as a way to criminalize an otherwise regulatory statute because making such an inferential leap would “severely undermine the Government’s ability to engage in effective regulation.” Smith, 538 U.S. at 102. While the Georgia Residency Statute might deter sex offenders from re-offending, that fact alone does not imply that the restriction is punishment. Miller, 405 F.3d at 720. The Court in Doe v. Baker opined that regardless of the potential for a deterrent effect, the Georgia Residency Statute is “still consistent with a regulatory purpose,” and therefore is not sufficiently aimed at deterrence or retribution so as to negate its regulatory intent. Doe v. Baker, 1:05-CV-2265-TWT (N.D. Ga. 2006).1
The third consideration, whether the Georgia Residency Statute imposes an affirmative restraint or disability, must be answered in the negative. See Miller, 405 F.3d at 720-21. The Supreme Court allows states considerable leeway in adopting regulations that impose “substantial disabilities.” Kansas v. Hendricks, 521 U.S. 346 (1997) (involuntary commitment of mentally ill sex offenders found
1 The Eighth Circuit likewise found that the residency restriction was consistent with the regulatory objective of protecting the health and safety of children and therefore not punishment. Doe v. Miller, 405 F.3d at 700.
21

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 22 of 37
to be non-punitive). The Georgia Residency restriction is certainly less disabling than a commitment statute and is a minor and indirect effect of a conviction for a sexual offense or a criminal offense against a victim who is a minor. It does not significantly restrain or disable Plaintiffs inasmuch as they are still able to own, visit, lease, or conduct business at their home or any other property within the identified areas. While the residency restrictions impose limitations on Plaintiffs, the ultimate issue is whether the law has a “rational connection to a non punitive purpose” (deemed the “most significant factor” in an ex post facto analysis), and whether it is excessive in relation to that purpose. Miller, 405 F.3d at 721; Smith, 538 U.S. at 102. The Court finds that there is such a rational connection.
The legitimate, non-punitive purpose of the Georgia Residency Statute is to protect the public, and specifically minors, from those offenders who have been deemed to have a higher rate of recidivism than any other class of offenders. See Smith, 538 U.S. at 103. The Residency Statute is rationally related to that purpose by preventing those convicted of crimes against children and certain sex offenses from residing near locations where children are likely to congregate, thereby reducing the risk that they will re-offend against innocent child victims. The Georgia General Assembly could rationally conclude that the restriction on residence and employment would reduce the likelihood and opportunities for
22

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 23 of 37
recidivism. Doe v. Baker, 1:05-CV-2265-TWT (N.D. Ga. 2006). While there is clearly a difference of opinion as to whether this is the best approach to achieve that goal the Court is reminded that the rational basis standard is highly deferential and a court should only find a legislative act unconstitutional in the “most exceptional circumstances.” Doe v. Baker, 1:05-CV-2265-TWT (N.D. Ga. 2006), citing Doe v. Moore, 410 F.3d 1337, 1345 (11th Cir. 2005).
A statute is not excessive simply because it “lacks a close or perfect fit” with the non punitive goals it seeks to advance, and the lack of an individual risk assessment does not convert a regulatory scheme into punishment. Smith, 528 U.S. at 103, 105; Miller, 405 F.3d at 721-22. The Ex Post Facto Clause does not preclude legislative bodies from making categorical judgments that conviction of certain crimes requires certain regulatory consequences. Miller. 410 F.3d at 721. In light of the high risk of recidivism posed by sex offenders, and the “imprecision” of determining what measures best prevent recidivism, the Georgia General Assembly acted properly and within its authority by enacting this regulatory scheme for the purpose of protecting the public from harm. Miller, 405 F.3d at 722. Inasmuch as school bus stops are more likely to lack adult supervision when compared to schools and child care facilities, the concern for protecting
23

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 24 of 37
children at those more vulnerable venues is clearly rationally related to the stated regulatory purpose.
B. THERE IS NO EIGHTH AMENDMENT VIOLATION Plaintiffs also argue that the Georgia Residency Statute violates the Eighth Amendment to the United States Constitution in that it is cruel and unusual punishment. Since it is not punishment it cannot violate the Eighth Amendment prohibition against cruel and unusual punishment. See Miller, 405 F.3d 700, 723, n.6; citing Smith, 538 U.S. at 97. Even if the Court were to agree that the statute imposes punishment it still does not violate the Eighth Amendment as it does not “inflict[] torture, is otherwise barbaric, or where the punishment inflicted is so excessively severe that it is disproportionate to the offense charged.” Coker v. Georgia, 433 U.S. 584 (1977). The residency restriction found in O.C.G.A. § 42-1-15 is limited in scope, proximity, and application, and is neither barbaric or tortuous, nor excessively severe. Miller, 405 F.3d 700, 723, n.6; Smith, 538 U.S. at 103.
C. THERE IS NO VIOLATION OF PROCEDURAL DUE PROCESS Further, the statute does not violate the Plaintiffs’ right to procedural due process. The Residency Statute does not require an individualized showing of dangerousness, but rather, the restriction applies to any offender required to
24

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 25 of 37
register on the Georgia Sex Offender Registry, O.C.G.A. § 42-1-12. The triggering event for the residency restriction is the conviction for a sex offense or a crime against a child. Due process does not entitle sex offenders to a hearing to prove a fact that is immaterial under the statute. Procedural due process does not bar a state from creating distinctions between sex offenders and other offenders. See Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003); Miller, 405 F.3d at 709, citing Conn. Dep’t of Pub. Safety, 538 U.S. at 7-8.
D. THERE IS NO SUBSTANTIVE DUE PROCESS VIOLATION Plaintiffs ask the Court to create a substantive due process right to family privacy. The Court declines the invitation to expand substantive due process rights. See Williams v. Attorney General of Alabama, 378 F.3d 1232, 1235 (11th Cir. 2004); See, e.g., Glucksberg, 521 U.S. at 725 (fundamental rights are "not simply deduced from abstract concepts of personal autonomy").
E. THERE IS NO VIOLATION OF THE TAKINGS CLAUSE Plaintiffs allege the Residency Statute constitutes a “taking” in violation of the United States Constitution. Since the statute does not deny Plaintiffs all economically beneficial or productive use of land they have failed to state a valid “takings” claim. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015-16
25

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 26 of 37
(1992)(physical taking of property); see also Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001)(regulatory restriction on property).
F. THERE IS NO VIOLATION OF THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT
Plaintiffs also claim a violation of the Religious Land Use and Institutionalized Persons Act, (RLUIPA), 42 U.S.C.S. §2000 which prohibits the government from regulating land in a manner that imposes a substantial burden on the religious exercise of a person or a religious assembly or institution. RLUIPA is a land use regulation. This statute does not regulate land use, only a sex offender's ability to live in certain places. Plaintiffs have failed to state a claim under RLUIPA. See Zelman v. Simmons-Harris, 536 U.S. 639, 648-49 (2002). Here, the Residency Statute contains no restrictions relating to the ability of Plaintiffs to exercise their religious beliefs.
G. THERE IS NO VIOLATION OF THE RIGHT TO INTER/INTRASTATE TRAVEL
The statute does not violate Plaintiffs right to inter/intrastate travel. The “right to travel” exists only to the extent that a statute prevents a citizen from entering or leaving a state or erects a barrier to movement in and around Georgia or other states. Saenz v. Roe, 526 U.S. 489 (1999). Nothing contained in the
26

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 27 of 37
Residency Statute remotely suggests that Plaintiffs are prohibited from traveling inter or intrastate.
H. THE STATUTE IS NOT UNCONSTITUTIONALLY VAGUE Lastly, Plaintiffs seek relief in the form of a declaration that the school bus stop provision is vague and overbroad. They make this statement without any suggestion of how the phrase “school bus stop” is either vague or overbroad. The prohibition against excessive vagueness does not justify invalidating a statute merely because a reviewing court could have drafted the legislation with greater precision. Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). See Papachristou et al. v. City of Jacksonville, 405 U.S. 156 (1972)(statute only void for vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden). Here, the statute defines “school bus stop” as one which is “designated by local school boards of education or by a private school.” This definition is neither vague nor overbroad. This same language has been utilized in any number of other state and federal statutes. See O.C.G.A. § 406-54; O.C.G.A. § 40-14-17; O.C.G.A. § 40-14-3; 7 U.S.C. § 1961; 10 U.S.C. § 705; 6 U.S.C. § 444.
27

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 28 of 37
II. PLAINTIFFS HAVE NOT SUFFERED AN IRREPARABLE INJURY Next, Plaintiffs must show that they have suffered an irreparable injury. A
showing of irreparable injury is “the sine qua non of injunctive relief.” Siegel v. LaPore, 234 F.3d 1163 (11th Cir. 2000). Plaintiffs offered evidence of two lay witnesses only one of which is a Plaintiff in this case. Both witnesses testified that they have been told by their probation officer that they might have to move, neither stated that would have to move. Evidence was offered that another named Plaintiff, Jeffrey York is currently in custody as is another named Plaintiff. Clearly these Plaintiffs cannot show irreparable injury that is actual or imminent. Moreover Plaintiffs offered the testimony of several Sheriffs and presented maps of several counties. Of the officials from sheriffs’ offices that testified, none could say that the bus stops they were using had been designated by the school board. Even assuming that the school bus stops had been designated by the school board in each county for which a map was presented, evidence was presented that there were places where individuals could live. Plaintiffs argue that these places may not have suitable housing but have offered no evidence to support this contention. If Plaintiffs are knowingly within 1000 feet of a bus stop they will have to move. Moving is something that people do everyday and can hardly be classified as irreparable harm.
28

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 29 of 37
Moreover, as noted in Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) there is no right “to live where you want.” In Miller, the Court was not persuaded by the argument that Plaintiffs could not find housing in urban areas, live with specific family members, or move to certain areas of town because of Iowa’s residency restriction. Id. at 706. Clearly this “harm” was not considered significant by the Eighth Circuit Court of Appeals. This Court is similarly not persuaded.
Plaintiffs have offered evidence from a small number of Georgia’s counties. They suggested that the production of maps for all of Georgia’s 159 counties was financially burdensome. The maps they did produce however interesting do not provide persuasive evidence to the Court. First, the maps did not indicate whether the bus stops were designated by the school board. Second, even assuming that the bus stops they used are considered officially designated by the school board, they made too many assumptions in preparing them for the maps to be of any value. For example, on the map of McDuffie County, Plaintiffs marked out areas that they determined were uninhabitable based upon the fact that the 2000 census indicated they were sparsely populated. They did this in the same color they used to block out other areas they deemed to be uninhabitable. The fact that the 2000 census did not reflect people living in an area does not make it an uninhabitable area at the time the census was taken much less in 2006. In Richmond County they showed
29

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 30 of 37
large areas blocked out because the plot came within 1000 feet of a prohibited area without acknowledging that plots are readily subdivided upon development. Lastly, the 4 maps that they decided to plot out are 4 small counties in Georgia. The Court has virtually no evidence with regard to a majority of the 159 counties in the state.
III. ANY HARM TO THE PLAINTIFFS IS OUTWEIGHED BY THE POTENTIAL DAMAGE TO THE DEFENDANTS
The reality is that children wait for school buses early in the morning at times when it is still dark. They return from school on those buses at times when traffic is typically light as people are at work. There is no organized supervision at the bus stops so children are particularly vulnerable. Not every parent has the luxury of waiting with their child for the bus or waiting for the bus when the child returns from school. The schools have no ability to prevent a registered sex offender from moving into a neighborhood where the bus must stop due to the number of children in a neighborhood. As shown above the public has reason to be concerned as there is demonstrated evidence of sex offenders stalking and taking advantage of the vulnerability of the children at school bus stops. That being the case the public’s need to protect its children must outweigh the inconvenience of the sex offenders having to move.
30

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 31 of 37
There is indisputable evidence that these individuals have a propensity to reoffend. As one Court noted, 48 % of the recidivist sex offenders repeated in the first 5 years and 52 % during the next 17 years. Doe v. Poritz, 662 A.2d 367, 37475 (N.J. 1995). The fact that, “[s]ex offenders are a serious threat in this Nation” is a fact that Plaintiffs have not attempted to disprove. Connecticut Dept. of Public Safety v. Doe, 123 S.Ct. 1160, 1163 (2003). Both the Plaintiffs’ and Defendants’ experts testified that instability does increase the likelihood of recidivism for those individuals who are otherwise in stable environments but they both recognized that there is no cure for a sex offender and that opportunity or access to victims is the greatest controlling factor against reoffense. The Plaintiffs’ expert even testified that many attacks that occur at school bus stops occur as the offender is driving by the bus stop and in many cases the offender knows his victim. He acknowledged that people tend to befriend and associate with people who live near them. He further acknowledged that people in general drive most often near their own homes. Thus, if a school bus stop is close to the home of the sex offender, he is more likely to drive near the school bus stop. Thus, the opportunity or access to potential victims at school bus stops is increased if the residence of the sex offender is close to a school bus stop.
31

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 32 of 37
Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.... “When the frame of reference moves from a unitary court system....to a system of federal courts representing the Nation, subsisting side by side with 50 state judicial, legislative, and executive branches, appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief.” Rizzo v. Goode, 423 U.S. 362, 378-79 (1976)(citations omitted). “[T]hese principles []have applicability where injunctive relief is sought, not against the judicial branch of state government, but against those in charge of an executive branch of an agency of state or local governments....” Id. at 380. The Georgia legislature made the decision to reduce the opportunity or access to potential victim created by a sex offender’s proximity to school bus stops. It is not up to the Court to second guess this decision by substituting its own. Clearly this is a rational goal.
IV. A PRELIMINARY INJUNCTION IS NOT IN THE PUBLIC’S INTEREST
Plaintiffs also bear the burden of showing that the preliminary injunction would serve the public interest. Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988). Plaintiffs have not met this burden. Plaintiffs claim that the
32

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 33 of 37
public interest will not be served by this statute because they claim that it will force sex offenders not to register or advise officials of their whereabouts. They offer evidence that suggests similar provisions in Iowa’s statute resulted in this very thing. As noted above, Plaintiffs’ expert testified that instability was one of the factors that caused sex offenders to re-offend and claimed that this statute would cause instability. People experience instability at various times in their lives. Without opportunity to offend the propensity to do so cannot manifest itself. Reducing that opportunity is a laudable goal that cannot be ignored or taken lightly. By Plaintiffs’ own admissions, the criminal consequences of failing to comply with Georgia’s registry requirements are much more severe then they are in Iowa. As a result the sex offenders residing in Georgia have a greater incentive to comply with the statute. Clearly the Georgia legislature saw a real need to take further action to protect the citizens of this State. The rising number of sexual offenders in this state along with the knowledge that sexual predators are a real threat to public safety convinced the legislative body of this state as well as the legislative bodies of other states that further action is necessary. Plaintiffs do not dispute the need but offer their belief and the belief of others that the solution will be ineffective. This Court will not speculate as to the efficacy of this statute. Residency statutes are simply too new to provide any concrete evidence as to their
33

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 34 of 37
effectiveness or harm. Plaintiffs have not met their burden in demonstrating that the public’s need to deny opportunity to sex offenders is outweighed by the sex offenders’ need for stability.
Finally, the injunction that Plaintiffs seek does not serve the public interest because it is not narrowly tailored to “fit the nature and extent of the established violation.” Gibson v. Firestone, 741 F.2d 1268, 1273 (11th Cir. 1984). Each named and potential plaintiff is unique in their living situation and offense. While admittedly the legislation treats them all the same, the preliminary injunction cannot. The balance and the societal need may change depending upon the level of offense and the effect of the statute on the individual. What Plaintiffs’ own evidence shows is that some offenders can and have found housing. As a result, extending any injunction to them would be far too overreaching.
CONCLUSION WHEREFORE, for the above and foregoing reasons, Plaintiffs’ motion for preliminary injunction is denied.
_______________________________________ THE HONORABLE CLARENCE COOPER JUDGE UNITED STATES DISTRICT COURT THE NORTHERN DISTRICT OF GEORGIA
34

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 35 of 37
PRESENTED BY: ________________________________ COUNSEL FOR DEFENDANTS SONNY PERDUE, THURBERT BAKER AND SCOTT DEAN Office of the Attorney General 40 Capitol Square, S. W. Atlanta, GA 30334-1300 PH: (404) 657-3983
35

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 36 of 37

CERTIFICATE OF SERVICE
I hereby certify that on July 19, 2006, I electronically
filed a Proposed Order Denying Plaintiffs’ Motion For
Preliminary Injunction with the Clerk of Court using the CM/ECF
system which will automatically send email notification of such
filing to the following attorneys of record:
Sarah Geraghty Stephen Bright Lisa Kung Southern Center for Human Rights
Gerald Weber Margaret Garrett Beth Littrell American Civil Liberties Union
This 19th day of July, 2006.

Please serve: Devon Orland Assistant Attorney General 40 Capitol Square, S. W. Atlanta, GA 30334-1300 PH: (404) 463-8850 FAX: (404) 651-5304

s/Devon Orland____________ Assistant Attorney General

36

Case 4:06-cv-00140-CC Document 44 Filed 07/19/2006 Page 37 of 37 CERTIFICATION AS TO FONT
Pursuant to N.D. Ga. Local Rule 7.1 D, I hereby certify that this document is submitted in Courier New 12 point type as required by to N.D. Ga. Local Rule 5.1(b).
s/Devon Orland________ Georgia Bar No. 554301
37

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

WENDY WHITAKER, et al., Plaintiffs,
vs. SONNY PERDUE, et al.,
Defendants.

:

:

:

:

CIVIL ACTION NO.

:

:

4:06-CV-0140-CC

:

:

:

ORDER This matter is presently before the Court on Plaintiffs’ Motion for Temporary Restraining Order. On June 20, 2006, Plaintiffs filed this action challenging discrete portions of Georgia’s new sex offender residency law, Act No. 571, Ga. Laws 2006 (HB 1059), codified at Ga. Code Ann. § 42-1-15 (“the Act”), including the portion of the Act that prohibits anyone on the registry from living within 1,000 feet of any school bus stop in Georgia. See § 42-1-15(a) (“No individual required to register pursuant to Code Section 42-1-12 shall reside . . . within 1,000 feet of any . . . area[s] where minors congregate.”); § 42-1-12(a)(3) (defining “area where minors congregate as including “all . . . school bus stops”); § 42-1-12(a)(19) (defining school bus stop as “a school bus stop as designated by local school boards of education or by a private school”). On June 22, 2006, Plaintiffs filed a Motion for Temporary Restraining Order

asking the Court to enjoin, inter alia, the school bus stop provision.1 The Court has reviewed and considered Plaintiffs’ Motion for Temporary Restraining Order, all documents attached thereto, and all submissions provided by both parties in connection therewith. The Court has heard oral argument from both Plaintiffs and Defendants. After careful consideration, the Court hereby finds as follows:
1. To be entitled to a temporary restraining order, Plaintiffs must show: (1) irreparable harm to the Plaintiffs unless the relief is granted; (2) a substantial likelihood of success on the merits; (3) that the threatened injury to the Plaintiffs outweighs the harm to the Defendants if the TRO issues; and (4) that the TRO will not disserve the public interest. See Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005).
2. The Court finds that Plaintiffs have satisfied this standard. 3. Plaintiffs have presented evidence that they will suffer irreparable
harm in absence of a restraining order. Plaintiffs have shown that they will be required to leave their homes and that they have been unable to locate suitable alternative residences in their respective
1 Plaintiffs also ask the Court to enjoin the portion of the Act that prohibits Plaintiffs from living within 1,000 feet of a church. The Court DENIES this request and will consider only the school bus stop provision in this Order.
- 2 -

counties of residence or in nearby counties. 4. Plaintiffs have demonstrated a substantial likelihood of success on
the merits with respect to the Ex Post Facto claim. While the Court recognizes and appreciates the importance of protecting the public, the Court cannot approve of doing so in a manner that offends the Constitution. See Doe v. Baker, No. Civ. A. 1:05-CV-2265, 2006 WL 905368, *4 (N.D.Ga. Apr. 5, 2006) (upholding Georgia’s current sex offender law against Ex Post Facto challenge, but finding that “[a] more restrictive act that would in effect make it impossible for a registered sex offender to live in the community would in all likelihood constitute banishment which would result in an ex post facto problem if applies retroactively to those convicted prior to its passage”). 5. The threatened injury to Plaintiffs outweighs the harm to Defendants if the TRO issues. The current sex offender residency law, prohibiting registered sex offenders from living within 1,000 feet of schools, playgrounds, public and private parks, neighborhood centers, gymnasiums, and other places where minors congregate will remain in force and effect. Additionally, the non-movement of Plaintiffs,
- 3 -

who are in compliance with these restrictions, will not harm public safety. 6. The Court recognizes the important interest of protecting children but finds that the TRO will not disserve the public interest, particularly since enforcement of the bus stop provision might result in greater difficulty in monitoring registered sex offenders. WHEREFORE, for the foregoing reasons, pursuant to Rule 65(b) of the Federal Rules of Civil Procedure, the Court finds as follows: (a) Defendants are TEMPORARILY RESTRAINED from taking any action to enforce the portion of Ga. Code Ann. § 42-1-15(a) that prohibits living within 1,000 feet of a school bus stop, as applied to the named Plaintiffs2 in this case. This Order will remain in force and effect until further order from the Court. (b) The Court further ORDERS the parties to appear before the Court on July 11, 2006 at 1:30 p.m. for a hearing on Plaintiffs’ Motion for a Preliminary Injunction.
2 Plaintiffs’ Motion to Provisionally Certify a Class for the Duration of the TRO Already Granted is currently pending before the Court. The Court will consider this motion on an expedited basis and has requested that Defendants submit a response to Plaintiffs’ motion by 1:00p.m. on Wednesday, June 28, 2006, and that Plaintiffs file a reply by 12:00p.m. on Thursday, June 29, 2006.
- 4 -

(c) The Court further ORDERS Plaintiffs to produce by July 7, 2006 at 5:00 p.m. information regarding the number and location of school bus stops that are pertinent to this litigation and the corresponding areas impacted by the Act. (d) The Court DENIES Defendants’ oral motion for a stay of this Order.
SO ORDERED this 27th day of June, 2006. s/ CLARENCE COOPER CLARENCE COOPER UNITED STATES DISTRICT JUDGE
- 5 -

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

WENDY WHITAKER, JOSEPH

)

LINAWEAVER, JANET JENKINS

)

ALLISON, JAMES VICTOR WILSON, )

JEFFERY YORK, DEWAYNE OWENS, )

AL REGINALD MARKS, LORI SUE

)

COLLINS, REV. JOEL JONES,

)

)

Plaintiffs,

)

)

v.

)

)

SONNY PERDUE,

)

Governor of the State of Georgia

)

in his official capacity,

)

)

THURBERT E. BAKER,

)

Attorney General of the State of Georgia )

in his official capacity,

)

)

SCOT DEAN,

)

Chief of Probation,

)

Cedartown, Polk County, Georgia

)

in his official capacity,

)

)

ROBERT SPARKS,

)

Sheriff of Polk County

)

in his official capacity,

)

)

Defendants.

)

----------------------)

CIVIL ACTION No.4:06-cv-140-CC
AMENDED COMPLAINT CLASS ACTION FOR INJUNCTIVE RELIEF
JURY TRIAL DEMANDED

PRELIMINARY STATEMENT 1.
Plaintiff WENDY WHITAKER and others bring this suit to prevent people on Georgia's sex offender registry - including the elderly and disabled - from being deprived of their homes and livelihoods due to the unfair and arbitrary provisions of Act No. 571, Ga. Laws 2006 (HB 1059), codified at Ga. Code Ann. § 42-1-15 (2006) ("the Act"). When the Act goes into effect on July 1, 2006, the result will be catastrophic. Thousands of people on Georgia's sex offender registry will be forced, by legislative fiat, to evacuate their homes, leave their jobs, cease attending their churches, and abandon court-mandated treatment programs. Plaintiffs have been convicted of crimes - some of them when they were teenagers for conduct a judge found was not a threat to public safety and did not warrant any time in prison - but they have paid the price and today live law-abiding lives as productive members of the community. Now they are being punished again. The Act prohibits anyone on the registry from living within 1,000 feet of anyone of the hundreds of thousands of school bus stops in Georgia. This provision alone renders nearly all urban areas off-limits to people on the registry. Plaintiffs cannot find anywhere to live, though many have spent weeks driving hundreds of miles in search of a residence that complies with the Act. If HB 1059 goes into effect, it will drive many people on the registry to sleep in parks, under bridges, or in their cars, or to set up tents or trailers in the woods.
2

2. There are approximately 11,000 registered "sex offenders" in Georgia, about 9,000 of whom live in the community. Unlike the sex offender residency requirements of many other states, Georgia does not differentiate between people convicted of violent sexual offenses, such as rape, and people who violated the law by having consensual sexual relations when they were teenagers with someone under the age of consent. Georgia treats everyone like the worst offender. Georgia already has a law governing where people on the registry can live. See Ga. Code Ann. § 42-1-13 (2006) (prohibiting residency within 1,000 feet of schools, child care facilities, and areas where minors congregate, including parks, recreation facilities, skating rinks, neighborhood centers, gymnasiums, and similar facilities providing programs or services directed toward children). HB 1059, signed into law by the Governor on April 24, 2006, substantially revises § 42-1-13, turning the law from one tailored to keep offenders away from children into one that essentially drives every person on the registry from all urban areas and many rural areas.
3. The ostensible purpose of HB 1059 is to keep Georgia's children safe from sexual offenses. No one would dispute that this is a laudable goal. Yet the Act imposes its residency restrictions and other significant penalties on all people on the registry - even those like Plaintiff Wendy Whitaker who is on the registry
3

because, at age 17, she had a single consensual act of oral sex with a 15-year-old boy. For this one act, committed ten years ago, the now 26-year-old Ms. Whitaker and her husband have been forced from one home and now will be forced from another. Plaintiff Joseph Linaweaver was 16 when he had a single consensual act of oral sex with a 14-year-old girl. For this act, Mr. Linaweaver is being driven from his home. Plaintiff Janet Allison was convicted of being "party to a crime of statutory rape and child molestation" because she did not prevent her 15-year-old daughter from becoming sexually active. Due to this conviction, Ms. Allison and her family will have to leave their home.
4. Although they have nowhere to go and little prospect of finding a residence that is not within 1,000 feet of a school bus stop, if Plaintiffs and others on the registry do not leave their homes, they will be subject to arrest and prosecution. The punishment for failure to comply with the Act's residency and working restrictions is a minimum of 10 years imprisonment and a maximum of 30 years imprisonment.
5. The Act will also prohibit anyone on the registry from working within 1,000 feet of a church, child care facility, or school. Hundreds, if not thousands, of people on the registry will lose their jobs.
4

6. In addition to imposing onerous residency and employment restrictions, the Act impermissibly interferes with the practice of religion. It will require church halfway houses - but not sectarian halfway houses - to expel residents who are on the registry, even if the residents are low-risk offenders complying with the terms of probation. In addition, the Act impermissibly chills the right, to exercise one's religion by making it a felony punishable by a minimum of 10 years imprisonment to "loiter" at or near a church or other place of religious worship. Plaintiffs in this case and others on the registry rationally feel that they cannot go to church on Sunday, attend Wednesday or Friday night prayer groups, or go to weddings or funerals for fear that they will be thought to be loitering at a place of public religious worship. The penalty for loitering is simply too severe to risk participation in religious activities.
7.
Plaintiffs are persons subject to the residency, working, and loitering restrictions of HB 1059. Plaintiffs bring this putative class action on behalf of themselves and all persons subject to the Act. Plaintiffs respectfully ask this Court to preliminarily and thereafter permanently enjoin Defendants from enforcing such portions of the Act as are necessary to protect Plaintiffs' constitutional rights.
5

8. The Act's enforcement should be enjoined for the following reasons: a. The Act violates U.S. Const. art I, § 10, prohibiting Ex Post Facto laws,
Bills of Attainder, and laws that impair the Obligation of Contracts; b. The Act violates the procedural component of the Due Process Clause; c. The Act violates the substantive component of the Due Process Clause
and the right to family privacy; d. The Act violates the Religious Land Use and Institutionalized Persons
Act, 42 u.s.es. § 2000(c)(c) (2006);
e. The Act violates the Free Exercise Clause and the right to freedom of association;
f. The Act violates the Takings Clause; g. The Act violates the right to interstate and intrastate travel; h. The Act violates the Eighth Amendment by imposing cruel and unusual
punishment and by impermissibly punishing Plaintiffs based upon their status.
6

PARTIES Plaintiffs
9.
Plaintiff WENDY WHITAKER is a 26-year-old woman who lives in McDuffie County, Georgia. She is a full-time student studying criminal justice at Augusta Technical College. She has been married for six years.
10. Ten years ago, when Ms. Whitaker was a 17-year-old high school student, she engaged in a consensual act of oral sex with a 15-year-old male while on school property. Ms. Whitaker is white; the other student was African-American. Ms. Whitaker was arrested, charged with sodomy, and advised to plead guilty, and she ultimately completed five years on probation. Her conviction required her to register as a sex offender.
li. Ms. Whitaker and her husband have already been required to comply with the current sex offender registration law, Ga. Code Ann. § 42-1-13 (2006). Earlier this year, the police made Ms. Whitaker leave her home in Harlem, Georgia. The residence sat within 1,000 feet of a church, and unbeknownst to the Whitakers when they bought the home, a day care program operated inside the church. The Whitakers still own their home and must pay their mortgage on it, but they can no longer live there.
7

12. The Whitakers have since moved in with Mr. Whitaker's brother and his daughter in Thomson, Georgia. They must pay rent and expenses in addition to mortgage, causing them financial strain. The Whitakers' niece will be starting school soon and she will take the school bus. The bus will stop within 1,000 feet of the house, making the Whitakers' present residence an unfit accommodation under HB 1059.
13. If the Whitakers have to leave their current residence in Thomson, they do not know where they will go. Because of his work, Mr. Whitaker will not be able to leave the Augusta area. Ms. Whitaker has not been able to find another affordable residence anywhere in the area. The married couple will have to separate and live in different places.
14. Plaintiff JOSEPH LINAWEAVER is a 22-year-old man who lives with his mother and father in Columbia County, Georgia. His mother works at Walgreen's and his father is an electrician.
8

15. In 2000, when Mr. Linaweaver was 16, he engaged in a consensual act of oral sex with a 14-year-old female classmate while on a school bus. Mr. Linaweaver pled guilty to sodomy and was sentenced to five years on probation. Because of the conviction, he had to register as a sex offender.
16. On June 1, 2006, the Columbia County Sheriff's Department notified Mr. Linaweaver that he must move from his family's home by June 30th.1 Mr. Linaweaver's whole family lives in the Augusta area. He cannot find anywhere to live in this area that meets the Act's requirements; nor has he found employment at any job that does not violate the Act's provisions. He plans to leave his family and move to Wisconsin rather than face being homeless and jobless in Georgia. Even his plans to move out of state, however, are uncertain at this point. Before leaving the state, Mr. Linaweaver has to arrange to transfer his probation, a process that can take six months in the best of circumstances. As probation offices across the state are being inundated with hundreds of requests to move and/ or transfer probation, the interstate compact arrangements will likely take at least nine months. In the interim, Mr. Linaweaver has nowhere to go.
See Exhibit 1. 9

17. Plaintiff JANET JENKINS ALLISON is a resident of Lumpkin County, Georgia. She is married and is the mother of five children, ages 25, 23, 20, 19 and 17. Ms. Allison lives with her husband and one of her sons. She formerly worked as the manager at the Huddle House in Dahlonega, Georgia but had to take a leave of absence after suffering an injury at work. Her husband is a diesel mechanic at Eagle Point Landfill Company.
18. Ms. Allison was convicted of being party to a crime of statutory rape and party to a crime of child molestation in 2002. Ms. Allison has a teenage daughter who was sexually active and became pregnant at age 15. The indictment alleged that Ms. Allison did not do enough to stop her daughter's sexual activity. It also alleged that Ms. Allison permitted her daughter's teenage boyfriend to move into the house after her daughter became pregnant and the young couple decided to marry. (They later did marry.) For this, Ms. Allison is a registered sex offender. She was sentenced to fifteen years of probation.
19. On June 15, 2006, a deputy from the Lumpkin County Sheriff's Office came to Ms. Allison's door and told her she must leave her home of four years by July 1 because she lives within 1,000 feet of a school bus stop. Ms. Allison does not know where her family will go. In the last week, they have driven around White,
10

Pickens, Dawson, Lumpkin, and Gilmer counties looking for a new home. They have not found any home they can afford that complies with HB 1059's requirements. They have looked in several mobile home parks, but found most of them will not be suitable because of playgrounds, swimming pools, and school bus stops.
20. Ms. Allison must attend counseling as a condition of probation. Ms. Allison's court-ordered treatment provider told her and other members of the treatment group that under the Act, they may not be able to attend church because they could be prosecuted.
21. Plaintiff JAMES VICTOR WILSON is a 23-year-old resident of Fulton County. He is a senior at Georgia State University pursuing a dual degree in accounting and finance. Mr. Wilson, who is due to graduate in December 2006, has worked at Miller, Ray, Houser & Stewart, an accounting firm in Atlanta, for three years. The firm has offered him a position upon graduation.
22. In 2002, as a freshman at New York University in New York City, Mr. Wilson pled guilty to sexual abuse in the first degree for inappropriately touching an adult female college friend while highly intoxicated at a freshman party. The court sentenced him to five years of probation, which he is due to
11

complete in August 2007. Mr. Wilson was designated a level I sex offender, the lowest possible designation, reflecting the unlikeliest possibility of re-offending. He has never been arrested before or since and has complied with all terms of his probation. His criminal case file contains letters from approximately 40 individuals (former teachers, employers, professors, friends, etc.) attesting that the incident was an aberration and out of character for Mr. Wilson.
23. Mr. Wilson is a co-owner of his home with his parents. It is within 1,000 feet of a school bus stop. His work place is within 1,000 feet of a building listed as a church in the telephone directory and on the Internet. Unless the Act is enjoined, Mr. Wilson will have to leave his home and he and his family will have to sell it. He will also have to give up his job and forgo his firm's offer of fulltime, steady employment because his employer is within 1,000 feet of a church.
24. For the last six weeks, Mr. Wilson and his family have searched the metro Atlanta area for any accommodation that would comply with HB 1059. All he could come up with is a motel in Clayton County, in an industrial area. He believes this motel meets the requirements of HB 1059, but he has not been able to determine whether there is a school bus stop within 1,000 feet of it. In addition, school bus stop locations will change with the coming school year.
12

25. Plaintiff JEFFERY YORK is a 22-year-old resident of Polk County. He lives with his grandmother and brother in Cedartown, Georgia. He is a painter and a writer.
26. When Mr. York was 17 years old, he dated a IS-year-old male. In 2003, Mr. York pled guilty to one count of sodomy for engaging in a consensual act of oral sex with the IS-year-old. He was sentenced to five years of probation.
27. Mr. York has received two letters from the Polk County Sheriff's Department stating his home may be within 1,000 feet of a bus stop. (Polk County has not yet mapped its school bus stop routes.) If it is, he will have to move immediately.
28. Plaintiff DEWAYNE OWENS is a 21-year-old male who is incarcerated at Calhoun State Prison in Calhoun County, Georgia.
29. In 1998, when Mr. Owens was 13 years old, he was convicted of incest for allegedly having sex with his sister. Mr. Owens served nearly four years in a juvenile facility and was released. He has never been charged with any additional crime before or since. He was found, however, to have violated the
13

terms of his probation in 2004 by: (a) looking at a magazine with sexual content, and (b) being in the presence of his young cousins (no allegations of inappropriate conduct). Mr. Owens is currently incarcerated at Calhoun State Prison where he has an excellent behavioral record.
30. Mr. Owens has a tentative parole date of December 2006. He must submit a home plan to the Board of Pardons and Paroles. The Act's residency restrictions prohibit Mr. Owens from living with any of his family members. He does not have money to rent or buy his own accommodation. Because of the Act's residency restrictions, his counsel has been unable to find a single halfway house or shelter in the State that can accept a male on the sex offender registry. Without a parole residence, Mr. Owens will remain in prison for the next seven years, despite any wish the Board of Pardons and Paroles may have to see him released and returned to the community.
31. Plaintiff AL REGINALD MARKS is a 20-year-old male who lives in Cobb County, Georgia. Mr. Marks is a student at Chattahoochee Technical College where he studies computer science. He works seven days per week at McDonald's and is training to become a manager. Mr. Marks lives with his mother, Carol King, and his father, Alphonso Marks. Alfonzo Marks is a
14

lieutenant in the Georgia Department of Juvenile Justice and a former New York City police officer.
32. In 2000, when he was 14-years-old, Al Reginald Marks was charged with hand-to-genital and mouth-to-genital sexual contact with the seven-year-old male son of a family friend. This was a one-time incident with no allegations of force. Mr. Marks pled guilty to child molestation and was sentenced to probation. He has served five years on probation without incident.
33. The Marks family has already had to move from their home once to comply with Georgia's sex offender residency restrictions. In 2003, after Georgia passed its first residency restriction law, authorities notified the Marks family that their house sat within 1,000 feet of a swimming pool. When informed of the problem, the Marks family moved to their current home in Cobb County. It took the family one-and-one-half years to pay their debt from breaking the lease.
34. Now the Marks family will have to move again. In a letter dated May 24, 2006, the Cobb County Sheriff's Department informed Mr. Marks he must leave because his home is within 1,000 feet of a school bus stop.2
2 See Exhibit 2. 15

35. For the past six weeks, the Marks family has been searching for a place to live that complies with HB 1059's requirements. They have spent days driving around the State of Georgia, using at least one tank of gas per day and visiting potential locations in Dekalb, Paulding, Douglas, and Bibb counties. So far, they have not found a residence that would comply with the Act.
36. If the Marks family cannot find a home in Georgia, they will move to New York. Alphonso Marks will have to quit his job of 14 years, and the family will be without income or health insurance until they have settled in New York and found other employment.
37. Plaintiff LORI SUE COLLINS is a resident of Polk County. Until June 2006, Ms. Collins lived at the Door of Hope Ministry in Rockdale County. Door of Hope is a faith-based halfway house for people recently released from prison.
16

38. In 2002, Ms. Collins was convicted of statutory rape for having consensual sex with a 15-year-old boy. Ms. Collins, who was 39 at the time, served three years in prison for her offense. While in prison, Ms. Collins lived in the honor dorm, served as assistant to the chaplain, edited a religious newsletter, and received a college diploma with honors.
39. In June 2006, Ms. Collins received a letter from the Rockdale County Sheriffs office stating she would have to leave Door of Hope because a school bus stop was within 1,000 feet of the residence.3 For three weeks, Ms. Collins has spent nearly every waking moment trying to find a new place to live. She drove around five counties (Hall, Barrow, Newton, Rockdale, and Henry) in search of a residence conforming to the requirements of HB 1059. She searched the Internet. She searched newspapers. She could not find anything. At one point, she thought she had found a place to live in an industrial area in Covington, Georgia. It turned out, however, that there was a school bus stop within 1,000 feet of the house.
3 See Exhibit 3. 17

40. Ms. Collins considered staying with various family members. There is a school bus stop within 1,000 feet of her daughter's home. A school bus stop also prevents her from living with her aunt in Augusta. Her grandparents, who live in a rural area outside of Augusta, offered to take her in, but there is a school bus stop within 1,000 feet of their property as well.
41. Ms. Collins has a second daughter who lives in South Carolina. Ms. Collins asked her probation officer if she could move to South Carolina. She was told she would have to ask for a transfer of probation under an interstate compact and that this could take up to six months.
42. In June 2006, Ms. Collins moved to the Door of Hope's other residential ministry in Polk County, Georgia. Ms. Collins' probation officer told her the Door of Hope in Polk County is not currently within 1,000 feet of a school bus stop. He specifically told her, however, that this may change in six weeks when school bus routes are reassigned for the coming school year.
43. The Door of Hope in Polk County conducts religious programs and services. Every Friday night, for example, there is a prayer watch during which congregants engage in praise, music, and singing. The ministry also hosts
18

religious events, prayer, and worship. Even though children generally do not attend these events, the Act, on its face, prohibits Ms. Collins from living at Door of Hope because public worship occurs on the premises.
44. If Ms. Collins has to leave Door of Hope, she does not know where she will go. She will likely become homeless and have to sleep on the street.
45. Plaintiff REVEREND JOEL JONES is a minister in Henry County, Georgia.4 He serves on the Board of Directors of the Door of Hope Ministry in Rockdale County, Georgia. Door of Hope is a faith-based half-way house that ministers to women who have been released from prison. Residents attend Bible study and church and participate in other structured activities. Reverend Jones's spiritual beliefs compel him to provide assistance and spiritual leadership to people released from prison and jail. In addition to running Door of Hope, Reverend Jones ministers to inmates in the U.S. Penitentiary and the Clayton County Jail. Lori Collins, who currently resides at Door of Hope, is on the sex offender registry. As the residential program director, she ministers to the other women in the home. Reverend Jones would like to continue to provide a residence and spiritual guidance to Ms. Collins as she transitions into the community. The Act
4 Reverend Jones is not a member of the Plaintiff class. 19

will prohibit him from doing so. Under the Act, Door of Hope will no longer be able to house women on the registry because residents engage in religious worship and because the ministry's Rockdale location is within 1,000 feet of a school bus stop.
Defendants
46. Defendant SONNY PERDUE is the Governor of the State of Georgia. As chief executive of the State of Georgia, he has the duty to "take care that the laws
are faithfully executed." Ga. Canst. art. V, § 2, 1 II. He is sued in his official
capacity. Plaintiffs ask that Defendant PURDUE be enjoined from enforcing the Act.
47. Defendant THURBERT BAKER is the Attorney General of the State of Georgia. He is charged by law with enforcement of the Georgia Code and the defense of the constitutionality of the laws of Georgia. He is sued in his official capacity. Plaintiffs ask that Defendant BAKER be enjoined from enforcing the Act.
48. Defendant SCOT DEAN is the Chief Probation Officer in Cedartown in Polk County, Georgia. He is charged with supervising probationers, including
20

Plaintiff York and Plaintiff Collins. Georgia law authorizes Defendant DEAN to arrest a probationer if he believes the probationer has violated probation in a material respect, including by violating a law such as the Act. See Ga. Code Ann. § 42-8-38 (2006). Defendant DEAN is sued in his official capacity. Plaintiffs ask that Defendant DEAN be enjoined from enforcing the Act.
49. Defendant ROBERT SPARKS is the Sheriff of Polk County and he resides in Polk County. He is charged with the common law and statutory duties of the office of sheriff to enforce the laws of Georgia. He is sued in his official capacity. Plaintiffs ask that Defendant SPARKS be enjoined from enforcing the Act.
JURISDICTION AND VENUE 50.
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C §§ 1331 and 1343 because the action arises under and is brought under the Civil Rights Act of 1871, 42 US.C § 1983, the Fourteenth Amendment to the United States Constitution, and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.CA. § 2000(c)(c).
51. Venue is proper in this District under 28 US.C § 1391(b)(1) because at least one Defendant resides in this judicial district. This District also is an appropriate
21

venue for this action under 28 U.S.c. § 1391(b)(2) because at least one Plaintiff lives in the district.
ALLEGATIONS 52.
Under Georgia law, anyone who is convicted of a criminal offense against a minor or who is convicted of a "sexually violent offense" against any person must register as a sex offender. See Ga. Code Ann. 42-1-12(b)(1)(a)(i) (2006).5 Such persons must register with the sheriff in the county where they live, work, and/ or attend school. All such persons must have their photographs, addresses, and other identifying information posted on the website of the Georgia Bureau of Investigation.
53. In June 2003, Georgia's General Assembly passed a law restricting the locations where people on the sex offender registry can live. See Ga. Code Ann. § 42-1-13 (2006). According to this law, which remains in effect today, no one on the registry may live within 1,000 feet of the following locations: schools, child care facilities, and areas where minors congregate, including public and private parks, recreation facilities, playgrounds, skating rinks, neighborhood centers,
5 Under current law, a "sexually violent offense" includes: rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, or aggravated assault with intent to rape. See Ga. Code Ann. 42-1-12(a)(7) (2006).
22

gymnasiums, and similar facilities providing programs or services directed towards persons under 18. Under the current law, the penalty for knowingly violating the residency restrictions is imprisonment from one to three years.
54. Many people on the registry, including Plaintiff Al Reginald Marks, were required to leave their homes to comply with the terms of the 2003 law, Ga. Code Ann. § 42-1-13 (2006).
55. HB 1059 was passed with the purpose of forcing all 10,000 people on the registry to leave the State. House Majority Leader Jerry Keen, the chief sponsor of HB 1059, stated: • "We want those people running away from Georgia. Given the toughest laws here, we think a lot of people could move to another state." • "If it becomes too onerous and too inconvenient, they just may want to live somewhere else. And I don't care where, as long as it's not in Georgia." • "Candidly, Senators, they will in many cases have to move to another state."
56.
However, the legislators were not fully informed. People on the registry who are on probation and parole cannot simply move to another state. They must acquire the permission of their probation or parole officers, and arrangements must be made for their supervision in another state before they may leave
23

Georgia. Thus, the Act does not force people out of the State; it forces them into
the street.
57.
HB 1059 was signed into law by Governor Sonny Perdue on April 26, 2006.
The Act, set forth at Ga. Code Ann. § 42-1-15 (2006), states in pertinent part:
(a) No individual required to register pursuant to Code Section 42-1-12 shall reside or loiter within 1,000 feet of any child care facility, church, school, or area where minors congregate. Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the outer boundary of the property of the child care facility, church, school, or area where minors congregate at their closest points.
(b)(1) No individual who is required to register under Code Section 42-1-12 shall be employed by any child care facility, school, or church or by any business or entity that is located within 1,000 feet of a child care facility, a school, or a church.
The statute defines"areas where minors congregate" as:
"all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, and public and community swimming pools. See Ga. Code Ann. § 42-1-12 (3) (2006).
58.
HB 1059 severely restricts the locations in which people on the registry can
live. It does this by adding the requirement that no one on the registry may live
within 1,000 feet of any church, swimming pool, or school bus stop. In addition,
under the Act no one will be able to work at or within 1,000 feet of a child care
24

facility, school, or church. Under the Act, no one on the registry will be able to loiter within 1,000 feet of a child care facility, church, school, public or private park, recreation facility, playground, skating rink, neighborhood center, gymnasium, school bus stop, public swimming pool, or community swimming pool.
59. Unlike sex offender residency restrictions in other states, HB 1059 does not contain any exception to protect the rights of those who already own or rent homes in restricted locations. C.f. Iowa Code § 692A.2A (2006) (exempting those who already lived within 2,000 feet of school from its sex offender residency requirements).
60. HB 1059 applies to everyone on the registry without exception. There is no procedure to apply for a hardship exemption based on illness, advanced age, financial hardship, or disability.
61. The Act will have a profound effect on the elderly and disabled people who are now given just weeks to relocate. This is next to impossible for people like Jeff Kennedy who is blind; William Evans, who is missing a leg, had a heart attack, and is in a wheelchair; a man in northwest Georgia who is 91 years old, in a nursing home, and confined to a wheelchair; and Herman Williams, who is 80
25

years old, has numerous health problems, and cannot find anywhere for him and his 77-year-old wife to live. One of the persons on the registry is 100 years old and will have to move to comply with the Act. About 25 people on the registry are in nursing homes. The Act makes no exception for people who are elderly, sick, or disabled and who cannot reasonably be expected to move at short notice.
62. HB 1059 does not provide for individualized justice. It provides no process to distinguish between people on the registry who are dangerous to children and those who are not. The exact same residency restrictions apply to Plaintiff Wendy Whitaker, convicted of consensual sexual activity with a boy of like age when she was 17, and adult felons convicted of violent crimes such as rape. The Act contains no U safety valve" provision to permit persons such as Plaintiffs Whitaker, Linaweaver, Allison, and others to appeal to a court to determine whether the residency restrictions are appropriate for them. By imposing punishment without an individualized showing of dangerousness or an individual opportunity to obtain an exception to the law, the Act deprives Plaintiffs of their property and livelihood without due process of law.
26

63. Some sheriff's departments have notified people on the registry that they must leave their homes by July 1. Plaintiffs Whitaker, Linaweaver, Allison, and Collins have been ordered to leave their homes.
64. Many sheriff's departments, however, have only just begun to notify persons on the registry that they will have to leave their homes and/ or quit their jobs. Accordingly, many people will have two weeks or less actual notice that they must break their leases, sell their homes, and find another residence. People have nowhere to go. Even temporary accommodations, such as motels, are offlimits under the new law since motels often have swimming pools. See Ga. Code Arm. § 4-1-12 (a)(15) (2006) (prohibiting anyone on the registry from residing within 1,000 feet of a swimming pool, including a motel swimming pool).
65.
The provision of the Act that prohibits people from living within 1,000 feet of a school bus stop, Ga. Code Arm. 42-1-15(a) (2006), is particularly arbitrary, unreasonable, and punitive. The Act's prohibition against living within 1,000 feet of a school bus stop virtually guarantees that no one on the registry will be able to live or work in urban areas. Bibb County has roughly 4,700 bus stops. Approximately 227 of 230 people on the registry will be forced to move.
27

Rockdale County has roughly 4,000 bus stops. Approximately 48 of 51 people will be forced to move. Forsyth County has about 1,200 school bus stops. A1l67 people on the registry will be forced to move.
66.
School bus stops change frequently depending on when children move into and out of neighborhoods, get cars of their own, and change schools. This renders it virtually impossible for anyone on the registry to buy or rent a home. If a child moves into the neighborhood or reaches school age, a bus stop may force the registrant to move.
67.
School bus stops are usually unmarked. The measurements of a school bus stop are unclear; there is no way to know where a stop begins and ends so that one may measure 1,000 feet from it. In many rural areas, school buses stop at the end of the driveways of children's houses.
68.
In many Georgia counties, it has been impossible to get a list of school bus stops from the sheriff's department, the probation office, the local department of education, or any other state or local office. Currently, no listing of school bus
28

stops is available in some counties because it is being revised during the summer months.
69.
HB 1059 will make it impossible for registrants in certain professions construction, roofing, and truck driving - to maintain their jobs, as they cannot predict or control where their jobs will take them.
70.
The Act is breaking families apart. Many parents will no longer be able to live with their children. People taking care of elderly parents or terminally ill spouses will have to leave home.
71. In many cases, instead of banishing people beyond state lines, HB 1059 will simply render people homeless and unaccounted for within the State of Georgia. Many probationers cannot leave the county or the state without their probation officers' approval. Yet there will be nowhere for people on the registry to move in many Georgia counties. Urban areas are generally off-limits. And law enforcement is so backed up with requests to approve new residences that people on the registry are not able to initiate relocation to different counties. People on the registry are stuck in an impossible situation: they are subject to prosecution if
29

they stay in their homes, they cannot find alternative residences, and they cannot leave the State without prior approval.
72.
The Act will force thousands of people from their homes, but it also prohibits people from being "homeless." The Act requires people on the registry to provide law enforcement with certain "required registration information," including their address. See Ga. Code Ann. § 42-1-12(a)(16)(B). The Act defines the term"address" as "the street or route address of the sexual offender's residence." See § 42-1-12(a)(1). The Act specifically states: "[hlomeless does not constitute an address." Id. The penalty for failure to provide the required registration information - including an address that meet's the Act's requirements - is a minimum of 10 and a maximum of 30 years in prison. See § 42-1-12(n)(1-3).
CLASS ACTION ALLEGATIONS 73.
Plaintiffs bring this class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure on their behalf and on behalf of a class similarly situated and affected during the pendency of this lawsuit and in the future. The class is defined as all persons who have registered as sex offenders pursuant to
30

Ga. Code Ann. § 42-1-12 (2006), or must so register in future, and who are harmed by the Act's residency, working, and loitering provisions.
74. The requirements of Rule 23(a) are met with respect to the class.
75.
The members of this class are so numerous that their joinder is impractical. The class consists of approximately 11,000 people.
76. There are questions of law and fact common to the class, specifically whether the Act violates rights secured by the United States Constitution. The questions of law and fact common to the class as a whole concern the
constitutionality and lawfulness of the Act. For example, there are common questions of law and fact concerning the lawfulness of each of the following matters:
a. whether the Act violates U.S. Const. art I, § 10, prohibiting Ex Post Facto laws, Bills of Attainder, and laws that impair the Obligation of Contracts;
b. whether the Act violates the procedural component of the Due Process Clause;
c. whether the Act violates the substantive component of the Due Process
31

Clause and the right to family privacy; d. whether the Act violates the Religious Land Use and Institutionalized
Persons Act; e. whether the Act violates the Free Exercise Clause and the right to
freedom of association; f. whether the Act violates the Takings Clause; g. whether the Act violates the right to interstate and intrastate travel; and h. whether the Act violates the Eighth Amendment by placing an
unconstitutional punishment on persons based upon their status. 77.
The Act challenged in this action applies with equal force to the named Plaintiffs and all members of the class so that the claims of the named Plaintiffs are typical of those of the class. All class members will be subject to the Act's restrictions absent the requested relief.
78. The named Plaintiffs will fairly represent and adequately protect the interests of the class as a whole. Plaintiffs are persons on Georgia's sex offender registry. Plaintiffs, like others in the class, are required to move from their homes, leave jobs, and/ or cease attendance at religious services. They possess the requisite personal interest in the subject matter of the lawsuit and possess no interests adverse to other class members.
32

79. Plaintiffs are represented by counsel experienced in civil rights class action litigation. The named Plaintiffs and the class members are represented by attorneys at the Southern Center for Human Rights, a privately funded, nonprofit organization with extensive experience in complex class action litigation, and the American Civil Liberties Union, a nonprofit law office with extensive experience litigating class action lawsuits. Plaintiffs' counsel have the resources, expertise, and experience to effectively prosecute this action.
80. The requirements of Fed. R. Civ. P. 23(b)(2) are met. Defendants have acted in a way generally applicable to the class the Plaintiffs represent, thereby making preliminary and permanent injunctive relief and corresponding declaratory relief appropriate for the class as a whole pursuant to Fed. R. Civ. P. 23(b)(2).
CLAIMS FOR RELIEF COUNT ONE
VIOLATION OF U.S. CONST. ART I, § 10 PROHIBITING EX POST FACTO LAWS, BILLS OF ATTAINDER, AND
IMPAIRMENT OF THE OBLIGATION OF CONTRACTS 81.
Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the allegations of "If"If 1-50, "If"lf 53-61, "If"lf 66-67, and "If"lf 70-72.
33

82. The Act punishes Plaintiffs for crimes for which they have already been punished by forcing them to sell their homes, break their leases, leave their families, and give up their jobs, the source of their food and shelter. The Act banishes Plaintiffs from their homes and communities.6 Application of the Act to the named Plaintiffs and others who were convicted of offenses before July 1, 2006 will violate the Ex Post Facto Clause and the prohibition against Bills of Attainder of the United States Constitution, U.s. Const. art. I, § 10.
COUNTlWO VIOLATION OF PROCEDURAL DUE PROCESS CLAUSE
83. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n n allegations of 1-50, 53-69, and '1!'1! 72.
84. The Act violates Plaintiffs' right to procedural due process of law under the Fourteenth Amendment to the Constitution of the United States, u.s. Const. amend. XIV, § 1, as applied to the states and enforced through 42 U.s.c. § 1983 (2006).
6 Plaintiffs are not raising any state constitutional claims, including, but not limited to banishment.
34

COUNT THREE VIOLATION OF SUBSTANTIVE DUE PROCESS:
THE RIGHT TO FAMILY PRIVACY 85.
Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n n n allegations of 1-50, " 53-61, 63, " 65-68, and 71-72.
86. The Act is unconstitutional because it impinges on Plaintiffs' fundamental right to family privacy - specifically the right to cohabit with one's family.
87. Therefore, the Act violates Plaintiffs' right to substantive due process of law under the Fourteenth Amendment to the Constitution of the United States, U.s. Const. amend. XIV, § 1, as applied to the states and enforced through 42
U.s.c. § 1983.
COUNT FOUR VIOLATION OF THE RELIGIOUS LAND USE AND INSTITUTIONALIZED
PERSONS ACT, 42 U.S.CA. § 2000(c)(c) 88.
Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n allegations of 1-50 and " 53-61.
35

89.
The Religious Land Use and Institutionalized Persons Act, 42 U.S.c.A. §
2000(c)(c)(a)(1) (West 2006) ("RLUIPA") states:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling interest; and (B) is the least restrictive means of furthering that compelling governmental interest.
RLUIPA further states:
No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution. 42 U.S.c.A. § 2000(c)(c)(b)(1) (2006).
90.
The Act explicitly prohibits anyone on the registry from living in churches
or religiously affiliated halfway houses where public worship takes place. The
Act violates RLUIPA by placing an impermissible land use restriction on
ministries and churches that house people on the registry, including the Door of
Hope Ministry in Conyers, Georgia.
91.
The Act violates RLUIPA by prohibiting people on the registry from living
in halfway houses sponsored by churches while not imposing the same burden
on secular halfway houses.
36

COUNT FIVE VIOLATION OF FREE EXERCISE CLAUSE AND RIGHT TO FREEDOM OF ASSOCIATION
92. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n allegations of 1-50, and ~~ 53-61.
93. The Act prohibits all people on the registry from living or working at or within 1,000 feet of a church. The penalty for loitering at or within 1,000 feet of a church is a minimum of 10 years and a maximum of 30 years in prison. The Act creates an impermissible chilling effect on the right to attend a house of worship.
The Act violates the Free Exercise Clause, U.s. Canst. amend. I, and the right to freedom of association, see u.s. Canst. amend. I.
COUNT SIX VIOLATION OF TAKINGS CLAUSE
94. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n n allegations of 1-50, ~~ 53-61, 63-69, and ~~ 71-72.
37

95. By requiring Plaintiffs immediately to sell their property, break their leases, and leave their homes, the Act violates the Fifth Amendment's prohibition on takings without just compensation, U.S. Const. amend. V, as applied to the
states and enforced through 42 U.s.c. § 1983 (2006).
COUNT SEVEN VIOLATION OF RIGHT TO INTERSTATE AND INTRASTATE TRAVEL
96. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n n allegations of ~~ 1-50, 53-61, 65-69, and ~ 72.
97.
The Act violates the right to interstate and intrastate travel. See u.s. Const. amend. XIV, § 1, as applied to the states and enforced through 42 U.s.c. § 1983.
COUNT EIGHT VIOLATION OF EIGHTH AMENDMENT
98. Plaintiffs incorporate herein and re-allege, as if fully set forth herein,
n n n the allegations of 1-50, 53-63, and 65-72.
38

99. The Act violates the Eighth Amendment, U.S. Const. amend. VIII, by imposing cruel and unusual punishment and by placing an unconstitutional punishment on Plaintiffs based upon their status as people on the sex offender registry.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Assume jurisdiction over this action; 2. Determine by Order pursuant to Rule 23 of the Federal Rules of Civil
Procedure that this action be maintained as a class action; 3. Enter a preliminary and thereafter a permanent injunction enjoining
the portions of the Act that violate the rights of Plaintiffs and the class they represent; 4. Declare that the portion of the Act prohibiting residence within 1,000 feet of a school bus stop is vague and overbroad; 5. Declare that the Act violates: the Ex Post Facto Clause; the prohibition against Bills of Attainder and impairment of contracts; the procedural component of the Due Process Clause; the substantive component of the Due Process Clause and the right to family privacy; the Religious Land Use and Institutionalized Persons
39

Act; the Free Exercise Clause and the right to freedom of association;
the Takings Clause; the right to interstate and intrastate travel; and
the Eighth Amendment.
6. Enter judgment in favor of Plaintiffs;
7. Award Plaintiffs the costs of this lawsuit and reasonable attorneys'
fees pursuant to 42 U.s.c. § 1988; and
8. Order such other and further relief as this Court may deem just and
proper.
Respectfully submitted this 7th day of July, 2006.
SOUTHERN CENTER FOR HUMAN RIGHTS
s/ Sarah Geraghty
Stephen B. Bright (Ga. Bar No. 082075) Lisa Kung (Ga. Bar No. 430302) Sarah Geraghty (Ga. Bar No. 291393) Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Tel: (404) 688-1202 Fax: (404) 688-9440 sbright@schr.org lkung@schr.org sgeraghty@schr.org
40

AMERICAN CIVIL LIBERTIES UNION OF GEORGIA Gerald R. Weber (Georgia Bar No. 744878) Margaret F. Garrett (Georgia Bar No. 255865) Beth Littrell (Georgia Bar No. 454949) American Civil Liberties Union 75 Piedmont Avenue, Suite 514 Atlanta, GA 30303 Tel: (404) 523-6201 Fax: (404) 577-0181 gweber@acluga.org mgarrett@acluga.org Blittrell@acluga.org
41

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

WENDY WHITAKER, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

SONNY PERDUE, et al.

)

)

Defendants.

)

---------------------)

CIVIL ACTION No.4:06-140-CC

CONSENT ORDER

At the direction of the Court, and with the consent of Columbia County

Sheriff Clay N. Whittle, Plaintiffs and Defendant Whittle hereby agree that

Sheriff Whittle is enjoined from enforcing the portion of Ga. Code Ann. § 42-1-

15(a) that prohibits anyone on Georgia's sex offender registry from living within

1,000 feet of a "school bus stop." This Consent Order shall remain in effect until

further order of the Court. IT IS SO ORDERED, this~ day of Jvl~ .2006.

arence.Cooper United States District Cour Judge

Agreed to and submitted by:
SOUTIfERN CENTER FOR HUMAN RIGHTS
sf Sarah Geraghty
Stephen B. Bright (Ga. Bar No. 082075) Lisa Kung (Ga. Bar No. 430302) Sarah Geraghty (Ga. Bar No. 291393) Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Telephone: (404) 688-1202 Fax: (404) 688-9440 sbright@schr.org lkung@schr.org sgeraghty@schr.org
AMERICAN CIVIL LIBERTIES UNION OF GEORIGA
Gerald R. Weber (Georgia Bar No. 744878) Margaret F. Garrett (Georgia Bar No. 255865) Beth Littrell (Georgia Bar No. 454949) American Civil Liberties Union 75 Piedmont Avenue, Suite 514 Atlanta, GA 30303 Telephone: (404) 523-6201 Fax: (404) 577-0181 gweber@acluga.org mgarrett@acluga.org Blittrell@acluga.org
Attorneys for the Plaintiffs
2

sf David E. Hudson Hull, Towill, Norman, Barrett, & Salley, P.e. P.O. Box 1564 Augusta, GA 30903-1564 Telephone: (706) 722-4481 Fax: (706) 722-9779 Attorney for Defendant Clay N. Whittle, SheriffofColumbia County
3

 
 Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 1 of 55

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

WENDY WHITAKER, JOSEPH

)

LINAWEAVER, JANET JENKINS

)

ALLISON, JAMES VICTOR WILSON, )

JEFFERY YORK, DEWAYNE OWENS, )

AL REGINALD MARKS, LORI SUE

)

COLLINS, REV. JOEL JONES,

)

)

Plaintiffs,

)

)

~

)

)

SONNY PERDUE,

)

Governor of the State of Georgia

)

in his official capacity,

)

)

THURBERT E. BAKER,

)

Attorney General of the State of Georgia )

in his official capacity,

)

)

.SCOT DEAN,

)

Chief of Probation,

)

Cedartown, Polk County, Georgia

)

in his official capacity,

)

)

ROBERTSPARK~

)

Sheriff of Polk County

)

in his official capacity,

)

)

CLAY WHITTLE,

)

Sheriff of Columbia County,

)

in his official capacity,

)

)

CIVIL ACTION
No.4:06-CVc140-CC
SECOND AMENDED COMPLAINTCLASS ACTION FOR INJUNCTIVE RELIEF
JURY TRIAL DEMANDED

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 2 of 55

RONALD STRENGTH,

)

Sheriff of Richmond County,

)

in his official capacity,

)

)

GREGORY COURSEY,

)

Sheriff of Burke County,

)

in his official capacity,

)

)

Defendants.

)

----~------------------)

PRELIMINARY STATEMENT

1.

Plaintiff WENDY WHITAKER and others bring this suit to prevent people

on Georgia's sex offender registry - including the elderly and disabled - from

being deprived of their homes and livelihoods due to the unfair and arbitrary

provisions of Act No. 571, Ga. Laws 2006 (HB 1059), codified at Ga. Code Ann. §

42-1-15 (2006) ("the Act"). When the Act goes into effect on July 1, 2006, the

result will be catastrophic. Thousands of people on Georgia's sex offender

registry will be forced, by legislative fiat, to evacuate their homes, leave their

jobs, cease attending their churches, and abandon court-mandated treatment

programs. Plaintiffs have been convicted of crimes - some of them when they

were teenagers for conduct a judge found was not a threat to public safety and

did not warrant any time in prison - but they have paid the price and today live

law-abiding lives as productive members of the community. Now they are being

punished again. The Act prohibits anyone on the registry from living within

2

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 3 of 55
1,000 feet of anyone of the hundreds of thousands of school bus stops in Georgia. This provision alone renders nearly all urban areas off-limits to people on the registry. Plaintiffs cannot find anywhere to live, though many have spent weeks driving hundreds of miles in search of a residence that complies with the Act. If HB 1059 goes into effect, it will drive many people on the registry to sleep in parks, under bridges, or in their cars, or to set up tents or trailers in the woods.
2. There are approximately 11,000 registered"sex offenders" in Georgia, about 9,000 of whom live in the community. Unlike the sex offender residency requirements of many other states, Georgia does not differentiate between people convicted of violent sexual offenses, such as rape, and people who violated the law by having consensual sexual relations when they were teenagers with someone under the age of consent. Georgia treats everyone like the worst offender. Georgia already has a law governing where people on the registry can. live. See Ga. Code Ann. § 42-1-13 (2006) (prohibiting residency within 1,000 feet of schools, child care facilities, and areas where minors congregate, including parks, recreation facilities, skating rinks, neighborhood centers, gymnasiums, and similar facilities providing programs or services directed toward children). HB 1059, signed into law by the Governor on April 24, 2006, substantially revises § 42-1-13, turning the law from one tailored to keep offenders away from children into one that essentially drives every person on the registry from all
3

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 4 of 55
urban areas and many rural areas. 3.
The ostensible purpose of HB 1059 is to keep Georgia's children safe from sexual offenses. No one would dispute that this is a laudable goal. Yet the Act imposes its residency restrictions and other significant penalties on all people on the registry - even those like Plaintiff Wendy Whitaker who is on the registry because, at age 17, she had a single consensual act of oral sex with a 15-year-old boy. For this one act, committed ten years ago, the now 26-year-old Ms. Whitaker and her husband have been forced from one home and now will be forced from another. Plaintiff Joseph Linaweaver was 16 when he had a single consensual act of oral sex with a 14-year-old girl. For this act, Mr. Linaweaver is being driven from his home. Plaintiff Janet Allison was convicted of being "party to a crime of statutory rape and child molestation" because she did not prevent her IS-year-old daughter from becoming sexually active. Due to this conviction, Ms. Allison and her family will have to leave their home.
4. Although they have nowhere to go and little prospect of finding a residence that is not within 1,000 feet of a school bus stop, if Plaintiffs and others on the registry do not leave their homes, they will be subject to arrest and prosecution. The punishment for failure to comply with the Act's residency and working restrictions is a minimum of 10 years imprisorunent and a maximum of
4

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 5 of 55
30 years imprisonment. 5.
The Act will also prohibit anyone on the registry from working within 1,000 feet of a church, child care facility, or school. Hundreds, if not thousands, of people on the registry will lose their jobs.
6. In addition to imposing onerous residency and employment restrictions, the Act impermissibly interferes with the practice of religion. It will require church halfway houses - but not sectarian halfway houses - to expel residents who are on the registry, even if the residents are low-risk offenders complying with the terms of probation. In addition, the Act impermissibly chills the right to exercise one's religion by making it a felony punishable by a minimum of 10 years imprisonment to "loiter" at or near a church or other place of religious worship. Plaintiffs in this case and others on the registry rationally feel that they cannot go to church on Sunday, attend Wednesday or Friday night prayer groups, or go to weddings or funerals for fear that they will be thought to be loitering at a-place of public religious worship. The penalty for loitering is simply too severe to risk participation in religious activities.
5

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 6 of 55
7. Plaintiffs are persons subject to the residency, working, and loitering restrictions of HB 1059. Plaintiffs bring this putative class action on behalf of themselves and all persons subject to the Act. Plaintiffs respectfully ask this Court to preliminarily and thereafter permanently enjoin Defendants from enforcing such portions of the Act as are necessary to protect Plaintiffs' constitutional rights.
8. The Act's enforcement should be enjoined for the following reasons: a. The Act violates U.s. Const. art 1, § 10, prohibiting Ex Post Facto laws,
Bills of Attainder, and laws that impair the Obligation of Contracts; b. The Act violates the procedural component of the Due Process Clause; c. The Act violates the substantive component of the Due Process Clause
and the right to family privacy; d. The Act violates the Religious Land Use and Institutionalized Persons
Act, 42 u.s.es. § 2000(c)(c) (2006);
e. The Act violates the Free Exercise Clause and the right to freedom of association;
f. The Act violates the Takings Clause; g. The Act violates the right to interstate and intrastate travel;
6

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 7 of 55
h. The Act violates the Eighth Amendment by imposing cruel and unusual punishment and by impermissibly punishing Plaintiffs based upon their status.
PARTIES Plaintiffs
9. Plaintiff WENDY WHITAKER is a 26-year-old woman who lives in McDuffie County, Georgia. She is a full-time student studying criminal justice at Augusta Technical College. She has been married for six years.
10. Ten years ago, when Ms. Whitaker was a 17-year-old high school student, she engaged in a consensual act of oral sex with a 15-year-old male while on school property. Ms. Whitaker is white; the other student was African-American. Ms. Whitaker was arrested, charged with sodomy, and advised to plead guilty, and she ultimately completed five years on probation. Her conviction reqUired her to register as a sex offender.
11. Ms. Whitaker and her husband have already been required to comply with the current sex offender registration law, Ga. Code Ann. § 42-1-13 (2006). Earlier this year, the police made Ms. Whitaker leave her home in Harlem, Georgia. The
7

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 8 of 55
residence sat within 1,000 feet of a church, and unbeknownst to the Whitakers when they bought the home, a day care program operated inside the church. The Whitakers still own their home and must pay their mortgage on it, but they can no longer live there.
12. The Whitakers have since moved in with Mr. Whitaker's brother and his daughter in Thomson, Georgia. They must pay rent and expenses in addition to mortgage, causing them financial strain. The Whitakers' niece will be starting school soon and she will take the school bus. The bus will stop within 1,000 feet of the house, making the Whitakers' present residence an unfit accommodation under HB 1059.
13. If the Whitakers have to leave their current residence in Thomson, they do not know where they will go. Because of his work, Mr. Whitaker will not be able to leave the Augusta area. Ms. Whitaker has not been able to find another affordable residence anywhere in the area. The married couple will have to separate and live in different places.
14. Plaintiff JOSEPH LINAWEAVER is a 22-year-old man who lives with his mother and father in Columbia County, Georgia. His mother works at Walgreen's and his father is an electrician.
8

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 9 of 55
15. In 2000, when Mr. Linaweaver was 16, he engaged in a consensual act of oral sex with a 14-year-old female classmate while on a school bus. Mr. Linaweaver pled guilty to sodomy and was sentenced to five years on probation. Because of the conviction, he had to register as a sex offender.
16. On June 1, 2006, the Columbia County Sheriff's Department notified Mr. Linaweaver that he must move from his family's home by June 30111.1 Mr. Linaweaver's whole family lives in the Augusta area. He cannot find anywhere to live in this area that meets the Act's requirements; nor has he found employment at any job that does not violate the Act's provisions. He plans to leave his family and move to Wisconsin rather than face being homeless and jobless in Georgia. Even his plans to move out of state, however, are uncertain at this point. Before leaving the state, Mr. Linaweaver has to arrange to transfer his probation, a process that can take six months in the best of circumstances. As probation offices across the state are being inundated with hundreds of requests to move and/ or transfer probation, the interstate compact arrangements will likely take at least nine months. In the interim, Mr. Linaweaver has nowhere to go.
See Exhibit 1. 9

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 10 of 55
17. Plaintiff JANET JENKINS ALLISON is a resident of Lumpkin County, Georgia. She is married and is the mother of five children, ages 25, 23,20, 19 and 17. Ms. Allison lives with her husband and one of her sons. She formerly worked as the manager at the Huddle House in Dahlonega, Georgia but had to take a leave of absence after suffering an injury at work. Her husband is a diesel mechanic at Eagle Point Landfill Company.
18. Ms. Allison was convicted of being party to a crime of statutory rape and party to a crime of child molestation in 2002. Ms. Allison has a teenage daughter who was sexually active and became pregnant at age 15. The indictment alleged that Ms. Allison did not do enough to stop her daughter's sexual activity. It also alleged that Ms. Allison permitted her daughter'S teenage boyfriend to move into· the house after her daughter became pregnant and the young couple decided to marry. (They later did marry.) For this, Ms. Allison is a registered sex offender. She was sentenced to fifteen years of probation.
19. On June 15, 2006, a deputy from the Lumpkin County Sheriff's Office came to Ms. Allison's door and told her she must leave her home of four years by July 1 because she lives within 1,000 feet of a school bus stop. Ms. Allison does not know where her family will go. In the last week, they have driven around White,
10

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 11 of 55
Pickens, Dawson, Lumpkin, and Gilmer counties looking for a new home. They have not found any home they can afford that complies with HB 1059's requirements. They have looked in several mobile home parks, but found most of them will not be suitable because of playgrounds, swimming pools, and school bus stops.
20. Ms. Allison must attend counseling as a condition of probation. Ms. Allison's court-ordered treatment provider told her and other members of the treatment group that under the Act, they may not be able to attend church because they could be prosecuted.
21. Plaintiff JAMES VICTOR WILSON is a 23-year-old resident of Fulton County. He is a senior at Georgia State University pursuing a dual degree in
accounting and finance. Mr. Wilson, who is due to graduate in December 2006, has worked at Miller, Ray, Houser & Stewart, an accounting firm in Atlanta, for three years. The firm has offered him a position upon graduation.
22. In 2002, as a freshman at New York University in New York City, Mr. Wilson pled guilty to sexual abuse in the first degree for inappropriately touching an adult female college friend while highly intoxicated at a freshman party. The court sentenced him to five years of probation, which he is due to

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 12 of 55
complete in August 2007. Mr. Wilson was designated a level I sex offender, the lowest possible designation, reflecting the unlikeliest possibility of re-offending. He has never been arrested before or since and has complied with all terms of his probation. His criminal case file contains letters from approximately 40 individuals (former teachers, employers, professors, friends, etc.) attesting that the incident was an aberration and out of character for Mr. Wilson.
23.
Mr. Wilson is a co-owner of his home with his parents. It is withiIl 1,000 feet of a school bus stop. His work place is within 1,000 feet of a building listed as a church in the telephone directory and on the Internet. Unless the Act is enjoined, Mr. Wilson will have to leave his home and he and his family will have to sell it. He will also have to give up his job and forgo his firm's offer of fulltime, steady employment because his employer is within 1,000 feet of a church.
24.
For the last six weeks, Mr. Wilson and his family have searched the metro Atlanta area for any accommodation that would comply with HB 1059. All he could come up with is a motel in Clayton County, ill an illdustrial area. He believes this motel meets the requirements of HB 1059, but he has not been able to determirle whether there is a school bus stop withill 1,000 feet of it. In addition, school bus stop locations will change with the comirlg school year.
12

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 13 of 55
25.
Plaintiff JEFFERY YORK is a 22-year-old resident of Polk County. He lives with his grandmother and brother in Cedartown, Georgia. He is a painter and a writer.
26. When Mr. York was 17 years old, he dated a 15-year-old male. In 2003, Mr. York pled guilty to one count of sodomy for engaging in a consensual act of oral sex with the 15-year-old. He was sentenced to five years of probation.
27. Mr. York has received two letters from the Polk County Sheriff's Department stating his home may be within 1,000 feet of a bus stop. (Polk . County has not yet mapped its school bus stop routes.) If it is, he will have to move immediately.
28. Plaintiff DEWAYNE OWENS is a 21-year-old male who is incarcerated at Calhoun State Prison in Calhoun County, Georgia.
29. In 1998, when Mr. Owens was 13 years old, he was convicted of incest for allegedly having sex with his sister. Mr. Owens served nearly four years in a juvenile facility and was released. He has never been charged with any additional crime before or since. He was found, however, to have violated the
13

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 14 of 55
terms of his probation in 2004 by: (a) looking at a magazine with sexual content, and (b) being in the presence of his young cousins (no allegations of
inappropriate conduct). Mr. Owens is currently incarcerated at Calhoun State
Prison where he has an excellent behavioral record. 30.
Mr. Owens has a tentative parole date of December 2006. He must submit a home plan to the Board of Pardons and Paroles. The Act's residency restrictions prohibit Mr. Owens from living with any of his family members. He does not have money to rent or buy his own accommodation. Because of the Act's residency restrictions, his counsel has been unable to find a single halfway house or shelter in the State that can accept a male on the sex offender registry. Without a parole residence, Mr. Owens will remain in prison for the next seven years, despite any wish the Board of Pardons and Paroles may have to see him released and returned to the community.
31. Plaintiff AL REGINALD MARKS is a 20-year-old male who lives in Cobb County, Georgia. Mr. Marks is a student at Chattahoochee Technical College where he studies computer science. He works seven days per week at McDonald's and is training to become a manager. Mr. Marks lives with his mother, Carol King, and his father, Alphonso Marks. Alfonzo Marks is a
14

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 15 of 55
lieutenant in the Georgia Department of Juvenile Justice and a fonner New York City police officer.
32. In 2000, when he was 14-years-old, Al Reginald Marks was charged with hand-to-genital and mouth-to-genital sexual contact with the seven-year-old male son of a family friend. This was a one-time incident with no allegations of force. Mr. Marks pled guilty to child molestation and was sentenced to probation. He has served five years on probation without incident.
33. The Marks family has already had to move from their home once to comply with Georgia's sex offender residency restrictions. In 2003, after Georgia passed its first residency restriction law, authorities notified the Marks family that their house sat within 1,000 feet of a swimming pool. When informed of the problem, the Marks family moved to their current home in Cobb County. It took the family one-and-one-half years to pay their debt from breaking the lease.
34. Now the Marks family will have to move again. In a letter dated May 24, . 2006, the Cobb County Sheriff's Department informed Mr. Marks he must leave because his home is within 1,000 feet of a school bus stop.2
2 See Exhibit 2. 15

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 16 of 55
35. For the past six weeks, the Marks family has been searching for a place to live that complies with HE 1059's requirements. They have spent days driving around the State of Georgia, using at least one tank of gas per day and visiting potential localions in Dekalb, Paulding, Douglas, and Bibb counties. So far, they have not found a residence that would comply with the Act.
36. If the Marks family cannot find a home in Georgia, they will move to New York. Alphonso Marks will have to quit his job of 14 years, an.d the family will be without income or health insurance until they have settled in New York and found other employment.
37. Plaintiff LORI SUE COLLINS is a resident of Polk County. Until June 2006, Ms. Collins lived at the Door of Hope Ministry in Rockdale County. Door of Hope is a faith-based halfway house for people recently released from prison.
16

Case 4:06-cv-00140-CC Document 59 Filed 0712612006 Page 17 of 55
38. In 2002, Ms. Collins was convicted of statutory rape for having consensual sex with a IS-year-old boy. Ms. Collins, who was 39 at the time, served three years in prison for her offenSe. While in prison, Ms. Collins lived in the honor dorm, served as assistant to the chaplain, edited a religious newsletter, and received a college diploma with honors.
39. In June 2006, Ms. Collins received a letter from the Rockdale County Sheriffs office stating she would have to leave Door of Hope because a school bus stop was within 1,000 feet of the residence.3 For three weeks, Ms. Collins has spent nearly every waking moment trying to find a new place to live. She drove around five counties (Hall, Barrow, Newton, Rockdale, and Henry) in search of a residence conforming to the requirements of HB 1059. She searched the Internet. She searched newspapers. She could not find anything. At one point, she thought she had found a place to live in an industrial area in Covington, Georgia. It turned out, however, that there was a school bus stop within 1,000 feet of the house.
3 See Exhibit 3. 17

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 18 of 55
40. Ms. Collins considered staying with various family members. There is a school bus stop within 1,000 feet of her daughter's home. A school bus stop also prevents her from living with her aunt in Augusta. Her grandparents, who live in a rural area outside of Augusta, offered to take her in, but there is a school bus stop within 1,000 feet of their property as well.
41. Ms. Collins has a second daughter who lives in South Carolina. Ms. Collins asked her probation officer if she could move to South Carolina. She was told she would have to ask for a transfer of probation under an interstate compact and that this could take up to six months.
42. In June 2006, Ms. Collins moved to the Door of Hope's other residential ministry in Polk County, Georgia. Ms. Collins' probation officer told her the Door of Hope in Polk County is not currently within 1,000 feet of a school bus stop. He specifically told her, however, that this may change in six weeks when school bus routes are reassigned for the coming school year.
43. The Door of Hope in Polk County conducts religious programs and services. Every Friday night, for example, there is a prayer watch during which congTegants engage in praise, music, and singing. The ministry also hosts
18

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 19 of 55
religious events, prayer, and worship. Even though children generally do not attend these events, the Act, on its face, prohibits Ms. Collins from living at Door of Hope because public worship occurs on the premises.
44. If Ms. Collins has to leave Door of Hope, she does not know where she will go. She will likely become homeless and have to sleep on the street.
45. Plaintiff REVEREND JOEL JONES is a minister in Henry County, Georgia.4 He serves on the Board of Directors of the Door of Hope MinistTY in Rockdale County, Georgia. Door of Hope is a faith-based half-way house that ministers to women who have been released from prison. Residents attend Bible study and church and participate in other structured activities. Reverend Jones's spiritual beliefs compel him to provide assistance and spiritual leadership to people released from prison and jail. In addition to running Door of Hope, Reverend Jones ministers to inmates in the U.S. Penitentiary and the Clayton County Jail. Lori Collins, who currently resides at Door of Hope, is on the sex offender registry. As the residential program director, she ministers to the other women in the home. Reverend Jones would like to continue to provide a residence and spiritual guidance to Ms. Collins as she transitions into the community. The Act
4 Reverend Jones is not a member of the Plaintiff class. 19

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 20 of 55
will prohibit him from doing so. Under the Act, Door of Hope will no longer be able to house women on the registry because residents engage in religious worship and because the ministrys Rockdale location is within 1,000 feet of a school bus stop.
Defendants
46. Defendant SONNY PERDUE is the Governor of the State of Georgia. As chief executive of the State of Georgia, he has the duty to "take care that the laws are faithfully executed." Ga. Canst. art. V, § 2, ~ II. He is sued in his official capacity. Plaintiffs ask that Defendant PURDUE be enjoined from enforcing the Act.
47.
Defendant THURBERT BAKER is the Attorney General of the State of Georgia. He is charged by law with enforcement of the Georgia Code and the defense of the constitutionality of the laws of Georgia. He is sued in his official capacity. Plaintiffs ask that Defendant BAKER be enjoined from enforcing the Act.
48. Defendant SCOT DEAN is the Chief Probation Officer in Cedartown in Polk County, Georgia. He is charged with supervising probationers, including
20

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 21 of 55
Plaintiff York and Plaintiff Collins. Georgia law authorizes Defendant DEAN to arrest a probationer if he believes the probationer has violated probation in a material respect, including by violating a law such as the Act. See Ga. Code Ann. § 42-8-38 (2006). Defendant DEAN is sued in his official capacity. Plaintiffs ask that Defendant DEAN be enjOined from enforcing the Act.
49. Defendant ROBERT SPARKS is the Sheriff of Polk County and he resides in Polk County. He is charged with the common law and statutory duties of the office of sheriff to enforce the laws of Georgia. He is sued in his official capacity. Plaintiffs ask that Defendant SPARKS be enjoined from enforcing the Act.
50. Defendant CLAY WHITTLE is the Sheriff of Columbia County. He is charged with the common law and statutory duties of the office of sheriff to enforce the laws of Georgia. He is sued in his official capacity. Plau,tiffs ask that Defendant WHITTLE be enjoined from enforcing the Act.
51. Defendant RONALD STRENGTH is the Sheriff of Richmond County. He is charged with the common law and statutory duties of the office of sheriff to enforce the laws of Georgia. He is sued in his official capacity. Plaintiffs ask that Defendant STRENGTH be enjoined from enforcing the Act.
52. 21

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 22 of 55
Defendant GREG COURSEY is the Sheriff of Burke County. He is charged with the common law and statutory duties of the office of sheriff to enforce the laws of Georgia. He is sued in his official capacity. Plaintiffs ask that Defendant COURSEY be enjoined from enforcing the Act.
JURISDICTION AND VENUE 53.
This Court has subject matter jurisdiction over this action pursuant to 28 U.s.c. §§ 1331 and 1343 because the action arises under and is brought under the Civil Rights Act of 1871, 42 U.s.c. § 1983, the Fourteenth Amendment to the United States Constitution, and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.s.c.A. § 2000(c)(c).
54. Venue is proper in this District under 28 U.s.c. § 1391(b)(1) because at least one Defendant resides in this judicial district. This District also is an appropriate venue for this action under 28 U.S.c. § 1391(b)(2) because at least one Plaintiff lives in the district.
ALLEGATIONS 55.
Under Georgia law, anyone who is convicted of a criminal offense against a minor or who is convicted of a "sexually violent offense" against any person
22

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 23 of 55
must register as a sex offender. See Ga. Code Ann. 42-1-12(b)(1)(a)(i) (2006).5 Such persons must register with the sheriff in the counly where they live, work, and/ or attend school. All such persons must have their photographs, addresses, and other identifying information posted on the website of the Georgia Bureau of Investigation.
56. In Tune 2003, Georgia's General Assembly passed a law restricting the locations where people on the sex offender registry can live. See Ga. Code Ann. § 42-1-13 (2006). According to this law, which remains in effect today, no one on the registry may live within 1,000 feet of the following locations: schools, child care facilities, and areas where minors congregate, including public and private parks, recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, and sim.ilar facilities providing programs or services directed towards persons under 18. Under the current law, the penally for knOWingly violating the residency restrictions is imprisonment from one to three years.
5 Under current law, a "sexually violent offense" includes: rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, or aggravated assault with intent to rape. See Ga. Code Ann. 42-1-12(a)(7) (2006).
23

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 24 of 55
57. Many people on the registry, including Plaintiff Al Reginald Marks, were required to leave their homes to comply with the terms of the 2003 law, Ga. Code Ann. § 42-1-13 (2006).
58. HB 1059 was passed with the purpose of forcing all 10,000 people on the registry to leave the State. House Majority Leader Jerry Keen, the chief sponsor of HB 1059, stated: & "We want those people rurming away from Georgia. Given the toughest laws here, we think a lot of people could move to another state." .. "If it becomes too onerous and too inconvenient, they just may want to live somewhere else. And I don't care where, as long as it's not in Georgia." .. "Candidly, Senators, they will in many cases have to move to another state. "
59.
However, the legislators were not fully informed. People on the registry who are on probation and parole cannot simply move to another state. They must acquire the permission of their probation or parole officers, and arrangements must be made for their supervision in another state before they may leave Georgia. Thus, the Act does not force people out of the State; it forces them into the street.
24

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 25 of 55
60.
HB 1059 was signed into law by Governor Sonny Perdue on April 26, 2006. The Act, set forth at Ga. Code Ann. § 42-1-15 (2006), states in pertinent part
(a) No individual required to register pursuant to Code Section 42-1-12 shall reside or loiter within 1,000 feet of any child care facility, church, school, or area where minors congregate. Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the outer boundary of the property of the child care facility, church, school, or area where minors congregate at their closest pOints. (b)(l) No individual who is required to register under Code Section 42-1-12 shall be employed by any child care facility, school, or church or by any business or entity that is located within 1,000 feet of a child care facility, a school, or a church. The statute defines"areas where minors congregate" as: "all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, and public and community swimming pools. See Ga. Code Ann. § 42-1-12 (3) (2006).
61. HB 1059 severely restricts the locations in which people on the registry can live. It does this by adding the requirement that no one on the registry may live within 1,000 feet of any church, swimming pool, or school bus stop. In addition, under the Act no one will be able to work at or within 1,000 feet of a child care facility, school, or church. Under the Act, no one on the registry will be able to loiter within 1,000 feet of a child care facility, church, school, public or private
25

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 26 of 55
park, recreation facility, playground, skating rink, neighborhood center, gymnasium, school bus stop, public swimming pool, or community swimming pooL
62. Unlike sex offender residency restrictions in other states, HB 1059 does not contain any exception to protect the rights of those who already own or rent homes in restricted locations. C.f. Iowa Code § 692A.2A (2006) (exempting those who already lived within 2,000 feet of school from its sex offender residency requirements).
63.
HB 1059 applies to everyone on the registry without exception. There is no procedure to apply for a hardship exemption based on illness, advanced age, financial hardship, or disability.
64.
The Act will have a profound effect on the elderly and disabled people who are now given just weeks to relocate. This is next to impossible for people like Jeff Kennedy who is blind; William Evans, who is missing a leg, had a heart attack, and is in a wheelchair; a man in northwest Georgia who is 91 years old, in a nursing home, and confined to a wheelchair; and Herman Vvilliarns, who is 80 years old, has numerous health problems, and cannot find anywhere for him and his 77-year-old wife to live. One of the persons on the registry is 100 years old
26

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 27 of 55
and will have to move to comply with the Act. About 25 people on the regishy are in nursing homes. The Act makes no exception for people who are elderly, sick, or disabled and who cannot reasonably be expected to move at short notice.
65. HB 1059 does not provide for individualized justice. It provides no process to distinguish between people on the registry who are dangerous to children and those who are not. The exact same residency restrictions apply to Plaintiff Wendy Whitaker, convicted of consensual sexual activity with a boy of like age when she was 17, and adult felons convicted of violent crimes such as rape. The Act contains no "safety valve" provision to permit persons such as Plaintiffs Whitaker, Linaweaver, Allison, and others to appeal to a court to determine whether the residency restrictions are appropriate for them. By imposing punishment without an individualized showing of dangerousness or an individual.opportunity to obtain an exception to the law, the Act deprives Plaintiffs of their property and livelihood without due process of law.
66. Some sheriffs departments have notified people on the registry that they must leave their homes by July 1. Plaintiffs Whitaker, Linaweaver, Allison, and Collins have been ordered to leave their homes.
27

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 28 of 55
67. Many sheriff's departments, however, have only just begun to notify persons on the registry that they will have to leave their homes and/ or quit their jobs. Accordingly, many people will have two weeks or less actual notice that they must break their leases, sell their homes, and find another residence. People have nowhere to go. Even temporary accommodations, such as motels, are offlimits under the new law since motels often have swimming pools. See Ga. Code Ann. § 4-1-12 (a)(15) (2006) (prohibiting anyone on the registry from residing within 1,000 feet of a swimming pool, including a motel swimming pool).
68. The provision of the Act that prohibits people from living within 1,000 feet of a school bus stop, Ga. Code Ann. 42-1-15(a) (2006), is particularly arbitrary, unreasonable, and punitive. The Act's prohibition against living within 1,000 feet of a school bus stop virtually guarantees that no one on the registry will be able to live or work in urban areas. Bibb County has roughly 4,700 bus stops. Approximately 227 of 230 people on the registry will be forced to move.. Rockdale County has roughly 4,000 bus stops. Approximately 48 of 51 people will be forced to move. Forsyth County has about 1,200 school bus stops. All 67 people on the registry will be forced to move.
28

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 29 of 55
69. School bus stops change frequently depending on when children move into and out of neighborhoods, get cars of their own, and change schools. This renders it virtually impossible for anyone on the registry to buy or rent a home. If a child moves into the neighborhood or reaches school age, a bus stop may force the registrant to move.
70. School bus stops are usually unmarked. The measurements of a school bus stop are unclear; there is no way to know where a stop begins and ends so that one may measure 1,000 feet from it. In many rural areas, school buses stop at the end of the driveways of children's houses.
71. In many Georgia counties, it has been impossible to get a: list of school bus stops from the sheriff's department, the probation office, the local department of education, or any other state or local office. Currently, no listing of school bus stops is available in some counties because it is being revised during the summer months.
29

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 30 of 55
72.
HB 1059 will make it impossible for registrants in certain professions construction, roofing, and truck driving - to maintain their jobs, as they cannot predict or control where their jobs will take them.
73.
The Act is breaking families apart. Many parents will no longer be able to live with their children. People taking care of elderly parents or terminally ill spouses will have to leave home.
74. In many cases, instead of banishing people beyond state lines, HE 1059 will simply render people homeless and unaccounted for within the State of Georgia. Many probationers cannot leave the county or the state without their probation officers' approval. Yet there will be nowhere for people on the registry to move in many Georgia counties. Urban areas are generally off-limits. And law enforcement is so backed up with requests to approve new residences that people on the registry are not able to initiate relocation to different counties. People on the registry are stuck in an impossible situation: they are subject to prosecution if they stay in their homes, they cannot find alternative residences, and they cannot leave the State without prior approval.
30

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 31 of 55
75.
The Act will force thousands of people from their homes, but it also prohibits people from being "homeless." The Act requires people on the registry to provide law enforcement with certain "required registration information," including their address. See Ga. Code Ann. § 42-1-12(a)(16)(B). The Act defines the term "address" as "the street or route address of the sexual offender's residence." See § 42-1-12(a)(1). The Act specifically states: "[hJomeless does not constitute an address." rd. The penalty for failure to provide the required registration information - including an address that meet's the Act's requirements - is a minimum of 10 and a maximum of 30 years in prison. See § 42-1-12(n)(1-3).
CLASS ACTION ALLEGATIONS 76.
Plaintiffs bring this class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure on their behalf and on behalf of a class similarly situated and affected during the pendency of this lawsuit and in the future. The class is defined as all persons who have registered as sex offenders pursuant to Ga. Code Ann. § 42-1-12 (2006), or must so register in future, and who are harmed by the Act's residency, working, and loitering provisions.
31

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 32 of 55
77. The requirements of Rule 23(a) are met with respect to the class.
78. The members of this class are so numerous that their joinder is impractical. The class consists of approximately 11,000 people.
79. There are questions of law and fact corrunon to the class, specifically whether the Act violates rights secured by the United States Constitution. The questions of law and fact corrunon to the class as a whole concern the constitutionality and lawfulness of the Act. For example, there are corrunon questions of law and fact concerning the lawfulness of each of the following matters: a. whether the Act violates U.S. Const. art 1, § 10, prohibiting Ex Post Facto
laws, Bills of Attainder, and laws that impair the Obligation of Contracts; b. whether the Act violates the procedural component of the Due Process Clause; c. whether the Act violates the substantive component of the Due Process Clause and the right to family privacy; d. whether the Act violates the Religious Land Use and Institutionalized Persons Act;
32

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 33 of 55
e. whether the Act violates the Free Exercise Clause and the right to freedom of association;
f. whether the Act violates the Takings Clause; g. whether the Act violates the right to interstate and intrastate travel; and h. whether the Act violates the Eighth Amendment by placing an
unconstitutional punishment on persons based upon their status. 80.
The Act challenged in this action applies with equal force to the named Plaintiffs and all members of the class so that the claims of the named Plaintiffs are typical of those of the class. All class members will be subject to the Act's restrictions absent the requested relief.
81. The named Plaintiffs will fairly represent and adequately protect the interests of the class as a whole. Plaintiffs are persons on Georgia's sex offender registry. Plaintiffs, like others in the class, are required to move from their homes, leave jobs, and!or cease attendance at religious services. They possess the requisite personal interest in the subject matter of the lawsuit and possess no interests adverse to other class members.
82. Plaintiffs are represented by counsel experienced in civil rights class action litigation. The named Plaintiffs and the class members are represented by
33

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 34 of 55
attorneys at the Southern Center for Human Rights, a privately funded, nonprofit organization with extensive experience in complex class action litigation, and the American Civil Liberties Union, a nonprofit law office with extensive experience litigating class action lawsuits. Plaintiffs' counsel have the resources, expertise, and experience to effectively prosecute this action.
83.
The requirements of Fed. R. Civ. P. 23(b)(2) are met. Defendants have acted in a way generally applicable to the class the Plaintiffs represent, thereby making preliminary and permanent injunctive relief and corresponding declaratory relief appropriate for the class as a whole pursuant to Fed. R. Civ. P. 23(b) (2).
CLAIMS FOR RELIEF COUNT ONE
VIOLATION OF U.S. CONST. ART I, § 10 PROHIBITING EX POST FACTO LAWS, BILLS OF ATTAINDER, AND
IMPAIRMENT OF THE OBLIGATION OF CONTRACTS 84.
Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
allegations of '\1'\11-50, 'iI'1f 53-61, '\I'\l 66-67, and '\f'\l70-72.
85. The Act punishes Plaintiffs for crimes for which they have already been pUnished by forcing them to sell their homes, break their leases, leave their
34

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 35 of 55
families, and give up their jobs, the source of their food and shelter. The Act banishes Plaintiffs from their homes and communities.6 Application of the Act to the named Plaintiffs and others who were convicted of offenses before July 1, 2006 will violate the Ex Post Facto Clause and the prohibition against Bills of Attainder of the United States Constitution, U.s. Const. art. I, § 10.
COUNT TWO VIOLATION OF PROCEDURAL DUE PROCESS CLAUSE
86. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n allegations of 'If'lf 1-50, 53-69, and '\l'\f 72.
87. The Act violates Plaintiffs' right to procedural due process of law under the Fourteenth Amendment to the Constitution of the United States, U.S. Const. amend. XIV, § 1, as applied to the states and enforced through 42 U.s.c. § 1983 (2006).
6 Plaintiffs are not raising any state constitutional claims, including, but not limited to banishment.
35

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 36 of 55
COUNT THREE VIOLATION OF SUBSTANTIVE DUE PROCESS:
THE RIGHT TO FAMILY PRIVACY 88.
Plaintiffs incorporate herein and re-allege, as ii fully set forth herein, the
n n allegations of 1-50, 53-61, " 63, " 65-68, and "71-72.
89. The Act is unconstitutional because it impinges on Plaintiffs' fundamental right to family privacy - specifically the right to cohabit with one's family.
90. Therefore, the Act violates Plaintiifs' right to substantive due process of law under the Fourteenth Amendment to the Constitution of the United States, US. Const. amend. XIV, § 1, as applied to the states and enforced through 42
Us.c. § 1983.
COUNT FOUR VIOLATION OF THE RELIGIOUS LAND USE AND INSTITUTIONALIZED
PERSONS ACT, 42 U.S.c.A. § 2000(c)(c) 91.
Plaintiffs incorporate herein and re-allege, as ii fully set forth herein, the
n n allegations of 1-50 and 53-61.
36

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 37 of 55
92. The Religious Land Use and Institutionalized Persons Act,42 U.S.c.A. § 2000(c)(c)(a)(1) (West 2006) ("RLUIPK) states: No goverrunent shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religiOUS assembly or institution, unless the goverrunent demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling interest; and (B) is the least restrictive means of furthering that compelling goverrunental interest.
RLUIPA further states: No government shall impose or implement a land use regulation in a manner that i.-reats a religiOUS assembly or institution on less than equal terms with a nonreligious assembly or institution. 42 U.S.c.A. § 2000(c)(c)(b)(1) (2006). 93. The Act explicitly prohibits anyone on the registry from living in churches
or religiously affiliated halfway houses where public worship takes place. The Act violates RLUIPA by placing an impermissible land use restriction on ministries and churches that house people on the registry, including the Door of Hope Ministry in Conyers, Georgia.
94. The Act violates RLUIPA by prohibiting people on the registry from living in halfway houses sponsored by churches while not imposing the same burden on secular halfway houses.
37

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 38 of 55
COUNT FIVE VIOLATION OF FREE EXERCISE CLAUSE AND RIGHT TO FREEDOM OF ASSOCIATION
95. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
'n allegations of" 1-50, and 53-61.
96. The Act prohibits all people on the registry from living or working at or within 1,000 feet of a church. The penalty for loitering at or within 1,000 feet of a church is a minimum of 10 years and a maximum of 30 years in prison. The Act creates an impermissible chilling effect on the right to attend a house of worship. The Act violates the Free Exercise Clause, U.S. Canst. amend. 1, and the right to freedom of association, see U.s. Canst. amend. I.
COUNT SIX VIOLATION OF TAKINGS CLAUSE
97. PlaintiHs incorporate herein and re-allege, as if fully set forth herein, the
n n n allegations of 1-50, 53-61, " 63-69, and 71-72.
38

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 39 of 55
98. By requiring Plaintiffs immediately to sell their property, break their leases, and leave their homes, the Act violates the Fifth Amendment's prohibition on takings without just compensation, U.S. Const. amend. V, as applied to the states and enforced through 42 U.s.c. § 1983 (2006).
COUNT SEVEN VIOLATION OF RIGHT TO INTERSTATE AND INTRASTATE TRAVEL
99. Plaintiffs incorporate herein and re-allege, as if fully set forth herem, the allegations of 1f'111-50, 1f'11 53-61, ~~ 65-69, and ~ 72.
100. The Act violates the right to interstate and intrastate travel. See u.s. Const. amend. XIV, § 1, as applied to the states and enforced through 42 U.S.c. § 1983.
COUNT EIGHT VIOLATION OF EIGHTH AMENDMENT
101. Plaintiffs incorporate herein and re-allege, as if fully set forth herem,
n n n the allegations of 1-50, 53-63, and 65-72.
39

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 40 of 55
102. The Act violates the Eighth Amendment, U.S. Const. amend. VIII, by imposing cruel and unusual punishment and by placing an unconstitutional punishment on Plaintiffs based upon their status as people on the sex offender registry.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Assume jurisdiction over this actiolli 2. Determine by Order pursuant to Rule 23 of the Federal Rules of Civil
Procedure that this action be maintained as a class action; 3. Enter a preliminary and thereafter a permanent injunction enjoining
the portions of the Act that violate the rights of Plaintiffs and the class they represent; 4. Declare that the portion of the Act prohibiting residence within 1,000 feet of a school bus stop is vague and overbroad; 5. Declare that the Act violates: the Ex Post Facto Clause; the prohibition against Bills of Attainder and impairment of contracts; the procedural component of the Due Process Clause; the substantive component of the Due Process Clause and the right to family privacy; the Religious Land Use and Institutionalized Persons
40

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 41 of 55
Act; the Free Exercise Clause and the right to freedom of association; the Takings Clause; the right to interstate and intrastate travel; and the Eighth Amendment. 6. Enter judgment in favor of Plaintiffs; 7. Award Plaintiffs the costs of this lawsuit and reasonable attorneys' fees pursuant to 42 U.s.c. § 1988; and 8. Order such other and further relief as this Court may deem just and proper. Respectfully submitted this 26th day of July, 2006.
SOUTHERN CENTER FOR HUMAN RIGHTS
sl Sarah Geraghty Stephen B. Bright (Ga. Bar No. 082075) Lisa Kung (Ga. Bar No. 430302) Sarah Geraghty (Ga. Bar No. 291393) Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Tel: (404) 688-1202 Fax: (404) 688-9440 sbright@schr.org lkung@schr.org sgeraghty@schr.org
41

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 42 of 55
AMERICAN CIVIL LIBERTIES UNION OF GEORGIA Gerald R. Weber (Georgia Bar No. 744878) Margaret F. GalTett (Georgia Bar No. 255865) Beth Littrell (Georgia Bar No. 454949) American Civil Liberties Union 75 Piedmont Avenue, Suite 514 Atlanta, GA 30303 Tel: (404) 523-6201 Fax: (404) 577-0181 gweber@acluga.org mgarrett@acluga.org Bliii.rell@acIuga.org
42

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 43 of 55
EXHIBIT 1

_ _ _ _----'Case 4:06-cv-00I114i7'/c(BowDowment 59 Filed 077W2!J!l@-9~e 44 of 55 p.2
'~n Internationally Accredited Agency"

COLU

BIA COUNTY SHERIFF'S OFFICE
Clay N. Whittle, Sheriff 2273 COUNTY CAMP ROAD
POST OFFICE BOX 310 APPLING, GEORGIA 30802,0310
(706) 541-1043

COMPUTER ORI GA 0380000
OFfiCE fAX: (706) 541·4059
JAIL FAX: (70S) 541·1740
COMMAND ilIAF-E
lOti Clamilh>, CHIEF DEPlfiY (706/541-4041
Mike Ad<lms, MAJOR MANAGEMENT SERVICES BURF..AU (70S) 541-4053
Rick Whitaker, MAJOR FIELD OPERATIONS
BUREAU
(706)541-3981
Jo)hn Wheeler, MAJOR DETENTION AND COURT SERVICES BUREAU (706} 541·3920
Dan Barnett, CAPTAIN NIGHT COMMANDER (70G) 5414025
BiU Probus, CAf"rA1N PATROL DIVlSION (706) 541·3877
Steve Morris, CAPTAIN INVESTIGATIONS D1VISION (70S) 541-4050
Donnn Dunham, CAPTAlN OFFICE OF PROFESSIONAL STANDARDS (706) 541·3918
Jim Leon"rd, CAPTA!N DE"rEN110N!ADMIN1STFlATlVE & COURT SERVlCES (7OO) 541·3917
John Whittle, CAPTAIN SPECIAL OPERATIONS DNiSION {706) 54 \ .4055
Clay Smith, CAPTAIN ADMINISTRATIVE SERVICES DIVISION {70S) 541-40,27
Brett carani, CAPTAIN DETENT10N CENTER OPERATIONS ~706) 541-3920

June 1,2006
Dear SirlMad
A revised s x offender law, House Bill 1059, will take effect on July 1, 2006. Georgia tatutes 42-1-12 and 42-1-15 lire the code sections that will affuct you as a gistered sex offender. This letter is to notify you that you may be in vio ·on of Georgia Code 42-1-15.
This law st tes a registered sex offender cannot reside within 1000 feet of a childcare facility, church, public or private school, SCHOOL BUS' STOPS, or an area where minors congregate.
School bus stops are designated by the Board of Education. You can call Ms. Kate Bell an at 706-541-0657 and she will advise you if your address is within 1000 eet of a bus stop.
New empl yment requirements state that a registered sex offender'S place of empl yment cannot be within 1000 feet of a church, school, or childcare facir .
If your cent residence will be in violation of the new law which is effective Juiy ,2006, you must relocale no later than June 30,2006. Failure to do so will suIt in your arrest and prosecution. The peDaity for violating the new law is not less than 10 years or more than 30 years in cODfinement.
Another n law, Georgia Statute 16-6-25, states that any person who knowingly pr vides false information regarding a sex offender to any law
enforcement ffieeT is guilty of a feloDY which carries a punishment of not
less than 5 y s or more than 20 years. I am encl sing a copy of the new laws affecting you as a registered sex
offender. I s gest you read it very carefully. You m call me at 706-541-2045 or e-mail me at
DRRush@co] mb·acountvso.org with any questions you may have. In am
unavailable, 11706-541-1044 and someone will assist you.
David Rush Sex Offender Registry

An Equal Opportunity Employer

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 45 of 55
EXHIBIT 2

.Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 46 of 55
~...,./~
Cobb County Sheriffs Office ¥ J>~ibli.c 8':::\;0/ Bd!dlllg 1, $5 Ros\ve:H Stitret'Ma:<ier:.a, Ge(prgiS! 3:[~,1)9u~9650 Te.lephor;e: (710) 499-461()() f PiCX: (770) 499-479

May 24, 21JIJfi
. Al Mllrk; 2114 Wells Drive SmYl'lili GA, 3lJtJIl\1l

Go to website www.cobbk12.org under bus stops to check for possible violations

'f!d~ l-e¢~eJt is ll@tiJi'yingY!'ll! t/lat dfmt!ve JllIliy I.• 21J1l6 Yijlll wlll affMlIllly h;e ill vinlatim! lil'f Geargia Cilde O.CG.A.42·1·1S. Tilis ll'eVWM iJ;w $t!,laes !Il"i jj 1~!S;t"'l'¢d gex llff~l1ld"r'$l"e$jdelle., mU$a Ilot be withill
"r 1,(1111) f~.&t lillY ®.ch~ill, scli®1OIl i:lU$ $tItlP, jl1ilrk, daycan f!l~llity" chUir~h, f;IlmMk/e@mmlJJlllly ~wimming
Iil'I!i!IJis .;01" ll'!ac~$ Wllell'lIll'Iil'lll1'2 (cliJll.g~atl:1. El!e'liI~ed jifillJlJ \vlll l'ill!! l!I Cllpy 'ilf illl$ l~w"
Vfillllllll'e In vl<illilltilllill {,f tlili& !$lW bill$edi 1$11 tile flil!i(>wing: Residence within 1000 feet of a CC bus stop

'ifll iliv"ld er.tllll!l!!J1 prliJ~e.;:l!tl®l'I, Y6.lll mu~t relocate yOUIR' ltll'sidellee by June 30, 2006. Ollee Y1.lU have I'el:!lested YIJl!l1111lld ngi.~Wr the oehallge IJll'Yiflir limne 1l!" work Ilidi!l.re!l~. with the C!!filb C<:llllll:ty Sll<!ll'iff'·s· Ofnell :II~ well iiIl~ tine 4:<ll!llllty She.j<U'1:"s Office tllllt 3mlll iltWild to move IlIIi within 10 i!!Il!Y~. After .July 1, :l:l.l06, l!fu:IlIRW llws h;t;1!ill. r"",l~ed t" II'e'Jillil"'" tlil!lt YOIl l"egistl:1r &Ii$$~ ellillllge& witll!.ln 72 II,}!!",.

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 47 of 55
EXHIBIT 3

Filed 07/26/20tl664'Pa1i~t48 of 55

OFFICE OF THE sHERlF'F
ROCKDALE COUNTY, GEORGIA
"fHOMAS J. (JE~F) WIGINGTON
6H.$:RIFF

TEL; 770/916-6700 rA,X.: 770/'188-2494

O:FFICIAL NOTIFICATION
ATTN: Lori Collins 4340 Hwy 20 S.E. Conyers, Ga. 30013
Dear Mrs. Collins
An amended se~ offender law will take affect July 1, 2006. O.CG.A. 42-1-12 and O.CG.A. 4Z-1-1S are the code sections that affect your registration requirements as a sex ol'render.
ThiS letter is to notify you that you will be in violation of Georgia Code 42·1-15 on July 1, 2006.This Jaw states that a registered sex offender can not reside 01' loiter within a 1,000 feet of any cbild care facility, church, schoo), or a~eas where minors congregate. Areas where minors congregate sball include all pnblic and pl'ivate parks and recreation facilities, playgrounds, skating rinks, neighborbood centers, gymnasiums, SCHOOL BUS STOPS, and public and community swimming pools.
Your current address is within a 1,000 feet of II school blls stop in violation of O.C.G.A.42-H5.
To avoid criminal prosecution yon must I'ep()rt to the Rockdale Counly SheriWs Office prior to July 1, 2006 to register a new address. The Rockdale County Sheriff's Office will have to verify tbe new address you wish to move to before YOIl UJ()ve. Tllis will avoid any confusion on whethe,' yon al'e able to live at the Ilew address under the registration requirements.
I have been fUl'Ilished a copy of the sel( offender law containing the registration reqllil-emellts and understand that I will be in violation on July " 2006
.~-&~
Se~ Offender
Witness

9t \ CHAM5E.R5 DRIVE CON,VE,R,S. GEORGIA 30012

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 49 of 55
EXHIBIT 4

IN THIWNITED STATES DISTRICT COURT fOR THE NORTHERN DISTRICT OF GEORGIA
ROMEDMSION

)

WENDY WHITAKER, et aL

)

)

Plaintiffs,

)

)

v.

)

)

SONNY PERDUE, et al.

)

)

DefendlU1ts.

)

---------------------)

CIVIL ACTION No.4:06-14D-CC

vmuBCATIONOFCOMP~

I, Wendy Whitaker, verify, under penalty of perjury and under the laws of

the United States of America that the foregoing Amended Complaint is true to

the best of my knowledge, information, and belief; is based upon my personal

knowledgei and is true and correct. I aiso verify under penalty of perjury that

the attached exhibits are true and correct.

Dated this f# date of July, 2006.

I d 5LP9S99189 'oN/98:8I'lS/9S:81 9000 9 lnr(OH1)

WOBJ

IN THE UNITED STATES DlSTIUCT COURT FOR 'THE NORTHERN DlSTRICT OF GEORGIA·
ROME DIVISION

)

WENDY WHITAKER, et aI.,

)

)

Plaintiffs,

~

v.

)

)

SONNY PERDUE, et al.

)

Defendants.

~

--------------------)

CIVIL ACTION No.4:06-140-CC

VERIFICATION OF COMPLAINT

If Rev. Joel Jones, verify, under penalty of perjury and under the Jaws of

the United States of America that the foregoing Amended Complaint is trUe to

the, best of my knowledge, information, and belief; is based upon my personal

knowledge; and is true and correct. I also ve.rify under penallY of perjury that

the attached \?xhiblts are true and correct.

? Dated this date of July, 2006.

Case 4:06-cv-OO~.JC(!;owDucument 59 Filed 07J1m12@OO-9~e 52 of 55 p. 1
IN THE ITED STATES DISTRICT COURT FOR THE ORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

WENDY WHITAKER, et a .,

)

)

Plaintiffs,

)

)

v.

)

)

SONNY PERDUE, et a!.

)

)

Defendants. .

)

--------------r--------)

CIVIL ACTION No.4:06-140-CC

VE IFICATION OF COMPLAINT

I, Joseph Linaweave , verify, under penalty of perjury and under the laws

of the United States of Am rica that the foregoing Amended Complaint is true to

the best of my knowledge, 'ruormation, and belief; is based upon my personal

knowledge; and is true an correct. I also verify under penalty df perjury that

the attached exhibits are tr e and correct.

Dated this _ date fJuly, 2006.
~~ sePf~inaweaver

Case 4:06-cv-00140VEiUF~~tQ;9 C~MNT'2006 Page 53 of 55
I, Lori Sue Collins, verify, under penaJty of perjury and under the laws ofthe United States ofAmerica that the foregoing Amended Complaint is true to the bcst ofmy Knowledge, information, and belief; is based upon my personal Knowledge; and is true and correct. I also verify under penalty of perjury that the attached exhibits are true and correct.
Dated this ill- datc of July, 2006.

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 54 of 55 VERIFICATION OF COMPLAINT
I, Al Reginald Marks, verify, under penalty of perjury and under the laws of the United States of America that the foregoing Amended Complaint is true to the best of my knowledge, information, and belief; is based upon my personal knowledge; and is true and correct. I also verify under penalty of perjury that the attached exhibits are true and correct.
tI Dated this daie ofJuly, 2006.
44

Case 4:06-cv-00140-CC Document 59 Filed 07/26/2006 Page 55 of 55
VERIFICATION OF COMPLAINT I, James Victor Wilson, verify, under penalty of perjury and under the laws of the United States of America that the foregoing Amended Complaint is true to the best of my knowledge, information, and belief; is based upon my personal knowledge; and is true and correct. I also verify under penalty of perjury that the attached exhibits are true and correct.
Dated this t/2I"- date of July, 2006.
45

CERTIFICATE OF SERVICE
I hereby certify that I have this day served the foregoing Second Amended Complaint upon Defendants Perdue, Baker, and Dean by causing a true and correct copy thereof to be delivered by the Court's ECF filing system to Defendants' counsel of record at the following address:
Ms. Devon Orland Office of the Attorney General 40 Capitol Square Atlanta, GA 30334
I hereby certify that I have this day served the foregoing Second Amended Complaint upon Defendants Whittle, Coursey, Sparks, and
Strength by causing a true and correct copy thereof to be delivered by u.s.
Mail to Defendants' counsel of record at the following addresses:
Mr. Brad J. McFall Gammon, Anderson, & McFall 105 Prior Street Cedartown, GA 30125
Mr. David E. Hudson Hull, Towill, Norman, Barrett & Salley, PC P.O. Box 1564 Augusta, GA 30903-1564
Mr. James W. Ellison James B. Wall Burnside Wall LLP P.O. Box 2125 Augusta, GA 30903

This 3rd day of August, 2006.
s/Sarah Geraghty Sarah Geraghty (Ga. Bar No. 291393) Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Tel: (404) 688-1202 Fax: (404) 688-9440
Attorney for the Plaintiffs

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

WENDY WHITAKER, JOSEPH

)

LINAWEAVER,JANETJENKINS

)

ALLISON, JAMES VICTOR WILSON,

)

JEFFERY YORK, DEWAYNE OWENS, )

AL REGINALD MARKS, and LORI SUE )

COLLINS,

)

)

Plaintiffs,

)

)

v.

)

)

SONNY PERDUE,

)

Governor of the State of Georgia

)

in his official capacity,

)

)

THURBERT E. BAKER,

)

Attorney General of the State of Georgia )

in his official capacity,

)

)

SCOT DEAN, .

)

Chief of Probation,

)

Cedartown, Polk County, Georgia

)

in his official capacity,

)

)

CLAY WHITTLE,

)

Sheriff of Columbia County,

)

in his official capacity,

)

on behalf of all Georgia sheriffs,

)

)

Defendants.

)

------------------------)

CIVIL ACTION No.4:06-cv-140-CC
THIRD AMENDED COMPLAINTCLASS ACTION FOR INJUNCTIVE RELIEF
JURY TRIAL DEMANDED

PRELIMINARY STATEMENT l.
Plaintiff WENDY WHITAKER and others bring this suit to prevent people on Georgia's sex offender registry - including the elderly and disabled - from being deprived of their homes and livelihoods due to the unfair and arbitrary provisions of Ga. Code Ann. § 42-1-15 (2007) ("the Statute") and Ga. Code Ann. § 42-1-12 (2007). Plaintiffs have been convicted of crimes - some of them when they were teenagers for conduct a judge found was not a threat to public safety and did not warrant any time in prison - but they have paid the price and today live law-abiding lives as productive members of the community. Now they are being punished again. Ga. Code Ann. § 42-1-15 prohibits anyone on the registry from living within 1,000 feet of numerous locations, including all churches, swimming pools, and school bus stops in Georgia. Since the Statute's effective date of July 1, 2006, an unknown number of people, likely to be in the thousands, have been forced from their homes. Hundreds more will be forced from their homes and jobs absent relief from this Court. Plaintiffs who become homeless because of the Statute face 10-30 years in prison. See Ga. Code Ann. § 42-112(a)(1), § 42-1-12(a)(16)(B), § 42-1-12(f), § 42-1-12(n) ("the homeless provisions"). Plaintiffs who become homeless twice face life imprisonment. See id.
2

2. There are approximately 13,000 registered sex offenders in Georgia, about 11,000 of whom live in the community. Unlike the sex offender residency requirements of many other states, Georgia does not differentiate between people convicted of violent sexual offenses, such as rape, and people who violated the law by having consensual sexual relations when they were teenagers with someone under the age of consent. Georgia treats everyone like the worst offender. Before July 1, 2006, Georgia already had a law governing where people on the registry could live. See Ga. Code Ann. § 42-1-13 (2006) (prohibiting residency within 1,000 feet of schools, child care facilities, and areas where minors congregate, including parks, recreation facilities, skating rinks, neighborhood centers, gymnasiums, and similar facilities providing programs or services directed toward children). House Bill 1059 CI-IB 1059"), signed into law by the Governor on April 24, 2006, substantially revised § 42-1-13, turning the law from one tailored to keep offenders away from children into one that arbitrarily banishes people from their homes and communities.
3. The ostensible purpose of Ga. Code Ann. § 42-1-15 is to keep Georgia's children safe from sexual offenses. This is a laudable goal. Yet the Statute imposes its residency restrictions and other significant penalties on all people on the registry - even those like Plaintiff Wendy Whitaker who is on the registry
3

because, at age 17, she had a single consensual act of oral sex with a IS-year-old boy. For this one act, committed ten years ago, the now 27-year-old Ms. Whitaker and her husband were forced from one home, faced eviction from another, and may be evicted at any time from a third. Plaintiff Joseph Linaweaver was 16 when he had a single consensual act of oral sex with a 14year-old girl. Now, years later, Mr. Linaweaver has been forced from his home because it is within 1,000 feet of a school bus stop. Plaintiff Janet Allison was convicted of being "party to a crime of statutory rape and child molestation" because she did not prevent her IS-year-old daughter from becoming sexually active. Due to this conviction, Ms. Allison and her family were forced from their home because it was within 1,000 feet of a church.
4. If Plaintiffs residing within 1,000 feet of a prohibited location do not leave their homes, they are subject to arrest and prosecution. The punishment for failure to comply with the residency and working restrictions in Ga. Code Ann. § 42-1-15 is a minimum of 10 years imprisonment and a maximum of 30 years imprisonment.
5. The school bus stop provision codified at Ga. Code Ann. § 42-1IS(a)(19)("the school bus stop provision") has caused enormous confusion over the last year. In May 2006, law enforcement officials began the process of
4

evicting thousands of people from their homes, based on their interpretation of this provision.
6. Acting pursuant to their interpretation of the law, sheriffs' deputies and probation officers ordered thousands of sex offenders to leave their homes by July 1. After receiving official notices to leave - many of them hand-delivered by sheriffs' deputies in the middle of the night - an unknown but significant number of people on the registry sold their homes or broke their leases, left their jobs, and uprooted their families to re-Iocate outside of Georgia.
7. On June 27, 2006, this Court granted Plaintiffs' Motion for a Temporary Restraining Order with respect to the school bus stop provision. On June 29, 2006, the Court extended this relief to the Plaintiff class. The TRO was in effect until July 25, 2006. On July 25, 2006, this Court adopted the definition of"school bus stop" urged by Defendants Perdue and Baker. Under that definition, at the time of the Court's ruling, there were no school bus stops in Georgia since none had been designated by the actual members of local school boards (as opposed to their employees or agents).
8. On the day of the Court's ruling, the local school board in Columbia County, Georgia designated its bus stops for purposes of the Statute. All sex
5

offenders in Columbia County faced immediate eviction. The school boards in Bullock and Chatham counties also designated their bus stops. All sex offenders in those counties faced immediate eviction.
9. The bus stop provision is being held in abeyance in the three counties while this case is resolved. Absent relief from this Court, the 300 people on the sex offender registry in Chatham, Columbia, and Bullock counties will be banished.
10.
Ga. Code Ann. § 42-1-15 grants local school boards the power to instantly evict hundreds of people from their homes and banish them from the county. If the school board in DeKalb County designates its bus stops, nearly 500 people will be banished from DeKalb County. If the school board in Fulton County designates its bus stops, over 1,200 people will have to leave their homes.
11. There continues to be confusion about the school bus stop provision. Even after this Court's Order of July 25, Plaintiffs have been forced to move for living within 1,000 feet of school bus stops in counties where no "school bus stops" exist.
6

12. Ga. Code Ann. § 42-1-15 also prohibits anyone on the registry from working within 1,000 feet of a church, child care facility, or school. Hundreds of people on the registry have lost their jobs.
13. In addition to imposing onerous residency and employment restrictions, the Statute impermissibly interferes with the practice of religion. The Statute impermissibly chills the right to exercise one's religion by making it a felony punishable by a minimum of 10 years imprisonment to "loiter" at or near a church or other place of religious worship. Plaintiffs in this case and others on the registry rationally feel that they cannot go to church on Sunday, attend Wednesday or Friday night prayer groups, or go to weddings or funerals for fear that they will be thought to be loitering at a place of public religious worship. The penalty for loitering is simply too severe to risk participation in religious activities.
14. Plaintiffs are persons subject to the residency, working, and loitering restrictions of Ga. Code Ann. § 42-1-15. Plaintiffs bring this class action on behalf of themselves and all persons subject to the Statute. Plaintiffs respectfully ask this Court to permanently enjoin Defendants from enforcing such portions of the Statute as are necessary to protect Plaintiffs' constitutional rights.
7

15. The Statute's enforcement should be enjoined for the following reasons: a. The Statute violates U.s. Const. art I, § 10, prohibiting Ex Post Facto
laws; b. The Statute violates the Due Process Clause because it is vague and
overbroad; c. The Statute violates the substantive component of the Due Process
Clause; d. The Statute violates the Free Exercise Clause and the right to freedom of
association; PARTIES
Plaintiffs 16.
Plaintiff WENDY WHITAKER is a 27-year-old woman who, at the time this lawsuit was filed, lived in McDuffie County, Georgia. She is a student studying criminal justice at Augusta Technical College.
17. Ten years ago, when Ms. Whitaker was a 17-year-old high school student, she engaged in a consensual act of oral sex with a 15-year-old male. Both were sophomores in high school at the time. Ms. Whitaker is white; the other student was African-American. Ms. Whitaker was arrested, charged with sodomy, and
8

advised to plead guilty, and she ultimately completed five years on probation. Her conviction requires her to register as a sex offender.
18. Ms. Whitaker and her husband have already been required to move to comply with Georgia's previous sex offender residence law, Ga. Code Ann. § 421-13 (2006). The police made Ms. Whitaker leave her home in Harlem, Georgia. The residence sat within 1,000 feet of a church, and unbeknownst to the Whitakers when they bought the home, a day care program operated inside the church. The Whitakers still own their home and must pay their mortgage on it, but they can no longer live there.
19. The Whitakers moved in with Mr. Whitaker's brother in Thomson, Georgia. They had to pay rent and expenses in addition to mortgage, causing them financial strain. A school bus stopped within 1,000 feet of the house, making the Whitakers' residence an unfit accommodation under the Statute, as it was being interpreted in the spring of 2006 by Sheriffs' offices throughout the State. Ms. Whitaker was spared from eviction when this Court adopted the definition of"school bus stop" urged by Defendants Perdue and Baker.
9

20. Ms. Whitaker subsequently moved to Wilkes County, Georgia. If the local school board in Wilkes County designates its bus stops, Ms. Whitaker will immediately have to move.
21. Ms. Whitaker and her husband used to attend church services on Sundays. They no longer do so because of Ms. Whitaker's fear that she will be accused of loitering within 1,000 feet of a church, a crime punishable under the Statute by 10-30 years imprisonment.
22. Plaintiff JOSEPH LINAWEAVER is a 23-year-old man who lived with his mother and father in Columbia County, Georgia.
23. In 2000, when Mr. Linaweaver was 16, he engaged in a consensual act of oral sex with a 14-year-old female classmate while on a school bus. Mr. Linaweaver pled guilty to sodomy and was sentenced to five years on probation. Because of the conviction, he had to register as a sex offender.
24. On June I, 2006, the Columbia County Sheriff's Department ordered Mr. Linaweaver to leave his home by June 30 because it was within 1,000 feet of a school bus stop. Mr. Linaweaver could not find anywhere to live that met the
10

Statute's requirements; nor could he find employment at any job that did not violate the Statute's provisions. He planned to leave his family and move out of state rather than face being homeless and jobless in Georgia. Even his plans to move out of state, however, were untenable in June 2006. Before leaving the State, Mr. Linaweaver had to arrange to transfer his probation, a process that can take months under the best of circumstances. As probation offices across the State were being inundated with hundreds of requests to move and/ or transfer probation before July 1, 2006, moving out of Georgia was not an option. In the interim, Mr. Linaweaver had nowhere to go.
25. On July 25, the local school board in Columbia County officially designated all of its school bus stops, making virtually all of Columbia County off limits to anyone on the registry. Mr. Linaweaver faced immediate eviction.
26. Plaintiffs and the Sheriff of Columbia County subsequently entered a temporary consent order to prevent enforcement of the school bus stop provision until this Court considers the constitutionality of the provision. It is unknown how long Plaintiffs in Columbia County will be able to remain in their homes.
11

27. Fearful that he would be unable to maintain a residence or employment because of the Statute, Mr. Linaweaver recently moved out of state. Mr. Linaweaver's entire family lives in the Augusta area. Mr. Linaweaver would like to return to Columbia County to be reunited with his family, but he knows that he could be evicted at any time if he returns home.
28. Plaintiff JANET JENKINS ALLISON is a resident of Lumpkin County, Georgia. She is married and is the mother of five children, ages 25, 23, 20, 19 and 17. Ms. Allison lives with her husband and one of her sons. She formerly worked as the manager at the Huddle House in Dahlonega, Georgia but had to take a leave of absence after suffering an injury at work. Her husband is a diesel mechanic.
29. Ms. Allison was convicted of being party to a crime of statutory rape and party to a crime of child molestation in 2002. Ms. Allison has a teenage daughter who was sexually active and became pregnant at age 15. The indictment in Ms. Allison's case alleged that Ms. Allison did not do enough to stop her daughter's sexual activity. It also alleged that Ms. Allison permitted her daughter's teenage boyfriend to move into the house after her daughter became pregnant and the
12

young couple decided to marry. (They later did marry.) For this, Ms. Allison is a registered sex offender. She was sentenced to fifteen years of probation.
30. On June 15, 2006, a deputy from the Lumpkin County Sheriff's Office came to Ms. Allison's door and told her she had to leave her home of four years by July 1 because she lived within 1,000 feet of a school bus stop. Ms. Allison did not know where her family would go. In the weeks before July 1, they drove around White, Pickens, Dawson, Lumpkin, and Gilmer counties looking for a new home. They did not find any home that complied with the Statute's requirements. They looked in several mobile home parks, but found most of them had been made offlimits by the Statute because of playgrounds, swimming pools, and school bus stops.
31. Ms. Allison was later forced to leave her home because it was within 1,000 feet of a church. She also lost her job because it was within 1,000 feet of a church. She now lives in a trailer in a rural area. She is unemployed.
32. Ms. Allison must attend counseling as a condition of probation. Ms. Allison's court-ordered treatment provider told her and other members of the treatment group that under the Statute, they would not be able to attend church because they could be prosecuted.
13

33. Plaintiff JAMES VICTOR WILSON is a 24-year-old resident of Fulton County. At the time this lawsuit was filed, he was a senior at Georgia State University pursuing a dual degree in accounting and finance. He had worked at Miller, Ray, Houser & Stewart, an accounting firm in Atlanta, for three years. In 2006, the firm offered him a position upon graduation.
34. In 2002, as a freshman at New York University in New York City, Mr. Wilson pled guilty to sexual abuse in the first degree for inappropriately touching an adult female college friend while intoxicated at a freshman party. The court sentenced him to five years of probation, which he is due to complete in August 2007. Mr. Wilson was designated a level I sex offender, the lowest possible designation, reflecting the unlikeliest possibility of re-offending. He has never been arrested before or since and has complied with all terms of his probation. His criminal case file contains letters from approximately 40 individuals (former teachers, employers, professors, friends, etc.) attesting that the incident was an aberration and out of character for Mr. Wilson.
35. Mr. Wilson is a co-owner of his home with his parents. It is within 1,000 feet of a place where a school bus stops. His work place is within 1,000 feet of a building listed as a church in the telephone directory and on the Internet.
14

36. For the six weeks previous to the Statute's effective date, Mr. Wilson and his family searched the metro Atlanta area for any accommodation that would comply with the Statute. All he could come up with was a motel in Clayton County, in an industrial area.
37. Mr. Wilson was spared from eviction when this Court adopted the definition of "school bus stop" urged by Defendants Perdue and Baker. If the local school board in Fulton County designates bus stops, however, Mr. Wilson will have to move immediately.
38. Plaintiff JEFFERY YORK is a 23-year-old resident of Polk County. At the time the Statute went into effect, he lived with his grandmother in Cedartown, Georgia.
39. When Mr. York was 17 years old, he dated a 15-year-old male. In 2003, Mr. Yark pled guilty to one count of sodomy for engaging in a consensual act of oral sex with the 15-year-old. He was sentenced to five years of probation.
40. Before the Statute went into effect, Mr. York received two letters from the Polk County Sheriff's Department stating his home could be within 1,000 feet of a
15

bus stop. (Polk County had not yet mapped its school bus stop routes.) The Sheriff's Department informed him that if his home was within 1,000 feet of a school bus stop, he would have to move immediately. Mr. York was spared eviction when this Court adopted the definition of "school bus stop" urged by Defendants Perdue and Baker.
41. Mr. York was later required to move, however, because his home was within 1,000 feet of a daycare center. He was given a week to find another place to live. Unable to find any other residence that complied with the Statute's church, swimming pool, and other restrictions, Mr. York moved to a trailer in the woods without electricity or running water.
42. Mr. York was offered a job working at a motel. He was unable to accept it because it was within 1,000 feet of a church.
43. Plaintiff DEWAYNE OWENS is a 22-year-old male who was incarcerated at Calhoun State Prison in Calhoun County, Georgia at the time this lawsuit was filed.
44. In 1998, when Mr. Owens was 13 years old, he was convicted of incest. Mr. Owens served nearly four years in a juvenile facility and was released. He has
16

never been charged with any additional crime before or since. He was found, however, to have violated the terms of his probation in 2004 by: (a) looking at a magazine with sexual content, and (b) being in the presence of his young cousins (no allegations of inappropriate conduct). He was sent back to prison.
45. At the time this lawsuit was filed, Mr. Owens had a tentative parole date of December 2006. He could not find a parole address that complied with the Statute. He could not stay with his family because of a school bus stop. He could not find any other private residence that complied with the Statute. Because of the Statute, he was unable to find a single halfway house or shelter in the State to accept a male on the sex offender registry. He was stuck in prison.
46. After this Court adopted the definition of "school bus stop" urged by Defendants Perdue and Baker, Mr. Owens was able to submit his grandmother's address as his parole residence. He has since been released from prison and lives in Grady County, Georgia. If the local school board in his county designates its bus stops, however, Mr. Owens will have to move immediately.
47. Plaintiff AL REGINALD MARKS is a 21-year-old male who lives in Cobb County, Georgia. Mr. Marks lives with his mother, Carol King, and his father,
17

Alphonso Marks. Alphonso Marks is a lieutenant in the Georgia Department of Juvenile Justice and a former New York City police officer.
48. In 2000, when he was 14 years old, Al Reginald Marks was charged with hand-to-genital and mouth-to-genital sexual contact with the seven-year-old son of a family friend. This was a one-time incident with no allegations of force. Mr. Marks pled guilty to child molestation and was sentenced to probation. He has served six years on probation without incident.
49. The Marks family already had to move from their home once to comply with Georgia's 2003 sex offender residency restrictions. In 2003, after Georgia passed its first residency restriction law, authorities notified the Marks family that their house sat within 1,000 feet of a swimming pool. When informed of the problem, the Marks family moved to their current home in Cobb County. It took the family one-and-one-half years to pay their debt from breaking the lease.
50. In a letter dated May 24, 2006, the Cobb County Sheriff's Department ordered Mr. Marks to leave his home because it was within 1,000 feet of a school bus stop.
18

51. For the six weeks prior to July 1, 2006, the Marks family searched for a place to live. They spent days driving around Georgia, using at least one tank of gas per day and visiting potential locations in DeKalb, Paulding, Douglas, and Bibb counties. They could not find a residence that complied with Ga. Code Ann. § 42-1-15 as it was then interpreted by law enforcement.
52. Mr. Marks remained in his home because this Court adopted the definition of "school bus stop" urged by Defendants Perdue and Baker. The moment the local school board designates its bus stops, however, Mr. Marks will have to move.
53. At the time this lawsuit was filed, Mr. Marks worked seven days per week at McDonald's and was training to become a manager. He was required to leave that job due to a playground on the premises.
54. Mr. Marks got a job at another fast food restaurant in 2007. He was required to leave that job because there was a church within 1,000 feet of the restaurant.
19

55. Plaintiff LORI SUE COLLINS was a resident of Polk County at the time this lawsuit was filed. Until June 2006, Ms. Collins lived at the Door of Hope Ministry in Rockdale County. Door of Hope is a faith-based halfway house for people recently released from prison.
56. In 2002, Ms. Collins was convicted of statutory rape for having consensual sex with a 15-year-old boy. Ms. Collins, who was 39 at the time, served three years in prison for her offense. While in prison, Ms. Collins lived in the honor dorm, served as assistant to the chaplain, edited a religious newsletter, and received a college diploma with honors.
57. In June 2006, Ms. Collins received a letter from the Rockdale County Sheriff's Office stating she would have to leave Door of Hope because a school bus stop was within 1,000 feet of the residence. For three weeks thereafter, Ms. Collins spent nearly every waking moment trying to find a new place to live. She drove around five counties (Hall, Barrow, Newton, Rockdale, and Henry) in search of a residence conforming to the requirements of the Statute. She searched the Internet. She searched newspapers. She could not find anything. At one point, she thought she had found a place to live in an industrial area in
20

Covington, Georgia. It turned out, however, that there was a school bus stop within 1,000 feet of the house.
58. Ms. Collins considered staying with various family members. There was a school bus stop within 1,000 feet of her daughter's home. A school bus stop also prevented her from living with her aunt in Augusta. Her grandparents, who live in a rural area outside of Augusta, offered to take her in, but there was a school bus stop within 1,000 feet of their property as well.
59. Ms. Collins has a second daughter who lives in South Carolina. Ms. Collins asked her probation officer if she could move to South Carolina. She was told she would have to ask for a transfer of probation under an interstate compact and that this could take up to six months.
60. In June 2006, Ms. Collins moved to the Door of Hope's other residential ministry in Polk County, Georgia. This residence also turned out to be within 1,000 feet from a school bus stop.
61. Ms. Collins was spared eviction when this Court adopted the definition of "school bus stop" urged by Defendants Perdue and Baker. Ms. Collins was later required to leave Door of Hope; it met the Statute's definition of a "church."
21

62. The Statute has also prevented Ms. Collins from obtaining employment at a church. Because of the Statute, Ms. Collins was unable to apply for a job opening at the media ministry at Mt. Paran Church of God. Ms. Collins would like to seek employment at this church or another church or ministry to minister to persons in need of spiritual guidance. She cannot do so because of the Statute.
63. After being forced from the Door of Hope, Ms. Collins moved into a mobile home in Carroll County. It is the only place she could find that was not within 1,000 feet of a swimming pool, school, day care, or other prohibited location. The mobile home is within 1,000 feet of a church that is not currently conducting services. The moment public worship services are conducted on the premises (or if the local school board designates bus stops), Ms. Collins will have to move again. It will be the third move for Ms. Collins in less than one year.
Defendants
64. Defendant SONNY PERDUE is the Governor of the State of Georgia. As chief executive of the State of Georgia, he has the duty to "take care that the laws are faithfully executed." Ga. Const. art. V, § 2, ~ II. He is sued in his official capacity. Plaintiffs ask that Defendant PURDUE be enjoined from enforcing the
22

Statute and the provisions of the new sex offender law that make it illegal to be homeless. See Ga. Code Ann. § 42-1-12(a)(1), § 42-1-12(a)(16)(B), § 42-1-12(f), § 42-1-12(n).
65.
Defendant THURBERT BAKER is the Attorney General of the State of Georgia. He is charged by law with enforcement of the Georgia Code and the defense of the constitutionality of the laws of Georgia. He is sued in his official capacity. Plaintiffs ask that Defendant BAKER be enjoined from enforcing the Statute and the provisions of the new sex offender law that make it illegal to be homeless. See Ga. Code Ann. § 42-1-12(a)(1), § 42-1-12(a)(16)(B), § 42-1-12(f), § 42-1-12(n).
66.
Defendant SCOT DEAN is the Chief Probation Officer in Cedartown in Polk County, Georgia. He is charged with supervising probationers, including Plaintiff York. Georgia law authorizes Defendant DEAN to arrest a probationer if he believes the probationer has violated probation in a material respect, including by violating a law such as the Statute. See Ga. Code Ann. § 42-8-38. Defendant DEAN is sued in his official capacity. Plaintiffs ask that Defendant DEAN be enjoined from enforcing the Statute and the provisions of the new sex offender law that make it illegal to be homeless. See Ga. Code Ann. § 42-112(a)(1), § 42-1-12(a)(16)(B), § 42-1-12(£), § 42-1-12(n).
23

67. Defendant CLAY WHITTLE is the Sheriff of Columbia County. He is charged with the common law and statutory duties of the office of sheriff to enforce the laws of Georgia. He is sued in his official capacity on behalf of a class of all Georgia Sheriffs. This Court has certified a Defendant class of Georgia Sheriffs for the limited purpose of effectuating any preliminary or permanent injunctive relief that may be ordered. Plaintiffs ask that Defendant WHITTLE and all Georgia sheriffs be enjoined from enforcing the Statute and the provisions of the new sex offender law that make it illegal to be homeless. See Ga. Code Ann. § 42-1-12(a)(1), § 42-1-12(a)(16)(B), § 42-1-12(£), § 42-1-12(n).
JURISDICTION AND VENUE 68.
This Court has subject matter jurisdiction over this action pursuant to 28 U.s.c. §§ 1331 and 1343 because the action arises under and is brought under the Civil Rights Act of 1871, 42 U.s.c. § 1983 and the Fourteenth Amendment to the United States Constitution.
69. Venue is proper in this District under 28 U.s.c. § 1391(b)(I) because at least one Defendant resides in this judicial district. This District also is an appropriate venue for this action under 28 U.s.c. § 1391(b)(2) because at least one Plaintiff lives in the district.
24

ALLEGATIONS 70.
Under Georgia law, persons convicted of certain sex offenses and certain crimes against minors must register as sex offenders. See Ga. Code Ann. § 42-112(e). Such persons must register with the sheriff in the county where they live, work, and! or attend school. All such persons must have their photographs, addresses, and other identifying information posted on the website of the Georgia Bureau of Investigation.
71. In June 2003, Georgia's General Assembly passed a law restricting the locations where people on the sex offender registry could live. See Ga. Code Ann. § 42-1-13 (2006). According to this law, no one on the registry could live within 1,000 feet of the following locations: schools, child care facilities, and areas where minors congregate, including public and private parks, recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, and similar facilities providing programs or services directed towards persons under 18. The penalty for knowingly violating the residency restrictions was imprisonment for one to three years.
72. Many people on the registry, including Plaintiff Al Marks, were required to leave their homes to comply with the terms of the 2003 law.
25

73. In 2006, the General Assembly passed another sex offender residence law, this time with the purpose of ridding the State of all of its (then) 12,000 sex offenders. House Majority Leader Jerry Keen, the chief sponsor of HB 1059, stated: • "We want those people running away from Georgia. Given the toughest laws here, we think a lot of people could move to another state." • "If it becomes too onerous and too inconvenient, they just may want to live somewhere else. And I don't care where, as long as it's not in Georgia." • "Candidly, Senators, they will in many cases have to move to another state."
74. The legislators, however, were not fully informed. People on the registry who are on probation and parole cannot simply move to another state. They must acquire the permission of their probation or parole officers, and arrangements must be made for their supervision in another state before they may leave Georgia. Thus, the Statute does not force people out of the State; it forces them into the street.
26

75.
HB 1059 was signed into law by Governor Sonny Perdue on April 26, 2006. The Statute, codified at Ga. Code Ann. § 42-1-15, states in pertinent part:
(a) No individual required to register pursuant to Code Section 42-1-12 shall reside or loiter within 1,000 feet of any child care facility, church, school, or area where minors congregate. Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the outer boundary of the property of the child care facility, church, school, or area where minors congregate at their closest points. (b)(l) No individual who is required to register under Code Section 42-1-12 shall be employed by any child care facility, school, or church or by any business or entity that is located within 1,000 feet of a child care facility, a school, or a church.
76. The Statute defines "areas where minors congregate" as: "all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, and public and community swimming pools." See Ga. Code Ann. § 42-1-12(a)(3).
77. The Statute defines the term "school bus stop" as "a school bus stop as designated by local school boards of education or by a private school." See Ga. Code Ann. § 42-1-12(a)(19).
27

78. Ga. Code Ann. § 42-1-15 severely restricts the locations in which people on the registry can live. It does this by adding the requirement that no one on the registry may live within 1,000 feet of any church, swimming pool, or school bus stop. In addition, under the Statute no one can work at or within 1,000 feet of a child care facility, school, or church. Under the Statute, no one on the registry can loiter within 1,000 feet of a child care facility, church, school, public or private park, recreation facility, playground, skating rink, neighborhood center, gymnasium, school bus stop, public swimming pool, or community swimming pool.
79. Unlike sex offender residency restrictions in other states, Ga. Code Ann. § 42-1-15 does not contain any exception to protect the rights of those who already own or rent homes in restricted locations. c.£. Iowa Code § 692A.2A (2006) (exempting those who already lived within 2,000 feet of schools from its sex offender residency requirements).
80. Ga. Code Ann. § 42-1-15 applies to everyone on the registry without exception. There is no procedure to apply for a hardship exemption based on illness, advanced age, financial hardship, or disability.
28

81.
Ga. Code Ann. § 42-1-15 has had a profound effect on the elderly and
disabled people who must immediately leave their homes if they live in a
prohibited location. This is next to impossible for people like Jeff Kennedy, who
is blind; William Evans, who is missing a leg, had a heart attack, and is in a
wheelchair; and Herman Williams, who is 81 years old, has numerous health
problems, and could not find anywhere for him and his 78-year-old wife to live.
82.
The following elderly and/ or severely disabled persons faced eviction this
year because they lived within 1,000 feet of a church in violation of the Statute:
(a) Tohn Doe I: John Doe I was a resident of a nursing home in south Georgia. He had end-stage heart disease with a prognosis of six months or less to live. He was in hospice care at the time his family was informed of his imminent eviction. He died a short time later.
(b) Tohn Doe II: John Doe II is a resident of a nursing home in Georgia. John Doe II is profoundly mentally and physically disabled by Huntington's disease, a degenerative, neurological disease that causes mental deterioration, severe problems with balance and coordination, dementia, halting and slurred speech, and eventually, death. Mr. Doe rocks back and forth in his chair, his speech is severely impaired, and he cannot walk without assistance. John Doe II has no family to care for him.
(c) Tohn Doe III: John Doe III is a 72-year-old man with Alzheimer's disease and Parkinson's disease. Mr. Doe cannot recognize members of his own family. He lives in a nursing home in a secured unit for patients with dementia.
(d) John Doe IV: John Doe IV is a 63-year-old man who resides in a nursing home in south Georgia. His test scores place him at or near the bottom of the mild range of mental retardation. He also displays signs of organic
29

brain damage. Mr. Doe is confined to a wheelchair. His health problems require 24-hour care. Mr. Doe does not have any family to care for him, nor does he have resources to move elsewhere.
(e) fohn Doe V: John Doe V is a 67-year-old man who resides in a nursing home in south Georgia. Mr. Doe suffered a major stroke in 2004 and has required 24-hour care since then. In addition to the stroke, Mr. Doe has frequent seizures and heart problems. Mr. Doe's family is not able to care for him.
(f) fohn Doe VI: John Doe VI, age 81, has Alzheimer's disease. John Doe VI lives with his 77-year-old wife. Mr. Doe and his wife have been married for 61 years. As the Alzheimer's disease progresses, Mr. Doe is losing the power of speech and cannot recognize family members. Due to his weakened physical condition, he spends most of the day resting in bed. Mr. Doe requires 24-hour care and is never left alone.
(g) fohn Doe VII: John Doe VII is 101 years old. He was released from prison a decade ago. He now lives with his family. Mr. Doe's house is within 1,000 feet of a church.
83.
Although they pose no danger to anyone - John Doe I died shortly after he
was instructed to move - the Statute requires these disabled people to move
immediately from the prohibited location or face prison. In 2006, Plaintiffs'
counsel obtained consent orders staying the evictions while the Court considers
whether they are constitutional. Absent relief from this Court, those who are still
living will be forced from their homes and nursing homes. Those with nowhere
to go will go to jail or prison.
30

84. Ga. Code Ann. § 42-1-15 does not provide for individualized justice. It provides no process to distinguish between people on the registry who are dangerous to children and those who are not. The exact same residency restrictions apply to Plaintiff Wendy Whitaker, convicted of consensual sexual activity with a boy of like age when she was 17, and adult felons convicted of violent crimes such as rape. The Statute contains no "safety valve" provision to permit persons such as Plaintiffs Whitaker, Linaweaver, Allison, and others to appeal to a court to determine whether the residency restrictions are appropriate for them.
85. Ga. Code Ann. § 42-1-12(a)(19), the school bus stop provision, has produced mass confusion and chaos. After HB 1059 was signed by the Governor on April 24, 2006, nearly all 159 sheriffs' offices in the State made preparations for the enormous task of implementing the law. All over Georgia, law enforcement officers painstakingly mapped hundreds of thousands of school bus stops; followed the routes of school buses; measured the distance between sex offenders' residences and the nearest bus stop; hired new personnel to enforce this provision; diverted officers from other departments; and personally notified all or nearly all registered sex offenders in their counties that they would have to leave their homes.
31

86. At the preliminary injunction hearing held in this case on July 11 and 12, 2006, law enforcement officers from ten different county sheriffs' offices testified that the Statute would force all or nearly all sex offenders in their respective jurisdictions out of their homes. Sheriff Ted Paxton testified that all 60 people on the registry in Forsyth County would have to move. Investigator Russell Finley testified that in Cobb County, all but 4 of the approximately 200 people on the registry would have to move. In Bibb County, Captain David Davis testified that 222 of the 230 people on the registry would be required to move. DeKalb County officials testified that all 490 registered sex offenders in that county would have to move. Corporal Karen Pirkle testified that 277 of the 278 people on the registry and currently living in Gwinnett County would be affected by the bus stop restriction and would have to move. In Cherokee County, Sergeant Jay Baker testified that 88 of 95 people would have to move. In Houston County, Charlene Giles testified that the Sheriff's office looked at 75 of the county's 136 people on the registry, and discovered that all but 4 would have to move. Newton County Lieutenant Ezell Brown estimated that 98 % of his county's 127 people on the registry would have to move. Investigator Gene Higdon of Rockdale County testified that 51 of the 52 people on the registry in his county would have to move.
32

87. The law enforcement officers listed above all testified that their offices intended to enforce the school bus stop provision. Sheriff Paxton, for example, stated that his office notified sex offenders about the school bus stop provision and that, had this Court not issued a temporary restraining order, on July 1, 2006, his office would have given registrants 72 hours to vacate their homes or face arrest. The Cobb County Sheriffs Office had already directed most of its 200 sex offenders, including Plaintiff Al Marks, to vacate by July 1. Corporal Stephen Lifland testified that the DeKalb County Sheriffs Office had imminent plans to "start arresting" people who violated the school bus stop provision, starting on July 3, 2006.
88. The school bus stop provision continued to cause confusion even after this Court adopted the definition of "school bus stop" urged by Defendants Perdue and Baker. Plaintiffs have been directed to move due to the school bus stop provision in counties where no "school bus stops" exist.
89. The school boards in at least three counties have designated school bus stops. About 300 Plaintiffs live in these counties. Absent relief from this Court, all or nearly all 300 people will be evicted from their homes.
33

90. School bus stops can change at a moment's notice depending on when children move into and out of neighborhoods, get cars of their own, or change schools. School boards can and likely will change bus stops frequently. This renders it virtually impossible for anyone on the registry to buy or rent a home. A bus stop may appear within 1,000 feet of the residence at any time.
91. School bus stops are usually unmarked. The measurements of a school bus stop are unclear; there is no way to know where a stop begins and ends so that one may measure 1,000 feet from it.
92. The school bus stop provision and other aspects of the Statute have broken families apart. Parents have had to move away from their children. People taking care of elderly parents or terminally ill spouses have been required to move.
93. In many cases, instead of banishing people beyond state lines, Ga. Code Ann. § 42-1-15 has simply rendered people homeless and unaccounted for within the State of Georgia. Plaintiffs are stuck in an impossible situation: they are subject to prosecution if they stay in their homes, they cannot find alternative residences, and they cannot leave the State without prior approval.
34

94. The Statute has forced hundreds of Plaintiffs from their homes, but Georgia's new sex offender law also prohibits them from being "homeless." Ga. Code Ann. § 42-1-12 requires people on the registry to provide law enforcement with certain "required registration information," including their address. See Ga. Code Ann. § 42-1-12(a)(16)(B). The term "address" is defined as "the street or route address of the sexual offender's residence." See § 42-1-12(a)(1). Ga. Code Ann. § 42-1-12(a)(1) specifically states: "[hlomeless does not constitute an address." The penalty for failure to provide the required registration information - including an address that meet's the Statute's requirements - is a minimum of 10 and a maximum of 30 years in prison. See § 42-1-12(n)(1-3). A second offense carries a sentence of life imprisonment. See Ga. Code Ann. § 42-1-12(n)(1-3). Many Plain.tiffs have been arrested for being homeless.
35

CLASS ACTION ALLEGATIONS 95.
Plaintiffs bring this class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure on their behalf and on behalf of a class similarly situated and affected during the pendency of this lawsuit and in the future. The class is defined as all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to Ga. Code Ann. § 42-1-12.
96. The requirements of Rule 23(a) are met with respect to the class.
97. The members of this class are so numerous that their joinder is impracticaL The class consists of approximately 13,000 people.
98. There are questions of law and fact common to the class, specifically whether the Statute violates rights secured by the United States Constitution. The questions of law and fact common to the class as a whole concern the constitutionality and lawfulness of the Statute. For example, there are common questions of law and fact concerning the lawfulness of each of the following matters:
36

a. whether the Statute violates U.S. Const. art I, § 10, prohibiting Ex Post Facto laws;
b. whether the Statute violates the Due Process Clause because it is vague and overbroad;
c. whether the Act violates the substantive component of the Due Process Clause;
d. whether the Statute violates the Free Exercise Clause and the right to freedom of association; 99.
The Statute challenged in this action applies with equal force to the named Plaintiffs and all members of the class so that the claims of the named Plaintiffs are typical of those of the class. All class members are subject to the Statute's restrictions absent the requested relief.
100. The named Plaintiffs fairly represent and adequately protect the interests of the class as a whole. Plaintiffs are persons on Georgia's sex offender registry. Plaintiffs, like others in the class, are required to move from their homes, leave jobs, and/ or cease attendance at religious services. They possess the requisite personal interest in the subject matter of the lawsuit and possess no interests adverse to other class members.
37

101. Plaintiffs are represented by counsel experienced in civil rights class action litigation. The named Plaintiffs and the class members are represented by attorneys at the Southern Center for Human Rights, a privately funded, nonprofit organization with extensive experience in complex class action litigation, and the American Civil Liberties Union, a nonprofit law office with extensive experience litigating class action lawsuits. Plaintiffs' counsel have the resources, expertise, and experience to effectively prosecute this action.
102. The requirements of Fed. R. Civ. P. 23(b)(2) are met. Defendants have acted in a way generally applicable to the class the Plaintiffs represent, thereby making preliminary and permanent injunctive relief and corresponding declaratory relief appropriate for the class as a whole pursuant to Fed. R. Civ. P. 23(b)(2).
38

CLAIMS FOR RELIEFl COUNT ONE
VIOLATION OF U.S. CONST. ART I, § 10 PROHIBITING EX POST FACTO LAWS
103. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n n allegations of 1-67 and 70-94.
104. Ga. Code Ann. § 42-1-15 was enacted after the named Plaintiffs and thousands of other Plaintiffs committed their crimes, were punished, and served their sentences. The Statute applies retroactively to them.
105. The Statute was enacted with retributive and punitive legislative intent. In addition, the effect of the Statute is punitive. Ga. Code Ann. § 42-1-15 punishes Plaintiffs for crimes for which they have already been punished by forcing them to sell their homes, break their leases, leave their families, and give up their jobs,
Plaintiffs preserve for appeal all of the claims set forth intheir Second Amended Complaint that were dismissed by the Court's Order of March 30, 2007. Plaintiffs do not waive their right to appeal these claims by not including them herein.
39

the source of their food and shelter. The Statute banishes Plaintiffs from their homes and communities.2
106, Thousands of Plaintiffs entered plea agreements to sex offenses prior to July 1, 2006. At the time these Plaintiffs entered plea agreements, Georgia's sex offender law did not include the residency and employment restrictions now imposed upon them. The changes to Georgia's sex offender residence and employment laws enacted after Plaintiffs' plea agreements were accepted violate the terms of their agreement by increasing the penalty they must serve as a result of their conviction, in violation of the Ex Post Facto Clause.3 .
107. The Statute is not rationally connected to a non-punitive purpose. The instability it creates is harmful to the public.
108. The portion of Ga. Code Ann. §42-1-12 that prohibits Plaintiffs from becoming homeless is applied retroactively to Plaintiffs who were long ago
2 Plaintiffs are not raising any state constitutional claims, including, but not limited to banishment. 3 The Court has dismissed Plaintiffs' procedural Due Process claim. Plaintiffs specifically preserve for appeal the issue of whether the Statute violates the terms of Plaintiffs' plea agreements and their rights under the Due Process Clause of the United States Constitution.
40

sentenced for their crimes, in violation of the Ex Post Facto Clause. 109.
Because the Statute applies retroactively to Plaintiffs and because it was passed with the legislative intent and practical effect to further punish Plaintiffs for past crimes, the Statute violates the Ex Post Facto Clause of the United States Constitution.
COUNT TWO VIOLATION OF DUE PROCESS CLAUSE: VAGUENESS
110. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n n allegations of 1-67 and 70-94.
11I. Ga. Code Ann. § 42-1-15 is unconstitutionally vague in violation of Plaintiffs' right to due process under the Fourteenth Amendment. The lack of fair notice of what the Statute requires is particularly problematic given that those charged with violating it are subject to 10-30 years in prison.
112. A legislative enactment is impermissibly vague if it either "fail[s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits" or "authorize[s] and even encourage[s] arbitrary and discriminatory enforcement." City of Chicago v. Morales, 527 U.S. 41, 56 (1999).
41

A law must provide "fair notice" of proscribed conduct so that citizens can conform their conduct to the law. Morales, 527 U.S. at 58.
113. The phrase"areas where minors congregate" in Ga. Code Ann. § 42-112(a)(3) is unconstitutionally vague. Ga. Code Ann. § 42-1-15(a) prohibits sex offenders from living, working or loitering within 1,000 feet of "areas where minors congregate." The Statute does not elaborate on what it means to "congregate" and which areas qualify under this section as a prohibited zone. "Areas where minors congregate" could refer, for example, to movie theaters, restaurants, malls, parking lots, or any of the other numerous places where minors are present. Furthermore, the Statute is unclear about the regularity or the length of resting time that would constitute a "congregation." This provision can and has resulted in arbitrary enforcement - with law enforcement officials in one county interpreting the phrase differently than officials in other counties.
114. Ga. Code Ann. § 42-1-15(a) is unconstitutionally vague because it does not provide fair warning of prohibited conduct such that Plaintiffs could take steps to comply with the law. Ga. Code Ann. § 42-1-15(a) prohibits individuals on the registry from living within 1,000 feet of school bus stops, churches, and numerous other locations. The Statute, however, lacks a mens rea requirement. Consequently, the moment a church opens or a bus stop is moved near a
42

Plaintiff's home, the Plaintiff is in violation of the law, even if he is not aware of it. The Statute does not require that any notice be provided to a sex offender who is in violation of the Statute's requirements and does not provide any time period within which that person can relocate to a new residence. The moment the prohibited location comes into being, the crime is complete, and the Plaintiff is subject to 10-30 years imprisonment. Ga. Code Ann. § 42-1-15 fails to provide fair warning of prohibited conduct so that individuals can conform their conduct to the law.
115. The phrase "school bus stop as designated by local school boards" in Ga. Code. Ann. § 42-1-12(a)(19) is unconstitutionally vague - so much so that nearly every sheriff's department in the State apparently misinterpreted its meaning. The phrase produced such mass confusion that Georgia sheriffs mistakenly evicted hundreds of people and came within 48 hours of mistakenly forcing thousands more from their homes. It is still unclear what school boards must do to "designate" bus stops.
116. Aside from the matter of "designation," the school bus stop provision of Code Ann. § 42-1-15(a) is vague in that it does not provide Plaintiffs with reasonable notice of what conduct is prohibited. There are thousands of school bus stops in the counties that have designated them. These bus stops are usually
43

unmarked and impossible to identify. Plaintiffs do not have access to bus stop lists. Unlike a school or daycare center, bus stops have no set "boundaries," making it impossible to measure 1,000 feet from each one. Moreover, bus stops are a moving target. School bus stops are inherently transient and may be designated by local school boards at any time, significantly limiting the permanency of residences that can be established by Plaintiffs and impairing their ability to form relationships in their chosen communities.
117. The prohibition against loitering within 1,000 feet of a church, school, or any area where minors congregate is unconstitutionally vague. See Ga. Code. Ann. 42-1-15(a).
118. The prohibition against employment at a church is unconstitutionally vague. This prohibition is being interpreted in many jurisdictions to bar Plaintiffs from singing in church choirs, working in soup kitchens, or volunteering for church activities.
119. Ga. Code Ann. § 42-1-12(a)(1) is unconstitutionally vague. This code section requires all Plaintiffs to register an "address," upon penalty of 10-30 years in prison. The code section further specifies that "homeless" is not an "address." In some counties, Plaintiffs are being arrested for being homeless under this
44

subsection. Ga. Code Ann. § 42-1-12(a) is being enforced in an arbitrary and irregular fashion and must be struck down as unconstitutionally vague.
COUNT THREE VIOLATION OF DUE PROCESS:
OVERBREADTH 120.
Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n allegations of ~~ 1-67 and 70-94.
121. Ga. Code Ann. § 42-1-15(a) and Ga. Code Ann. § 42-1-12 violate the Due Process Clause of the Fourteenth Amendment because they are impermissibly overbroad. Under the overbreadth doctrine, a statute that prohibits a substantial amount of constitutionally protected conduct is invalid on its face. See United States v. Williams, 444 F.3d 1286, 1296 (11th Cir. 2006).
122. The residence, employment, and loitering restrictions in the Statute interfere with constitutionally protected conduct such as working, going to church and living with one's family.
123. The Statute's residency restrictions are overbroad. While the Statute's residency restrictions may be justified if targeted to certain offenders, Georgia
45

treats every offender like the worst offender. The Statute treats individuals such as Janet Allison, convicted for not preventing her IS-year old daughter from becoming sexually active, just as it treats someone who has repeatedly assaulted children. Under the Statute, even a hospice patient with six months to live someone who poses no danger to anyone - is forced out of his nursing home if it is within 1,000 feet of a church or pool. The absence of even a procedure to apply for an exemption makes the law overbroad in its application.
124. The Statute's employment restriction is overbroad. It applies to everyone on the registry - even to people like Wendy Whitaker who is on the registry for engaging in consensual teenage sex when she was a sophomore in high school. It also applies to bar any Plaintiff from employment at any business within 1,000 feet of a church, even if the church is only in operation one day per month on a day the Plaintiff does not work. The Statute's employment restriction significantly hinders Plaintiffs' ability to earn a living - especially in urban areas. Hundreds of Plaintiffs have lost their jobs and/ or been unable to apply for jobs as a result of the Statute's employment restriction.
125. The Statute's prohibition against loitering within 1,000 feet of a church, school, or any area where minors congregate is overbroad. The loitering provision interferes with Plaintiffs' ability to conduct activities essential to daily
46

living, such as grocery shopping, eating at restaurants, shopping at malls and other such activities. The prohibition against loitering within 1,000 feet of a church discourages Plaintiffs from attending church services-including weddings and funerals-and participating in other church-sponsored activities. The risk of going to prison for 10-30 years if they are thought to be "loitering" is too high a price to pay for church attendance.
126. The Statute is overbroad because it, in conjunction with Ga. Code. Ann. § 42-1-12(a)(1) and § 42-1-12(n)(1-3), makes it illegal to be homeless. Plaintiffs who become homeless twice in their lives are subject to life imprisonment.
COUNT FOUR
VIOLATION OF SUBSTANTIVE DUE PROCESS 127.
Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n n allegations of 1-67 and 70-94.
128. The Statute is unconstitutional because it impinges on Plaintiffs' fundamental right to family privacy - specifically the right to cohabit with or near one's family. Plaintiff Joseph Linaweaver and others have been forced to separate from family members and/ or leave the State because the Statute makes it impossible to settle anywhere in Georgia with any permanence.
47

129. The Statute violates the right to due process because it, in conjunction with Ga. Code. Ann. § 42-1-12(a)(1) and § 42-1-12(n)(1-3) makes it illegal (and punishable by 10-30 years imprisonment) to be homeless. Plaintiffs who become homeless twice in their lives are subject to life imprisonment. See Ga. Code Ann. § 42-1-12(n)(1-3). Imprisoning a Plaintiff for 10-30 years (or for life) because he is impoverished and homeless shocks the conscience. All Plaintiffs, including named Plaintiffs are subject to this provision.
130. The Statute violates the right to substantive due process because it summarily evicts elderly, ill, and/ or severely disabled people from their homes, nursing homes, and hospice care facilities. Many such Plaintiffs are totally physically incapacitated and pose no threat. Many have no family and nowhere else to go. Their advanced age and physical and/ or mental disabilities make it impossible for them to find alternative living arrangements. As a result, they will be put in jail, tried for violating Ga. Code Ann. § 42-1-15, and sent to prison. Forcing Alzheimer's patients and hospice patients out of their nursing homes because they live within 1,000 feet of a prohibited location serves no rational purpose and shocks the conscience.
48

131. The Statute violates the right to substantive due process because it evicts teens who have consensual sex with other teens from their homes - in some cases a decade after the "crime" occurred. Wendy Whitaker poses no danger to anyone. There is no rational basis to evict her from her home and community ten years after she engaged in consensual sex with a high school classmate. The same is true for Joseph Linaweaver and other Plaintiffs.
132. By forcing Plaintiffs from their homes and jobs, the Statute violates Plaintiffs' right to substantive due process of law under the Fourteenth Amendment to the Constitution of the United States, U.S. Const. amend. XIV, § 1, as applied to the states and enforced through 42 U.s.c. § 1983.
COUNT FIVE VIOLATION OF FREE EXERCISE CLAUSE AND RIGHT TO FREEDOM OF ASSOCIATION
133. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n allegations of 1-67 and 1170-94.
134. The Statute prohibits all people on the registry from working at a church. This includes Lori Collins, who was unable to apply for a job opening iI, the
49

media ministry at Mt. Paran Church of God because she is on the sex offender registry. Ms. Collins is a committed Christian who seeks to devote her life to Christian ministry. Ms. Collins would like to seek employment at this church or another church to minister to persons in need of spiritual guidance, but she cannot do so because of the Statute. The Statute operates as a substantial burden on the religious beliefs and practices of Ms. Collins and others on the registry.
135. The Statute creates an impermissible chilling effect on the right to attend a house of worship. The penalty for loitering at or within 1,000 feet of a church is a minimum of 10 years and a maximum of 30 years in prison. Many Plaintiffs, including Wendy Whitaker, have ceased attending church services and/or engaging in religious activities because of fear of prosecution under the Statute. The Statute violates the Free Exercise Clause, U.s. Const. amend. I, and the right to freedom of association, see U.S. Const. amend. I.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Assume jurisdiction over this action; 2. Determine by Order pursuant to Rule 23 of the Federal Rules of Civil
Procedure that this action be maintained as a class action with plaintiff and defendant classes;
50

3. Enter a preliminary and thereafter a permanent injunction enjoining the portions of Ga. Code Ann. § 42-1-15 that violate the rights of Plaintiffs and the class they represent;
4. Enter a preliminary and thereafter a permanent injunction enjoining the provisions of Ga. Code Ann. § 42-1-12 that make it illegal to be homeless;
5. Declare that the Statute is vague and overbroad in violation of the Due Process Clause;
6. Declare that the Statute violates: the Ex Post Facto Clause; the substantive component of the Due Process Clause and the right to family privacy; the Free Exercise Clause and the right to freedom of association.
7. Enter judgment in favor of Plaintiffs; 8. Award Plaintiffs the costs of this lawsuit and reasonable attorneys'
fees pursuant to 42 U.S.c. § 1988; and 9. Order such other and further relief as this Court may deem just and
proper.
51

Respectfully submitted this 1st day of June, 2007.
SOUTHERN CENTER FOR HUMAN RIGHTS
sl Sarah Geraghty
Stephen B. Bright (Ga. Bar No. 082075) Lisa Kung (Ga. Bar No. 430302) Sarah Geraghty (Ga. Bar No. 291393) Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Tel: (404) 688-1202 Fax: (404) 688-9440 sbright@schr.org lkung@schr.org sgeraghty@schr.org
AMERICAN CIVIL LIBERTIES UNION OF GEORGIA
Gerald R. Weber (Georgia Bar No. 744878) Margaret F. Garrett (Georgia Bar No. 255865) American Civil Liberties Union 75 Piedmont Avenue, Suite 514 Atlanta, GA 30303 Tel: (404) 523-6201 Fax: (404) 577-0181 gweber@aduga.org mgarrett@aduga.org
52

CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Fourth Amended Complaint upon all Defendants by causing a true and correct copy thereof to be delivered by the Court's ECF filing system to Defendants' counsel of record at the following addresses: Ms. Devon Orland Mr. Joseph Drolet Office of the Attorney General 40 Capitol Square Atlanta, GA 30334 Mr. David E. Hudson Hull, Towill, Norman, Barrett & Salley, PC P.O. Box 1564 Augusta, GA 30903-1564 This 1st day of June, 2007.
s/Sarah Geraghty Sarah Geraghty (Ga. Bar No. 291393) Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Tel: (404) 688-1202 Fax: (404) 688-9440 Attorney for the Plaintiffs
53

 
 Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

WENDY WHITAKER, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

SONNY PERDUE, et al.

)

)

____D_ef_en_d_an_ts_. __________ ))

CIVIL ACTION No. 4:06-140-CC

PLAINTIFFS' BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION TO STOP THE STATE OF GEORIGA FROM CRIMINALIZING PROTECTED RELIGIOUS ACTIVITY
In the 2008 General Assembly session, Senate Bill1 expanded Ga. Code
Ann.§ 42-1-15 to provide that "No individual [who is required to register as a
sex offender] shall be employed by or volunteer at any ... church[]."l This statute, effective July 1, criminalizes fundamental religious activities and subjects violators to 10-30 years in prison. In denying Defendants' motion to dismiss the former version of the law, which barred only employment at a church, this Court
already expressed concerns that:

See SB 1 (emphasis added) (Exhibit 1).

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 2 of 26
• "This provision would effectively exclude all registered sex offenders from serving as clergy or ministers in religious organizations" and
• "This provision may operate as a substantial burden on religious practice that does not survive scrutiny."z
The new statute is worse. It both exacerbates and expands the free exercise problems and intrudes upon core church functions and decisions. Under SB 1, activities such as singing in an adult choir, looking up passages for the pastor in Bible study, preparing for revivals and prayer vigils, or cooking meals in a church kitchen will now be considered criminal activity punishable by 10-30 years in prison.3 And, despite a religious organization's own desires and decisions, it may not ever employ a person on the registry or ask such a person to serve as a choir member, on a church committee, or in any other capacity.
After two years of being driven from homes and deprived of employment, many people on the registry found their last bastion of hope and solace in faith communities. Now, the State is depriving Plaintiffs of the support and rehabilitative influence of their churches. Lori Collins, Angela Coffey, Andrew
2 See Order of 03/30/07 at 35. 3 Because the term "church," means "a place of public worship" under§ 421-12, the prohibition against volunteering at a "church" extends to all faiths.
2

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 3 of 26
Norton, Donnie Boone, Omar Howard, and over 15,000 others will be prosecuted if they volunteer at churches, even though none of the activities in which they participate involves unsupervised contact with minors. The prohibition against volunteering at a church is substantially overbroad, vague and intrusive of core rights to free exercise of religion.
STATEMENT OF FACTS The volunteer/employment provision of Ga. Code Ann. § 42-1-15 undermines core religious freedoms for thousands of persons and criminalizes sex offenders' participation in one of the key rehabilitative structures - the church. The Declarations attached to this petition illustrate the problems: A. Lori Collins Lori Collins is on the registry because, at age 39, she was convicted of statutory rape for having sex with a 15-year-old.4 While serving three years in prison, Ms. Collins lived in the honor dorm, served as assistant to the chaplain, and completed the Department of Corrections Faith and Character Program. Ms. Collins has come a long way since she was sent to prison. She is now a licensed minister and will soon be ordained through the Church of the Firstborn
4 See Declaration of Lori Collins (Exhibit 2). 3

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 4 of 26
in Woodstock, Georgia. She attends Mt. Paran Church of God. She is also active in prison ministry outreach.
As of July 1, 2008, Ms. Collins' ability to practice her faith will be limited in the following ways: First, she will no longer be able to help to prepare for or participate in retreats, revival meetings, seminars, or prayer vigils. Second, Ms. Collins will no longer be able to participate in prison ministry because the planning meetings and training seminars for prison ministry outreach are held at churches. Third, Ms. Collins will no longer be able to assist the pastor or perform administrative functions at two evangelical ministries, New Beginnings Tabernacle and the Church of the Firstborn. Ga. Code Ann.§ 42-1-15, as amended, requires Ms. Collins to stop doing activities that she believes the Bible commands her to do, especially the commandment to spread the faith.s
Section 42-1-15 (2006) has already affected Ms. Collins' religious practice. In 2006, she was offered a position in the media ministry at Mt. Paran Church of God. This opportunity would have let her spread the Word of God through print media. She could not take the job because of§ 42-1-15. Also, in 2006, Ms.
5 See Matthew 28:18-20 ("Then Jesus came to them and said, 'All authority in heaven and on earth has been given to me. Therefore go and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything I have commanded you."')
4

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 5 of 26
Collins volunteered as a prayer partner at Trinity Broadcasting Network ("TBN"). She was required to stop volunteering because TBN was within 1,000 feet of a church.
None of Ms. Collins' church activities involve working with minors. Ms. Collins does not seek to engage in any activity that would cause her to violate probation conditions by being around minors unsupervised. She only wants to continue to serve God by being active in the church.
Ms. Collins does not understand what the bar on "volunteer[ing]" at a church means. Does it mean that she cannot help prepare for revival meetings, assist with Bible study, or serve on a church committee? Because the penalties for volunteering at a church are severe, Ms. Collins must stop participating in the religious activities that are so important to her. Ms. Collins finds herself in an impossible situation. If she volunteers at a church, she is subject to 10-30 years in prison. If she does not participate in her church community in a way that constitutes "volunteering," she will break God's law.
5

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 6 of 26
B. Angela Coffey Angela Coffey, age 35, pled guilty to having sex with a 17-year-old student while employed as a teacher.6 She was sentenced to one year in prison and two years of probation. She was released in January 2008, and lives with her daughter. Ms. Coffey is a churchgoer and would like her daughter to be raised in the church. Ms. Coffey wants to participate fully in the life of her church, but in two weeks she will no longer be able to do so. As of July 1, § 42-1-15 will prohibit Ms. Coffey from doing the following activities: participating in Bible study, serving on church committees, reading passages of the Bible aloud during services, and helping to prepare for church gatherings. According to the terms of her probation, Ms. Coffey cannot be alone around minors. She does not seek to engage in any activity that would cause her to violate probation conditions by being around minors unsupervised. She only wants to participate fully in the life of the church, believing that such participation benefits both her and her daughter.
6 See Declaration of Angela Coffey (Exhibit 3).
6

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 7 of 26

C. Donnie Boone Donnie Boone is a construction worker from Augusta, Georgia.7 Mr. Boone was convicted in the 1994 armed robbery of a restaurant during which a 17-year-old restaurant employee was told to move from one area of the restaurant to another. Under Georgia law, this constituted kidnapping of a minor, requiring Mr. Boone to register as a sex offender. Mr. Boone has never been convicted of a sexual offense. Mr. Boone was granted parole in 2006, but was not released until April 2008.8 He attends Franklin Covenant Baptist Church in Hephzibah, Georgia. Mr. Boone's family members have volunteered at church for generations and he would like to follow in their footsteps. Mr. Boone believes that if he is going to serve God, he must have fellowship in the church and volunteer. Specifically, Mr. Boone would like to volunteer as an usher, welcoming congregants into services and passing out programs. In doing so, Mr. Boone believes he would be helping his church community to hear God's word. Mr. Boone would also like to be able to serve on a church committee, to actively

7

See Declaration of Donne Boone (Exhibit 4).

8 Mr. Boone remained in prison for two additional years after he was granted parole because he could not find an address that complied with the 1,000-foot sex offender residence restrictions. See id.

7

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 8 of 26
participate in Bible study, and to perform other functions that constitute volunteering at a church.
None of Mr. Boone's church activities involves working with minors. He will not engage in any activity that would cause him to violate parole conditions by being around minors unsupervised. He only wants to serve God by spreading His word and being active in the Church. Attending church and spending time around his faith community helps Mr. Boone to understand God's commandments and to make good life choices.
D. Andrew Norton Andrew Norton, 25, grew up in an abusive home.9 The State eventually terminated Mr. Norton's parents' custody of their children, but not before Mr. Norton was abused for years. Mr. Norton is on the registry for an offense he was alleged to have committed against his step-brothers when he was 12. Mr. Norton lives with his wife and two daughters in Austell, Georgia. Due to the 1,000-foot restrictions, Mr. Norton has been required to move four times in the last three years. The constant moving has caused financial and emotional strain.
9 See Declaration of Andrew Norton (Exhibit 5).
8

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 9 of 26
Mr. Norton and his family are devoutly religious and attend Trinity Fellowship Church in Marietta, Georgia. In addition to attending services, Mr. Norton assists with soundboard operations to record the pastor's sermons and the adult choir singing praise and worship music. Mr. Norton volunteers in this capacity as part of a ministry to spread the word about his church and pass along the message of Jesus. He believes that he is commanded by the Bible to do this. Mr. Norton also volunteers to set up and prepare for church events. He volunteers with other adults; his activities do not involve children.
As a Christian, Mr. Norton believes that he is supposed to help people and serve his community. His church is his community and it has helped instill normalcy and stability in his life. His fellow congregants and pastor are an important support network Because the consequences of violating the volunteer prohibition are so severe, however, Mr. Norton must stop participating in many of the religious activities that are so important to him.
9

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 10 of 26
E. Omar Howard Omar Howard served fourteen years in prison.lO While incarcerated, he was actively involved in the church and HeartBound Ministries, an organization that ministers to the spiritual needs of people in prison. He was also the Chaplain's Aid at Atlanta Transitional Center. Mr. Howard has come a long way since his conviction. He is gainfully employed and a regular churchgoer. He speaks at churches and other gatherings about his faith, experiences, and the consequences of breaking the law. He is a community volunteer in the Dropout Prevention Ministry Team of the First Faith Ministries of the Presbytery of Greater Atlanta.11 He also sings praise and worship music in the Atlanta Transitional Center choir. As of July 1, Mr. Howard will be prohibited from accepting invitations to speak at churches. He will also be prohibited from singing in the choir at churches.
IO See Declaration of Omar Howard (Exhibit 6). At age 18, Mr. Howard was convicted of voluntary manslaughter, armed robbery, false imprisonment, and other crimes in connection with the 1993 burglary of a house. There was a teenager in the house at the time of the burglary, leading to a conviction of "false imprisonment of a minor." Although this crime was not sexual in nature, Mr. Howard is required to register as a sex offender. See§ 42-1-12(a)(9)(A), (e). II See Exhibit 6 (including letters from the Clayton County Juvenile Court and Rev. Yolanda Thompson attesting to the value of Mr. Howard's presentations, and a photograph of Mr. Howard speaking at a church).
10

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 11 of 26
F. Reverend Floyd Rose
Reverend Floyd Rose is the Pastor Emeritus at the Church at Pine Hill in
Valdosta.12 Reverend Rose believes that SB 1 will drive people on the registry
from the church and deprive the church of its rehabilitative function. He states:
SB 1 discourages offenders from participating in one of our society's key rehabilitative structures: the church. Traditionally, the church has always welcomed the outcast, the locked out, and the hemmed. It has been the place where sinners have been redeemed, the lost have been found, and the broken have been made whole. It is the perfect place for imperfect people, including people who have violated the law by committing sexual offenses....
In Paufs letter to the churches, he said, "If a brother be overtaken in a fault, you who are spiritual restore such an one in the spirit of meekness." "It is the people that are sick," Jesus said, "who need a physician." The Church is about restoration, not probation. Jesus said, "For this cause came I into the world; to seek and to save that which was lost." Our ministry as a church is an extension of His. And since the early days of the Church, redemption has been at the heart of the church's mission and message.13
Reverend Rose is also concerned about the ramifications of SB 1 for him
and others in church leadership roles:
As a person in a church leadership role, I am greatly concerned about what SB 1 means for me. Can I be charged with accessory to a crime if I ask a person on the sex offender registry to read a passage from the Bible aloud during a service?
12 See Declaration of Reverend Floyd Rose (Exhibit 7).
13 See id.
11

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 12 of 26
Finally, Reverend Rose states that churches have a number of tools they can use to protect people from sex offenses. For example, many churches have policies to detect and stop sex abuse in their congregations. Churches can do background checks on employees and volunteers. In addition, they can check the sex offender registry, which will give them an account of who is on the registry in their community. Ultimately, Reverend Rose believes, the decision about whether it is appropriate for a particular person to be involved in church volunteering activities must be made on a case by case basis. Reverend Rose believes this decision should be made by the church, not the State.
ARGUMENT AND CITATIONS OF AUTHORITY A preliminary injunction is appropriate when the movant establishes: (1) a substantial likelihood of success on the merits; (2) a threat of irreparable injury; (3) that Plaintiffs' injury outweighs any harm an injunction may cause Defendants; and (4) that granting the injunction would not disserve the public interest. See K.H. Outdoors LLC v. City of Trussville, 458 F.3d 1261, 1268 (11th Cir. 2006); Teper v. Miller, 82 F.3d 989, 992 n. 3 (11th Cir. 1996). Plaintiffs satisfy each requirement.
12

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 13 of 26
I. GA. CODE ANN.§ 42-1-15'S PROHIBITION ON CHURCHES EMPLOYING OR HAVING VOLUNTEERS WHO ARE ON THE SEX OFFENDER REGISTRY VIOLATES THE FREE EXERCISE CLAUSE AND IS VAGUE AND OVERBROAD
A. The Church Employment/Volunteer Provision Violates the First Amendment
The Free Exercise Clause provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof .. . ." U.S. Const. amend. I. It protects not only against state interference with religious beliefs, but also against state interference with religious activity. See Employment Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872 (1990) ("[T]he exercise of religion often involves not only belief and profession but the performance of ... physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing ....")(internal quotations omitted); McDaniel v. Paty, 435 U.S. 618, 626 (1978) ("[T]he right to the free exercise of religion unquestionably encompasses the right to preach, proselyte, and perform other similar religious functions ....").
The Free Exercise Clause further "protect[s] religious observers against unequal treatment." Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 542 (1993). Unequal treatment occurs when "a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only
13

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 14 of 26
against conduct with a religious motivation." Id. at 542-43. A law that selectively burdens conduct motivated by religious belief is subject to strict scrutiny if it is not "neutral" or "generally applicable."14 See Smith, 494 U.S. 872 at 881. Such a law will survive strict scrutiny "only in rare cases." Lukumi, 508 U.S. at 546; see also Rosenburger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819 (1995) (holding that discrimination against religious viewpoints is subject to strict scrutiny).
In Lukumi, the Court held that a law was not"generally applicable" because it prohibited religious animal sacrifices, but failed" to prohibit nonreligious conduct that endangers [the alleged state] interests in a similar or greater degree...." Id. at 543. Similarly, the prohibition against working/volunteering at a church is not generally applicable.15 The law, on its face, applies to religious, but not secular organizations.
14 Strict scrutiny also applies when the plaintiffs assert a hybrid right- "the Free Exercise Clause in conjunction with other constitutional protections." Smith, 494 U.S. at 881. Here, the free exercise claim is coupled with the right to assembly and speech. Plaintiffs cannot be involved in their religious communities or exercise their faiths without violating the challenged provision. 15 "Neutrality and general applicability are interrelated, and ... failure to satisfy one requirement is a likely indication that the other has not been satisfied." Lukumi, 508 U.S. at 531.
14

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 15 of 26
Because this law facially targets employment and volunteering at religious organizations, it is subject to strict scrutiny. Even assuming that the Defendants could show a compelling interest, the statute lacks narrow tailoring.16 It targets every employee and volunteer at a church or other place of worship. The law is not limited to positions that may have interactions with children, positions that involve one-on-one interactions, or positions that might otherwise have some arguable connection to preventing sex offenses. Even entirely solitary volunteer positions, such as writing for the church newsletter, are prohibited. The ban applies to all people on the registry, even those who do not pose a danger. The church employment/volunteer provision is not narrowly tailored.
The church employment/volunteer provision also interferes with core church decision-making for religious positions in violation of the ministerial exception grounded in the Free Exercise Clause.17 This too illustrates its lack of
16 See generally Open Homes Fellowship, Inc. v. Orange County, Fla., 325 F.Supp. 2d 1349 (M.D. Fla. 2004) (finding that zoning restrictions on religiously based ministry for "substance-addicted" persons, including some sex offenders, was unconstitutional under rational basis review because there was an insufficient showing of "threat to safety"). 17 As this Court noted, the "ministerial exception" refers to the rule adopted by several circuits that statutes that interfere with church employment relationships may violate the free exercise clause. See Order of 3/30/07 at 36.
15

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 16 of 26
narrow tailoring and overbreadth. This Court correctly noted that the ministerial exception is not typically
used to "invalidate a state statute."lS Normally, the exception applies to antidiscrimination laws, such as Title VII, whose enforcement may interfere with protected religious decision-making in employment.19 But the doctrine applies equally well here. Indeed, the interference with religious decision-making here is even more broad. The statute limits all religious institutions' hiring practices, not simply those of one church in a single case questioning an individual employment decision by that church. Moreover, the application of the doctrine in this instance does not involve the sometimes dicey prospect of creating a judicial exception to a legislatively enacted anti-discrimination law. This is a rare, quite possibly unique, circumstance where a state statute on its face prevents a religious institution from employing or using volunteers of its choosing. It is thus an easier case for applying the ministerial doctrine.
18 See Order of 3/30/07 at 36. 19 Title VII specifically sanctions religious organizations to employ persons of their own faith. 42 U.S.C. § 2000e-1(g)(2004); Id. § 2000e-2(e). Thus, Georgia's law prevents religious institutions from hiring sex offenders even though federal law protects such institutions' hiring decisions.
16

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 17 of 26
The church employment/volunteer provision strikes at the very heart of the ministerial exception's reason for being. The ministerial exception "continues a long-standing tradition that churches are to be free from government interference in matters of church governance and administration." See Gellington v. Christian Methodist Church, Inc., 203 F.3d 1299, 1303-04 (11th Cir. 2000); Bollard v. Cal. Providence, 196 F.3d 940, 946 (9th Cir. 1999) (First Amendment protects "ecclesiastical self-governance with which the state may not constitutionally interfere"); Petruska v. Gannon Univ., 462 F.3d 294, 306 (3d Cir. 2006) (stating that the Free Exercise Clause protects a "church's right to decide matters of governance and internal organization"). The courts carved out this free-exercise grounded exemption to avoid government entanglement and undue government interference with church decisions and doctrine.
The ministerial exception forbids the government from intruding in church employment decisions when the employee's "primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship...." Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985) (internal quotation marks and citation omitted); see also McClure v. Salvation Army, 460 F.2d 553, 558, 560 (5th Cir. 1972) (finding that the Free Exercise Clause forbids the
17

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 18 of 26
government from encroaching into church decisions regarding employment practices). Among the positions covered by this free exercise protection are a choir director, a director of music, the principal of a Catholic elementary school, and the press secretary at a Catholic church. See Rweyemamu v. Cote, 520 F.3d 198, 205-210 (2d Cir. 2008) (summarizing case law).
Georgia's church employment/volunteer provision intrudes upon each and every religious position- paid or volunteer- that would otherwise be protected from state interference by the Free Exercise Clause and the ministerial exception. See Gellington, 203 F.3d at 1304 ("Investigation by a government entity into a church's employment of its clergy would almost always entail excessive government entanglement into the internal management of the church.").
Under the church employment/volunteer provision, a church cannot hire anyone on the sex offender registry - even if he or she is on the registry for consensual teenage sex committed years ago. This is unconstitutional; the legislature cannot inject itself into such "substantive ecclesiastical matters." McClure, 460 F.2d at 560; Kedroffv. St. Nicholas Cathedral, 344 U.S. 94, 107 (1952) ("Legislation that regulates church administration, the operation of the churches, [or] the appointment of clergy ... prohibits the free exercise of religion.").
18

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 19 of 26
The church employment/volunteer provision, barring a person on the sex offender registry from volunteering or working within a church, is not neutral or generally applicable, directly targets religious decisions and duties and cannot survive strict scrutiny. Furthermore, it intrudes into the hiring of employees and soliciting of volunteers by a church. Accordingly, the provision violates the Free Exercise Clause.
B. The Church Employment/Volunteer Provision is Overbroad For much the same reason that the church employment/volunteer provision is not narrowly tailored, it is also unconstitutionally overbroad. A statute is overbroad "if in its reach it prohibits constitutionally protected conduct." Grayned v. City of Rockford, 408 U.S. 104, 114 (1972). The overbreadth doctrine is an exception to the general rule of standing, permitting a litigant as to whom the statute may be constitutionally applied to challenge the statute so long as it could be applied in a manner that violates the First Amendment rights of others. See Broadrick v. Okla., 413 U.S. 601, 610-12 (1973); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984). Facial challenge of a statute as overbroad is a mechanism for "prevent[ing] the statute from chilling the First Amendment rights ...." Sec'y of State ofMd. v. Joseph H. Munson Co., 467 U.S. 947,958 (1984). Thus, given that this case involves a certified class, the
19

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 20 of 26
named Plaintiffs can assert the religious freedom rights of others who seek to work for or volunteer with religious institutions who welcome their membership and participation. Given the scope of the restrictions, the overbreadth is substantial, barring all volunteer and employment positions. These include those for which the government interest of limiting recidivism is actually frustrated by robbing sex offenders of important faith recovery networks.
C. The Church Employment/Volunteer Provision is Unduly Vague The vagueness doctrine of the Due Process Clause of the Fourteenth Amendment demands that a law be clear to police and citizens. A law is unconstitutional if it: (1) "fail[s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits" or (2) "authorize[s] and even encourage[s] arbitrary and discriminatory enforcement." City of Chicago v. Morales, 527 U.S. 41, 56 (1999); Nat'l Endowment for the Arts v. Finely, 524 U.S. 569, 588 (1998) ("The terms of the provision are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns."). SB 1 provides no definition of what constitutes volunteering at a place of worship. Compare Karriem v. Barry, 743 F.2d 30 (D.C. Cir. 1984) (exploring vagueness challenge to term "volunteer" and definition thereof contained in
20

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 21 of 26
Volunteer Service Act which limited ministers' access to jail). What if a person on the registry is asked to give a reading, asked to provide a dish for a pot luck, pass the collection plate, or decorate a Christmas tree? The lack of a definition in the statute leads people on the sex offender registry to either avoid going to church entirely, or avoid the very activities that their faith commands of them. Given the wide range of activities one may perform at a church, the lack of statutory definition as to which activities are prohibited, and the harsh criminal sanctions leveled simply for exercising one's religious freedom, this Court should strike the volunteerj employment provision of§ 42-1-15. II. THE PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF THE
INJUNCTION IS NOT ISSUED. The second factor for the Court to determine is whether the Plaintiffs will suffer irreparable harm absent a preliminary injunction. The answer is simple: "The loss of First amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005).
21

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 22 of 26
III. GRANTING THE INJUNCTION WILL NOT CAUSE SUBSTANTIAL HARM TO OTHERS. Granting an injunction will not harm others. An injunction will simply
preserve the status quo. Georgia has never before had a law prohibiting people on the registry from volunteering at church. No other state has such a law. Moreover, the prohibition is needlessly duplicative, since sex offenders are already prohibited from loitering at or within 1,000 feet of anywhere minors congregate, and offenders on probation or parole are prohibited from any unsupervised contact with minors. Finally, religious institutions have other tools to protect children.2o IV. ENJOINING THE STATUTE IS IN THE PUBLIC INTEREST.
Allowing Plaintiffs Collins, Coffey, Norton, Boone, Howard and others to continue to participate in their faith communities will further public safety by providing support, stability, and a grounded sense of right and wrong. Both the Board of Pardons and Paroles and the Georgia Department of Corrections ("GDC") recognize that encouraging people to be involved with faith-based programs will reduce recidivism. The Board of Pardons and Paroles and GDC started a Faith Based Community Initiative that partners churches with offenders
20 See Declaration of Rev. Rose (Exhibit 7, p. 2). 22

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 23 of 26
to reduce recidivism.Zl Decades of criminological research identifies social
support, stability, and employment as factors that decrease recidivism.zz
Moreover, the protection of free speech and religious rights is always in
the public interest. The targeted injunction here only addresses those portions of
the statute that restrict core religious freedoms, drive people on the registry from
the church, and deprive them of the rehabilitative influence of their faith
communities.
Respectfully submitted this 24th day of June, 2008.
s/ Sarah Geraghty
SOUTHERN CENTER FOR HUMAN RIGHTS Stephen B. Bright (Ga. Bar No. 082075)
21 The Faith-Based Partnership is"an initiative by the Georgia Department of Corrections to broaden the role of religious groups in the rehabilitation of offenders." According to GDC Commissioner, James Donald, "Partnering with the dedicated volunteers of the faith community provides a great opportunity to assist inmates in redeeming themselves back into society. I believe this initiative will produce a safer Georgia as fewer inmates return to a life of crime as a result of this partnership." (Exhibit 8).
zz See Kruttschnitt, Uggen, & Shelton, Predictors of Desistance Among Sex Offenders, JUSTICE QUARTERLY 17:61-87 (2000) (sex offenders with stable employment and social relationships have lower recidivism rates); COLO. DEP'T OF PUB. SAFETY, REPORT ON SAFETY ISSUES RAISED BY LIVING ARRANGEMENTS FOR AND LOCATION OF SEX OFFENDERS IN THE COMMUNITY 4 (2004) (sex offenders with positive support systems are less likely tore-offend and violate probation).
23

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 24 of 26
Lisa Kung (Georgia Bar No. 430302) Sarah Geraghty (Georgia Bar No. 291393) Gerald R. Weber (Georgia Bar No. 744878) Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Telephone: (404) 688-1202 Fax: (404) 688-9440 sbright@schr.org lkung@schr.org sgeraghty@schr.org gweber@schr.org Attorneys for the Plaintiffs
24

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 25 of 26
CERTIFICATION OF COMPLIANCE WITH L.R. 5.1B Pursuant to L.R. 7.1, I, Sarah Geraghty, hereby certify that this motion has been prepared in compliance with Local Rule 5.1B. Dated this 24th day of June, 2008.
s/ Sarah Geraghty Sarah Geraghty (Ga. Bar No. 291393) Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Tel: (404) 688-1202 Fax: (404) 688-9440 sgeraghty@schr.org
25

Case 4:06-cv-00140-CC Document 186-1 Filed 06/24/08 Page 26 of 26
CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing Briefin Support of Motion for Preliminary Injunction upon Defendants by causing a true and correct copy thereof to be delivered by the Court's ECF filing system to Defendants' counsel of record at the following addresses: Mr. Joseph Drolet Ms. Devon Orland Office of the Attorney General 40 Capitol Square Atlanta, GA 30334 Mr. David E. Hudson Hull, Towill, Norman, Barrett & Salley, PC P.O. Box 1564 Augusta, GA 30903-1564 This 24th day ofJune, 2008.
s/Sarah Geraghty Sarah Geraghty (Ga. Bar No. 291393) Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Tel: (404) 688-1202 Fax: (404) 688-9440 Attorney for the Plaintiffs
26

 
 Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 1 of 57

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

)

WENDY WHITAKER, JOSEPH

)

LINAWEAVER, JANET JENKINS

)

ALLISON, JAMES WILSON,

)

JEFFERY YORK, DEWAYNE OWENS, )

AL REGINALD MARKS, and LORI SUE )

COLLINS,

)

)

Plaintiffs,

)

)

v.

)

)

SONNY PERDUE,

)

Governor of the State of Georgia

)

in his official capacity,

)

)

THURBERT E. BAKER,

)

Attorney General of the State of Georgia )

in his official capacity,

)

)

SCOT DEAN,

)

Chief of Probation,

)

Cedartown, Polk County, Georgia

)

in his official capacity,

)

)

CLAY WHITTLE,

)

Sheriff of Columbia County,

)

in his official capacity,

)

on behalf of all Georgia sheriffs,

)

)

Defendants.

)

-------------------------)

CIVIL ACTION No.4:06-cv-140-CC
FOURTH AMENDED COMPLAINTCLASS ACTION FOR INJUNCTIVE RELIEF
JURY TRIAL DEMANDED

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 2 of 57
PRELIMINARY STATEMENT l.
Plaintiff WENDY WHITAKER and others bring this suit to prevent people on Georgia's sex offender registry - including the elderly and disabled - from being deprived of their homes due to the unfair and arbitrary provisions of Ga. Code Ann. § 42-1-15 ("the Statute") and Ga. Code Ann. § 42-1-12. Plaintiffs have been convicted of crimes - some of them when they were teenagers for conduct a judge found was not a threat to public safety and did not warrant any time in prison - but they have paid the price and today live law-abiding lives as productive members of the community. Now they are being punished again. Ga. Code Ann. § 42-1-15 prohibits persons on the registry from living within 1,000 feet of numerous locations, including all churches, swimming pools, and school bus stops in Georgia. Since the Statute's effective date of July 1, 2006, an unknown number of people, likely to be in the thousands, have been forced from their homes. Many more will be forced from their homes absent relief from this Court. Plaintiffs who become homeless because of the Statute face 10-30 years in prison. See Ga. Code Ann. § 42-1-12(a)(1), § 42-1-12(a)(16)(B), § 42-1-12(f), § 42-112(n) ("the homeless provisions"). Plaintiffs who become homeless twice face life imprisonment. See id.
2

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 3 of 57
2. There are approximately 16,000 registered sex offenders in Georgia. Unlike the sex offender residency requirements of many other states, Georgia does not differentiate between people convicted of violent sexual offenses, such as rape, and people who violated the law by having consensual sexual relations when they were teenagers with someone under the age of consent. Georgia treats everyone like the worst offender. Before July 1, 2006, Georgia already had a law governing where people on the registry could live. See Ga. Code Ann. § 42-1-13 (2006) (prohibiting residency within 1,000 feet of schools, child care facilities, and areas where minors congregate, including parks, recreation facilities, skating rinks, neighborhood centers, gymnasiums, and similar facilities providing programs or services directed toward children). House Bill 1059 CHB 1059"), signed into law by the Governor on April 24, 2006, substantially revised § 42-1-13, turning the law from one tailored to keep offenders away from children into one that arbitrarily banishes people from their homes and communities.
3. The ostensible purpose of Ga. Code Ann. § 42-1-15 (2006) was to keep Georgia's children safe from sexual offenses. This is a laudable goal. Yet the 2006 Statute imposed its residency restrictions and other significant penalties on all people on the registry - even those like Plaintiff Wendy Whitaker who is on the registry because, at age 17, she had a single consensual act of oral sex with a
3

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 4 of 57
15-year-old boy. For this one act, committed eleven years ago, the now 28-yearold Ms. Whitaker and her husband were forced from their home. Plaintiff Joseph Linaweaver was 16 when he had a single consensual act of oral sex with a 14year-old girl. Six years later, Mr. Linaweaver was ordered to leave his home because it was within 1,000 feet of a school bus stop. Plaintiff Janet Allison was convicted of being"party to a crime of statutory rape and child molestation" because she did not prevent her 15-year-old daughter from becoming sexually active. Due to this conviction, Ms. Allison and her family were forced from their home because it was within 1,000 feet of a church.
4. If Plaintiffs violate Ga. Code Ann. § 42-1-15 by residing within 1,000 feet of a prohibited location, they are subject to arrest and prosecution. The punishment for failure to comply with Ga. Code Ann. § 42-1-15 is a minimum of 10 years and a maximum of 30 years imprisonment.
5. The prohibition against living within 1,000 feet of a school bus stop, codified at Ga. Code Ann. § 42-1-15(a)(19)("the school bus stop provision"), has caused enormous confusion. In May 2006, law enforcement officials began the process of evicting thousands of people from their homes based on their interpretation of this provision.
4

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 5 of 57
6. Acting pursuant to their interpretation of the law, in May and June 2006, sheriffs' deputies ordered thousands of sex offenders to leave their homes by July 1, 2006. After receiving official notices to leave - some of them hand-delivered by sheriffs' deputies in the middle of the night - an unknown but significant number of people on the registry sold their homes or broke their leases, left their jobs, and uprooted their families to re-Iocate outside of Georgia.
7. On June 27, 2006, this Court granted Plaintiffs' Motion for a Temporary Restraining Order ("TRO") with respect to the school bus stop provision. On June 29, 2006, the Court extended this relief to the Plaintiff class. The TRO was in effect until July 25, 2006. On July 25, 2006, this Court adopted the definition of "school bus stop" urged by Defendants Perdue and Baker. Under that definition, at the time of the Court's ruling, there were no school bus stops in Georgia since none had been designated by the actual members of local school boards (as opposed to their employees or agents).
8. On July. 25,2006, the school board in Columbia County designated its bus stops for purposes of the Statute. All sex offenders in Columbia County faced eviction. The school boards in Bulloch and Chatham counties also designated bus stops. All sex offenders in those counties faced immediate eviction.
5

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 6 of 57
9. The school bus stop provision is being held in abeyance in the three counties while this case is resolved. Absent relief from this Court, the approximately 400 people on the sex offender registry in Chatham, Columbia, and Bulloch counties will be banished from these counties.
10.
Ga. Code Ann. § 42-1-15 grants local school boards the power to instantly evict people from their homes and banish them from the county.
11. There continues to be confusion about the school bus stop provision. Even after this Court's Order of July 25, 2006, several people on the registry were told that they must move because they lived within 1,000 feet of school bus stops in counties where no "school bus stops" exist under the Statute.
12. Ga. Code Ann. § 42-1-15 also prohibits people on the registry from working within 1,000 feet of a church, child care facility, or school.
13. On May 13, 2008, the Governor signed SB 1 into law. SB 1, now codified, in part, at Ga. Code Ann. § 42-1-15, made two changes to Georgia's sex offender residence restrictions: (a) it expanded the list of "areas where minors congregate"
6

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 7 of 57
to include "public libraries," and (b) it carved out a narrow exception for certain homeowners. The majority of people on the registry will still have to comply with the prohibition against living within 1,000 feet of schools, parks, churches, pools, and other locations.
14. SB 1 also modified the employment restrictions of Ga. Code Ann. § 42-1-15 by carving out an exception for employees if a church, child care center, or other prohibited location locates itself within 1,000 feet of a Plaintiff's established place of employment. Finally, SB 1 adds an additional prohibition against "volunteer[ing]" at or within 1,000 feet of a school, child care facility, or church.
15. In addition to imposing onerous residency and employment restrictions, the Statute impermissibly chills the right to exercise one's religion by making it a felony punishable by a minimum of 10 years imprisonment to "loiter" at or near a church or other place of religious worship. Many Plaintiffs rationally feel that they cannot go to church on Sunday, attend Wednesday or Friday night prayer groups, or go to weddings or funerals for fear that they will be thought to be loitering at a place of public religious worship. The penalty for loitering is simply too severe to risk participation in religious activities.
7

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 8 of 57
16. Plaintiffs are persons subject to the residency, working, volunteering, and loitering restrictions of Ga. Code Ann. § 42-1-15. Plaintiffs bring this action on behalf of themselves and all persons subject to the Statute. Plaintiffs respectfully ask this Court to permanently enjoin Defendants from enforcing such portions of the Statute as are necessary to protect Plaintiffs' constitutional rights.
17. The Statute's enforcement should be enjoined for the following reasons: a. The Statute violates U.S. Const. art I, § 10, prohibiting Ex Post Facto
laws; b. The Statute violates the Due Process Clause because it is vague and
overbroad; c. The Statute violates the substantive component of the Due Process
Clause; d. The Statute violates the Free Exercise Clause and the right to freedom of
association; e. The Statute violates the Takings Clause.
8

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 9 of 57
PARTIES Plaintiffs
18. Plaintiff WENDY WHITAKER is a 28-year-old woman who, at the time this lawsuit was filed, lived in McDuffie County, Georgia in a home that she and her husband purchased.
19. When Ms. Whitaker was a 17-year-old high school student, she engaged in a consensual act of oral sex with a IS-year-old male. Both were sophomores in high school at the time. Ms. Whitaker is white; the other student was AfricanAmerican. Ms. Whitaker was arrested, charged with sodomy, and advised to plead guilty, and she ultimately completed five years on probation. Her conviction requires her to register as a sex offender.
20. Ms. Whitaker and her husband were required to move to comply with Georgia's previous sex offender residence law, Ga. Code Ann. § 42-1-13 (2006). Their residence in Columbia County was located within 1,000 feet of a church that, at the time, operated a day care program. For over two years, Ms. Whitaker could not reside in her lawfully purchased home.
9

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 10 of 57
21. In early 2006, the Whitakers moved in with Mr. Whitaker's brother in Thomson, Georgia. They had to pay rent and expenses in addition to mortgage. A school bus stopped within 1,000 feet of the house, making the Whitakers' residence an unfit accommodation under the Statute, as it was interpreted in the spring of 2006 by Sheriffs' offices throughout the State. Ms. Whitaker was spared from eviction when this Court adopted the definition of "school bus stop" urged by Defendants Perdue and Baker.
22. In 2007, the Whitakers moved to South Carolina because of the difficulty they experienced in finding a residence that complied with the sex offender law in Georgia. In approximately March 2008, following the decision in Mann v. Dep't of Corrections, 282 Ga. 754 (2007), the Whitakers moved back into their home in Columbia County, Georgia.
23. In July 2008, a Colombia County law enforcement official once again ordered Ms. Whitaker to leave her home due to Ga. Code Ann. § 42-1-15. The home is within 1,000 feet of a church and Ms. Whitaker's name was not on the deed as of July 1, 2006. Even though Ms. Whitaker was married at the time the home was purchased, helped to purchase the home, and contributed to mortgage and property tax payments, law enforcement officials gave her 72 hours to leave.
10

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 11 of 57
Ms. Whitaker now seeks a preliminary injunction permitting her to remain in her home. Absent this Court's intervention, Ms. Whitaker is in immediate danger of being evicted from her home.
24. Ms. Whitaker and her husband used to attend church services on Sundays. They no longer do so because of Ms. Whitaker's fear that she will be accused of loitering within 1,000 feet of a church, or volunteering at a church, crimes punishable under the Statute by 10-30 years imprisonment.
25. Plaintiff JOSEPH LINAWEAVER is a 24-year-old man who lived with his parents in Columbia County, Georgia.
26. In 2000, when Mr. Linaweaver was 16, he engaged in a consensual act of oral sex with a 14-year-old female classmate while on a school bus. Mr. Linaweaver pled guilty to sodomy and was sentenced to five years on probation. Because of the conviction, he had to register as a sex offender.
27. On June 1, 2006, the Columbia County Sheriffs Department ordered Mr. Linaweaver to leave his home by June 30 because it was within 1,000 feet of a school bus stop. Mr. Linaweaver could not find anywhere to live that met the Statute's requirements; nor could he find employment at any job that did not
11

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 12 of 57
violate the Statute's provisions. He planned to leave his family and move out of state rather than face being homeless and jobless in Georgia. Even his plans to move out of state, however, were untenable in June 2006. Before leaving the State, Mr. Linaweaver had to arrange to transfer his probation, a process that can take months under the best of circumstances. As probation offices across the State were being inundated with hundreds of requests to move and/ or transfer probation before July 1, 2006, moving out of Georgia was not an option. In the interim, Mr. Linaweaver had nowhere to go.
28. On July 25, 2006, the local school board in Columbia County officially designated all of its school bus stops, making virtually all of Columbia County off limits to anyone on the registry. Mr. Linaweaver faced immediate eviction.
29. Plaintiffs and the Sheriff of Columbia County subsequently entered a temporary consent order to prevent enforcement of the school bus stop provision until this Court considers the constitutionality of the provision. It is unknown how long Plaintiffs in Columbia County will be able to remain in their homes.
30. Fearful that he would be unable to maintain a residence or employment because of the Statute, Mr. Linaweaver moved out of state. Mr. Linaweaver's entire family lives in the Augusta area. Mr. Linaweaver would like to return to
12

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 13 of 57
Columbia County to be reunited with his family, but he knows that he could be evicted at any time if he returns home.
31. Plaintiff JANET JENKINS ALLISON is a resident of Lumpkin County, Georgia. She is married and is the mother of five children, ages 26, 24, 21, 20 and 18. Ms. Allison lives with her husband, a diesel mechanic, and one of her sons.
32. Ms. Allison was convicted of being party to a crime of statutory rape and party to a crime of child molestation in 2002. Ms. Allison has a teenage daughter who was sexually active and became pregnant at age 15. The indictment in Ms. Allison's case alleged that Ms. Allison did not do enough to stop her daughter's sexual activity. It also alleged that Ms. Allison permitted her daughter's teenage boyfriend to move into the house after her daughter became pregnant and the young couple decided to marry. (They later did marry.) For this, Ms. Allison is a registered sex offender. She was sentenced to fifteen years of probation.
33. On June 15, 2006, a deputy from the Lumpkin County Sheriff's Office came to Ms. Allison's door and told her she had to leave her home of four years by July 1 because she lived within 1,000 feet of a school bus stop. Ms. Allison did not know where her family would go. In the weeks before July 1, 2006, they drove around White, Pickens, Dawson, Lumpkin, and Gilmer counties looking for a
13

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 14 of 57
new home. They did not find any home that complied with the Statute's requirements. They looked in several mobile home parks, but found most of them had been made off-limits by the Statute because of playgrounds, swimming pools, and school bus stops.
34. Ms. Allison was later forced to leave her home because it was within 1,000 feet of a church. She also lost her job because it was within 1,000 feet of a church.
35. Ms. Allison currently rents her home pursuant to a written lease. If the local school board designates its bus stops, or if a child care center, swimming pool, or other prohibited location moves within 1,000 feet of her home, she will be evicted again.
36.
Ms. Allison was required to attend counseling as a condition of probation. Ms. Allison's court-ordered treatment provider told her and other members of the treatment group that under the Statute, they would not be able to attend church because they could be prosecuted.
14

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 15 of 57
37. Plaintiff JAMES WILSON is a 25-year-old resident of Fulton County. At the time this lawsuit was filed, he was a senior at Georgia State University pursuing a dual degree in accounting and finance. He had worked at Miller, Ray, Houser & Stewart, an accounting firm in Atlanta, for three years. In 2006, the firm offered him a position upon graduation.
38. In 2002, as a freshman at New York University in New York City, Mr. Wilson pled guilty to sexual abuse in the first degree for inappropriately touching an adult female college friend while intoxicated at a freshman party. The court sentenced him to five years of probation, which he completed in August 2007. Mr. Wilson was designated a level I sex offender, the lowest possible designation, reflecting the unlikeliest possibility of re-offending. He has never been arrested before or since and complied with all terms of his probation. His criminal case file contains letters from approximately 40 individuals (former teachers, employers, professors, friends, etc.) attesting that the incident was an aberration and out of character for Mr. Wilson.
39. Mr. Wilson is a co-owner of his home with his parents. It is within 1,000 feet of a place where a school bus stops.
15

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 16 of 57
40. For the six weeks previous to July 1, 2006, Mr. Wilson and his family searched the metro Atlanta area for any accommodation that would comply with the Statute. All they found was a motel in Clayton County, in an industrial area.
41. Mr. Wilson was spared eviction when this Court adopted the definition of "school bus stop" urged by Defendants Perdue and Baker, but he faces other restrictions under the sex offender law, including the employment restriction, and the prohibition against volunteering and loitering. If he ever wishes to move residences, he will have to comply with the 1,000-foot residence restrictions.
42. Plaintiff JEFFERY YORK is a 24-year-old resident of Polk County. At the time the Statute went into effect, he lived with his grandmother in Cedartown, Georgia.
43. When Mr. York was 17 years old, he dated a 15-year-old male. In 2003, Mr. York pled guilty to one count of sodomy for engaging in a consensual act of oral sex with the 15-year-old. He was sentenced to five years of probation.
16

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 17 of 57
44. Before the Statute went into effect, Mr. York received two letters from the Polk County Sheriff's Department stating his home could be within 1,000 feet of a bus stop. (Polk County had not yet mapped its school bus stop routes.) The Sheriffs Department informed him that if his home was within 1,000 feet of a school bus stop, he would have to move immediately. Mr. York was spared eviction when this Court adopted the definition of "school bus stop" urged by Defendants Perdue and Baker.
45. Mr. York was later required to move, however, because his home was within 1,000 feet of a child care center. He was given a week to find another place to live. Unable to find any residence that complied with the Statute, Mr. York moved to a rented trailer in the woods without electricity or running water. He lived there for nearly a year.
46. In or around December 2007, the Polk County Sheriffs Office told Mr. York that he could move to his grandmother's house. Mr. York does not own a home. If a church, swimming pool, or other prohibited location moves within 1,000 feet of his residence, he will have to move. Mr. York lives within 1,000 feet of a school bus stop. If the Polk County School Board designates the school bus stops in Polk County, Mr. York will have to move.
17

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 18 of 57
47. Mr. York was offered a job at a motel. He was unable to accept this job and other jobs because they were within 1,000 feet of prohibited locations.
48. Plaintiff DEWAYNE OWENS is a 24-year-old male who was incarcerated at Calhoun State Prison in Calhoun County at the time this lawsuit was filed.
49. In 1998, when Mr. Owens was 13 years old, he was convicted of incest. Mr. Owens served nearly four years in a juvenile facility and was released. He has never been charged with any additional crime before or since. He was found, however, to have violated the terms of his probation in 2004 by: (a) looking at a magazine with sexual content, and (b) being in the presence of his young cousins (no allegations of inappropriate conduct). He was sent back to prison.
50. At the time this lawsuit was filed, Mr. Owens had a tentative parole date of December 2006. He could not find a parole address that complied with the Statute. He could not stay with his family because of a school bus stop. He could not find any other private residence that complied with the Statute. Because of the Statute, he was unable to find a single halfway house or shelter in the State to accept a male on the sex offender registry.
18

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 19 of 57
51. After this Court adopted the definition of "school bus stop" urged by Defendants Perdue and Baker, Mr. Owens was able to submit his grandmother's address as his parole residence. He has since been released from prison and lives with his grandmother in Grady County, Georgia. If the local school board in his county designates its bus stops, or if any prohibited location moves within 1,000 feet of his residence, Mr. Owens will have to move immediately.
52. Plaintiff AL REGINALD MARKS is a 22-year-old who lives in Cobb County, Georgia. Mr. Marks lives with his mother, Carol King, and his father, Alphonso Marks.
53. In 2000, when he was 14 years old, Al Reginald Marks was charged with hand-to-genital and mouth-to-genital sexual contact with the seven-year-old son of a family friend. This was a one-time incident with no allegations of force. Mr. Marks pled guilty to child molestation and was sentenced to probation. He has served seven years on probation without incident.
54. In 2003, after Georgia passed its first residency restriction law, authorities notified the Marks family that their house sat within 1,000 feet of a swimining pool. When informed of the problem, the Marks family moved to their current
19

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 20 of 57
home, a rental residence in Cobb County. It took the family one-and-one-half years to pay their debt from breaking the lease.
55. In a letter dated May 24, 2006, the Cobb County Sheriff's Department ordered Mr. Marks to leave his home because it was within 1,000 feet of a school bus stop.
56. For the six weeks prior to July 1, 2006, the Marks family searched for a place to live. They spent days driving around Georgia, using at least one tank of gas per day and visiting potential locations in DeKalb, Paulding, Douglas, and Bibb counties. They could not find a residence that complied with Ga. Code Ann. § 42-1-15 as it was then interpreted by law enforcement.
57. Mr. Marks remained in his home because this Court adopted the definition of "school bus stop" urged by Defendants. Mr. Marks does not, however, own his home. If the school board designates bus stops or if a prohibited location moves in within 1,000 feet of the home, Mr. Marks will have to move. Mr. Marks is fearful of entering a lease because he faces the possibility of being uprooted and forced to break the lease due to the Statute.
20

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 21 of 57
58. At the time this lawsuit was filed, Mr. Marks worked seven days per week at McDonald's and was training to become a manager. He was required to leave that job due to a playground on the premises.
59. Mr. Marks got a job at another fast food restaurant in 2007. He was required to leave that job because there was a church within 1,000 feet of the restaurant.
60. Plaintiff LORI SUE COLLINS was a resident of Polk County at the time this lawsuit was filed. Until June 2006, Ms. Collins lived at the Door of Hope Ministry in Rockdale County. Door of Hope is a faith-based halfway house for people recently released from prison.
61. In 2002, Ms. Collins was convicted of statutory rape for having consensual sex with a 15-year-old boy. Ms. Collins, who was 39 at the time, served three years in prison for her offense. While in prison, Ms. Collins lived in the honor dorm, served as assistant to the chaplain, edited a religious newsletter, and received a college diploma with honors.
21

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 22 of 57
62. In June 2006, Ms. Collins received a letter from the Rockdale County Sheriff's Office stating she would have to leave Door of Hope because a school bus stop was within 1,000 feet of the residence. For three weeks thereafter, Ms. Collins spent nearly every waking moment trying to find a place to live. She drove around five counties (Hall, Barrow, Newton, Rockdale, and Henry) in search of a residence conforming to the requirements of the Statute. She searched the Internet. She searched newspapers. She could not find anything. At one point, she thought she had found a place to live in an industrial area in Covington, Georgia. It turned out, however, that there was a school bus stop within 1,000 feet of the house.
63. Ms. Collins considered staying with various family members. There was a school bus stop within 1,000 feet of her daughter's home. A school bus stop also prevented her from living with her aunt in Augusta. Her grandparents, who live in a rural area outside of Augusta, offered to take her in, but there was a school bus stop within 1,000 feet of their property as well.
22

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 23 of 57
64. Ms. Collins has a second daughter in South Carolina. Ms. Collins asked her probation officer if she could move to South Carolina. She was told she would have to ask for a transfer of probation under an interstate compact and that this could take up to six months.
65. In June 2006, Ms. Collins moved to the Door of Hope's other residential ministry in Polk County, Georgia. This residence also turned out to be within 1,000 feet from a school bus stop.
66. Ms. Collins was spared eviction when this Court adopted the definition of "school bus stop" urged by Defendants Perdue and Baker. Ms. Collins was later required to leave Door of Hope; it met the Statute's definition of a "church."
67. Ms. Collins currently rents a home in Hampton, Georgia pursuant to a valid written lease. She pays monthly rent. If the local school board designates its school bus stops, or if a prohibited location moves within 1,000 feet of the residence, she will be immediately evicted. As a renter, she faces the possibility of being repeatedly uprooted and forced to break leases and abandon homes to comply with the Statute.
23

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 24 of 57
68. The Statute has also prevented Ms. Collins from obtaining employment at a church. Because of the Statute, Ms. Collins was unable to apply for a job opening at the media ministry at Mt. Paran Church of God. Ms. Collins would like to seek employment at this church or another church or ministry to minister to persons in need of spiritual guidance. She cannot do so because of the Statute.
69. Ms. Collins has volunteered with a number of church groups. She has ministered to people at nine prisons in Georgia and performed other volunteer activities at church. Ms. Collins wishes to continue her volunteer work at church, but if she does so, she risks prosecution and 10-30 years in prison.
Defendants 70.
Defendant SONNY PERDUE is the Governor of the State of Georgia. As chief executive of the State of Georgia, he has the duty to "take care that the laws are faithfully executed." Ga. Const. art. V, § 2, ~ II. He is sued in his official capacity. Plaintiffs ask that Defendant PURDUE be enjoined from enforcing such portions of the Statute as are necessary to protect Plaintiffs' constitutional rights.
24

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 25 of 57
71. Defendant THURBERT BAKER is the Attorney General of the State of Georgia. He is charged by law with enforcement of the Georgia Code and the defense of the constitutionality of the laws of Georgia. He is sued in his official capacity. Plaintiffs ask that Defendant BAKER be enjoined from enforcing such portions of the Statute as are necessary to protect Plaintiffs' constitutional rights.
72. Defendant SCOT DEAN is the Chief Probation Officer in Cedartown in Polk County, Georgia. He is charged with supervising probationers, including Plaintiff York. Georgia law authorizes Defendant DEAN to arrest a probationer if he believes the probationer has violated probation in a material respect, including by violating a law such as the Statute. See Ga. Code Ann. § 42-8-38. Defendant DEAN is sued in his official capacity. Plaintiffs ask that Defendant DEAN be enjoined from enforcing such portions of the Statute as are necessary to protect Plaintiffs' constitutional rights.
73. Defendant CLAY WHITTLE is the Sheriff of Columbia County. He is charged with the common law and statutory duties of the office of sheriff to enforce the laws of Georgia. He is sued in his official capacity on behalf of a class of all Georgia Sheriffs. This Court has certified a Defendant class of Georgia Sheriffs for the limited purpose of effectuating any preliminary or permanent
25

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 26 of 57
injunctive relief that may be ordered. Plaintiffs ask that Defendant WHITTLE and all Georgia sheriffs be enjoined from enforcing such portions of the Statute as are necessary to protect Plaintiffs' constitutional rights.
JURISDICTION AND VENUE 74.
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C §§ 1331 and 1343 because the action arises under and is brought under the Civil Rights Act of 1871, 42 U.s.C § 1983 and the Fourteenth Amendment to the United States Constitution.
75. Venue is proper in this District under 28 U.s.C § 1391(b)(I) because at least one Defendant resides in this judicial district. This District also is an appropriate venue for this action under 28 U.S.C § 1391(b)(2) because at least one Plaintiff lives in the district.
26

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 27 of 57
ALLEGATIONS 76.
Under Georgia law, persons convicted of certain sex offenses and certain crimes against minors must register as sex offenders. See Ga. Code Ann. § 42-112(e). Such persons must register with the sheriff in the county where they live, work, and/ or attend school. All such persons must have their photographs, addresses, and other identifying information posted on the website of the Georgia Bureau of Investigation.
77. In June 2003, Georgia's General Assembly passed a law restricting the locations where people on the sex offender registry could live. See Ga. Code Ann. § 42-1-13 (2006). According to this law, no one on the registry could live within 1,000 feet of the following locations: schools, child care facilities, and areas where minors congregate, including public and private parks, recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, and similar facilities providing programs or services directed towards persons under 18. The penalty for knowingly violating the residency restrictions was imprisonment for one to three years.
78. Many people on the registry, including Plaintiff Al Marks, were required to leave their homes to comply with the terms of the 2003 law.
27

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 28 of 57
79. In 2006, the General Assembly passed another sex offender residence law, this time with the purpose of ridding the State of all of its (then) 12,000 sex offenders. House Majority Leader Jerry Keen, the chief sponsor of HB 1059, stated: .. "We want those people running away from Georgia. Given the toughest laws here, we think a lot of people could move to another state." .. "If it becomes too onerous and too inconvenient, they just may want to live somewhere else. And I don't care where, as long as it's not in Georgia." .. "Candidly, Senators, they will in many cases have to move to another state."
80. The legislators, however, were not fully informed. People on the registry who are on probation and parole cannot simply move to another state. They must acquire the permission of their probation or parole officers, and arrangements must be made for their supervision in another state before they may leave Georgia. Thus, the Statute does not force people out of the State; it forces them into the street.
28

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 29 of 57
81.
HB 1059 was signed into law by Governor Sonny Perdue on April 26, 2006. The Statute, codified at Ga. Code Ann. § 42-1-15, stated in pertinent part:
(a) No individual required to register pursuant to Code Section 42-1-12 shall reside or loiter within 1,000 feet of any child care facility, church, school, or area where minors congregate. Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the outer boundary of the property of the child care facility, church, school, or area where minors congregate at their closest points. (b)(1) No individual who is required to register under Code Section 42-1-12 shall be employed by any child care facility, school, or church or by any business or entity that is located within 1,000 feet of a child care facility, a school, or a church.
82. The 2006 Statute defined"areas where minors congregate" as: "all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, and public and community swimming pools." See Ga. Code Ann. § 42-1-12(a)(3).
83. The Statute defined the term "school bus stop" as "a school bus stop as designated by local school boards of education or by a private school." See Ga. Code Ann. § 42-1-12(a)(19).
29

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 30 of 57
84. Ga. Code Ann. § 42-1-15 severely restricts the locations in which people on the registry can live. It does this by adding the requirement that sex offenders cannot live within 1,000 feet of any church, swimming pool, or school bus stop. In addition, under the 2006 Statute no one could work at or within 1,000 feet of a child care facility, school, or church. Under the 2006 Statute, no one on the registry could loiter within 1,000 feet of a child care facility, church, school, public or private park, recreation facility, playground, skating rink, neighborhood center, gymnasium, school bus stop, public swimming pool, or community swimming pool.
85. In 2008, the General Assembly further expanded the residence restrictions by adding "public libraries" to the list of "areas where minors congregate." See § 42-1-12(a)(3).
86. The General Assembly changed the law again in 2008. Pursuant to SB 1, now codified, in part, at Ga. Code Ann. § 42-1-15, Plaintiffs who own homes will not be required to relocate if: (a) they have proof that they owned and resided in their homes prior to July 1, 2006, or (b) a child care center, church, or other prohibited location moves in within 1,000 feet of a Plaintiff's residence. There is no provision, however, to protect the rights of persons who rent their homes. C.f.
30

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 31 of 57
Iowa Code § 692A.2A (2006) (exempting those who owned or rented homes within 2,000 feet of schools from residence requirements).
87. Ga. Code Ann. § 42-1-15 applies to everyone on the registry without exception. There is no procedure to apply for a hardship exemption based on illness, advanced age, financial hardship, or disability.
88. Ga. Code Ann. § 42-1-15 has had a profound effect on the elderly and disabled people who must immediately leave their homes if they live in a prohibited location. This is next to impossible for people like Jeff Kennedy, who is blind; William Evans, who is missing a leg, had a heart attack, and is in a wheelchair; and Herman Williams, who is 81 years old, has numerous health problems, and could not find anywhere for him and his 78-year-old wife to live.
89. The following elderly and/or severely disabled persons have faced eviction because they lived within 1,000 feet of a church in violation of the Statute: (a) Tohn Doe I: John Doe I was a resident of a nursing home in south Georgia. He had end-stage heart disease with a prognosis of six months or less to live. He was in hospice care at the time his family was informed of his imminent eviction. He died a short time later. (b) Tohn Doe II: John Doe II is a resident of a nursing home in Georgia. John Doe II is profoundly mentally and physically disabled by
31

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 32 of 57
Huntington's disease, a degenerative, neurological disease that causes mental deterioration, severe problems with balance and coordination, dementia, halting and slurred speech, and eventually, death. Mr. Doe rocks back and forth in his chair, his speech is severely impaired, and he cannot walk without assistance. John Doe II has no family to care for him.
(c) Tohn Doe III: John Doe III is a 73-year-old man with Alzheimer's disease and Parkinson's disease. Mr. Doe cannot recognize members of his own family. He lives in a nursing home in a secured unit for patients with dementia.
(d) Tohn Doe IV: John Doe IV is a 64-year-old man who resides in a nursing home in south Georgia. His test scores place him at or near the bottom of the mild range of mental retardation. He also displays signs of organic brain damage. Mr. Doe is confined to a wheelchair. His health problems require 24-hour care. Mr. Doe does not have any family to care for him, nor does he have resources to move elsewhere.
(e) Tohn Doe V: John Doe V is a 68-year-old man who resides in a nursing home in south Georgia. Mr. Doe suffered a major stroke in 2004 and has required 24-hour care since then. In addition to the stroke, Mr. Doe has frequent seizures and heart problems. Mr. Doe's family is not able to care for him.
(f) Tohn Doe VI: John Doe VI, age 82, has Alzheimer's disease. John Doe VI lives with his 77-year-old wife. Mr. Doe and his wife have been married for 61 years. As the Alzheimer's disease progresses, Mr. Doe is losing the power of speech and cannot recognize family members. Due to his weakened physical condition, he spends most of the day resting in bed. Mr. Doe requires 24-hour care and is never left alone.
(g) Tohn Doe VII: John Doe VII is 102 years old. He was released from prison a decade ago. He now lives with his family. Mr. Doe's house is within 1,000 feet of a church.
32

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 33 of 57
90. Although they pose no danger to anyone - John Doe I died shortly after he was instructed to move - the Statute requires these disabled people to move immediately from the prohibited location or face prison. In 2006, Plaintiffs' counsel obtained consent orders staying these evictions while the Court considered whether they were constitutional. Absent relief from this Court, those who are still living will be forced from their homes and nursing homes.
91. Ga. Code Ann. § 42-1-15 does not provide for individualized justice. It provides no process to distinguish between people on the registry who are dangerous to children and those who are not. The same residence restrictions apply to Plaintiff Wendy Whitaker, convicted of consensual sexual activity with a boy of like age when she was 17, and adult felons convicted of violent crimes such as rape. The Statute contains no "safety valve" provision to permit persons such as Plaintiffs Whitaker, Linaweaver, Allison, and others to appeal to a court to determine whether the residency restrictions are appropriate for them.
92. Ga. Code Ann. § 42-1-12(a)(19), the school bus stop provision, has produced mass confusion and chaos. After HB 1059 was signed by the Governor on April 24, 2006, nearly all 159 sheriffs' offices in the State made preparations for the enormous task of implementing the law. All over Georgia, law enforcement
33

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 34 of 57
officers painstakingly mapped hundreds of thousands of school bus stops; followed the routes of school buses; measured the distance between sex offenders' residences and the nearest bus stop; hired personnel to enforce this provision; diverted officers from other departments; and notified all or nearly all sex offenders in their counties that they would have to leave their homes.
93. At the preliminary injunction hearing held in this case on July 11 and 12, 2006, law enforcement officers from ten different county sheriffs' offices testified that the Statute would force all or nearly all sex offenders in their respective jurisdictions out of their homes. Sheriff Ted Paxton testified that all 60 people on the registry in Forsyth County would have to move. Investigator Russell Finley testified that in Cobb County, all but 4 of the approximately 200 people on the registry would have to move. In Bibb County, Captain David Davis testified that 222 of the 230 people on the registry would be required to move. DeKalb County officials testified that all 490 registered sex offenders in that county would have to move. Corporal Karen Pirkle testified that 277 of the 278 people on the registry and currently living in Gwinnett County would be affected by the bus stop restriction and would have to move. In Cherokee County, Sergeant Jay Baker testified that 88 of 95 people would have to move. In Houston County, Charlene Giles testified that the Sheriff's office looked at 75 of the county's 136 people on the registry, and discovered that all but 4 would have to move.
34

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 35 of 57
Newton County Lieutenant Ezell Brown estimated that 98 % of his county's 127 people on the registry would have to move. Investigator Gene Higdon of Rockdale County testified that 51 of the 52 people on the registry in his county would have to move.
94. The law enforcement officers listed above all testified that their offices intended to enforce the school bus stop provision. Sheriff Paxton, for example, stated that his office notified sex offenders about the school bus stop provision and that, had this Court not issued a temporary restraining order, on July 1, 2006, his office would have given registrants 72 hours to vacate their homes or face arrest. The Cobb County Sheriff's Office had already directed most of its 200 sex offenders, including Plaintiff Al Marks, to vacate by July 1. Corporal Stephen Lifland testified that the DeKalb County Sheriff's Office had imminent plans to "start arresting" people who violated the school bus stop provision, starting on July 3, 2006.
95. The school bus stop provision continued to cause confusion even after this Court adopted the definition of"school bus stop" urged by Defendants Perdue and Baker. Plaintiffs have been directed to move due to the school bus stop provision in counties where no "school bus stops" exist.
35

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 36 of 57
96. The school boards in at least three counties have designated school bus stops. About 400 Plaintiffs live in these counties. Absent relief from this Court, many of these people will be evicted from their homes.
97. School bus stops can change at a moment's notice depending on when children move into and out of neighborhoods, get cars of their own, or change schools. School boards can and likely will change bus stops frequently. This renders it virtually impossible for anyone on the registry to find a home. A bus stop may appear within 1,000 feet of the residence at any time.
98. School bus stops are usually unmarked. The measurements of a school bus stop are unclear; there is no way to know where a stop begins and ends so that one may measure 1,000 feet from it.
99. The school bus stop provision and other aspects of the Statute have broken families apart. Parents have had to move away from their children. People taking care of elderly parents or terminally ill spouses have been required to move.
36

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 37 of 57
100. In many cases, instead of banishing people beyond state lines, Ga. Code Ann. § 42-1-15 has simply rendered people homeless and unaccounted for within the State of Georgia. Many Plaintiffs are stuck in an impossible situation: they are subject to prosecution if they live in prohibited locations, they cannot find alternative residences, and they cannot leave the State without prior approval.
10l. The Statute has forced hundreds of Plaintiffs from their homes, but Georgia's new sex offender law also prohibits them from being "homeless." Ga. Code Ann. § 42-1-12 requires people on the registry to provide law enforcement with certain "required registration information," including their address. See Ga. Code Ann. § 42-1-12(a)(16)(B). The term"address" is defined as "the street or route address of the sexual offender's residence." See § 42-1-12(a)(1). Ga. Code Ann. § 42-1-12(a)(1) specifically states: "[hlomeless does not constitute an address." The penalty for failure to provide the required registration information - including an address that meet's the Statute's requirements - is a minimum of 10 and a maximum of 30 years in prison. See § 42-1-12(n)(1-3). A second offense carries a sentence of life imprisonment. See Ga. Code Ann. § 42-1-12(n)(1-3). Many Plaintiffs have been arrested for the status of being homeless.
37

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 38 of 57
CLASS ACTION ALLEGATIONS 102.
Plaintiffs bring this class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure on their behalf and on behalf of a class similarly situated and affected during the pendency of this lawsuit and in the future. The class is defined as all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to Ga. Code Ann. § 42-1-12.
103. The requirements of Rule 23(a) are met with respect to the class.
104. The members of this class are so numerous that their joinder is impractical. The class consists of approximately 16,000 people.
105. There are questions of law and fact common to the class, specifically whether the Statute violates rights secured by the United States Constitution. The questions of law and fact common to the class as a whole concern the constitutionality and lawfulness of the Statute. For example, there are common questions of law and fact concerning the lawfulness of each of the following matters:
38

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 39 of 57
a. whether the Statute violates u.s. Const. art I, § 10, prohibiting Ex Post
Facto laws; b. whether the Statute violates the Due Process Clause because it is vague
and overbroad; c. whether the Act violates the substantive component of the Due Process
Clause; d. whether the Statute violates the Free Exercise Clause and the right to
freedom of association; e. whether the Statute violates the Takings Clause.
106. The Statute challenged in this action applies with equal force to the named Plaintiffs and all members of the class so that the claims of the named Plaintiffs are typical of those of the class. All class members are subject to the Statute's restrictions absent the requested relief.
107. The named Plaintiffs fairly represent and adequately protect the interests of the class as a whole. Plaintiffs are persons on Georgia's sex offender registry. Plaintiffs, like others in the class, are required to abide by residence and employment restrictions and/ or to cease participation in religious activities. They possess the requisite personal interest in the subject matter of the lawsuit and possess no interests adverse to other class members.
39

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 40 of 57
108. Plaintiffs are represented by counsel experienced in civil rights class action litigation. The named Plaintiffs and the class members are represented by attorneys at the Southern Center for Human Rights, a privately funded, nonprofit organization with extensive experience in complex class action litigation. Plaintiffs' counsel have the resources, expertise, and experience to effectively prosecute this action.
109. The requirements of Fed. R. Civ. P. 23(b)(2) are met. Defendants have acted in a way generally applicable to the class the Plaintiffs represent, thereby making preliminary and permanent injunctive relief and corresponding declaratory relief appropriate for the class as a whole pursuant to Fed. R. Civ. P. 23(b) (2).
40

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 41 of 57
CLAIMS FOR RELIEfl COUNT ONE
VIOLATION OF U.S. CONST. ART I, § 10 PROHIBITING EX POST FACTO LAWS
110. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the allegations of 41411-69 and 4l4l76-109.
111. Ga. Code Ann. § 42-1-15 was enacted after the named Plaintiffs and thousands of other Plaintiffs committed their crimes, were punished, and served their sentences. The Statute applies retroactively to them.
112. The Statute was enacted with retributive and punitive legislative intent. In addition, the effect of the Statute is punitive. Ga. Code Ann. § 42-1-15 punishes Plaintiffs for crimes for which they have already been punished by forcing them to leave their homes, break their leases, and leave their families. Plaintiffs are
Plaintiffs preserve for appeal all of the claims set forth in their Second Amended Complaint that were dismissed by the Court's Order of March 30, 2007. Plaintiffs do not waive their right to appeal these claims by not including them herein.
41

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 42 of 57
retroactively required to comply with residence and employment restrictions. The Statute banishes Plaintiffs from their homes and communities.2
113. Thousands of Plaintiffs entered plea agreements to sex offenses prior to July 1, 2006. At the time these Plaintiffs entered plea agreements, Georgia's sex offender law did not include the residency and employment restrictions now imposed upon them. The changes to Georgia's sex offender residence and employment laws enacted after Plaintiffs' plea agreements were accepted violate the terms of their agreement by increasing the penalty they must serve as a result of their conviction, in violation of the Ex Post Facto Clause.3
114. The Statute is not rationally connected to a non-punitive purpose. The instability it creates is harmful to the public.
115. The portion of Ga. Code Ann. § 42-1-12 that prohibits Plaintiffs from becoming homeless is applied retroactively to Plaintiffs who were long ago
2 Plaintiffs are not raising any state constitutional claims, including, but not limited to banishment. 3 The Court has dismissed Plaintiffs' procedural Due Process claim. Plaintiffs specifically preserve for appeal the issue of whether the Statute violates the terms of Plaintiffs' plea agreements and their rights under the Due Process Clause of the United States Constitution.
42

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 43 of 57
sentenced for their crimes, in violation of the Ex Post Facto Clause. 116.
Because the Statute applies retroactively to Plaintiffs and because it was passed with the legislative intent and practical effect to further punish Plaintiffs for past crimes, the Statute violates the Ex Post Facto Clause of the United States Constitution.
COUNT TWO VIOLATION OF DUE PROCESS CLAUSE: VAGUENESS
117. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n allegations of~' 1-69 and 76-109.
118. Ga. Code Ann. § 42-1-15 is unconstitutionally vague in violation of Plaintiffs' right to due process under the Fourteenth Amendment. The lack of fair notice of what the Statute requires is particularly problematic given that those charged with violating it are subject to 10-30 years in prison.
119. A legislative enactment is impermissibly vague if it either "fail[s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits" or "authorize[s] and even encouragers] arbitrary and discriminatory enforcement." City of Chicago v. Morales, 527 U.S. 41, 56 (1999).
43

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 44 of 57
A law must provide "fair notice" of proscribed conduct so that citizens can conform their conduct to the law. Morales, 527 U.S. at 58.
120. The phrase "areas where minors congregate" in Ga. Code Ann. § 42-112(a)(3) is unconstitutionally vague. Ga. Code Ann. § 42-1-15(a) prohibits sex offenders from living, working or loitering within 1,000 feet of "areas where minors congregate." The Statute does not elaborate on what it means to "congregate" and which areas qualify under this section as a prohibited zone. "Areas where minors congregate" could refer, for example, to movie theaters, restaurants, malls, parking lots, or any of the other numerous places where minors are present. Furthermore, the Statute is unclear about the regularity or the length of resting time that would constitute a "congregation." This provision can and has resulted in arbitrary enforcement - with law enforcement officials in one county interpreting the phrase differently than officials in other counties.
121. Ga. Code Ann. § 42-1-15(a) is unconstitutionally vague because it does not provide fair warning of prohibited conduct such that Plaintiffs could take steps to comply with the law. Ga. Code Ann. § 42-1-15(a) prohibits individuals on the registry from living within 1,000 feet of school bus stops, churches, and numerous other locations. The Statute, however, lacks a mens rea requirement. Consequently, the moment a church opens or a bus stop is moved near a
44

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 45 of 57
Plaintiff's home, the Plaintiff is in violation of the law, even if he is not aware of it. The Statute does not require that any notice be provided to a sex offender who is in violation of the Statute's requirements and does not provide any time period within which that person can relocate to a new residence. The moment the prohibited location comes into being, the crime is complete, and the Plaintiff is subject to 10-30 years imprisonment. Ga. Code Ann. § 42-1-15 fails to provide fair warning of prohibited conduct so that individuals can conform their conduct to the law.
122. The phrase "school bus stop as designated by local school boards" in Ga. Code. Ann. § 42-1-12(a)(19) is unconstitutionally vague - so much so that nearly every sheriff's department in the State apparently misinterpreted its meaning. The phrase produced such mass confusion that Georgia sheriffs mistakenly evicted hundreds of people and came within 48 hours of mistakenly forcing thousands more from their homes. It is still unclear what school boards must do to "designate" bus stops.
123. Aside from the matter of "designation," the school bus stop provision of Code Ann. § 42-1-15(a) is vague in that it does not provide Plaintiffs with reasonable notice of what conduct is prohibited. There are thousands of school bus stops in the counties that have designated them. These bus stops are usually
45

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 46 of 57
unmarked and impossible to identify. Plaintiffs do not have access to bus stop lists. Unlike a school or daycare center, bus stops have no set "boundaries," making it impossible to measure 1,000 feet from each one. Moreover, bus stops are a moving target. School bus stops are inherently transient and may be designated by local school boards at any time, significantly limiting the permanency of residences that can be established by Plaintiffs and impairing their ability to form relationships in their chosen communities.
124. The prohibition against loitering within 1,000 feet of a church, school, or any area where minors congregate is unconstitutionally vague. See Ga. Code. Ann. 42-1-15(a).
125. The prohibition against employment at a church is unconstitutionally vague. The prohibition against volunteering at a church is unconstitutionally vague. These prohibitions are being interpreted in many jurisdictions to bar Plaintiffs from singing in church choirs, working in soup kitchens, or volunteering for church activities.
126. Ga. Code Ann. § 42-1-12(a)(l) is unconstitutionally vague. This code section requires all Plaintiffs to register an "address," upon penalty of 10-30 years in prison. The code section further specifies that "homeless" is not an "address."
46

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 47 of 57
In some counties, Plaintiffs are being arrested for being homeless under this subsection, while in other counties, homeless persons are permitted to give a temporary location. Ga. Code Ann. § 42-1-12(a) is being enforced in an arbitrary and irregular fashion and must be struck down as unconstitutionally vague.
COUNT THREE VIOLATION OF DUE PROCESS:
OVERBREADTH 127.
Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n allegations of 1-69 and ~~ 75-109.
128. Ga. Code Ann. § 42-1-15(a) and Ga. Code Ann. § 42-1-12 violate the Due Process Clause of the Fourteenth Amendment because they are impermissibly overbroad. Under the overbreadth doctrine, a statute that prohibits a substantial amount of constitutionally protected conduct is invalid on its face. See United States v. Williams, 444 F.3d 1286, 1296 (11th Cir. 2006).
129. The residence, employment, volunteering, and loitering restrictions in the Statute interfere with constitutionally protected conduct such as working, going to church and living with one's family.
47

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 48 of 57
130. The Statute's residency restrictions are overbroad. While the Statute's residency restrictions may be justified if targeted to certain offenders, Georgia treats every offender like the worst offender. The Statute treats individuals such as Janet Allison, convicted for not preventing her IS-year old daughter from becoming sexually active, just as it treats someone who has repeatedly assaulted children. Under the Statute, even a hospice patient with six months to live someone who poses no danger to anyone - is forced out of his nursing home if it is within 1,000 feet of a church or pool. The absence of even a procedure to apply for an exemption makes the law overbroad in its application.
131. The Statute's employment restriction is overbroad. It applies to everyone on the registry - even to people like Wendy Whitaker who is on the registry for engaging in consensual teenage sex when she was a sophomore in high school. It also applies to bar any Plaintiff from employment at any business within 1,000 feet of a church, even if the church is only in operation one day per month on a day the Plaintiff does not work. The Statute's employment restriction significantly hinders Plaintiffs' ability to earn a living - especially in urban areas. Hundreds of Plaintiffs have lost their jobs and/ or been unable to apply for jobs as a result of the Statute's employment restriction.
48

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 49 of 57
132. The Statute's prohibition against volunteering at a church is overbroad and interferes with protected activities. The prohibition on volunteering at a church is so overbroad that it turns the act of singing in the church choir, working at a church soup kitchen, or baking a pie for a church function into a felony punishable by 10-30 years in prison.
133. The Statute's prohibition against loitering within 1,000 feet of a church, school, or any area where minors congregate is overbroad. The loitering provision interferes with Plaintiffs' ability to conduct activities essential to daily living, such as grocery shopping, eating at restaurants, shopping at malls and other such activities. The prohibition against loitering within 1,000 feet of a church discourages Plaintiffs from attending church services-including weddings and funerals-and participating in other church-sponsored activities. The risk of going to prison for 10-30 years if they are thought to be "loitering" is too high a price to pay for church attendance.
134. The Statute is overbroad because it, in conjunction with Ga. Code. Ann. § 42-1-12(a)(1) and § 42-1-12(n)(1-3), makes it illegal to be homeless. Plaintiffs who become homeless twice in their lives are subject to life imprisonment.
49

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 50 of 57
COUNT FOUR VIOLATION OF SUBSTANTIVE DUE PROCESS
135. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n allegations of 1-69 and ~~ 76-109.
136. The Statute is unconstitutional because it impinges on Plaintiffs' fundamental right to family privacy - specifically the right to cohabit with or near one's family. Plaintiff Joseph Linaweaver and others have been forced to separate from family members and/or leave the State because the Statute makes it impossible to settle anywhere in Georgia with any permanence.
137. The Statute violates the right to due process because it, in conjunction with Ga. Code. Ann. § 42-1-12(a)(1) and § 42-1-12(n)(1-3) makes it illegal (and punishable by 10-30 years imprisonment) to be homeless. Plaintiffs who become homeless twice in their lives are subject to life imprisonment. See Ga. Code Ann. § 42-1-12(n)(1-3). Imprisoning a Plaintiff for 10-30 years (or for life) because he is impoverished and homeless shocks the conscience. All Plaintiffs, including named Plaintiffs are subject to this provision.
50

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 51 of 57
138. The Statute violates the right to substantive due process because it summarily evicts elderly, ill, and/or severely disabled people from their homes, nursing homes, and hospice care facilities. Many such Plaintiffs are totally physically incapacitated and pose no threat. Many have no family and nowhere else to go. Their advanced age and physical and/ or mental disabilities make it impossible for them to find alternative living arrangements. As a result, they will be put in jail, tried for violating Ga. Code Ann. § 42-1-15, and sent to prison. Forcing Alzheimer's patients and hospice patients out of their nursing homes because they live within 1,000 feet of a prohibited location serves no rational purpose and shocks the conscience.
139. The Statute violates the right to substantive due process because it evicts teens who have consensual sex with other teens from their homes - in some cases a decade after the "crime" occurred. Wendy Whitaker poses no danger to anyone. There is no rational basis to evict her from her home and community eleven years after she engaged in consensual sex with a high school classmate. The same is true for Joseph Linaweaver and other Plaintiffs.
51

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 52 of 57
140. By forcing Plaintiffs from their homes and jobs, the Statute violates Plaintiffs' right to substantive due process of law under the Fourteenth Amendment to the Constitution of the United States, U.s. Const. amend. XIV, § 1, as applied to the states and enforced through 42 U.s.c. § 1983.
COUNT FIVE VIOLATION OF FREE EXERCISE CLAUSE AND RIGHT TO FREEDOM OF ASSOCIATION
141. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n allegations of 1-69 and 1'1176-109.
142. The Statute prohibits all people on the registry from working at or volunteering at a church. This includes Lori Collins, who was unable to apply for a job opening in the media ministry at Mt. Paran Church of God because she is on the sex offender registry. Ms. Collins is a committed Christian who seeks to devote her life to Christian ministry. Ms. Collins would like to seek employment at this church or another church to minister to persons in need of spiritual guidance, but she cannot do so because of the Statute. Ms. Collins and others like Plaintiff Omar Howard would like to continue their volunteer work at church, but cannot do so under the Statute. The Statute operates as a substantial burden
52

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 53 of 57
on the religious beliefs and practices of Ms. Collins, Mr. Howard, and others on the registry.
143. The Statute creates an impermissible chilling effect on the right to attend a house of worship. The penalty for loitering at or within 1,000 feet of a church is a minimum of 10 years and a maximum of 30 years in prison. Many Plaintiffs, including Wendy Whitaker, have ceased attending church services and/or engaging in religious activities because of fear of prosecution under the Statute. The Statute violates the Free Exercise Clause, U.s. Const. amend. I, and the right to freedom of association, see U.s. Const. amend. I.
COUNT SIX VIOLATION OF TAKINGS CLAUSE
144. Plaintiffs incorporate herein and re-allege, as if fully set forth herein, the
n allegations of~' 1-69, 76-109.
145. The Takings Clause prohibits the regulatory taking of a person's property without just and adequate compensation. Homeowners like Wendy Whitaker have a significant property interest protected by the Takings Clause, as recognized by the Georgia Supreme Court in Mann v. Dep't of Corrections.
53

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 54 of 57
146. Leaseholds and tenancies can also constitute property interests protected by the Takings Clause. Plaintiffs Janet Allison and Lori Collins rent their homes.
147. Many Plaintiffs who entered into a valid lease to pay rent for a residence have been forced to leave their residence under the Statute. Additionally, under the Statute, such persons are subject to immediate eviction should a church, child care center, park (or other location) move in within 1,000 feet of the person's residence. As a result, Plaintiffs face the possibility of being repeatedly uprooted and forced to abandon homes to comply with the restrictions of Ga. Code Ann. § 42-1-15. There is no place in Georgia where a sex offender can rent property without being continually at risk of being ejected.
148. The number of plaintiff-lessees with protected property interests is likely to be in the thousands. Yet the exact number - be it 100, 1,000, 2,000, or more - is not relevant to the Takings Clause inquiry. If the Statute is unconstitutional under the Takings Clause with regard to one renter who has expended funds on his residence, then it is unconstitutional with regard to all of them.
54

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 55 of 57
149. The Statute impairs the use of rented property as a residence and effectively evicts renters from their homes. By requiring Plaintiffs to break their leases and/or abandon their interest in property, the Statute violates the Fifth Amendment's prohibition on takings without just compensation, U.S. Const. amend. V, as applied to the states and enforced through 42 U.s.c. § 1983.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Assume jurisdiction over this action; 2. Determine by Order pursuant to Rule 23 of the Federal Rules of Civil
Procedure that this action be maintained as a class action with plaintiff and defendant classes; 3. Enter a preliminary and thereafter a permanent injunction enjoining the portions of Ga. Code Ann. § 42-1-15 that violate the rights of Plaintiffs and the class they represent; 4. Enter a preliminary and thereafter a permanent injunction enjoining the provisions of Ga. Code Ann. § 42-1-12 that make it illegal to be homeless; 5. Declare that the Statute is vague and overbroad in violation of the Due Process Clause;
55

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 56 of 57
6. Declare that the Statute violates: the Ex Post Facto Clause; the
substantive component of the Due Process Clause and the right to
family privacy; the Takings Clause; the Free Exercise Clause and the
right to freedom of association.
7. Enter judgment in favor of Plaintiffs;
8. Award Plaintiffs the costs of this lawsuit and reasonable attorneys'
fees pursuant to 42 U.s.c. § 1988; and
9. Order such other and further relief as this Court may deem just and
proper.
Respectfully submitted this 14th day of October, 2008.
SOUTHERN CENTER FOR HUMAN RIGHTS
sl Sarah Geraghty
Stephen B. Bright (Ga. Bar No. 082075) Lisa Kung (Ga. Bar No. 430302) Sarah Geraghty (Ga. Bar No. 291393) Gerald R. Weber (Georgia Bar No. 744878) 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Tel: (404) 688-1202 Fax: (404) 688-9440 sbright@schr.org lkung@schr.org sgeraghty@schr.org gweber@schr.org
56

Case 4:06-cv-00140-CC Document 196 Filed 10/14/08 Page 57 of 57
CERTIFICATE OF SERVICE
I hereby certify that I have this day served the foregoing Fourth Amended Complaint upon all Defendants by causing a true and correct copy thereof to be delivered by the Court's ECF filing system to Defendants' counsel of record at the following addresses:
Ms. Devon Orland Mr. Joseph Drolet Office of the Attorney General 40 Capitol Square Atlanta, GA 30334
Mr. David E. Hudson Hull, Towill, Norman, Barrett & Salley, PC P.O. Box 1564 Augusta, GA 30903-1564
This 14th day of October, 2008.
s/Sarah Geraghty Sarah Geraghty (Ga. Bar No. 291393) Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Tel: (404) 688-1202 Fax: (404) 688-9440
Attorney for the Plaintiffs

 
 Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

WENDY WHITAKER, et al., Plaintiffs,
vs. SONNY PERDUE, et al.,
Defendants.

: : : : CIVIL ACTION NO. : : 4:06-CV-0140-CC : : :

ORDER This matter is presently before the Court on Defendants Perdue, Baker and Dean’s Motion to Decertify [Doc. No. 181], Plaintiffs’ Motion for Preliminary Injunction to Stop the State of Georgia from Criminalizing Protected Religious Activity [Doc. No. 186], and Defendants Perdue, Baker and Dean’s Motion to Dismiss Plaintiffs’ Claims for Alleged Taking of Property [Doc. No. 199]. The Court considers each motion below. I. MOTION TO DECERTIFY The class as currently certified in this action consists of all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-12. This Court heard oral argument on Defendants Perdue, Baker and Dean’s Motion to Decertify on November 13, 2008. After hearing oral argument on the motion to decertify, the Court determined that, in light of the changes to O.C.G.A. § 42-1-15 described more fully in the Court’s September 30, 2008 Order, Plaintiffs had failed to meet their burden of establishing that the currently-defined class satisfies the requirements of Federal Rule of Civil Procedure 23. The Court instructed the parties to submit briefing on whether

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 2 of 39
subclasses should be certified, and this briefing is now completed.1 The issue of class certification, therefore, is ripe for review.
A. APPLICABLE LAW AND PROPOSED SUBCLASSES Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. An action may be maintained as a class action if all four subsections of Rule 23(a) and at least one subsection of Rule 23(b) are satisfied. See Fed. R. Civ. P. 23. The Court must also determine that the proposed class representatives have standing to represent the class. See Mills v. Foremost Ins. Co., 511 F.3d 1300, 1307 (11th Cir. 2008); Wooden v. Board of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1287 (11th Cir. 2001). The decision whether to grant class certification is vested within the trial court’s discretion. See Murray v. Auslander, 244 F.3d 807, 810 (11th Cir. 2001). “[A] certification order is inherently tentative, and the judge remains free to modify [it] in the light of subsequent developments in the litigation, because conformance with Rule 23 is a continuing necessity.” Cooper v. Pacific Life Ins. Co., 458 F. Supp. 2d 1368 (S.D. Ga. 2006) (marks omitted) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.11, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978); Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982)). Although Defendants Perdue, Baker and Dean have brought a motion to decertify, available authority indicates that Plaintiffs bear the burden of demonstrating that the prerequisites of Rule 23 are still met. See Ellis v. Elgin Riverboat Resort, 217 F.R.D. 415, 419 (N.D. Ill. 2003) (“The party seeking class certification bears the burden of demonstrating that initial certification is appropriate . . . and likewise on a motion to decertify the class, bears the burden of
1 In response to Defendants Perdue, Baker and Dean’s motion to decertify, Plaintiffs suggested subclasses as an alternative but did not provide any details regarding the specific subclasses proposed.
- 2 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 3 of 39
producing a record demonstrating the continued propriety of maintaining the class action . . . .”) (citations omitted). In determining whether Plaintiffs have met their burden, the Court’s inquiry is limited to ascertaining whether the prerequisites of Rule 23 are satisfied. Collins v. International Dairy Queen, Inc., 168 F.R.D. 668 (M.D. Ga. 1996). As the Supreme Court held in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974), there is “nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” However, “it is appropriate to consider the merits of the case to the degree necessary to determine whether the requirements of Rule 23 will be satisfied.” Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330, 1337 (11th Cir. 2006) (citation and marks omitted). The Court may consider “both the allegations of the complaint and the supplemental evidentiary submissions of the parties.” Buford v. H&R Block, Inc., 168 F.R.D. 340, 346 (S.D. Ga. 1996) (citation omitted).
Rule 23 permits the maintenance of a class action when: (1) the class is so numerous that joinder of all its members is impracticable; (2) questions of law or fact common to the class are present; (3) the claims or defenses of the representative party are typical of the claims or defenses of the class; and (4) the representative parties will sufficiently protect the interests of the class. See Fed. R. Civ. P. 23(a). These prerequisites are commonly referred to as numerosity, commonality, typicality, and adequacy of representation.
Numerosity: Rule 23(a)(1) requires that the class be so numerous that joinder of all class members would be “impracticable.” “‘Impracticable’ does not mean ‘impossible;’ plaintiffs need only show that it would be extremely difficult or inconvenient to join all members of the class.” In re Domestic Air Transp. Antitrust
- 3 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 4 of 39
Litig., 137 F.R.D. 677, 698 (N.D. Ga. 1991). The Court may make common sense assumptions in order to support the finding of numerosity, and Plaintiffs “need not show the precise number of members in the class.” Evans v. United States Pipe and Foundry, 696 F.2d 925, 930 (11th Cir. 1983). A class of greater than forty persons has been recognized as generally adequate under Eleventh Circuit precedent. Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir. 1986). In addition to the number of class members, the Court should also consider the geographic locations of the potential class members, judicial economy, the nature of the action, and the ease of identifying potential class members and determining their addresses. Zeidman v. J. Ray McDermott & Co., 657 F.2d 1030, 1038 (5th Cir. 1981); Kreuzfeld A.G. v. Carnehammar, 138 F.R.D. 594, 599 (S.D. Fla. 1991) (citations omitted).
Commonality: Rule 23(a)(2) requires that for an action to be properly maintained as a class action, there must be questions of law or fact common to the class. The commonality requirement “is not high, requiring only that resolution of the common questions affect all or a substantial number of the class members.” Collins, 168 F.R.D. at 674. A single common question of law or fact is sufficient. In order to satisfy this requirement, the class action “must involve issues that are susceptible to class-wide proof.” Murray, 244 F.3d at 811.
Typicality: Rule 23(a)(3) requires that “the claims of the representative parties [be] typical of the claims of the class.” The typicality requirement focuses on whether named representatives’ claims have the same essential characteristics as the claims of the class at large. Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985). The typicality requirement is met when the proposed class representatives’ claims arise out of the same course of conduct and are based on the same legal theory as the claims of the other class members. Id. The United States Supreme Court has recognized that the commonality and typicality requirements tend to merge. Falcon,
- 4 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 5 of 39
457 U.S. at 157 n.13. “Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Id. “Traditionally, commonality refers to the group characteristics of the class as a whole [while] typicality refers to the individual characteristics of the named plaintiff in relation to the class.” Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000).
Adequacy of Representation: Rule 23(a)(4) has a two-fold standard: (1) the class representatives’ interest must not be antagonistic to those of the other members of the class; and (2) the class representatives’ attorneys must be qualified, experienced, and generally able to conduct the litigation. This requirement “encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003) (citation omitted).
In addition to satisfying the requirements of Rule 23(a), the proposed class must satisfy at least one of the conditions of subsection (b) of Rule 23. Rule 23(b)(2), which was previously held to be satisfied in this case, states that class certification is appropriate where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” The Court additionally previously found that Plaintiffs meet the requirements of Rule 23(b)(1)(A) because the prosecution of separate actions by the class members would create a risk of inconsistent judgments with respect to the members of the class which would establish incompatible standards of conduct for Defendants.
- 5 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 6 of 39
Plaintiffs supplemental briefing proposes the following subclasses: (1) renters; (2) people prevented from engaging in church-related employment and volunteer activity; (3) people residing in counties where school boards have designated school bus stops; (4) people who were convicted before July 1, 2006, who must comply with the residency and employment restrictions in O.C.G.A. § 42-115(b) and who do not qualify for an exemption; (5) disabled persons injured by the residency law; and (6) a general class for vagueness and overbreadth claims. The Court will consider each proposed subclass below.
B. PROPOSED SUBCLASSES AND GENERAL CLASS AND WHETHER RULE 23 IS SATISFIED 1. Renters
Plaintiffs propose the following subclass for the purposes of asserting claims under the takings clause: all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 421-12 who: (1) entered into a rental agreement for money for their residence; (2) rented a residence that, at the time of entry into the rental agreement, was in a permissible location under Georgia’s sex offender residency law; and (3) face eviction (before the expiration of the lease term) due to O.C.G.A. § 42-1-15.
Although the Court agrees with Plaintiffs’ position that Plaintiffs Allison and Collins have standing to represent a subclass of renters asserting a takings challenge, the Court finds that such a subclass fails to meet the commonality and typicality requirements of Rule 23(a). As demonstrated below in connection with the Court’s analysis of the motion to dismiss Plaintiffs’ takings claim, the as-applied takings claim raised in this case can be addressed only through ad-hoc factual determinations. For example, the length of the lease term, the uses allowed under the lease agreement (i.e., whether subleasing or use of the premises for business or
- 6 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 7 of 39
other purposes is permitted), the impact of early termination, and other information regarding the nature of the investment in the leased premises are facts that the Court likely will consider when analyzing the takings claim. The individualized fact-based inquiries required to make a determination on this claim do not support class-wide consideration or relief – that is, the claim is not susceptible to class-wide proof. See Cooper v. Southern Co., 390 F.3d 695, 713 (11th Cir. 2004) (citation omitted). Plaintiffs have failed to meet their burden of demonstrating that a subclass of renters complies with Rule 23, and the Court therefore will not certify a subclass of renters in this case.
2. Church Employment and Volunteering Plaintiffs propose the following subclass for purposes of asserting claims that the church employment and volunteering provisions of O.C.G.A. § 42-1-15 are vague, overbroad, and violate the First Amendment: all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-12 who: (1) are employed by a church or volunteer at a church; or (2) are or have been impeded from employment at a church or volunteering at church due to O.C.G.A. § 42-1-15. Plaintiffs identify Plaintiff Lori Collins as the named representative for this subclass. The Court agrees with Plaintiffs’ position that Ms. Collins has standing to represent this subclass. Ms. Collins has in the past participated without pay in certain religious activities in connection with her church (i.e., she engages in activities that could be considered “volunteering”) and she desires to continue those activities. She is a minister and would like to seek employment at a church but she is prevented from doing so by the statute. The Court next considers whether the numerosity requirement is satisfied. Plaintiffs submit that it is satisfied “because there are over 16,000 people on the sex
- 7 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 8 of 39
offender registry, many of whom participate in faith-based activities.” (Pls.’ Br. Proposing Subclasses [Doc. No. 213], p. 10.) Plaintiffs reference four declarations that were filed in connection with the motion for preliminary injunction that has been filed in this case and state that additional declarations may be submitted “[s]hould the Court wish.” (Id., p. 10 n.15.) While the Court finds that a close question is presented in this case on the issue of numerosity due to Plaintiffs’ failure to provide additional evidence regarding the number of class members, the Court ultimately concludes that, using common sense assumptions about the prevalence of faith in general society, more than forty persons on the sex offender registry fall within the proposed subclass and that, considering factors other than the actual or estimated number of prospective class members, joinder of all class members would be impracticable.
The Court next considers the related concepts of commonality and typicality. The Court finds that these requirements are satisfied because common questions of law relating to the asserted violations of the First Amendment, vagueness, and overbreadth are present in this case. In order to address these claims, the Court must answer and evaluate common legal questions. For example, to determine if the challenged provision is unconstitutionally vague, the Court must examine the provision to determine if it fails to provide adequate notice of prohibited conduct and whether it authorizes or encourages discriminatory enforcement. Each challenge is a facial challenge to the statute. Individualized factual inquiry is not required here – these issues are susceptible to class-wide proof. Moreover, the claims of Ms. Collins are typical of the class claims in that the claims arise out of the same course of conduct and are based on the same legal theory as the class claims. She possesses the same interest (her interest in working in a church and/or participating in unpaid activities there) as other members of the class and she suffers
- 8 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 9 of 39
the same injury (in that she is unable to participate or has determined that she should cease to participate in these activities as a result of the statute). Ms. Collins will fairly and adequately represent the interests of the class members. As to the final prerequisite, the Court finds that there is no conflict between Ms. Collins’ interests and those of the class and that Plaintiffs’ attorneys are qualified, experienced, and generally able to conduct the litigation in this case.
The Court next evaluates whether the proposed subclass satisfies Rule 23(b). The Court finds that Rule 23(b)(2) is satisfied here because final injunctive relief is an appropriate remedy for the alleged violations and the statute challenged here applies generally to all members of the class. Plaintiffs seek only equitable relief in this action. The Court additionally agrees with Plaintiffs’ position that a class action is the superior method of adjudicating this matter.
The Court finds that all the requirements of Rule 23 are satisfied with regard to Plaintiffs’ proposed subclass set forth in this section. The Court will certify a subclass of all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-12 who: (1) are employed by a church or volunteer at a church; or (2) are or have been impeded from employment at a church or volunteering at church due to O.C.G.A. § 42-1-15 for purposes of asserting First Amendment, vagueness, and overbreadth challenges to the statute.
3. School Bus Stops Plaintiffs propose the following subclass for purposes of asserting an ex post facto and substantive due process challenge to the residency restrictions: all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-15 who (1) reside in counties in which the school board has designated school bus stops for purposes of O.C.G.A.
- 9 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 10 of 39
§ 42-1-15; and (2) either do not own their own homes or do not fall within the homeowner exemption of O.C.G.A. § 42-1-15(f), (g), as determined by the sheriff in the county where the person is registered.
The Court first considers the standing of Ms. Whitaker and Mr. Linaweaver, the identified class representatives for this proposed subclass. Defendants Perdue, Baker and Dean submit that neither Ms. Whitaker nor Mr. Linaweaver can act as class representatives as to these claims. Defendants Perdue, Baker and Dean state that Ms. Whitaker was required to move because of her home’s proximity to a day care center, rather than to a school bus stop, and Mr. Linaweaver does not reside in a county that has designated its school bus stops. Plaintiffs contend that Ms. Whitaker resides in Columbia County and wishes to remain there and that the State of Georgia is imposing a substantial burden on Mr. Linaweaver’s ability to live in Columbia County. The Court agrees with Defendants Perdue, Baker and Dean’s position that Mr. Linaweaver cannot serve as a named representative for this proposed subclass. Mr. Linaweaver does not fall within the proposed subclass as defined by Plaintiffs. Plainly Mr. Linaweaver cannot serve as a class representative. The Court concludes, however, that Ms. Allison may properly serve as a class representative. Ms. Allison resides in Columbia County, where school bus stops have been designated by the local school board, and she currently leases a residence that falls within 1,000 feet of a school bus stop. Ms. Allison is not protected by the statutory provision applicable to homeowners because she does not own a home, and the statutory exemption for homeowners does not, by its own terms, apply to lessees. Ms. Allison is part of the proposed subclass and possesses the same interest and suffers the same injury as the other class members. See Prado-Steiman, 221 F.3d at 1279. The Court concludes that Ms. Allison has standing to represent the proposed subclass.
- 10 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 11 of 39
The Court next considers the requirements of Rule 23(a). First, as to numerosity, Plaintiffs submit that there are 385 people on the registry that currently reside in counties that have designated school bus stops. Using common sense assumptions, the Court concludes that most of those persons, or at a minimum more than forty persons, do not own a home that qualifies for an exemption under O.C.G.A. § 42-1-15. Other factors, including judicial economy, indicate that joinder of the proposed subclass members would be impracticable. The Court therefore concludes that the numerosity requirement is satisfied here.
The Court additionally finds that common questions of law are presented in connection with the ex post facto and substantive due process challenges raised by the proposed subclass. To evaluate the ex post facto challenge, the Court must determine whether the statute sets forth a civil or criminal scheme. Such a determination will not require individualized inquiry. Similarly, to conduct an analysis under substantive due process principles, the Court will consider the nature of the right impacted by the statute. The description of asserted right and the Court’s determination regarding whether it is fundamental present common questions of law. The Court additionally concludes that Ms. Allison’s claims are typical of the claims raised by the subclass. Mr. Allison currently resides within 1,000 feet of a school bus stop in a county where the local school board has designated school bus stops. She is a registered sex offender and is subject to the statute. She will fairly and adequately represent the class. As to the final prerequisite, the Court finds that there is no conflict between Ms. Allison’s interests and those of the class and that Plaintiffs’ attorneys are qualified, experienced, and generally able to conduct the litigation in this case.
The Court next evaluates whether the proposed subclass satisfies Rule 23(b). The Court finds that Rule 23(b)(2) is satisfied here because final injunctive relief is
- 11 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 12 of 39
an appropriate remedy for the alleged violations and the statute challenged here applies generally to all members of the proposed subclass. Plaintiffs seek only equitable relief in this case and a favorable decision would not only benefit the named Plaintiff but all similarly situated persons.
The Court accordingly finds that all the requirements of Rule 23 are satisfied with regard to Plaintiffs’ proposed subclass set forth in this section. The Court will certify the following subclass: all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-15 who (1) reside in counties in which the school board has designated school bus stops for purposes of O.C.G.A. § 42-1-15; and (2) either do not own their own homes or do not fall within the homeowner exemption of O.C.G.A. § 42-1-15(f), (g), as determined by the sheriff in the county where the person is registered.
4. Pre-July 1, 2006 Convictions Plaintiffs propose the following subclass for asserting an ex post facto challenge to the residency restrictions: all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-12 and who: (1) were convicted before July 1, 2006; (2) are prohibited from residing within 1,000 feet of a church, swimming pool, or school bus stop or working within 1,000 feet of a church, school, or child care center; and (3) do not qualify for the homeowner exemption or employment exemption set forth in O.C.G.A. § 42-115(f), (g) as determined by the sheriff in the county where the person is registered. Plaintiffs identify the following named Plaintiffs as class representatives: Janet Allison, Lori Collins, Joseph Linaweaver, Al Marks, Jeffery York, Dewayne Owens, and Wendy Whitaker. Defendants Perdue, Baker and Dean continue to take the position that the aforementioned named Plaintiffs cannot serve as class
- 12 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 13 of 39
representatives for this proposed subclass.2 The Court agrees with Plaintiffs’ position that the proposed class representatives have standing for the reasons stated by Plaintiffs and for the reasons stated previously by the Court in this case.
As to numerosity, Plaintiffs submit that 11,000 persons on the sex offender registry were convicted before July 1, 2006. Plaintiffs submit that more than 40 out of those 11,000 persons do not own their own homes. The Court, applying common sense assumptions, concludes that the numerosity prerequisite is satisfied here. As to commonality and typicality, the Court also concludes that these prerequisites are met. Evaluation of the ex post facto challenge brought by this subclass will require the Court to make determinations regarding the civil or criminal character of the residency restrictions and whether the statute is punitive. These inquiries are not individualized. The Court additionally finds that the named Plaintiffs’ claims are typical of those of the proposed subclass. The named Plaintiffs are registered sex offenders who are subject to the residency restrictions imposed by the statute challenged in this case. The named Plaintiffs’ contention that the residency restrictions impose retroactive punishment is typical of the other class members. The Court similarly finds that the requirements of adequacy of class representatives and counsel have been met here.
Finally, the Court evaluates whether the proposed subclass satisfies Rule 23(b). The Court finds that Rule 23(b)(2) is satisfied here because final injunctive relief is an appropriate remedy for the alleged violations and the statute challenged here applies generally to all members of the proposed subclass. All registered sex
2 On numerous occasions throughout this lawsuit, Defendants Perdue, Baker and Dean have taken the position that the named Plaintiffs lack standing because their residences currently comply with the statutory restrictions and because they have not been arrested, threatened with arrest, or asked to move. The Court has previously addressed this contention that the named Plaintiffs lack standing and will not do so again here.
- 13 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 14 of 39
offenders are subject to the residency restrictions. A decision enjoining the enforcement of the residency restrictions is an appropriate remedy.
The Court, having found that the requirements of Rule 23 are satisfied, will certify the following subclass: all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-12 and who: (1) were convicted before July 1, 2006; (2) are prohibited from residing within 1,000 feet of a church, swimming pool, or school bus stop or working within 1,000 feet of a church, school, or child care center; and (3) do not qualify for the homeowner exemption or employment exemption set forth in O.C.G.A. § 42-1-15(f), (g) as determined by the sheriff in the county where the person is registered.
5. Disabled Persons Plaintiffs propose the following alternative subclasses for purposes of asserting a substantive due process claim: (A) all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-12 and who: (1) have a “disability” as defined in 42 U.S.C. § 12102 (the Americans with Disabilities Act); (2) face eviction pursuant to O.C.G.A. § 42-1-15(b); and (3) do not qualify for the homeowner exemption or employment exemption set forth in O.C.G.A. § 42-1-15(f), (g) as determined by the sheriff in the county where the person is registered or (B) all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-12 and who: (1) reside in a hospice care facility, residential care facility for the elderly, nursing home, assisted living facility, or personal care home; and (2) face eviction due to O.C.G.A. § 42-1-15(b). The Court will not certify the proposed subclass because Plaintiffs admit that there is no named Plaintiff that has standing to represent the proposed subclass.
- 14 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 15 of 39
While Plaintiffs request an opportunity to amend their complaint to add such a representative, the Court finds that amendment at this late stage of the litigation is not warranted. Plaintiffs have had numerous opportunities to file amended complaints in this action. As Plaintiffs themselves note, Plaintiffs filed a motion for preliminary injunction on behalf of disabled persons on October 12, 2006. Plaintiffs do not provide any information regarding the name or circumstances of the proposed new class representative. The Court disagrees with Plaintiffs’ position that the Court is required to permit amendment pursuant to Lynch v. Baxley, 651 F.2d 387, 388 (5th Cir. July 23, 1981).3 In Lynch, following a change to the state statute that was being challenged in the case, the district court, sua sponte, dismissed the case without prejudice because there was no proof that the named Plaintiffs had standing under the revised statute. Id. The former Fifth Circuit held that the class certified by the district court had a legal status separate from that of the named Plaintiffs and that the Court should not have dismissed the case “without considering the effect of the new statute upon that class.” Id. In the instant case, the Court is not dismissing the case for lack of standing of the named Plaintiffs. The named Plaintiffs’ standing has not been impacted by an amendment to the challenged statute. Instead, there has never been a named Plaintiff in this action that has had standing to assert claims on behalf of disabled persons. The Court does not read Lynch as requiring that the Court allow Plaintiffs to file a fifth amended complaint. In addition, the Court agrees with Defendants Perdue, Baker and Dean’s position that Plaintiffs have failed to establish that this proposed subclass satisfies the numerosity requirement of Rule 23. Plaintiffs have pointed to the filing of four
3 Decisions by the former Fifth Circuit issued before October 1, 1981, are binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
- 15 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 16 of 39
declarations of registered sex offenders who are presumably disabled and submit that Plaintiffs have identified twenty-one persons who reside in nursing homes. Such numbers plainly fall short of the numerosity presumption established by the Eleventh Circuit in Cox. Plaintiffs otherwise have provided no information regarding the geographic dispersion of the members of the proposed class or any other factor that would indicate that joinder of all such persons would be impracticable. For these reasons, the Court will not certify a subclass of disabled persons in this case.
6. General Class Plaintiffs propose the following general class for the assertion of vagueness and overbreadth challenges: all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-12. The Court concludes, for the reasons stated by Plaintiffs, that the named Plaintiffs have standing with regard to this proposed general class and that it satisfies all the requirements of Rule 23. There are more than 16,000 registered sex offenders who are subject to the statutory provisions challenged in this case. Plaintiffs’ facial vagueness and overbreadth challenges will require the evaluation of common legal principles – individualized inquiries will not be required. Moreover, the named Plaintiffs claims arise from the same course of conduct (the enactment and enforcement of the statute) and rely on the same constitutional theories as the claims of other class members. The named Plaintiffs and their counsel are adequate representatives for purposes of Rule 23. Finally, injunctive relief, which is sought in this case, is the proper remedy for the alleged statutory violations, which apply to all members of the class on the same basis. For these reasons, the Court will certify the following class for the purposes of asserting
- 16 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 17 of 39
vagueness and overbreadth challenges to the statute: all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-12.
C. CONCLUSION AND CERTIFICATION In sum, the Court concludes that the motion to decertify is due to be GRANTED in part and DENIED in part. The Court hereby CERTIFIES the following class for purposes of asserting vagueness and overbreadth claims in this action: all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-12. In addition, the following subclasses are hereby CERTIFIED for the purposes of asserting the identified claims in this action: (1) For the purpose of asserting claims that the church employment and
volunteering provisions of O.C.G.A. § 42-1-15 are vague, overbroad, and violate the First Amendment: all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-12 who: (1) are employed by a church or volunteer at a church; or (2) are or have been impeded from employment at a church or volunteering at church due to O.C.G.A. § 42-1-15. (2) For the purpose of asserting an ex post facto and substantive due process challenge to the residency restrictions: all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-15 who (1) reside in counties in which the school board has designated school bus stops for purposes of O.C.G.A. § 42-1-15; and (2) either do not own their own homes or do not fall within the homeowner exemption of O.C.G.A. § 42-1-15(f), (g),
- 17 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 18 of 39
as determined by the sheriff in the county where the person is registered; and (3) For the purposes of asserting an ex post facto challenge to the residency restrictions: all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-12 and who: (1) were convicted before July 1, 2006; (2) are prohibited from residing within 1,000 feet of a church, swimming pool, or school bus stop or working within 1,000 feet of a church, school, or child care center; and (3) do not qualify for the homeowner exemption or employment exemption set forth in O.C.G.A. § 42-1-15(f), (g) as determined by the sheriff in the county where the person is registered. The Court HEREBY APPOINTS as class counsel for the class and all subclasses Gerald R. Weber, Lisa L. Kung, Sarah E. Geraghty, and Stephan Brooks Bright with the Southern Center for Human Rights. II. MOTION FOR PRELIMINARY INJUNCTION The Court held an evidentiary hearing on Plaintiffs’ motion for preliminary injunction on November 13, 2008. Having heard evidence and argument on this motion and having carefully considered the applicable law, the Court hereby enters the following findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 65: A. FINDINGS OF FACT 1. O.C.G.A. § 42-1-15(c)(1) (the “Church Volunteer/Employment Provision”) states that “[n]o individual [who is required to register as a sex offender] shall be employed by or volunteer at any . . . church[].” 2. “Church” is defined as “a place of public religious worship.” O.C.G.A.
- 18 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 19 of 39
§ 42-1-12(a)(7). 3. Violation of the Church Volunteer/Employment Provision exposes
persons on the sex offender registry to criminal prosecution and a sentence of 10 to 30 years in prison.
4. The Church Volunteer/Employment Provision fails to define the term “volunteer.” See O.C.G.A. § 42-1-12(a).
5. Webster’s Dictionary defines a “volunteer” as one who “offers himself for a service of his own free will.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 1322 (9th ed. 1983).
6. Plaintiffs have shown that many class members were ordered to stop participating in religious activities by parole officers, sheriffs’ deputies and other law enforcement personnel, while others were deterred from participating in such activities by the statute’s apparent breadth and penalty of 10 to 30 years in prison.
7. The religious activities that have been addressed include: singing in adult choir, playing piano, reading in a service, cleaning the church kitchen, serving on church committees, preparing food for the homeless, audio recording of services, adult Bible study, setting up for church events, and speaking to the congregation during services.
8. Plaintiffs have shown confusion among law enforcement officials as to the meaning of the term “volunteer:”
• On August 29, 2008, parole officer Gary Crosby sent an email to the State Board of Pardons and Paroles seeking clarification as to whether parolee James Canty could sing in his adult church choir or clean the church kitchen. Richard Oleson, Program Manager of the Board’s Field Operations Division, advised that he could not: “I believe this parolee may attend church services,
- 19 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 20 of 39
however in my opinion his activities in the choir and the kitchen are in conflict with [the Church Volunteer/Employment Provision] . . . . I would suggest the parolee be instructed to cease these activities at once.” (Email from Richard Oleson to Gary Crosby, Sept. 2, 3008 [Doc. No. 202-4, p.1].) • On July 24, 2008, an officer from the Cordele Probation Office sent an email to the Georgia Department of Corrections (“GDC”) seeking advice on whether a probationer could play a hymn during a church service. The officer observed that “the waters continue to get muddier re: volunteer status.” (Email from Jeff Ellis to Ahmed Holt, July 24, 2008 [Doc. No. 202-4, p.2].) • On August 8, 2008, an attorney at the GDC sent an email to the Office of the Attorney General entitled “what's a volunteer?” The email asked the Office of the Attorney General to “sen[d] me something that lays out the position y’all took in court on what a ‘volunteer’ is.” The sender added: “We don't want to accidentally sabotage your efforts.” (Email from Andre Castaing to Joseph Drolet, Aug. 8, 2008 [Doc. No. 202-4, p. 4].) • A September 9, 2008 email to the legal office of the Georgia GDC indicates that a county probation officer informed Robert Still that he could not attend adult Sunday school class at his church. (Email from Andre Castaing to Ahmed Holt, Sept. 9, 2008 [Doc. No. 202-4], p.5].) • At 5:50 p.m. on the evening before the hearing on Plaintiffs’ motion for preliminary injunction, the GDC informed its probation officers that Plaintiff class members can assist in
- 20 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 21 of 39
worship services and sing in church choirs. An affidavit submitted by GDC official Ahmed Holt, however, stated that, “unless clear cut,” decisions about how to interpret the statute would be made on a “case by case basis” and would be “generally fact-specific.” (Affidavit of Ahmed Holt [Doc. No. 206-3] ¶¶11, 16.) 9. Several class members presented declarations and/or testified about4 restrictions placed on religious activities by the statute and various law enforcement agencies’ interpretations of the statute: • Omar Howard was actively involved in Heartbound Ministries after being “saved” while incarcerated. In prison, he sang in the church choir and volunteered as a chaplain’s aid, assisting in communion and Bible study. Upon his release, but before July 1, 2008, Howard became involved in church activities. He was an active participant in adult church choir, and served as a lay reader and speaker at several churches where he talked about the redemptive and reformative power of Christ. Howard’s parole officer instructed Howard to stop these activities or be prosecuted. (Declaration of Omar Howard [Doc. No. 194]; Transcript of Nov. 13, 2008 Hearing (hereinafter “Tr.”) [Doc. No. 218], pp. 56-60, 62.) • Lori Collins served as an assistant to the chaplain and completed the GDC Faith and Character Program while incarcerated. She
4 At the November 13, 2008 hearing, Plaintiffs presented testimony from three registered sex offenders, Lori Collins, Andrew Norton, and Omar Howard, and the operator of a faith-based program that works with the Georgia prison system, Andrea Shelton.
- 21 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 22 of 39
is now a licensed minister and churchgoer at Mt. Paran Church of God. Because of the statute, she no longer speaks to church audiences about her faith and experience. She no longer participates in church-based revival meetings or seminars. She no longer participates in prayer vigils at the International House of Prayer, or leads the Women’s Aglow prayer group. She was unable to apply for a paid position at the media ministry of Mt. Paran Church of God. She also, as a licensed minister, is able to “give communion, handle the elements, [and] do different functions in the church.” She has stopped these activities “[b]ecause if it's against the law, then I would face ten to thirty years, and I'm not going to break the law.” (Declaration of Lori Collins [Doc. No. 186]; Tr. at pp. 5-9, 16-17, 18, 20, 22.) • Matthew Cornell served as a lay reader and helped to set up amplification at Church of Jesus Our Shepard. After the passage of SB 1, Cornell inquired at the Gwinnett County District Attorney’s Office as to the scope of the statute. An assistant district attorney told Cornell he could only “go to church, listen to the service, and leave.” (Declaration of Matthew Cornell [Doc. No. 194-3].) • Steven Lee Williams was ordered by a Polk County Probation Officer to stop singing praise and worship music in front of a church audience, to cease playing the drums in adult church band, and to refrain from staying after the worship service to talk with his pastor. (Declaration of Steven Lee Williams [Doc. No. 202-2.)
- 22 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 23 of 39
• Barry Randolph played piano and sang in adult church choir, but was told by Glynn County Sheriff’s Major Debra Thomas that it was illegal. In September 2008, he was arrested, prosecuted, and tried for violations of the Church Volunteer/Employment Provision. The indictment stated that he was working as a pianist at a church in violation of O.C.G.A. § 42-1-15. (Declaration of Barry Randolph [Doc. No. 202-3].)
• Andrew Norton is a father of two and a member of Trinity Fellowship Church in Marietta. Prior to July 1, 2008, he assisted with sound recording of praise and worship music at his church. He also helped set up church events, cleaned the church, did electrical work, and attended and volunteered for an adults-only class called “Growing Kids God's Way.” While church activities have provided a stabilizing force in his life, he must now refrain from all volunteering at his church. His probation officer specifically told him that he must stop volunteering “based on the statute.” (Declaration of Andrew Norton [Doc. No. 194]; Tr. at pp. 26-32, 36-37.)
• Donnie Boone was initially told by his parole officer that he could not attend church and remains barred from serving as an usher or pall bearer. (Declaration of Donnie Bonnie [Doc. No. 186].)
10. Plaintiffs also presented affidavits and testimony from religious leaders about the importance of religious activities to faith and the reformative impact of religious participation:
• Andrea Shelton is the President of Heartbound Ministries, an
- 23 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 24 of 39
organization that works with prison chaplains in the GDC to meet the spiritual needs of people in prison and to reduce recidivism. Her organization works with 37 state prisons, 11 transitional centers, juvenile facilities and some county facilities. Ms. Shelton, who has worked with many people on the sex offender registry, including Omar Howard, testified that the prohibition on volunteering at a church does more harm than good from a public safety perspective. She has witnessed the reformative impact that being involved in faith communities has on people on the sex offender registry. (Declaration of Andrea Shelton [Doc. No. 194-5]; Tr. at pp. 44-45, 48.) • Richard Hemphill serves as senior pastor at Trinity Fellowship Church in Marietta and is Plaintiff Andrew Norton’s pastor. He describes how church involvement can keep ex-offenders accountable and reduce recidivism. (Declaration of Richard Hemphill [Doc. No. 194].) • Charles Ohrenschall is a member of the vestry of the Church of Jesus Our Shepherd in Norcross. He explained how faith communities help to keep ex-offenders accountable and in compliance with the law. He also describes churches’ own mechanisms to protect congregations from sexual abuse. (Declaration of Charles Ohrenschall [Doc. No. 194].) • Barbara Pritchett is a minister at the Mt. Paran North Church of God in Marietta, where she leads an adult Bible study group for formerly incarcerated men and women. She states that the Statute’s ban on volunteering will hinder, rather than help,
- 24 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 25 of 39
public safety. (Declaration of Barbara Pritchett [Doc. No. 194].) • Floyd Rose is a minister at The Church at Pine Hill in Valdosta,
Georgia. He often works with people on the sex offender registry, and his church takes several precautions when doing so to ensure no contact with minors. He has “seen the life-changing power of Christ” bend formerly incarcerated persons into “productive, law abiding citizens.” (Declaration of Floyd Rose [Doc. No. 186].) 11. Defendants Perdue, Baker and Dean presented four affidavits, including affidavits from Tracy Masters, Director of Legal Services for the Board of Pardons and Paroles, and Ahmed Holt, the Manager of the Sex Offender Administration Unit for the GDC: • Mr. Masters explained that the Parole Board has special conditions for sex offenders. The Board and its staff have identified a pattern of criminality whereby offenders at an increased risk of committing a sex offense seek to place themselves in positions of trust and respected status in order to gain access to potential victims. The Board has reviewed numerous cases for executive clemency in which offenders have sought involvement in extra-curricular activities of religious organizations in an effort to develop trusting relationships among members of the church, or their children, in order to gain access to potential sexual victims. Such pattern includes volunteering for positions in religious organizations that may give the impression to other members that the offender is a trusted member of the religious organization. As a result, the
- 25 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 26 of 39
Board restricts volunteering at church or religious groups, children/youth ministries, choirs and activities as part of its inherent authority to apply conditions to parole. Mr. Masters also stated in his affidavit that a memo from Richard Oleson to Parole Officer Gary Crosby had mistakenly said that singing in the choir was restricted by the law. The activity was actually prohibited by the special parole conditions. (Affidavit of Tracy D. Masters [Doc. No. 206-2].) • Mr. Holt testified that there are currently 5,800 registered sex offenders on probation. (Doc. 206-3, 3, 8). Holt stated he is familiar with the Church Volunteer/Employment Provision and that the Sex Offender Administration Unit interprets the provision narrowly and does not read the provision as prohibiting activities at church that constitute worship, service, or any other part of the religious life of a church. According to Mr. Holt, the provision does not prohibit sex offenders on probation from participating in worship services, assisting in worship services (including singing in the choir or playing a musical instrument at a service), teaching adult Sunday School, cutting the grass at the church, raking leaves or helping clean church buildings. Mr. Holt stated that sex offenders are not permitted to engage in activities that bring them in direct contact with children. The GDC has transmitted this guidance to probation officers in the field and probation officers were instructed not to prohibit any activity at a church without first obtaining approval from the Sex Offender Administration Unit.
- 26 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 27 of 39
Mr. Holt additionally stated that the determination of whether an activity is prohibited is fact specific. To the best of Holt's knowledge, no sex offender has had probation revoked for violating the “volunteer” provision. Mr. Holt additionally addressed specific instances where parolees had been instructed to cease certain church-related activities, including Steven Lee Williams and Andrew Norton, and either stated that the parole officer’s interpretation was incorrect and has been rectified or that the instruction to cease the activities was related to a condition of parole, rather than the statutory provision. (Affidavit of Ahmed Holt [Doc. No. 206-3].) B. CONCLUSIONS OF LAW The standard for granting a preliminary injunction is well-settled. To obtain a preliminary injunction, the movant must show that “(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damages the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). The party seeking the injunction bears the burden of establishing all prerequisites by a clear showing. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). 1. Likelihood of Success on the Merits Plaintiffs have raised three constitutional challenges to the Church Volunteer/Employment Provision: (1) a free exercise clause challenge, (2) a vagueness challenge, and (3) an overbreadth challenge. The Court concludes that Plaintiffs have clearly established a substantial likelihood on the merits as to the
- 27 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 28 of 39
claim that the Church Volunteer/Employment Provision’s prohibition on volunteering is unconstitutionally vague.5
The Due Process Clause of the Fourteenth Amendment forbids the state from depriving “any person of life, liberty, or property, without due process of law.” U.S. CONST. AMEND. XIV. A basic tenant of due process is that “[all persons] are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618, 83 L.Ed. 2d 888 (1939); Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L.Ed. 2d 222 (1972). A law will be voided for vagueness if it: (1) “fail[s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits” or (2) “authorize[s] and even encourage[s] arbitrary and discriminatory enforcement.” City of Chicago v. Morales, 527 U.S. 41, 56, 119 S. Ct. 1849, 144 L.Ed. 2d 67 (1999).
The Church Volunteer/Employment Provision does not define the term “volunteer.” Cf. Karriem v. Barry, 743 F.2d 30 (D.C. Cir. 1984) (the term “volunteer” defined in statute relating to minister's access to jail). As the Court’s findings of fact demonstrate, the term has been interpreted in various ways by law enforcement officials, and several have been confused regarding its meaning. While Defendants Perdue, Baker and Dean submit that the term volunteer encompasses only employment-type situations, it is unclear even what would be included in such a definition for purposes of enforcing the statute. Would volunteering to play the piano during service be prohibited because it is possible to be employed as a
5 Having reached this conclusion, the Court need not consider the remaining claims.
- 28 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 29 of 39
pianist?6 Would volunteering in a church’s office to send mailings, answer phones, or organize files be prohibited because it is possible to be employed as an office assistant? The lack of definition of the term “volunteer” authorizes discriminatory and arbitrary enforcement, and the significant criminal penalties associated with violating the statute have led Omar Howard, Lori Collins, and other class members to forgo certain religious activities. Because the Church Volunteer/Employment Provision fails to provide fair warning to Plaintiffs or adequate guidance to law enforcement, it is substantially likely that it is unduly and unconstitutionally vague.
2. Irreparable Injury The second factor for the Court to determine is whether the Plaintiffs will suffer irreparable harm absent a preliminary injunction. The Court concludes that Plaintiffs have clearly established irreparable harm in this case. Plaintiffs have presented evidence that certain named Plaintiffs and members of the relevant subclass have ceased participating in a wide range of church-related activities that are required or encouraged by their particular religious beliefs. In a number of instances, Plaintiffs have ceased engaging in such activities because of their concern that the statute may be violated and because of the harsh penalties that will be faced if a particular activity is considered “volunteering” under the Church Volunteer/Employment Provision. There is no adequate remedy at law for this deprivation.
3. Weighing the Harm of an Injunction Granting an injunction will not substantially harm others and will preserve the status quo. Georgia has never before had a law prohibiting people on the registry from volunteering at church, and Plaintiffs assert that no other state has
6 One member of the relevant Plaintiff subclass appears to have been prosecuted for just such activity.
- 29 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 30 of 39
such a law. Moreover, sex offenders are already prohibited from loitering at or within 1,000 feet of anywhere minors congregate, and offenders on probation or parole are prohibited from any unsupervised contact with minors. The State itself has submitted evidence establishing that it imposes conditions on supervised release, where necessary for particular sex offenders, including limits on church attendance or participation. (See Affidavit of Ahmed Holt [Doc. No. 206-3].) Finally, religious institutions have other tools to protect children including background checks, escorts, and prohibitions against contact with minors. (Declaration of Reverend Floyd Rose [Doc. No. 186].) For all these reasons, Plaintiffs have clearly shown that the balance of harms weighs in their favor.
4. Public Interest Allowing Plaintiffs to continue to participate in their faith communities will further public safety by providing support, stability, and a grounded sense of right and wrong. Both the Board of Pardons and Paroles and the GDC recognize that encouraging people to be involved with faith-based programs will reduce recidivism. The Board of Pardons and Paroles and GDC started a Faith Based Community Initiative that partners churches with offenders to reduce recidivism. Criminological research identifies social support, stability, and employment as factors that decrease recidivism. See Kruttschnitt, Uggen, & Shelton, Predictors of Desistance Among Sex Offenders, JUSTICE QUARTERLY 17:61-87 (2000) (sex offenders with stable employment and social relationships have lower recidivism rates); COLORADO DEP’T OF PUBLIC SAFETY, REPORT ON SAFETY ISSUES RAISED BY LIVING ARRANGEMENTS FOR AND LOCATION OF SEX OFFENDERS IN THE COMMUNITY 4 (2004) (sex offenders with positive support systems are less likely to re-offend and violate probation). Plaintiffs have also presented evidence from several ministers and others who work with sex offenders who testified about the reformative powers of
- 30 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 31 of 39
faith and volunteering in faith communities. A preliminary injunction here is in the public interest.
C. SUMMARY For the reasons stated above, the Court GRANTS the motion for preliminary injunction. All Defendants in this action are hereby RESTRAINED AND ENJOINED from enforcing O.C.G.A. § 42-1-15(c)(1) to the extent that it restricts registered sex offenders from engaging in volunteer activities at churches. III. MOTION TO DISMISS On September 30, 2008, this Court granted Plaintiffs’ request for reconsideration of this Court’s dismissal of the takings claims asserted in this action on behalf of renters. Plaintiffs filed an amended complaint asserting such claims, and Defendants Perdue, Baker, and Dean filed a motion to dismiss the takings claim on the grounds that Plaintiffs lack standing to assert such a claim and, even if Plaintiffs have standing, the alleged violation of the Takings Clause fails to state a claim for relief. This Court disagrees. A. Standard of Review Federal Rule of Civil Procedure 12(b)(1) provides that a defendant may move for dismissal on the grounds that a court lacks subject matter jurisdiction. Rule 12(b)(1) motions may involve facial or factual attacks on a court’s subject matter jurisdiction. The Eleventh Circuit summarized the court’s inquiry when, as here, a standing challenge is raised in a motion to dismiss: When standing is questioned at the pleading stage . . . general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. We accept as true all material allegations contained in the complaint and construe the complaint in a light most favorable to the complaining party. Moreover, in the context of a Rule 12(b)(1) challenge to standing, we are obligated to consider not only the pleadings, but to examine the record as a whole to determine whether we are empowered to adjudicate the matter at hand.
- 31 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 32 of 39
Elend v. Basham, 471 F.3d 1199, 1208 (11th Cir. 2006) (citation and internal marks omitted).
Pursuant to Rule 12(b)(6), a defendant may also seek to dismiss a complaint for failure to state a claim upon which relief can be granted. While detailed factual allegations are not required in order to withstand a motion to dismiss under Rule 12(b)(6), “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S. Ct. 1955, 1964-65, 167 L.Ed 2d 929 (May 21, 2007).7 The complaint must allege facts sufficient “to raise a right to relief above the speculative level.” Id. at 1965. “In evaluating such a motion, [the court] accept[s] the factual allegations in the complaint as true and . . . construe[s] them in the light most favorable to the plaintiff.” 75 Acres, L.L.C. v. Miami-Dade County, 338 F.3d 1288, 1293 (11th Cir. 2003) (citing Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003)). The Court evaluates the plausibility of the grounds pleaded in support of the claims for relief, rather than either their possibility or probability. See Twombly, 127 S.Ct. at 1965, 1966.
A court evaluating a Rule 12(b)(6) motion may not consider matters outside the pleadings unless the court treats the motion to dismiss as a motion for summary judgment under Federal Rule of Civil Procedure 56 and gives all parties “reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”
7 In Twombly, the United States Supreme Court rejected the frequently-quoted “no set of facts” language from Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957) (stating that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”), explaining that “[t]he phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Twombly, 127 S.Ct. at 1969.
- 32 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 33 of 39
Fed. R. Civ. P. 12(b); see also Moss v. W & A Cleaners, 111 F. Supp.2d 1181, 1185 (M.D. Ala. 2000). The court may, however, consider documents attached to the complaint and documents referenced in the complaint that are central to the plaintiff’s claims. See Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 F.3d 1364 (11th Cir. 1997).
B. Analysis 1. Standing
Defendants Perdue, Baker and Dean contend that the only named Plaintiffs that are alleged to rent their homes pursuant to a written lease – Janet Allison and Lori Collins – have not been required to break leases and do not currently live in a residence that violates the residency restrictions. Defendants Perdue, Baker and Dean argue that Ms. Allison and Ms. Collins’ property interests have not been taken because their current residences comply with the statute.
The standard that this Court uses to evaluate whether Plaintiffs have standing is well-settled. As stated by the Eleventh Circuit,
First, the plaintiff must have suffered an “injury in fact” - an invasion of a legally protected interest which is (a) concrete and particularized and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Doe v. Pryor, 344 F.3d 1282, 1285 (11th Cir. 2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 550, 560-61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992) (citations, footnote, and some internal marks omitted)). Importantly, as previously noted, insofar as the instant case is before the Court on a motion to dismiss, “general factual allegations of injury resulting from the defendant’s conduct may suffice,” and the Court “presume[s] that general allegations embrace those specific facts that
- 33 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 34 of 39
are necessary to support the claim.” Id. (citation and internal marks omitted). The Court “may consider affidavits and other factual materials in the record.” Nat’l Ass’n of State Utility Consumer Advocates v. Federal Communications, 457 F.3d 1238, 1251 (11th Cir. 2006). The Court does not consider Plaintiffs’ likelihood of success on the merits when evaluating standing. Warth v. Seldon, 422 U.S. 490, 500, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975).
Plaintiffs argue that the injury in fact requirement of standing is satisfied because Ms. Collins and Ms. Allison will be evicted when a school bus stop, church, child care center, or other restricted location moves within 1,000 feet of their residence. The Fourth Amended Complaint alleges that if the relevant local school boards designate bus stops, Ms. Allison and Ms. Collins will be unable to continue to reside in their current residences. (Fourth Am. Compl. ¶¶35, 67.) It further alleges that Plaintiffs Allison and Collins will be required to move if a child care center, swimming pool, or other prohibited location moves within 1,000 feet of their homes. (Id.)
The Court concludes that Plaintiffs’ allegation that Ms. Allison and Ms. Collins currently reside within 1,000 feet of where a school bus stops to pick up children is sufficient to satisfy the injury in fact requirement.8 As recognized previously in this case, the Orders of this Court have effectively halted the enforcement of the school bus stop provision and the designation of school bus stops by local school boards. If these Orders were not entered and if this Court’s intent to restrain the enforcement of the school bus stop provision during the pendency of this case was unclear or absent, there is a substantial likelihood that the local school
8 Ms. Allison apparently lives in Columbia County, where school bus stops have already been designated by the local school board; however, the enforcement of the school bus stop provision has been halted by reason of an Order entered in this case.
- 34 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 35 of 39
boards would have immediately designated school bus stops. Plaintiffs’ injury, therefore, is not merely hypothetical. Plaintiffs Allison and Collins are in imminent danger of suffering an actual injury occasioned by the enforcement of the school bus stop provision. These injuries are caused by the operation of the Act, and an injunction barring the enforcement of the Act would provide a remedy to Plaintiffs. The Court therefore concludes that Plaintiffs Allison and Collins have standing to raise an as-applied takings challenge in this case.9
2. Failure to State a Claim Defendants Perdue, Baker and Dean take the position that the residency restrictions do not violate the takings clause as a matter of law because Plaintiffs Allison and Collins are not denied all economically beneficial use of their leaseholds. Defendants Perdue, Baker and Dean concede that leaseholders, including tenants at will, have a protected property interest under Georgia law. See Ammons v. Central of Georgia Railway Co., 215 Ga. 758, 113 S.E.2d 438 (1960); Waters v. DeKalb County, 208 Ga. 741, 69 S.E.2d 274 (1952). The Supreme Court recognized that a regulatory taking could violate the Fifth Amendment in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S. Ct. 158, 67 L. Ed. 322 (1922) (noting that “if regulation goes too far, it will be recognized as a taking”). The Court has not provided specific guidance for determining when a regulation “goes too far,” instead relying on “essentially ad hoc, factual inquiries.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S. Ct. 2886, 120 L.
9 Plaintiffs do not appear to assert a facial takings challenge here. Indeed, such a challenge would not likely be successful. See Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 495, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987) (describing facial takings challenges as presenting the question of whether the mere enactment of the challenged statute constitutes a taking and characterizing a facial takings challenge as “an uphill battle”).
- 35 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 36 of 39
Ed. 2d 798 (1992) (quoting Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed. 2d 631(1978)). Certainly, where a regulation “denies all economically beneficial or productive use of land,” a categorical finding that the land has been taken is appropriate. Lucas, 505 U.S. at 1015. Where, as here, no per se rule applies, the Court must engage in a factual inquiry, as described in Penn Central. The Court examines “[t]he economic impact of the regulation on the claimant,” “the extent to which the regulation has interfered with distinct investment-backed expectations,” and “the character of the governmental action.” Penn Central, 438 U.S. at 124. “A ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by the government . . . than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Id.
The Court first considers the economic impact of the residency restriction. Plaintiffs Allison and Collins submit that the economic impact is substantial because their residences were rented with the primary purpose of serving as homes and that as soon as a prohibited location moves within 1,000 feet of the leased residences, Plaintiffs Allison and Collins must move and bear certain costs associated therewith. Plaintiffs attached copies of Plaintiffs Allison and Collin’s leases to their response to the motion to dismiss. Ordinarily, the Court considers only the complaint and the attached documents when ruling on a motion to dismiss. However, an exception is recognized where “a plaintiff refers to a document in its complaint, the document is central to its claim, its contents are not in dispute, and the defendant attaches the document to its motion to dismiss.” Financial Security Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007) (citations omitted); see also Pedraza v. CocaCola Co., 456 F. Supp. 2d 1262, 1264-64 (N.D. Ga. 2006) (“The Court may also reference documents attached to a motion to dismiss, and responses thereto, but
- 36 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 37 of 39
only where the attached document is central to the plaintiff’s claim and is undisputed in the sense that the authenticity of the document is not challenged.”) (citation and marks omitted). Defendants Perdue, Dean, and Baker do not appear to challenge the authenticity of the leases filed by Plaintiffs. The Court accordingly has considered the leases of Plaintiffs Allison and Collins in ruling on the motion to dismiss.
Plaintiff Collins’ lease is for a five-year term. The lease provides that the premises “shall be used and occupied by Lessee exclusively as a private single family residence, and neither the premises nor any part thereof shall be used at any time during the term of this lease by Lessee for the purpose of carrying on any business, profession, or trade of any kind.” (Residential Lease [Doc. No. 207-2], p.1.) The lease additionally prohibits assignment or subletting without the prior written consent of the lessor. (Id., p. 2.) If Ms. Collins abandons the premise, the lease provides that the lessor may re-let the premises and hold Ms. Collins liable for any difference between the rent that she would have been responsible for paying during the term of the lease and the rent realized by the re-leasing of the premises. (Id., pp. 3-4.) Ms. Allison’s lease appears to be month-to-month. (Lease Agreement [Doc. No. 207-3], p. 1.) It provides that she may not sublease the premises without written permission from the owner. (Id.) Based on the restrictions in the reviewed lease agreements, the Court cannot conclude that Plaintiffs Allison and Collins’ position regarding the substantial economic impact of the residency restriction is implausible. Plaintiffs Collins and Allison are not able to sublease their residences without consent of their lessors. Ms. Collins’ lease is for a five-year term, and she is prohibited from using the premises for anything other than a single family residence. Although Ms. Allison’s lease is month to month and there is no prohibition on her using the premises for business or other purposes, the Court
- 37 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 38 of 39
cannot conclude at this stage of the litigation that the economic impact of having to vacate the premises would be insubstantial.
The Court next considers the extent to which the residency restrictions interfere with Plaintiffs Allison and Collins’ distinct investment-backed expectations. Plaintiffs Allison and Collins doubtlessly entered into the discussed lease agreements with the intention of occupying the premises as residences. Plaintiffs expected that they would be able to reside on the leased premises. The Supreme Court has recognized that “where an owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking, because the aggregate must be viewed in its entirety.” Andrus v. Allard, 444 U.S. 51, 65-66, 100 S. Ct. 318, 62 L. Ed. 2d 210 (1979). A leaseholder does not, however, possess a full bundle of property rights. As Defendants Perdue, Baker and Dean admit, a lease is a limited property right. Plaintiffs Allison and Collins’ investment in their leased property is not an investment that remains or retains value if Plaintiffs Allison and Collins can no longer live in the leased property, unlike a homeowner’s investment. The Court accordingly finds that Plaintiffs’ position that the residency restrictions interfere significantly with their investment-backed expectations is not implausible.
Finally, the Court considers the nature of the state’s action. This consideration is “critical in determining whether a taking has occurred.” Vesta Fire Ins. Corp. v. State of Florida, 141 F.3d 1427, 1433 (11th Cir. 1998). The Court concludes, consistent with its earlier ruling, that the State of Georgia’s interest in preventing sexual abuse is strong and that the purpose of the residency restrictions is to limit contact between registered sex offenders and children. This factor weighs strongly against the finding of a taking in this case.
Having conducted the requisite ad-hoc factual inquiry, the Court concludes
- 38 -

Case 4:06-cv-00140-CC Document 223 Filed 03/30/09 Page 39 of 39
that two of the Penn Central factors could plausibly support Plaintiffs’ takings claim while the third and final factor strongly indicates that Plaintiffs’ takings claim may not succeed. Under these circumstances, the Court cannot say that Plaintiffs have failed to state a claim under Rule 12(b)(6). The Court therefore DENIES the motion to dismiss. IV. CONCLUSION
In sum, the Court GRANTS in part and DENIES in part Defendants Perdue, Baker and Dean’s Motion to Decertify [Doc. No. 181], GRANTS Plaintiffs’ Motion for Preliminary Injunction to Stop the State of Georgia from Criminalizing Protected Religious Activity [Doc. No. 186], and DENIES Defendants Perdue, Baker and Dean’s Motion to Dismiss Plaintiffs’ Claims for Alleged Taking of Property [Doc. No. 199].
The discovery period in this matter is reopened for a period of ninety (90) days from the date of this Order. At the conclusion of the discovery period, the Court will entertain motions for summary judgment filed in accordance with the Local Rules of this Court.
SO ORDERED this 30th day of March, 2009. s/ CLARENCE COOPER CLARENCE COOPER UNITED STATES DISTRICT JUDGE
- 39 -

 
 Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 1 of 68

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

WENDY WHITAKER, et al.

:

:

Plaintiffs,

:

:

v.

:

:

SONNY PERDUE, et al.,

:

:

Defendants.

:

:

CIVIL ACTION NO. 4:06-CV-140-CC

DEFENDANTS PERDUE, BAKER AND DEAN’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Come now Defendants Sonny Perdue, Governor of Georgia; Thurbert E. Baker, Attorney General of Georgia; and Scot Dean, Probation Officer with the Georgia Department of Corrections; by counsel, the Attorney General of the State of Georgia, and pursuant to LR 56.1, file this Brief in Support of Motion for Summary Judgment. (See doc-259, Order permitting excess pages).

I. Statement of the Case Plaintiffs filed this action on June 20, 2006, complaining that the enactment of changes in O.C.G.A. § 42-1-15 and O.C.G.A. § 42-1-12 contained in House Bill

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 2 of 68
1059, Georgia’s sex offender statute, would cause “catastrophic” results for sex offenders in Georgia. (doc 1, 2). The Complaint alleged that the residence requirements in Georgia’s sex offender law were too restrictive, that “Plaintiffs cannot find anywhere to live” and that “hundreds, if not thousands, of people on the registry will lose their jobs.” (doc 1, 2,4). The complaint alleged that “[t]he Act banishes Plaintiffs from their homes and communities.” (doc 1, 34).
This case has had a long history, with the addition of some claims and the elimination of others, with changes in the law, with altered definitions of classes, and with a variety of motions with varied results. The remaining issues before the Court are as follows:
A. Whether enactment of O.C.G.A. § 42-1-15 violates the Constitutional provision against Ex Post Facto laws.
B. Whether portions of O.C.G.A. § 42-1-15 are vague and overbroad. C. Whether provisions of O.C.G.A. § 42-1-15 violate First Amendment religious rights. D. Whether the “school bus stop” provision of O.C.G.A. § 42-1-15 violates substantive due process. The Court has defined the following classes for assertion of these rights: 1. A class of sex offenders who are employed or volunteer at a church or
2

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 3 of 68
are impeded from such activities. The issues as to this class are issues B and C above.
2. A class of sex offenders who are not otherwise exempted and live in a county that has designated school bus stops for purposes of O.C.G.A. § 42-1-15. The issues as to this class are issues A and D above.
3. A class of sex offenders who are not otherwise exempted and who were convicted prior to July 1, 2006. The issue as to this class is issue A.
4. A class of all sex offenders as to issue B. (doc 223, 17-18). There appears to be a remaining individual claim for Plaintiffs Lori Collins and Janet Allison on the issue of whether there is an unconstitutional “taking” of their leasehold property as O.C.G.A. § 42-1-15 is applied to those two individual Plaintiffs. The Court did not certify a subclass of renters nor did the Court certify a subclass of disabled persons. (doc 223, 7, 16, 35-39). Defendants now submit the instant brief in support of their motion for summary judgment. There are no disputes on material issues and as such, Defendants are entitled to summary judgment.
3

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 4 of 68
II. Statement of Facts
Plaintiffs allege that a portion of the Residency Statute is unconstitutional.
The statute in question, as amended through 2009, reads, in relevant part, as
follows:
O.C.G.A. § 42-1-15.
(b) No individual1 shall reside within 1,000 feet of any child care facility, church, school, or area where minors congregate.2 Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the outer boundary of the property of the child care facility, church, school, or area where minors congregate at their closest points.
(c)(1) No individual shall be employed by or volunteer at any child care facility, school, or church or by or at any business or entity that is located within 1,000 feet of a child care facility, a school, or a church. Such distance shall be determined by measuring from the outer boundary of the property of the location at which such individual is employed or volunteers to the outer boundary of the child care facility, school, or church at their closest points. (2) No individual who is a sexually dangerous predator shall be employed by or volunteer at any business or entity that is located within 1,000 feet of an area where minors congregate. Such distance shall be determined by measuring from the outer boundary of the property of the location at which the sexually dangerous predator is employed or volunteers to the outer
1 “Individual” means a person who is required to register pursuant to Code Section 42-1-12. O.C.G.A. § 42-1-15(a)(1). 2 “ ‘Area where minors congregate’ shall include all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, public libraries, and public and community swimming pools.” O.C.G.A. § 42-1-12(a)(3). A school bus stop is defined as that which is designated by local school boards of education or by a private school. O.C.G.A. § 42-1-12(a)(19).
4

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 5 of 68
boundary of the area where minors congregate at their closest points. (e) Notwithstanding any ordinance or resolution adopted pursuant to Code Section 16-6-24 or subsection (d) of Code Section 16-11-36, it shall be unlawful for any individual required to register pursuant to Code Section 42-1-12 to loiter, as prohibited by Code Section 16-11-36, at any child care facility, school, or area where minors congregate. (h)(2) Any individual who knowingly violates . . . provisions of this Code Section . . . shall be guilty of a felony and shall be punished by imprisonment for not less than ten nor more than 30 years.
Plaintiffs with leases for their residences The two named Plaintiffs who have raised a “takings” claim, Lori Collins and Janet Allison, both have valid leases for twelve months or more for their places of residence. (doc-207-2, 207-3; Collins and Allison declarations of September 14, 2009). The property interests of both Plaintiffs, and any plaintiffs in similar situations, are already protected under Georgia law pursuant to the decision in Mann v. Georgia Department of Corrections, 282 Ga. 754 (2007). Under that decision, property interests are protected from regulatory taking. Under Georgia law, neither Collins nor Jenkins can be required to move if a “child care center, church, school or area where minors congregate” subsequently opens or moves within 1,000 feet of their leased premises. Neither has alleged that anyone has
5

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 6 of 68
asked either person to move or threatened either with arrest . (doc-218, 12; doc196, ¶ ¶ 35, 67; doc-207-3, 3; Collins and Allison declarations).
Pursuant to the Mann decision, the Department of Corrections permits sex offender probationers to remain in their residences if they have a valid lease and a prohibited use locates near them. (doc-206, ¶ 35; doc-262-7, Holt deposition, pp. 44-46). Such sex offenders are allowed to remain during the terms of their leases. (doc-206, ¶ 35; doc-262-7, pp. 44-46).
The Defendant sheriffs have also stipulated that “an individual holding a valid leasehold property interest in a residence and who resides therein shall not be required to move from such residence . . . for the duration of his or her lease” if the lease is sufficient to constitute a protected property interest and a child care facility, church, school or area where minors congregates subsequently moves within 1,000 feet of the rented residence. (doc-254). Plaintiffs have admitted that “property interests are protected from regulatory taking under Georgia law” and that a “valid lease does constitute a property interest under Georgia law.” (Response by Plaintiffs to Defendants’ Requests for Admissions, 1 and 2).
The Columbia County Sheriff’s Office treats sex offenders the same way. “If they’re living there prior to the prohibited area coming into play, then they are
6

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 7 of 68
allowed to continue to live there.” This is true whether they rent or own. “They won’t have to move.” (doc-262-22, Rush deposition, pp. 41-42).
Compliance with the residence and employment restrictions As of 2009, there are approximately 5,800 sex offenders on probation under the supervision of the Georgia Department of Corrections. (doc-206-3,3). Over the period from August of 2007 through August of 2009 that number has fluctuated between 5,800 and approximately 6,200, according to Ahmed Holt, Manager of the Sex Offender Administration Unit for the Georgia Department of Corrections. (Holt affidavit, ¶¶ 3,4). During this two year period, from 2007 to 2009, 401 registered sex offenders on probation moved because they were out of compliance with the sex offender law. (Holt affidavit, ¶ 5). Out of the 401, 309 (77%) found another residence either in their own county or in the same judicial circuit. (Holt affidavit, ¶ 6). Of the other 92 that moved beyond their county or circuit, 68 were able to find places to live in neighboring counties or circuits and none had to move more than 50 miles form their original residence. (Holt affidavit, ¶ 7). Of the remaining 24 who moved, 22 found other places to live within the state and 2 relocated out of state. (Holt affidavit, ¶ 8). 201 other sex offenders were at some time out of compliance with the residence restrictions during the same period and
7

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 8 of 68
as of September, 2009, 68 of those are still not in compliance and will be required to move. (Holt affidavit, ¶¶ 9,10). The other 133 sex offenders who have been out of compliance have since been re-incarcerated, died, deported or their probation has expired or terminated. (Holt affidavit, ¶ 11).
Since 2004 only fifteen (15) sex offenders have been sentenced to the Georgia Department of Corrections for residing within 1,000 feet of any prohibited location. (Castaing affidavit, ¶ 7). During the same period, only two (2) people have been sentenced to the Georgia Department of Corrections for being employed within 1,000 feet of a prohibited area and only four (4) people have been sentenced for loitering. (Castaing affidavit, ¶¶ 6, 8).
Evidence produced by Sheriffs shows that only a small percentage of registered sex offenders have been required to move or change employment during the years since 2006. Of the 144 sheriffs responding to Plaintiffs’ First Interrogatories (for the period from 2006 to 2007) slightly more than 1% of the more than 10,000 sex offenders in the reporting counties had to change their employment for any reason as a result of proximity to a church, child care center, school or place where minors congregate.(Dolby affidavit, ¶¶ 22-30). The majority who had to change employment did so because of proximity to a church, totaling 98 out of the 137 total who had to change employment during that period. (Dolby
8

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 9 of 68
affidavit, ¶ 22). For the subsequent period, from 2007 through 2009, a smaller percentage of registered sex offenders were required to change employment. Based on the 126 sheriffs’ responses to Plaintiffs’ Second Interrogatories, only 57 persons out of 9,976 in those reporting counties, were required to change employment for any reason during the period from 2007 to 2009.(Dolby affidavit ¶ 37). This is a percentage of slightly less than six-tenths of one percent (.6%) who had to change employment over the two year period. (Dolby affidavit, ¶ 37).
Similar results were reported by sheriffs in regard to registered sex offenders who were required to move. Of the 144 sheriffs responding to Plaintiffs’ First Interrogatories (for the period from 2006 to 2007), 12.4 %, or a total of 1,272 sex offenders, out of 10,267 were required to move because of proximity to all prohibited areas (school bus stop, school, public or private park, skating rink, recreation facility, public swimming pool, child care facility, neighborhood center, church, playground, or gymnasium). (Dolby affidavit, ¶ 16). 550 of those moved because of proximity to a church. (Dolby affidavit, ¶ 17). For the subsequent period, from 2007 through 2009, a much smaller percentage of registered sex offenders were required to move. Based on the 126 sheriffs’ responses to Plaintiffs’ Second Interrogatories, only 396 persons, or 4% of the 9,976 sex
9

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 10 of 68
offenders in the reporting counties were required to move for any reason during the two-year period from 2007 to 2009.(Dolby affidavit, ¶ 35).
These figures do not take into consideration that many of these people would not have to move or change employment since the decision in Mann v. Georgia Department of Corrections, 282 Ga. 754 (2007) and the subsequent change in O.C.G.A. § 42-1-15. The Mann decision and the statutory change protected sex offenders from any regulatory taking of their property.
Statistics on the total number of arrests statewide for violation of the residence, employment and loitering restrictions are available for the period from May 1, 2007 through the end of May, 2009. (Marsha O’Neal affidavit, ¶¶ 4-8). For the period available in 2007 (May 1, 2007 through the end of December, 2007) there were a total of 58 arrests for violation of any of the residence, employment or loitering provisions. (Marsha O’Neal affidavit, ¶ 5). For the entire year 2008 there were a total of 90 arrests statewide for violation of any of the residence, employment or loitering provisions. (Marsha O’Neal affidavit, ¶ 6). For the first five months of 2009 there were a total of 52 arrests statewide for violation of any of the residence, employment or loitering provision. (Marsha O’Neal affidavit, ¶ 7).
10

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 11 of 68
Despite Plaintiffs’ claims that the residence statute would lead to high rates of absconders and would drive sex offenders “underground,” the percentage of absconders has remained relatively constant over the years from 2005 through 2009. (Laura Tate affidavit, ¶ 6). Since 2004, the rate has actually fallen from 4% of registered sex offenders to 3% in subsequent years and so far in 2009 the rate is only 2.5%. (Laura Tate affidavit, ¶ 7). There are registered sex offenders living in every county in the State of Georgia. (Laura Tate affidavit, ¶ 10, Exhibit B).
Volunteering at Church Specifically, Plaintiffs challenge the requirement that no registered sex offender “shall be employed by or volunteer at any child care facility, school, or church or by or at any business or entity that is located within 1,000 feet of a child care facility, a school, or a church.” Evidence produced by the 126 sheriffs who responded to Plaintiffs’ Second Interrogatories indicates only one-fifth of 1% of registered sex offenders has been restricted in any way from volunteering or being employed at a church. (Dolby affidavit, ¶ 47). In addition, of the 9,976 registered sex offenders in the 126 counties reporting, only two (2) individuals have been arrested for volunteering or being employed at a church. (Dolby affidavit, ¶¶ 47-48).
11

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 12 of 68
The Columbia County Sheriff’s Office encountered no confusion among sex offenders in regard to volunteering and did not have any instances in which sex offenders were mistakenly told not to volunteer at churches. (doc-262-22, Rush deposition, pp. 39, 40). David Rush, the officer in charge of sex offenders in Columbia County said that volunteering meant “not getting paid for what you’re doing.” (doc-262-22, Rush deposition, p. 38). Rush said, “that provision of the law I don’t remember being an issue with us.” (doc-262-22, Rush deposition, p. 40).
According to Tracy Masters, Director of Legal Services for the Board of Pardons and Paroles, the Parole Board has special conditions for sex offenders. (Doc. 206-2, ¶ 9). The Board and its staff have identified a pattern of criminality whereby offenders at an increased risk of committing a sex offense seek to place themselves in positions of trust and respected status in order to gain access to potential victims. (Doc. 206-2, ¶ 11). The Board has reviewed numerous cases for executive clemency in which offenders have sought involvement in extracurricular activities of religious organizations in an effort to develop trusting relationships among members of the church, or their children, in order to gain access to potential sexual victims. (Doc. 206-2, ¶ 12). Such pattern includes volunteering for positions in religious organizations that communicates to other
12

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 13 of 68
members that the offender is a trusted member of the religious organization. (Doc. 206-2, ¶ 13). As a result, the Board restricts volunteering at church or religious groups, children/youth ministries, choirs and activities. (Doc. 206-2, ¶ 14).
Sex offenders on parole are not prohibited from participating “in worship services, including activities such as approaching the altar to pray during service, approaching the altar to accept communion, remaining after service to speak with the pastor, putting money in the offering plate, acting as a pall bearer for funerals, ushering during church service, taking up a collection during a church service or other similar activities.” (Doc. 206-2, ¶ 22).
As Manager of the Sex Offender Administration Unit for the Georgia Department of Corrections Ahmed Holt is familiar with the “volunteer” provision in O.C.G.A. § 42-1-15(c)(1) and that the Sex Offender Administration Unit does not prohibit activities at church that constitute worship, service, or any other part of the religious life of a church. (Holt affidavit, ¶ 3; doc. 206-3, ¶¶ 9, 10). Sex offenders on probation are permitted to participate in worship services, assist in worship services (including singing in the choir or playing a musical instrument at a service), teach adult Sunday school, cut the grass at the church, rake leaves or help clean church buildings. (Doc. 206-3, ¶ 11). A sex offender may also act as a pall bearer at funerals, usher during church services, take up a collection, approach
13

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 14 of 68
the altar to accept communion, speak to the pastor after service and any other similar activities. (Doc. 206-3, ¶ 27). Sex offenders are not permitted to engage in activities that bring them in direct contact with children. (Doc. 206-3, ¶ 12). The Department of Corrections has transmitted this guidance to probation officers in the field and probation officers are not to prohibit any activity at a church without first obtaining approval from the Sex Offender Administration Unit. (Doc. 206-3, ¶¶ 14, 15). To the best of Holt’s knowledge, no sex offender has had probation revoked for violating the “volunteer” provision. (Doc. 206-3, ¶ 18).
Above and beyond the “volunteer” provision of the law, many sex offenders have special conditions placed on them by the sentencing court; they are also given instruction on these conditions by their probation officers. (Doc. 206-3, ¶¶ 19-24).
From his experiences at the Department of Corrections, Ahmed Holt is aware that churches and other religious institutions have facilities and activities that are directed toward minors and used by minors. (Doc 206-3, ¶ 37). Persons employed by a church could easily and frequently come into contact with minors while in the workplace. (Doc 206-3, ¶ 37). Such persons, appearing as part of the church, would be in a position to gain a child’s trust and victimize a child. (Doc 206-3, ¶ 37).
14

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 15 of 68
School bus stops For the 2006-2007 school year, only Chatham, Bulloch and Columbia counties designated school bus stops. Other than these three counties located in the Southern District of Georgia, no county or municipal school system in Georgia has designated school bus stops during the years since the 2006-2007 school year.3 Even when Columbia County initially designated school bus stops, only 12 of 42 sex offenders in Columbia County would have been required to move. (doc262-22, Rush deposition, pp. 56, 57 and Exhibit 1). Most sex offenders in Columbia County who have been required to move have found other places to live within Columbia County.(doc-262-22, Rush deposition, pp. 59,60). Even if sex offenders could not find other places to live in Columbia County, the surrounding counties, none of which have designated school bus stops, are available as places to live.(doc-262-22, Rush deposition, pp. 60-62). Lead Plaintiff Wendy Whitaker, for example, lives in Harlem, Georgia in Columbia County. Even assuming she could not find another place to live in Columbia County, it is only five miles from Harlem to McIntosh County and to Richmond County and less than ten miles to Jefferson County (doc-262-22, Rush
3 Woodward Academy, a private school in Fulton County, reported in 2008 that they have 4 school bus stops in Cobb County, 25 in Fulton County, 10 in DeKalb County, 3 in Fayette County, 3 in Clayton County, 2 in Douglas County, 2 in Gwinnett County, 1 in Spalding County and 1 in Henry County. Other than Bulloch, Chatham and Columbia counties, no other school system, public or private, is known to Defendants to have designated bus stops.
15

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 16 of 68
deposition, pp. 62, 63). This Court also found that Ms. Whitaker has not shown “that she would be unable to find an appropriate residence in the surrounding counties.” (doc-217, 4).
Both Bulloch and Chatham County, like Columbia County, adjoin multiple other counties that have not designated school bus stops.(Dolby affidavit, ¶ 67). For a registered sex offender in any of the three counties that have designated school bus stops, there are places to live in surrounding counties. There are sex offenders presently residing in all the counties that surround both Bulloch and Chatham Counties.(Tate affidavit, ¶ 10, Exhibit B).
There is no other evidence in regard to the number of persons in Bulloch, Columbia, and Chatham Counties who would have to move if school bus stops were designated. Neither is there any clear evidence in regard to the number of registered sex offenders in those counties who would be exempted from moving because of ownership of their homes or the existence of a valid lease.
Based on form declarations solicited by Plaintiffs from registered sex offenders in Bulloch, Chatham and Columbia counties, a substantial percentage of sex offenders may own their homes or have a valid lease, thus exempting them from any requirement to move in the event school bus stops are again designated in their counties. In Columbia County, of the twenty-four (24) “declarations”
16

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 17 of 68
provided to Defendants by Plaintiffs, nine (9) sex offenders owned their own homes. Another four (4) leased their homes. (Dolby affidavit, ¶¶ 54-55). Thus, thirteen of the twenty-four, a majority of sex offenders reporting, appear exempted under the Mann decision and O.C.G.A. § 42-1-15(f). Of the eighty-two (82) sex offenders reporting from Chatham County, twenty-nine (29) report that they rent their homes and another eight (8) reported that they own their homes. (Dolby affidavit, ¶¶ 59-60). Thus, of those reporting, thirty-seven of the eighty-two may be exempted. In Bulloch County, of eighteen (18) reporting, three (3) owned homes and seven (7) rented. (Dolby affidavit, ¶¶ 62-65). It should be noted, however, that the declarations provided by Plaintiffs are only a small percentage of the total number of sex offenders in the three counties. Plaintiffs provided only 24 declarations out of the fifty-five (55) sex offenders reported to be living in Columbia County, only eighty-two (82) out of the three-hundred-seventy-four (374) living in Chatham County and only eighteen (18) of the reported seventyseven (77) living in Bulloch County.
17

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 18 of 68
III. Argument and Citation of Authority A.
MOOTNESS “ ‘[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.’ ” City of Erie v. Pap’s A.M., 529 U.S. 277, 287; 120 S. Ct. 1382, 1390 (2000), citing County of Los Angeles v. Davis, 440 U.S. 625, 632; 99 S. Ct. 1379, 1383 (1979). “Jurisdiction, properly acquired, may abate if the case becomes moot.” County of Los Angeles v. Davis, 440 U.S. at 632; 99 S. Ct. at 1383. When the Georgia Supreme Court determined that property interests were protected from regulatory taking it included not only ownership interests but leasehold interests as well. Mann v. Georgia Department of Corrections, 282 Ga. 754 (2007); Franco’s Pizza & Delicatessen, Inc., 178 Ga. App. 331 (1986); Waters v. DeKalb County, 208 Ga. 741 (1952). Plaintiffs have admitted “that a valid lease does constitute a property interest under Georgia law.”(Response to Defendants’ Request for Admission, #2). Plaintiffs have admitted that such “property interests are protected from regulatory taking under Georgia law pursuant to the case of Mann v. Georgia Department of Corrections, 282 Ga. 754 (2007) and other authority.” (Response to Defendants’ Request for Admission, #1). The Defendant sheriffs and Plaintiffs have also stipulated that “an individual holding a valid
18

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 19 of 68
leasehold property interest in a residence and who resides therein shall not be required to move from such residence . . . for the duration of his or her lease” if the lease is sufficient to constitute a protected property interest and a child care facility, church, school or area where minors congregates subsequently moves within 1,000 feet of the rented residence. (doc-254).
Both Lori Collins and Janet Allison have leases of twelve months or more. Both are protected under existing Georgia law from any taking of their property.
There can be no further relief that can be granted to these Plaintiffs and in that case “any opinion as to the legality of the challenged action would be advisory.” City of Erie v Pap’s A.M., 529 U.S. 277, 287; 120 S. Ct. 1382, 1390 (2000),
B. STANDING “The requirement that a claimant have ‘standing is an essential and unchanging part of the case-or-controversy requirement of Article III.’. . . [A] claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.” Davis v Federal Election Commission, 554 U.S. ____, 128 S. Ct. 2759, 2768 (2008), citing Lujan v. Defenders of Wildlife, 504 U.S.
19

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 20 of 68
555, 560; 112 S. Ct. 2130 (1992). The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. Mills v. Green, 159 U.S. 651 (1895).
Moreover, a plaintiff’s fear of arrest or prosecution for engaging in expressive activity does not establish standing unless that fear is objectively reasonable. Wilson v. State Bar of Ga. 132 F. 3d 1422, 1428 (11th Cir. 1998). A generalized fear of prosecution is insufficient to create standing. Pittman v. Cole, 267 F.3d 1269, 1283-84 (11th Cir. 2001).
Although this Court determined that various Plaintiffs had sufficient standing for purposes of the Defendants’ Motion to Decertify, Defendants renew their challenge to standing in the context of this Motion for Summary Judgment and in light of additional facts relevant to this inquiry. In the following paragraphs, Defendants address whether the named Plaintiffs’ class members have standing to pursue the instant action.
Since the previous inquiry into the issue of standing it has become clear, for example, that lead Plaintiff Wendy Whitaker’s situation has changed. Since 2007 her name appears on the deed to her home. (doc-217, 1-2). She now has an
20

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 21 of 68
ownership interest in the property where she resides and could not be made to move should a new prohibited use locate near her. She is fully protected by her present ownership and the appearance of any new church, school, day care center or school bus stop would not necessitate a move. (doc-176, 4th Amended complaint ¶ 21). Since by her own admission (and claim that she has owned her residence since 2001) she is exempt from the residency restrictions in the bill, she is no longer a class representative.
Plaintiff Whitaker’s attempt to retain “standing” by stating that she does not go to church because of “fear” she will be accused of loitering at a church is without merit. Wendy Whitaker has not indicated with specificity whether she was told by law enforcement officers that she would be arrested or prosecuted if she attended a church service or whether she inquired about attending a church service and was told that she could not do so. Again, a generalized fear of prosecution is insufficient to create standing. Pittman v. Cole, 267 F.3d 1269, 1283-84 (11th Cir. 2001). Here, Plaintiff’s fear of arrest for engaging in conduct that does not violate the statute is not reasonable. See also Hallandale Prof’l Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 761 (11th Cir. 1991).
Mr. Joseph Linaweaver currently resides outside the State of Georgia. Since he currently resides out of state, he no longer has standing to pursue this action.
21

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 22 of 68
(doc-196, ¶ 30). Moreover, Plaintiff found housing while in the state, prior to relocating outside the state, but was denied rental by the landlord because of his status as a convicted felon, not because the location of the residence violates the Residency Statute. (Linaweaver Declaration, ¶ 7). Linaweaver’s status as a convicted felon is totally separate and aside from him not finding suitable housing due to any residency restrictions. However, if Mr. Linaweaver would have remained in the state of Georgia and maintained his residence and job he would have been exempt from the residence restrictions based on the Mann case and would still not be a class representative.
Janet Allison’s primary complaint is that a bus stop “might be designated” near her current place of residence and she can not locate suitable housing. First, assuming that school bus stops are designated, Plaintiff Allison would not be required to move. Second, Plaintiff Allison’s suggestion that she cannot find suitable housing is not accurate because she has since signed a valid lease on an apartment. (Allison Declaration, ¶ 7). Plaintiff Allison is therefore protected under the Mann decision and would not be required to move.
James Wilson also lacks standing to challenge the Residency Statute. Plaintiff Wilson found housing in Clayton County which complies with the Residency Statute, but complains that he “may” have to move in the future.
22

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 23 of 68
(Wilson Declaration, ¶ 10). However, Plaintiff Wilson is exempt from the provisions of the challenged law as he held his job and his mortgage prior to July 1, 2006; thus, he will not be required to move or change jobs. (doc-196, ¶¶ 37, 39).
Jeffrey York complains that he was required to move because his home was within 1,000 feet of a daycare center. This Court has indicated that it would not revisit the issues resolved by this district in Doe v. Baker, 1:05-CV-2265-TWT (N.D. Ga. 2006). Since this issue was dispositively addressed in Doe it is not an issue in this case and York does not have standing to address the remainder of the issues in the case therefore, he is not an adequate class representative.
Even if this Court were to find that this issue was not dispositively addressed in Doe, Plaintiff York lacks standing to challenge the Residency Statute because he has not been threatened with prosecution if he fails to move. Plaintiff York merely suggests that he “might” be in violation of the Residency Statute for living with his grandmother. (York Declaration, ¶ 6). There is no evidence that Plaintiff York was told that he would have to move from his current residence.
In addition to York’s claim that he “might” be in violation of the residency Statute for living with his grandmother, Plaintiff York also claims that he could not take a job because it was within 1,000 feet of a church. His inability to obtain one job because of its location within 1,000 feet of a church does not give him standing
23

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 24 of 68
to challenge the entire statute nor does it make him an appropriate class representative to challenge the work restrictions related to the church provision. As stated above, under Article III, a claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.” Davis v Federal Election Commission, 554 U.S. ____, 128 S. Ct. 2759, 2768 (2008), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560; 112 S. Ct. 2130 (1992). Plaintiff York has not done so and nothing proffered by Plaintiffs shows that he is an adequate class representative.
Dewayne Owens, who was on parole, has since violated his parole and been re-incarcerated. (Affidavit of Carol Adeyeye, ¶¶ 6-8). Prior to being re-arrested, Plaintiff Owens had not been threatened with prosecution, nor had he been denied parole based on the requirements of the Residency Statute. He claimed prior to his incarceration that he feared school bus stops would be designated in his county thus requiring him to move. The potential for school bus stops being designated is insufficient to Article III standing as no harm has yet occurred. This analysis equally applies to Al Marks and Lori Sue Collins.
Plaintiff Marks lacks standing because he merely alleges that he cannot find housing for himself with his parents, with whom he has been living. (Marks
24

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 25 of 68
Declaration, ¶¶ 1,8,9). Plaintiff Marks is twenty years old and is not required to live with his parents; this option is his choice. As to the employment claims alleged by Mr. Marks, the playground provisions of the statute are not an issue in this case (See doc-109, p. 17, footnote 10) and his claim that he was unable to retain a job at one fast food restaurant because of its proximity to a church does not establish his standing as an adequate class representative.
Plaintiff Collins currently rents a home pursuant to a written lease and is therefore protected under the Mann decision. Therefore, Plaintiff Collins does not have standing because she has located a suitable residence. (Collins Declaration, ¶ 12).
As to Plaintiff Collins’ other claims, she alleges that she would like to obtain employment and volunteer in a church. She claims that she would like to maintain her volunteer work in Georgia’s prisons. First, Ms. Collins’ desire to work in a church is insufficient to effectively establish her as a class representative for the “class” on their free exercise claims as she has not alleged that her ability to practice her faith has been impacted in any way, only that she would like to work at a church. Secondly, nothing in the statute prevents her from ministering in prisons or doing other volunteer work on behalf of a church; she is only prevented from volunteering within the church.
25

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 26 of 68
None of the above mentioned Plaintiffs have standing to challenge the church provision of the Residency Statute because they are not prohibited from attending church, only living within 1,000 feet of one—and none of the named Plaintiffs have received notice from any law enforcement officer suggesting they are currently in violation of the Residency Statute with respect to churches. Furthermore, inasmuch as none of these Plaintiffs are considered a sexually dangerous predator as defined under Georgia law, none of them have standing to challenge the provision that prohibits employment within 1,000 feet of an area where minors congregate. O.C.G.A. § 42-1-15(b)(2).
The claim by Plaintiffs that they cannot find suitable housing ignores the fact that there is no right to “live where you want.” Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) cert. denied 546 U.S. 1034 (2005). In Miller the court was not persuaded by the argument that Plaintiffs could not find housing in urban areas, live with specific family members, or move to certain areas of town because of Iowa’s residency restriction. Id., at 706. Merely because the Plaintiffs in the instant complaint may need to relocate to a county or town that is not of their choosing does not grant them standing to challenge legislation enacted for legitimate public safety concerns. Until each Plaintiff has shown they have been actually injured by the imposition of the Residency Statute as to each individual
26

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 27 of 68
Plaintiff, their “fear” of prosecution is speculative at best and warrants dismissing the instant complaint for lack of Article III standing.
In addition, when considering an Article III standing challenge, the Court should consider it in light of principles which counsel judicial restraint; which principles are whether the complaint falls within the zone of interests protected by the statute, whether the complaint raises abstract questions amounting to general grievances that are more appropriately resolved by the legislative branch, and whether Plaintiffs are asserting their own legal rights as opposed to the legal rights of third parties. Saladin v. City of Milledgeville, 812 F.2d 687, 690 (11th Cir. 1987). Plaintiffs’ complaint as to the Residency Statute is more appropriately addressed by other governmental institutions. Warth v. Seldon, 422 U.S. 490, 500 (1975); accord Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir. 1994).
Further, Plaintiffs’ allegation that the legislators were ill-informed and failed to achieve the legislative purpose in enacting the Residency Statute is not within the province of this Court and flies in the face of basic federalism concerns. Warth, 422 U.S. at 508, n.18 (citizens dissatisfied with statutory provisions should not overlook available democratic processes).
To conclude, all of the above mentioned Plaintiffs lack standing to challenge the Residency Statute because they have failed to show actual injury traceable to
27

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 28 of 68
conduct by the Defendants. Warth v. Seldon, 422 U.S. 490 (1975); accord Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir. 1994). The injury must be distinct and palpable, not abstract, conjectural, or hypothetical. Saladin v. City of Milledgeville, 812 F.2d 687, 691 (11th Cir. 1987).
C. THE EX POST FACTO CLAIMS Plaintiffs remaining Ex Post Facto claims relate to sex offenders convicted prior to July 1, 2006 and sex offenders who reside in the three counties that have designated school bus stops and who are not exempted because of ownership or employment exemptions in O.C.G.A. § 42-1-15(f). It should be noted that the statute in effect prior to July 1, 2006 was ruled upon by Judge Thomas Thrash in Doe v. Baker, 1:05-CV-2265-TWT (N.D. Ga. 2006), and this Court indicated that “the residency restrictions in effect prior to the 2006 amendment have been found not to constitute an ex post facto law, and this Court will not consider these restrictions here.” (doc-109, p. 17, footnote 10). The pre-2006 version of O.C.G.A. § 42-1-12 already prohibited residence within 1,000 feet of “any child care facility, school or area where minors congregate.” The pre-2006 definition of “Area where minors congregate,” defined in O.C.G.A. § 42-1-13(a)(1), was to “include all public and private parks and recreation facilities, playgrounds, skating
28

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 29 of 68
rinks, neighborhood centers, gymnasiums, and similar facilities providing programs or services directed towards persons under 18 years of age.”
It should also be noted that an unknown and perhaps significant percentage of sex offenders convicted prior to July 1, 2006 own or lease their residences and may be exempted by revisions in O.C.G.A. § 42-1-15 and the decision in Mann.
Only three widely separated Georgia counties have designated school bus stops at any time since the 2006 enactment of Georgia’s sex offender law. Columbia, Bulloch and Chatham Counties designated school bus stops in 2006. It does not appear that these counties have made follow-up designations for the subsequent school years since the 2006-2007 school year.
Reliable statistics in regard to the number of persons who might be required to move are very limited. When Columbia County designated school bus stops, only 12 of the 42 sex offenders in Columbia County were required to move. In addition, most sex offenders in Columbia County who have been required to move have found other places to live within Columbia County. Even for those sex offenders who could not find other places to live in Columbia County, the surrounding counties, none of which have designated school bus stops, are available as places to live. Lead Plaintiff Wendy Whitaker, for example, lives in Harlem, Georgia in Columbia County. Even assuming she could not find another
29

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 30 of 68
place to live in Columbia County, it is only five miles from Harlem to McIntosh County and to Richmond County and less than ten miles to Jefferson County. (Rush deposition, pp. 62, 63). Ms. Whitaker’s proximity to other counties without designated school bus stops was even noted by this Court in denying Ms. Whitaker’s request for Preliminary Injunction. (doc-217).
In Bulloch County and in Chatham County there are no conclusive numbers in regard to the number of people who would be required to move.
Plaintiffs allege that the school bus stop provision and the general residency restrictions of the Residency Statute impose retroactive punishment in violation of the Ex Post Facto Clause. Quite the contrary, the statute is regulatory as opposed to punitive, and legislation that is merely regulatory does not violate the Ex Post Facto Clause. Smith v. Doe, 538 U.S. 84 (2003).
The Georgia General Assembly clearly intended to create a civil regulatory scheme designed to protect the public when it enacted the Residency Statute. See 2006 Ga. Laws 379, 381 (HB 1059, Section 1). The intent was judicially noted as being a “safeguard” against encounters between minors and convicted sex offenders, recognizing that while not every sex offender will be a recidivist, the goal of lessening the potential for those offenders inclined toward recidivism “to have contact with, and possibly victimize, the youngest members of society,” was
30

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 31 of 68
an important one. Doe v. Baker, 1:05-CV-2265-TWT (N.D. Ga. 2006), citing Mann v. State, 278 Ga. 442, 443-44(2004).
Nothing on the face of the Act as a whole or the specific statute in question suggests it is anything but a regulatory scheme designed to protect the public. Id. In Smith v. Doe, the Supreme Court found that retroactive application of registry requirements did not violate the Ex Post Facto Clause because the requirements were nonpunitive. Smith, 538 U.S. at 105-06. Likewise, residency restrictions, specifically the Georgia residency restrictions prior to the 2006 amendment, have been judicially tested and found to be regulatory and nonpunitive. Doe v. Baker, 1:05-CV-2265-TWT (N.D. Ga. 2006); Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) cert. denied 546 U.S. 1034 (2005).
The Court must then determine whether any alleged punitive effects outweigh the regulatory intent by applying the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)(whether the law was regarded in history and traditions to be punishment, whether it promotes the traditional aims of punishment, whether it imposes an affirmative disability or restraint, whether it has a rational connection to a nonpunitive purpose, and whether it is excessive with respect to that purpose). See Miller, 405 F.3d at 719, citing Smith v. Doe, 538 U.S.
31

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 32 of 68
at 97. These factors are neither “exhaustive nor dispositive,” but are useful guidelines. Smith, 538 U.S. at 97.
The ultimate question is whether any punitive effect of the law is so severe as to constitute the “clearest proof” that a statute deemed to be regulatory and nonpunitive should nonetheless be deemed to impose ex post facto punishment. Id. The United States Supreme Court has never held that a law with a nonpunitive purpose violated the Ex Post Facto Clause in light of the Mendoza-Martinez factors.
The first factor for consideration is whether the law is regarded in history and tradition as punishment. Plaintiffs assert that the Residency Statute is the functional equivalent of banishment which constitutes a historical and traditional form of punishment. However, “banishment” refers to being sent away from a city, place, or country for a specified period of time or life, United States v. Ju Toy, 198 U.S. 253, 269-70 (1905), or “expulsion from a country.” Doe v. Miller, 405 F.3d 700, 719 (8th Cir. 2005) (citing to Black’s Law Dictionary 154, 614 (8th ed. 2004)). Historically banished persons were permanently expelled from their community and prevented from returning. Smith v. Doe, 538 U.S. at 98.
On its face, Plaintiffs’ assertion is unfounded inasmuch as the Residency Statute does not prevent Plaintiffs from accessing those identified areas at any time
32

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 33 of 68
of the day or night for any purpose other than establishing residence or loitering as prohibited by O.C.G.A. § 16-11-36. The Residency Statute contains no restriction against owning, visiting, conducting business upon, or leasing the property, nor does the statute prohibit Plaintiffs from going to places which may be within 1,000 feet of one of the identified areas. As such, Plaintiffs are not “expelled” from the community nor are they prohibited from being in the community. Contrary to Plaintiffs assertion, the addition of school bus stops and churches does not bolster their claim that the Residency Statute amounts to banishment. While the identified area may have expanded, sex offenders are still able to utilize their property in other ways, as well as move in and around the community freely for any purpose other than to reside within the identified areas and in some cases work at certain locations within the restricted area. None of the named Plaintiffs are prohibited from working within 1,000 feet of areas where minors congregate, which includes school bus stops.
Furthermore, when contemplating the residency restriction, the fact that housing is available negates Plaintiffs’ argument that they are banished. In the instant case, the residency restriction has not prohibited most Plaintiffs from finding a place to live; they merely assert that the new residence is not as desirable or convenient as their current residence.
33

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 34 of 68
Information from the various Sheriffs shows that only a tiny percentage of sex offenders had to move or change employment during the three years that the law has been in effect. After the first year of enforcement of the residency restrictions, the number of persons affected has declined enormously.(Dolby affidavit, ¶¶ 41-46).
Likewise, information from the Georgia Department of Corrections shows that few people have been convicted of violating the residency restrictions and those sex offenders on probation have generally been able to find places to live close to where they originally resided. (Casting affidavit, ¶¶ 6-8; Holt affidavit, ¶¶ 6-8). The vast majority of those who moved have been able to find housing either within their judicial circuit or in an adjoining county. (Holt affidavit, ¶¶ 6-7).
Even in counties that designated school bus stops, the numbers do not establish banishment. In Columbia County, for example, when school bus stops were designated for the 2006-2007 school year, only 12 of 42 registered sex offenders were required to move. (In addition, this information was prior to the Mann decision in 2007, and did not take into account that some of the twelve may have owned or leased their homes and been exempted from the requirement to move; given that fact the number may have been even smaller). In Columbia County, most sex offenders have been able to find new places to live within the
34

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 35 of 68
county. Also, as this Court noted in denying Plaintiff Wendy Whitaker’s injunction request, even if one could not find housing in Columbia County, there are places to live in the surrounding counties a short distance away. (doc-217). All three counties in which school bus stops have been designated adjoin multiple counties that have not designated school bus stops.
When the Eighth Circuit contemplated a banishment challenge to a similar residency statute, codified at Iowa Code § 692A.2A, the court found that the statute was not banishment, noting that the residency restriction did not expel sex offenders from the community or prohibit them from accessing areas within 2,000 feet of schools or child care facilities with respect to certain opportunities. Doe v. Miller, 405 F.3d at 719. The Georgia Residency Statute likewise merely prohibits residency, and in some instances employment, within 1000 feet of schools, child care facilities, or other areas where minors congregate. In addition, pursuant to Mann v. Georgia Department of Corrections, 282 Ga. 754 (2007), persons who have a property interest (by ownership or leasehold interest) are exempted.
The second Mendoza-Martinez factor is whether the law promotes the traditional aims of punishment, i.e. deterrence and retribution. The mere presence of a deterrent impact of a law should not be overemphasized as a way to criminalize an otherwise regulatory statute because making such an inferential leap
35

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 36 of 68
would “severely undermine the Government’s ability to engage in effective regulation.” Smith, 538 U.S. at 102. While the Georgia Residency Statute might deter sex offenders from re-offending, that fact alone does not imply that the restriction is punishment. Miller, 405 F.3d at 720. The court in Doe v. Baker opined that regardless of the potential for a deterrent effect, the Georgia Residency Statute is “still consistent with a regulatory purpose,” and therefore is not sufficiently aimed at deterrence or retribution so as to negate its regulatory intent. Doe v. Baker, 1:05-CV-2265-TWT (N.D. Ga. 2006).4
The third consideration, whether the Georgia Residency Statute imposes an affirmative restraint or disability, must be answered in the negative. See Miller, 405 F.3d at 720-21. The Supreme Court allows states considerable leeway in adopting regulations that impose “substantial disabilities.” Kansas v. Hendricks, 521 U.S. 346 (1997) (involuntary commitment of mentally ill sex offenders found to be nonpunitive). The Georgia Residency restriction is certainly less disabling than a commitment statute, and is a minor and indirect effect of a conviction for a sexual offense or a criminal offense against a victim who is a minor. It does not significantly restrain or disable Plaintiffs inasmuch as they are still able to own,
4 The Eighth Circuit likewise found that the residency restriction was consistent with the regulatory objective of protecting the health and safety of children and therefore not punishment. Doe v. Miller, 405 F.3d at 700.
36

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 37 of 68
visit, lease, or conduct business at their home or any other property within the identified areas. In addition, Plaintiffs are still able to visit or shop at any location without restriction, and none of the named Plaintiffs are prohibited from working within 1,000 feet of an area where minors congregate, which definition includes the challenged school bus stop provision. Registered sex offenders have not been required to move in large numbers, have not been forced to abscond and have seldom been subject to arrest or prosecution. (Dolby affidavit, ¶¶ 16-46; Casting affidavit, ¶¶ 6-8; Holt affidavit, ¶¶ 6-8; Tate affidavit, ¶¶ 7-8; O’Neal affidavit, ¶¶ 5-7). Neither have any significant numbers been required to change employment. (Dolby affidavit, ¶¶ 16-46). And many are exempted by the Mann case.
While the residency restrictions might impose some limitations on Plaintiffs, the ultimate issue is whether the law has a “rational connection to a nonpunitive purpose” (deemed the “most significant factor” in an ex post facto analysis), and whether it is excessive in relation to that purpose. Miller, 405 F.3d at 721; Smith, 538 U.S. at 102.
The legitimate, nonpunitive purpose of the Georgia Residency Statute is to protect the public, and specifically minors, from those offenders who have been deemed to have a higher rate of recidivism than any other class of offenders. See Smith, 538 U.S. at 103. The Residency Statute is rationally related to that purpose
37

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 38 of 68
by preventing those convicted of crimes against children and certain sex offenses from residing near locations where children are likely to congregate, thereby reducing the risk that they will re-offend against innocent child victims. The Georgia General Assembly could rationally conclude that the restriction on residence and employment would reduce the likelihood and opportunities for recidivism. Doe v. Baker, 1:05-CV-2265-TWT (N.D. Ga. 2006). The rational basis standard is highly deferential and a court should only find a legislative act unconstitutional in the “most exceptional circumstances.” Doe v. Baker, 1:05-CV2265-TWT (N.D. Ga. 2006), citing Doe v. Moore, 410 F.3d 1337, 1345 (11th Cir. 2005).
A statute is not excessive simply because it “lacks a close or perfect fit” with the nonpunitive goals it seeks to advance, and the lack of an individual risk assessment does not convert a regulatory scheme into punishment. Smith, 538 U.S. at 103, 105; Miller, 405 F.3d at 721-22. The Ex Post Facto Clause does not preclude legislative bodies from making categorical judgments that conviction of certain crimes requires certain regulatory consequences. Miller. 410 F.3d at 721. In light of the high risk of recidivism posed by sex offenders, and the “imprecision” of determining what measures best prevent recidivism, the Georgia General Assembly acted properly and within its authority by enacting this
38

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 39 of 68
regulatory scheme for the purpose of protecting the public from harm. Miller, 405 F.3d at 722. Inasmuch as school bus stops are more likely to lack adult supervision than schools and child care facilities, the concern for protecting children at those more vulnerable venues is clearly rationally related to the stated regulatory purpose. Without “clearest proof” that the restriction is excessive in relation to that regulatory purpose such that the statute is retroactive punishment, the Georgia Residency Statute must prevail against Plaintiffs’ Constitutional challenge. Smith, 538 U.S. at 92. 5 In this case the vast majority of registered sex offenders have not been required to move or change employment. According to the reports from a majority of sheriffs, since the initial passage of the law in 2006 the number of sex offenders being required to move or change place of employment has diminished. (Dolby affidavit, ¶¶ 41-46). Few sex offenders have been arrested for any violations involving residence, employment or loitering.(O’Neal affidavit, ¶¶ 5-7). There is no “clear proof” here.
Legislative refinement of a judicially tested law should not be deemed excessive merely because the General Assembly has seen fit to incrementally deal with the identified problem of sex offenders, recidivism, and crimes against children. In balancing the interests of public safety against the inconvenience to
5 The Georgia Supreme Court upheld the prior Georgia Statute against ex post facto challenges in Thompson v. State, 278 Ga. 394 (2004) and Mann v. State, 278 Ga. 442 (2004).
39

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 40 of 68
sex offenders and those who commit crimes against children, the legislature has seen fit to further identify and protect those areas where children are vulnerable.
The final and most important consideration is the purpose of the governmental regulation. The Court has already determined that there is a strong interest in preventing sex abuse and that this factor weighs in favor of Defendants. (doc-109, p. 30). The analysis is no different in this application. Here, the purpose of the Residency Statute is to protect the public, and specifically minors, from sex offenders who have been deemed to have a higher rate of recidivism than any other class of offenders. See Smith, 538 U.S. 84, 103 (2003). This protection derives from a legitimate state interest in light of the finding that “[s]ex offenders are a serious threat in this Nation.” Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003), citing McKune v. Lile, 536 U.S. 24, 32 (2002). The State’s interest in protecting children is “considerable” and was given “substantial weight” by the Georgia Supreme Court in denying a Fifth Amendment challenge to the Residency Statute. Mann, 278 Ga. at 443-44. This Court should do likewise.
The Residency Statute prevents registered sex offenders from residing near locations where children are likely to congregate, thereby reducing the risk that they will re-offend against innocent child victims. Additionally, the restriction reduces the likelihood that such offenders will have ready and permanent access to
40

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 41 of 68
locations where they can place children under constant predatory surveillance. School bus stops, by definition, are particularly vulnerable to such access because of their locations and general lack of adult supervision.
In light of the high risk of recidivism posed by sex offenders and the imprecision of determining what measures best prevent recidivism, the Georgia General Assembly acted properly and within its authority by enacting this regulatory scheme for the purpose of protecting the public from harm. The Residency Statute rationally advances the State’s interest in protecting children, and decisions regarding statutory restrictions such as proximity or length of application are more appropriately within the purview of elected policymakers of the State. The Georgia General Assembly is empowered to weigh the benefits and burdens of this restriction and to make legislative choices of pursuing the State’s interest in protecting children from those who would do them harm by the best means available. See Miller, 405 F.3d 700, 714-16 (8th Cir. 2005).
D. THE SUBSTANTIVE DUE PROCESS CLAIM Plaintiffs’ surviving substantive due process claim is limited to the subclass of those Plaintiffs living in Bulloch, Chatham and Columbia counties, where there
41

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 42 of 68
was, for the 2006-2007 school year, a designation of school bus stops by those counties.
Plaintiffs allege a substantive due process right to family privacy, specifically, the right to cohabitate with their family.(doc-196, ¶ 136).
First and foremost, the United States Constitution does not guarantee a right to family privacy. A right to privacy does exist through the liberty component of the Fourteenth Amendment, which protects fundamental rights and guards against disclosure of certain personal matters or governmental interference in personal and intimate decisions surrounding marriage, contraception, procreation, and the right to engage in sexual behavior in the privacy of one’s home. Padgett v. Donald, 401 F.3d 1273, 1280 (11th Cir. 2005), citing Roe v. Wade, 410 U.S. 113, 152-53 (1973); Whalen v. Roe, 429 U.S. 589, 598-99 (1977); Carey v. Population Servs. Int’l, 431 U.S. 678, 684 (1977); Harris v. Thigpen, 941 F.2d 1495, 1513, n.26 (11th Cir. 1991); see also Lawrence v. Texas, 539 U.S. 558 (2003); Doe v. Baker, 1:05-CV2265-TWT (N.D. Ga. 2006), citing Doe v. Moore, 410 F.3d at 1343.
Plaintiffs’ privacy claim is really an attempt to claim a right to live wherever they want. No such right exists, nor does it qualify as being a legitimate liberty interest. This asserted right is “ambitious” at best and this Court should exercise restraint when considering whether the right to live where one wants warrants
42

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 43 of 68
protection under the substantive due process clause. See Miller, 405 F.3d at 71314, citing Washington v. Glucksberg, 521 U.S. 702, 720 (1997); Prostrollo v. Univ. of S.D., 507 F.2d 775, 781 (8th Cir. 1974)(right to choose one’s place of residence not recognized as a fundamental right). In Miller the court was not persuaded by the argument that Plaintiffs could not find housing in urban areas or many small towns, live with specific family members, or move to certain areas of town because of Iowa’s residency restriction. Id., 405 F.3d at 706. Merely because the Plaintiffs in the instant complaint may need to relocate to a county or town that is not of their choosing does not justify a finding of a substantive right to live where they want. The Plaintiffs have not met the burden of showing that the statute facially violates any right to family privacy. No statistics support their claim
Even assuming the right alleged is a right to “privacy,” that word is not a constitutional talisman, and courts should be cautious when challenged to expand the right to privacy to include issues involving personal autonomy. In the abstract there is no such right. See Williams v. Attorney General of Alabama, 378 F.3d 1232, 1235 (11th Cir. 2004); see, e.g., Glucksberg, 521 U.S. at 725 (fundamental rights are "not simply deduced from abstract concepts of personal autonomy").
Undoubtedly, many of the rights recognized by the United States Supreme Court touch on matters of personal autonomy and privacy. However, "[t]hat many
43

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 44 of 68
of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected." Glucksberg, 521 U.S. at 727. Rights that have been denominated as fundamental are not so denominated simply because they implicate deeply personal and private considerations, but because they have been identified as "deeply rooted” in this Nation's history and tradition and are implied in the concept of ordered liberty, such that “neither liberty nor justice would exist if they were sacrificed." Id. at 720-21.
Courts faced with challenges such as this one must proceed with restraint in the area of substantive due process. The United States Supreme Court further counseled a reluctance to “expand the scope of substantive due process” because guideposts are “scarce and open-ended.” Miller, 405 F.3d at 714; Glucksberg, 521 U.S. at 720, quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992).
The Eighth Circuit was not persuaded by the argument that the Constitution establishes a “fundamental” right to live where you want, such that a strict scrutiny analysis should be applied. Miller, 405 F.3d at 714. Here, Plaintiffs’ asserted right to live where they want would only violate substantive due process if the Residency Statute was not rationally related to some legitimate governmental purpose. See Miller, 405 F.3d at 714. The test is whether the regulation rationally
44

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 45 of 68
advances a legitimate governmental purpose. Glucksberg, 521 U.S. at 728. Here, the Residency Statute protects children from those who have been legislatively identified as persons who have sought to do harm to children or others. Such identification supports a legitimate state interest in light of the finding that “sex offenders are a serious threat in this Nation” and when convicted sex offenders reenter society, they are much more likely to re-offend. Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003). Inasmuch as experts in the field cannot offer confident predictions of whether a particular sex offender would re-offend, legislation designed to restrict sex offenders from areas where the opportunity or temptation may prove too much is clearly a rational reaction for the purpose of protecting the public. See Miller, 405 F.3d at 716.
In light of the perceived risk, the Residency Statute rationally advances the State’s interest in protecting children. Any decisions on restrictions such as proximity or length of application are more appropriately within the purview of elected policymakers of the State.6 See Miller, 405 F.3d at 715-16. The Georgia General Assembly is empowered to weigh the benefits and burdens of the restriction, and to make a legislative choice of pursuing the States’ interest in
6 Other states with residency restriction statutes require a general prohibition against a sex offender being “near” locations where children are the primary occupants, as well as distance restrictions similar, if not longer, than that required by Georgia law. See Miller, 405 F.3d 700, 714, n.4.
45

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 46 of 68
protecting children from those who would do them harm by the best means available, and courts should be reluctant to closely scrutinize legislative choices on matters of public safety. Id. The expansion of the residency restriction to add school bus stops and churches merely evidences a legislative concern for public safety, and the legislature is more suited to modify existing regulatory schemes in light of experience and data established over time. Miller, 405 F.3d at 715.
Plaintiffs claim they are being denied the “right” to family privacy. The Residency Statute at issue, however, does not regulate or restrict what goes on inside a residence, it merely restricts Plaintiffs from residing within 1,000 feet of areas where children congregate. As noted previously, Plaintiffs may still visit, conduct business, or even congregate where they like, so long as they comply with O.C.G.A. § 42-1-15. The facts as applied do not show a violation of the claimed right even if one assumes such a right exists.
E. THE VAGUENESS AND OVERBREADTH CLAIMS Plaintiffs remaining vagueness and overbreadth claims relate to all registered sex offenders and include the subclass of sex offenders who are employed or volunteer at a church or are impeded from such activities. Plaintiffs claim that the terms “areas where minors congregate” (doc-196, ¶ 120), “school bus stop as
46

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 47 of 68
designated by local school boards,” (doc-196, ¶ 122, 123), “loitering” (doc-196, ¶ 124), and the prohibition against employment or volunteering at a church (doc 196, ¶ 125) are vague. Plaintiffs claim the statute is overbroad because it interferes with “working, going to church and living with one’s family” (doc-196, ¶ 129), treats all sex offenders the same (doc-196, ¶ 130, 131), prevents sex offenders from singing in the choir, baking a pie or working in a church soup kitchen (doc-196, ¶ 132), and prevents them from doing grocery shopping, eating at restaurants, and attending weddings and funerals. (doc-196, ¶ 133),
Vagueness The term “areas where minors congregate” is not new to the law and has not been substantially altered since Doe v. Baker, supra. The term is now specifically defined to “include all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, school bus stops, public libraries, and public and community swimming pools.” O.C.G.A. § 42-112(a)(3). There is nothing vague about this and only the school bus stops, swimming pools and libraries are new to the definition since 2005. Plaintiffs complain that defining a school bus stop as “designated by local school boards of education” is somehow vague. Yet for any action to be approved
47

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 48 of 68
by a local board of education, or by any other public agencies, there are clear procedures, many set forth in Georgia’s Open Meetings law, O.C.G.A. § 50-14-1 et seq. Matters should appear on a posted agenda and be voted upon in public. Any matter being considered before any public body would normally contemplate specific action and require a vote of a majority of a quorum of members in attendance at that public meeting. The minutes of a meeting would normally reflect the action taken. There is nothing vague about this process.
Likewise, the term “loitering” is tied to a pre-existing statutory definition. O.C.G.A. § 42-1-15(e) provides that “it shall be unlawful for any individual required to register pursuant to Code Section 42-1-12 to loiter, as prohibited by Code Section 16-11-36, at any child care facility, school, or area where minors congregate.” (emphasis added). The term “loiter” requires use of the definition in the already- existing criminal provision defining that offense. There is nothing vague about it.
It is also evident that the word “volunteer,” when not ripped from the context in which it appears, can survive challenge. The language of the preamble to House Bill 1059, the 2006 legislative act that is the subject of this litigation, clearly shows the context in which the words “employed by or volunteer at” are to
48

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 49 of 68
be judged. That preamble, found in Section 1 of House Bill 1059, sets forth that the State of Georgia will “implement a strategy that includes: . . .
(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.” (2006 Ga. Laws 379, at 381)(emphasis added).
While Plaintiffs have attempted to paint the word “volunteer” as prohibiting every volitional act of religious worship, that is not what the code section proscribes. It clearly refers to employment-type activity, whether or not for pay. Not only is this clearly stated in the preamble, it is also reflected in the words of the statute. The statute provides that no registered sex offender “shall be employed by or volunteer at any child care facility, school or church or by any business or entity that is located within 1,000 feet of a child care facility, school or church.” It is only by ignoring the surrounding words of the statute that Plaintiffs can argue that volunteer means the isolated act of singing in the choir, reading scripture, or serving as a pall bearer during a funeral. The statute clearly is not meant to deter participation in religious worship; it is meant to deter registered sex offenders from working at a church, and specifically from circumventing the employment restrictions by claiming that they are simply volunteers, since they are not getting paid to work at the church.
49

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 50 of 68
The United States Supreme Court has recently recognized that analysis of a statute, subject to a First Amendment challenge, requires looking at words in the context of the entire statute, not just in isolation. In United States v. Williams, 553 U.S.____, 128 S. Ct. 1830, 1839 (2008), the Court noted that “When taken in isolation, the two . . . verbs . . . are susceptible of multiple and wide-ranging meanings. In context, however, those meanings are narrowed by the commonsense canon of noscitur a sociis--which counsels that a word is given more precise content by the neighboring words with which it is associated.” citing Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307; 81 S.Ct 1579 (1961).
Applying similar analysis, the words “employed by” clearly have to be read as closely related to the words “volunteer at.” To be “employed by or volunteer at a child care center, school or church” clearly sets forth an employment type situation, with or without pay. It does not prohibit participation in church worship services.
“The vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment. A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it
50

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 51 of 68
authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 128 S. Ct. at 1845.
“Perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” United States v. Williams, 128 S. Ct. at 1845, citing Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989). The Supreme Court, in reversing the Eleventh Circuit Court of Appeals, noted with disapproval that the Court had used “unproblematic hypotheticals.” Evidence does not show arrests of people taking part in a worship service, giving a scripture reading, providing a dish for a pot luck, passing a collection plate or decorating a Christmas tree. The Supreme Court went further and said the Eleventh Circuit’s “basic mistake lies in the belief that the mere fact that close cases can be envisioned renders a statute vague. That is not so. Close cases can be imagined under virtually any statute. The problem that poses is addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.” United States v. Williams, 128 S. Ct. at 1845
As noted above, the word “volunteer” does not stand alone but in the context of the entire statute. To be “employed by or volunteer at a child care center, school or church” clearly sets forth an employment type situation, with or without pay. It does not prohibit participation in church worship services.
51

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 52 of 68
“It will always be true that the fertile legal ‘imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be in nice question.’ ” Grayned v. City of Rockford, 408 U.S. 104, 112 (1972), footnote 15, citing American Communications Assn. v. Douds, 339 U.S. 382, 412 (1950).
Overbreadth Plaintiffs complain that the statute is overly broad because it interferes with “working, going to church and living with one’s family” (doc-196, ¶ 129), treats all sex offenders the same (doc 196, ¶ 130, 131), prevents sex offenders from singing in the choir, baking a pie or working in a church soup kitchen (doc-196, ¶ 132), and prevents them from doing grocery shopping, eating at restaurants, and attending weddings and funerals. (doc-196, ¶ 133), The statute does not prevent anyone from going to church. Sex offenders are not prevented from singing in the choir or baking a pie and are not prevented from doing grocery shopping, eating at restaurants or attending weddings. And, the fact that the residence restrictions apply to all registered sex offenders fails to establish that the statute is overbroad. In regard to the volunteer provisions, Plaintiffs fail to show how keeping registered sex offenders from working, with or without pay, at a child care center, school or church makes this statute overly broad.
52

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 53 of 68
“Invalidation for overbreadth is “ ‘ “strong medicine” ’ ” that is not to be “casually employed.” United States v. Williams, 553 U.S. ____, 128 S. Ct. 1830, 1839 (2008), citing Los Angeles Police Department v. United Reporting Publishing Corp., 528 U.S. 32 (1999). The Court in Williams, in reversing the Eleventh Circuit Court of Appeals, noted that despite concerns about the potential chilling effects of a statute, “we can hardly say . . . that there is a “realistic danger” that (the code section) will deter legitimate activities.” Williams, 128 S. Ct. at 1844. “The mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Williams, 128 S. Ct. at 1844, citing Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 800 (1984).
“There must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” Members of City Council of Los Angeles, 466 U. S. at 801. Such third parties do not exist. Churches have not raised an outcry about their constitutional rights being threatened—the only concerns are raised by registered sex offenders who are already parties to this action.
53

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 54 of 68
F. THE FIRST AMENDMENT Plaintiffs allege violations of the Free Exercise Clause of the First Amendment. This claim relates to the employment and volunteer provision of the statute. Plaintiffs claim that prohibiting registered sex offenders from working or volunteering at a church “operates as a substantial burden on the religious beliefs and practices” of Lori Collins, Omar Howard and others on the registry. Even with extensive discovery, including statistics from various law enforcement agencies, the Department of Corrections, and the State Board of Pardons and Paroles, Plaintiffs are still unable to present any evidence that Plaintiffs ability to practice their faith has been in any way been impacted. The First Amendment to the United States Constitution provides in pertinent part as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…”U.S. Const. amend. I. This provision is known respectively as the Establishment and the Free Exercise Clause. These Clauses are binding on the states through the Fourteenth Amendment. Cantell v. Connecticut, 310 U.S. 296 303 (1940). A Free Exercise Clause analysis is controlled by the decision of the United States Supreme Court in Employment Division v. Smith, 494 U.S. 872, 886 (1990),
54

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 55 of 68
which held that a valid generally applicable, religious neutral law that has the effect of only incidentally burdening a particular religious practice is constitutional. Supreme Court cases have established that “the free exercise inquiry asks whether the government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden. Hernandez v. Commissioner, 490 U.S. 680, 699 (1989).
Here, the volunteer and employment provisions of the sex offender statute are neutral in their treatment and do not target any religious practice or organization. The provision being challenged by Plaintiffs requires that no registered sex offender “shall be employed by or volunteer at any child care facility, school, or church.” It can hardly be suggested that this applies to religious, but not secular organizations. The statute simply regulates where sex offenders may volunteer or be employed. The statute has nothing to do with any one religious or secular organization in that it applies to all registered sex offenders with respect to employment or volunteering at any of the above restricted areas. Child care facilities and schools may be religious or secular. Likewise, the law applies to any business or entity. Nothing in the statute prohibits religious activities.
55

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 56 of 68
Plaintiff Whitaker has not been told by any law enforcement officers that she would be arrested or prosecuted if she attended church services nor has she inquired about attending church services and been told that she is not free to do so. Further, sex offenders on parole are not prohibited from participating in “worship services”, including activities such as approaching the alter to pray during service, approaching the altar to accept communion, remaining after service to speak with the pastor, putting money in the offering plate, acting as a pall bearer for funerals, ushering during church services, taking up a collection during a church service or similar services. (Doc. 206-2 ¶ 22).
Also, the Sex Offender Administration Unit of the Georgia Department of Corrections does not prohibit activities at a church that constitute worship service, or any part of the religious life of a church. (Doc. 206-3, ¶¶9, 10). Sex offenders on probation are permitted to participate in worship services (including singing in the choir or playing a musical instrument at a service), teach adult Sunday school, cut the grass at the church, rake leaves or help clean church buildings. (Doc.206-3, ¶ 11). Sex offenders are not permitted to engage in activities that bring them in direct contact with children. (Doc. 206-3 ¶ 12).
Therefore, Plaintiff Wendy Whitaker is unable to show that her ability to practice her faith has been in anyway impacted by the statute. Plaintiff Whitaker’s
56

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 57 of 68
ambiguous statement that she is fearful of attending church because she might be arrested or prosecuted is not an accurate representation of the statute and does not actually represent how various law enforcement agencies, the State Board of Pardons and Paroles, and the Department of Corrections are applying the statute and is simply not substantiated by any evidence.
The volunteer and employment provisions of the sex offender statute are far different from ordinances in cases such as Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). There the City of Hialeah, Florida targeted the Santeria religion by passing an ordinance prohibiting animal sacrifice, which was a part of the religion’s ritual. The ordinance applied only to this religion and was expressly enacted to stop this religious practice. This was obviously not a “neutral” law. The statute at issue in this case is “neutral” in that it applies to churches, schools and child care facilities and applies to all registered sex offenders.
Moreover, Plaintiffs have not shown that there has been a substantial burden on their religious practices or that they ability to practice their faith has been impeded. Plaintiffs allege that Lori Collins was unable to apply for a job opening in the media ministry at Mt. Paran Church of God because she is on the sex offender registry. Working in a media ministry at a church has nothing to do with
57

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 58 of 68
Ms. Collins exercising her faith in her religion. Again, she is still able to pray, take communion or exercise her faith in any way she chooses.
Similarly, Plaintiff Howard is free to participate and worship in a wide variety of church activities. The only thing that Plaintiffs may not do is participate in activities that put them in direct contact with children. Not allowing sex offenders to teach children’s bible study, supervise a youth ministry, or act as the minister of music to a children’s choir or any choir in which children are members is certainly not unreasonable and protects innocent children from being victimized by individuals in positions of trust and confidence. No one has told Plaintiffs they could not pray, take communion, or engage in any other activities in which Plaintiffs choose to exercise their faith.
Further, Plaintiffs in this case are not religious organizations but are registered sex offenders; Plaintiffs lack standing to raise this issue on behalf of any religious organizations. The requirement that a claimant have ‘standing is an essential and unchanging part of the case-or-controversy requirement of Article III’… [A] claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.” Davis v. Federal Election
58

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 59 of 68
Commission, 554 U.S. ____, 128 S. Ct. 2759, 2768 (2008), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560; 112 S. Ct. 2130 (1992).
In addition, the statute in question does not regulate church activity; it only regulates activity by registered sex offenders. Plaintiffs have not shown that churches are being prevented from engaging in any constitutionally protected activities. Nothing in the statute injects the state into “substantive ecclesiastical matters,” as suggested by Plaintiffs. The statute regulates only the activities of persons who have been convicted of crimes and are required to register as sex offenders.
Plaintiffs have not in any way shown that their ability to practice their faith has been impeded or substantially burdened. Plaintiffs have failed to prove any first amendment violations.
G. PLAINTIFFS LEASEHOLD INTERESTS ARE FULLY PROTECTED BY
GEORGIA LAW FROM ANY ‘TAKINGS’ CLAIM Janet Allison rents her home pursuant to a written lease. (doc-196 ¶ 35; doc260-6, Allison declaration of September 14, 2009, ¶ 3). She does not allege that she has been required to break the lease or that her current residence violates the statute in any way. Janet Allison’s chief complaint is that a bus stop “might be
59

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 60 of 68
designated,” or that another prohibited location might move near her current place of residence.(doc-196, ¶ 35).
Lori Collins also rents a home pursuant to a valid lease. (doc-196, ¶ 67; doc260-6, Collins declaration of September 14, 2009, ¶ 3). Her current residence is not impacted by the statute. Her claim is limited to the “possibility” that her lease might be impacted at some future date. (doc-196, ¶ 67).
Only these two named Plaintiffs, Janet Allison and Lori Collins, have a valid lease. Neither of these Plaintiffs has a property interest that has been “taken” as their current residence complies with the dictates of the statute. Both Plaintiffs attempt to retain “standing” by stating that “if the local school board designates its school bus stop or if a prohibited location moves within 1,000 feet of the residence” they would be required to relocate or face prosecution. (doc-196 ¶ 35, 67). This generalized fear of prosecution is insufficient to create standing. Pittman v. Cole, 267 F.3d 1269, 1283-84 (11th Cir. 2001).
Further, Plaintiffs have admitted “that a valid lease does constitute a property interest under Georgia law.”(Response to Defendants’ Request for Admission, #2). Plaintiffs have also admitted that such “property interests are protected from regulatory taking under Georgia law pursuant to the case of Mann v. Georgia Department of Corrections, 282 Ga. 754 (2007) and other authority.”
60

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 61 of 68
(Response to Defendants’ Request for Admission, #2). The Defendant sheriffs and Plaintiffs have also stipulated that “an individual holding a valid leasehold property interest in a residence and who resides therein shall not be required to move from such residence . . . for the duration of his or her lease” if the lease is sufficient to constitute a protected property interest and a child care facility, church, school or area where minors congregates subsequently moves within 1,000 feet of the rented residence. (doc-254).
This matter is entirely moot. Plaintiffs Collins and Allison are protected from “taking” of any property interest including the interests of a valid lease. Georgia law already fully protects the two named Plaintiffs. No other plaintiffs are involved in this claim since there is no subclass involving the “takings” claim; it is limited to Allison and Collins.
In the Mann case, the Georgia Supreme Court found that where the property interest predated the introduction of the prohibitive restriction or restricted condition (i.e. subsequent designation of a school bus stop), the residency restrictions are “unconstitutional to the extent that it permits the regulatory taking of appellant’s property....” 282 Ga. 754, 760. Thus, to the extent that the Plaintiffs have a valid property interest under Georgia law, that property interest cannot be taken if, as Plaintiffs suggest, there is a subsequent introduction of a condition that
61

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 62 of 68
would be prohibited under the statute. So, to the extent that Plaintiffs might otherwise be able to show a “taking” there could be none resulting from the alleged change of conditions.
H. PLAINTIFFS HAVE NOT SUSTAINED THEIR BURDEN Plaintiffs have the burden of proof. They must establish their case by a preponderance of evidence. The claim should be supported by showing facts “consistent with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1969 (2007). This they have not done. In addition, “[l]egislative classifications . . . are presumed to be constitutional, and the burden of showing a statute to be unconstitutional is on the challenging party, not on the party defending the statute.” New York State Club Association v. City of New York, 487 U.S. 1, 17; 108 S. Ct. 2225, 2236 (1988)(emphasis in original). Courts have an obligation to interpret a statute “in a manner that renders it constitutionally valid.” Communications Workers of America v. Beck, 487 U.S. 759, 762; 108 S. Ct. 2641, 2657 (1988). Plaintiffs have alleged a class action facial attack on the Residency Statute. Much of their proof, however, is anecdotal and would be more appropriate in individual “as applied” challenges. As the Court noted in regard to the claims in
62

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 63 of 68
Ashcroft v. Iqbal, ___U.S. ___, 129 S. Ct. 1937, 1942 (2009), “Respondent’s account of his prison ordeal could, if proved, demonstrate unconstitutional misconduct by some government actors. But the allegations and pleadings with respect to these actors are not before us here.” Plaintiffs have alleged that the statute is infirm; they must show by clear proof what they have alleged. A defendant meets its burden on a Motion for Summary Judgment by showing “that there is an absence of evidence to support the [plaintiff’s] case.” Celotex Corp. v. Catrett, 477 U.S. 317 (1986). See also Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991).
Plaintiffs’ evidence is speculative, at best. While some registered sex offenders have been required to move or change job locations, the numbers have been relatively small. Sex offenders who have moved, more often than not, have found housing in the same or adjoining counties. Very few sex offenders have been arrested for violating the sex offender restrictions. Only a handful have been convicted in the more than three years this litigation has been pending. (Dolby affidavit, ¶¶ 16-46; Casting affidavit, ¶¶ 6-8; Holt affidavit, ¶¶ 6-8; Tate affidavit, ¶¶ 7-8; O’Neal affidavit, ¶¶ 5-7). While Plaintiffs complain about inability to volunteer at churches, both the Department of Corrections and the Board of Pardons and Paroles have adopted and carried out policies to make sure that no one
63

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 64 of 68
is prevented from exercising religious rights and worshiping as they choose. (doc206-2, ¶¶ 9-22; doc-206-3, ¶¶ 9-24). The evidence from sheriffs’ offices further shows that sex offenders are not being impeded in their attempts to practice religion or engage in any worship services. The sheriffs report very few incidents in which anyone has been prevented from volunteering. And virtually no one has been arrested for volunteering at a church. (Dolby affidavit, ¶¶ 47-48). Plaintiffs simply speculate based on a lack of firm evidence.
Plaintiffs have claimed that sex offenders will be banished. Evidence supporting such a claim is lacking. Most sex offenders have not had to move or change jobs. Those who have moved have not been forced far from their communities. (Holt affidavit, ¶¶ 6-8). As time has passed, it has become obvious that the effects of the law are far milder than claimed. After the initial reaction to passage of the law in 2006, the number of persons affected by it has diminished over time.
Plaintiffs claimed that sex offenders would be forced underground and would abscond in large numbers. Again, evidence supporting this claim is lacking. Evidence that is available shows that the rate of absconders has remained relatively constant over the years and has possibly even declined. (Tate affidavit, ¶¶ 7-8).
64

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 65 of 68
Evidence about school bus stops in three counties is likewise speculative. Sex offenders are now exempt from having to move if they own or lease their residence. No one knows how many sex offenders in Bulloch, Columbia and Chatham counties actually own their homes or have a lease. Plaintiffs can only speculate. No one knows how many sex offenders who are not exempt can easily move into another nearby county that has not designated school bus stops. Again, one can only speculate.
Plaintiffs have failed to carry their burden.
65

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 66 of 68

III. Conclusion

For all of the above and foregoing reasons, Defendants request that the Court

enter summary judgment in their favor and against the Plaintiffs on all claims

asserted in this action. Respectfully submitted this 30th day of September, 2009.

THURBERT E. BAKER Georgia Bar No. 033887 Attorney General

MARY BETH WESTMORELAND Georgia Bar No. 750150 Deputy Attorney General

KATHLEEN M. PACIOUS Georgia Bar No. 558555 Deputy Attorney General

/s/ Joseph Drolet ________________ Georgia Bar No. 231000 Senior Assistant Attorney General

Please Serve: JOSEPH DROLET Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 657-3983 Facsimile: (404) 463-8864 E-mail: jdrolet@law.ga.gov

/s/ Devon Orland ___________ Georgia Bar No. 554301 Senior Assistant Attorney General

66

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 67 of 68
CERTIFICATION AS TO FONT
Pursuant to N.D. Ga. Local Rule 7.1 D, I hereby certify that this document is submitted in Times New Roman 14 point type as required by N.D. Ga. Local Rule 5.1(b).
/s/ Joseph Drolet Georgia Bar No. 231000 Senior Assistant Attorney General

Case 4:06-cv-00140-CC Document 267-1 Filed 09/30/09 Page 68 of 68

CERTIFICATE OF SERVICE

I hereby certify that on this day, I electronically filed this MOTION FOR

SUMMARY JUDGMENT, BRIEF IN SUPPORT, AND STATEMENT OF

MATERIAL FACTS with the Clerk of Court using the CM/ECF system which

will automatically send email notification of such filing to the following attorneys

of record:

Sarah Geraghty Stephen Bright Lisa Kung Gerald Weber Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122

Mr. David E. Hudson Hull, Towill, Norman, Barrett & Salley, PC P.O. Box 1564 Augusta, GA 30903-1564
This 30th day of September, 2009.

Please Serve: JOSEPH DROLET Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 657-3983 Facsimile: (404) 463-8864
E-mail: jdrolet@law.ga.gov

/s/ Joseph Drolet__________ Georgia Bar No. 231000 Senior Assistant Attorney General

 
 Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

_________________________________

)

WENDY WHITAKER, et al.,

)

)

Plaintiffs,

)

) CIVIL ACTION

v.

)

) No. 4:06-140-CC

SONNY PERDUE, et al.

)

)

Defendants.

)

_________________________________ )

PLAINTIFFS’ BRIEF IN SUPPORT OF RENEWED MOTION FOR SUMMARY JUDGMENT AND FOR A PERMANENT INJUNCTION TO ENJOIN ENFORCEMENT OF THE “SCHOOL BUS STOP” PROVISION
OF O.C.G.A. § 42-1-15(B) AND O.C.G.A. § 42-1-16(B)

This brief presents the question of whether persons on the sex offender

registry – including children and persons with disabilities – may be immediately

evicted from their homes and communities every time a local school board

designates a school bus stop pursuant to O.C.G.A. § 42-1-15(b) or O.C.G.A. § 42-

1-16(b). The material facts are not in dispute. Once a school board designates a

school bus stop, any registered sex offender who is subject to the school bus stop

provision who knowingly resides within 1,000 feet of the school bus stop is

instantly in violation of the law and subject to 10 to 30 years in prison.

Thousands of school bus stops have been designated in Bulloch, Chatham, and

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 2 of 27
Columbia counties, and plaintiffs in those counties stand to be evicted if this Court does not act.1 Other counties will likely follow suit, depending on this Court’s order. There is no factual dispute that, pursuant to § 42-1-12(a)(19), school boards may change designated bus stops at any time, subjecting plaintiffs to recurring evictions. There is further no factual dispute that law enforcement officials across Georgia mistakenly ordered hundreds of people to leave their homes due to their erroneous interpretation of the ambiguous school bus stop provision.2 The only disputed questions are legal ones – whether the school bus stop provision is unconstitutionally vague or violates the substantive due process clause. Plaintiffs in the “school bus stop” subclass ask this Court to grant them summary judgment and to enjoin the State from expelling them from their homes pursuant to O.C.G.A. § 42-1-15(b) and § 42-1-16(b).
STATEMENT OF FACTS Per L.R. 56.1(B), the facts are set forth in Plaintiffs’ Statement of Material Facts in Support of Renewed Motion for Summary Judgment.
1 See Maps of Chatham, Columbia counties (Ex. 1, 2) (showing the broad scope of the school bus stop provision); P. Wagner Decl. (Ex. 3). 2 See Order, July 25, 2006, Doc. 54 at 5 (stating that the Court was “deeply troubled” by the “overwhelming evidence” that local law enforcement authorities prepared to evict plaintiffs pursuant to a mistaken interpretation of the law).
2

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 3 of 27
ARGUMENT I. AS THIS COURT HAS REPEATEDLY HELD, PLAINTIFFS HAVE
STANDING TO CHALLENGE THE SCHOOL BUS STOP PROVISION. A plaintiff has standing when three criteria are met: (1) the plaintiff has experienced an injury; (2) the injury is fairly traceable to the challenged statute; and (3) the plaintiff’s harm is likely to be redressed should the court order relief. See Doe v. Kearney, 329 F.3d 1286, 1292 (11th Cir. 2003). This Court has repeatedly held that plaintiffs have standing to challenge residence restrictions. In 2007, the Court found that plaintiffs articulated an “actual injury” even if they had not yet been forced from their homes.3 In 2008 the Court ruled that defendants’ claim that lessees lacked standing “does not have legal support.” (See Order, Doc. 195 at 8). In 2009, when defendants again raised the standing issue, this Court held: On numerous occasions throughout this lawsuit, Defendants Perdue, Baker and Dean have taken the position that the named Plaintiffs lack standing because their residences currently comply with the statutory restrictions and because they have not been arrested, threatened with arrest, or asked to move. The Court has previously addressed this contention that the named Plaintiffs lack standing and will not do so again here. See Order, Mar. 30, 2009 at 13, n. 2. Although the identities of the plaintiffs subject to injury have changed, the same standing analysis applies here with the same result. The following proposed 3 Order, Mar. 30, 2007 at 14 (rejecting defendants’ argument that plaintiffs’ injuries were “hypothetical”).
3

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 4 of 27
named plaintiffs are subject to an immediate threat of injury:
• Walter Smiley lives in Chatham County. He is blind. Smiley was convicted of statutory rape for an offense that occurred in 2009. Smiley’s residence is within 1,000 feet of a school bus stop. Smiley neither owns nor rents his residence and does not qualify for an exemption from O.C.G.A. § 42-1-15. If the consent order enjoining Chatham County from enforcing the school bus stop provision is lifted, Smiley faces immediate eviction. (See Smiley Decl. (Ex. 18); Statement of Facts ¶ 48(a)).
• Ruben Luna lives in Columbia County with his pregnant wife and their 5year-old daughter. Luna must register as a sex offender for an offense that occurred after July 1, 2006. The Lunas’ rented home is within 1,000 feet of a school bus stop that was designated before the Lunas moved into their residence. The Lunas’ lease terminates at the end of 2010. Luna wishes to renew his lease and remain in his home with his wife and child. If the consent order enjoining Columbia County from enforcing the bus stop provision is lifted, Luna faces immediate eviction. (See Luna Decl. (Ex. 19); Statement of Facts ¶ 48(b)).
• G.W. is 17 and lives in Chatham County. He must register as a sex offender for an incident that occurred in October 2006, when he was 13. G.W.’s parents’ home is within 1,000 feet of a bus stop. If the consent order enjoining Chatham County from enforcing the bus stop provision is lifted, G.W. will not be able to live with his family or to re-locate within Chatham County. (See G.W. Decl. (Ex. 14); Statement of Facts ¶ 48(c)).
Attached to plaintiffs’ motion are maps of Chatham and Columbia counties
showing the broad scope of the school bus stop provision.4 The maps show that
nearly all persons on the registry in these counties who are subject to the bus
4 See Maps of Chatham, Columbia counties (Ex. 1, 2); Wagner Decl. (Ex. 3).
4

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 5 of 27
stop provision will have to move if the provision is enforced.5 If the consent orders are lifted, as many as 66 people will be subject to immediate eviction, including approximately 12 from Columbia County, as many as 49 from Chatham County, and 5 from Bulloch County.6 At least four children are immediately subject to eviction.7 An additional number may be subject to eviction due to Woodward Academy’s 50 bus stops in the metro Atlanta area.8 The school bus stop subclass class is growing all the time as more people are convicted.9 Other counties are poised to designate bus stops if the consent order is lifted, and discovery conclusively showed that less than 1% of plaintiffs qualify for a homeowner exemption.10 Few renters in bus stop counties will be protected, moreover, since bus stops were designated in those counties in 2006.11
5 See id.; Statement of Facts ¶ 29(a-d), 44-46. 6 See Statement of Facts ¶ 28-30; Wagner Decl. (Ex. 3 ¶ 9, 14, 19). 7 See Statement of Facts ¶ 31; see also Ex. 13, 14, 22. 8 See Statement of Facts ¶ 20; see also Ex. 8. 9 See Statement of Facts ¶ 29(a), 44-46. 10 See Statement of Facts ¶ 25, 29(c); see also Ex. 10-12. 11 See § 42-1-15(e)(1) (stating that lease must pre-date the school bus stop); see also Statement of Facts ¶ 27, 29(d).
5

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 6 of 27
Defendants have previously argued that plaintiffs lack standing to raise constitutional claims until the moment they are ordered from their homes. But plaintiffs do not need to wait until they suffer an injury to sue.12 The Supreme Court, moreover, has recognized an exception to the standing requirement in cases where a plaintiff’s claims are capable of repetition yet evading review.13 Under the bus stop provision, the moment a school bus stop moves within 1,000 feet of the residence in question, the person must either leave or face arrest. The removal will thus be completed by the time a legal challenge has been mounted. Any constitutional injury will be too fleeting to be redressed and hence qualifies as being capable of repetition yet evading review. Plaintiffs have standing.14
12 See Pennell v. City of San Jose, 485 U.S. 1, 7-8 (1988) (landlord had standing to challenge rent control ordinance even though the ordinance had not yet been enforced, where it was not speculation to conclude that the ordinance would be enforced against plaintiff); 31 Foster Children v. Bush, 329 F.3d 1255, 1265 (11th Cir. 2003) (plaintiffs need not wait for an injury to occur before filing suit). 13 See Doe v. Kearney, 329 F.3d 1286, 1293 (11th Cir. 2003). The “capable of repetition” exception applies here since the challenged action is too short in duration to be fully litigated prior to its completion. See Bourgeois v. Peters, 387 F.3d 1303, 1308 (11th Cir. 2004). 14 Plaintiffs easily satisfy the two remaining standing tests. The injury they allege is undoubtedly a direct result of the school bus stop provision. Doe, 329 F.3d at 1292. Finally, this Court can redress the constitutional injury by granting the injunctive relief plaintiffs seek. See id.
6

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 7 of 27
II. THE SCHOOL BUS STOP PROVISION, O.C.G.A. § 42-1-15(b), 42-116(b), 42-1-12(a)(19), IS UNCONSTITUTIONALLY VAGUE.
This Court certified a class: “for the purposes of asserting vagueness . . . challenges to the statute [of] all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. § 42-1-12.” (See Order, Mar. 30, 2009 at 16-17). The school bus stop provision, §§ 42-1-15(b), 42-1-16(b), is unconstitutionally vague in violation of due process under the Fourteenth Amendment. The lack of fair notice of what the provision requires is particularly concerning given that a 10 to 30 year prison sentence faces any person charged under it. See §§ 42-1-15(g), 42-1-16(g).
A basic tenant of due process is that “[all persons] are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). A statute is impermissibly vague if it “fail[s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits” or “authorize[s] and even encourage[s] arbitrary and discriminatory enforcement.” City of Chicago v. Morales, 527 U.S. 41, 56 (1999); Skilling v. United States, 130 S. Ct. 2896, 2904 (2010). A law must provide “fair notice” of proscribed conduct so citizens can conform
7

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 8 of 27
their conduct to the law. Morales, 527 U.S. at 58. Vagueness standards are
particularly stringent when a criminal statute is reviewed.15
A. The Undefined “Designated” School Bus Stop Provision of § 42-112(a)(19) is Unconstitutionally Vague.
A statute must provide sufficient notice and clarity to enable “ordinary
people” to understand “what conduct it prohibits.” Grayned, 408 U.S. at 108. The
school bus stop provision fails this test. It is vague both facially and as applied.
The phrase “school bus stop as designated by local school boards” in § 42-1-12(a)(19) is
so ambiguous and unclear that nearly every sheriff’s department in Georgia
misinterpreted its meaning in 2006.16 The phrase produced such confusion that
15 See Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 588 (1998) (“The terms of the provision are undeniably opaque, and if they appeared in a criminal statute . . . they could raise substantial vagueness concerns.”); Santos v. State, 284 Ga. 514, 516-176, 668 S.E.2d 676, 679 (2008) (“The language of a criminal ordinance cannot be so ambiguous as to allow the determination of whether a law has been broken to depend upon the subjective opinions of complaining citizens and police officials.”). See also Elwell v. Township of Lower, 2006 WL 3797974 at *14-15, 17 (N.J. Super. Ct. Law Div. Dec. 22, 2006) (ordinance prohibiting sex offenders from residing or loitering within 25 feet of school bus stop was unconstitutionally vague and violated substantive due process clause).
16 All ten law enforcement officers who testified at the July 2006 preliminary injunction hearing in this case – including Ted Paxton (Forsyth County), Investigator Russell Finely (Cobb County), Captain David Davis (Bibb County), Corporal Stephen Liflan (DeKalb County), Corporal Karen Pirkle (Gwinnett County), Sergeant Jay Baker (Cherokee County), Investigator Charlene Giles (Houston County), Lt. Ezell Brown (Newton County), Investigator Gene Higdon (Rockdale County), and Deputy Glenn Hoover (Fulton County) – believed that
8

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 9 of 27
Georgia sheriffs mistakenly ordered hundreds of people to leave their homes,17
actually evicted numerous people,18 and came within 48 hours of mistakenly
evicting thousands more.19 Those Sheriffs understood the term “designated” to
“school bus stops” referred to places where school buses stopped to pick up children, and all were enforcing the statute accordingly. See Tr. of Prelim. Inj. Hearing, July 11-12 [Doc. No. 42, 43] at 23, 37-38, 49-50, 62, 85, 87, 88, 159-60.
17 Sheriff Paxton of Forsyth County testified that his office notified all sex offenders in his county about the school bus stop provision and planned to give registrants 72 hours to vacate their homes or face arrest. See Tr. of Prelim. Inj. Hearing, July 11-12 at 27-28. As of July 11, 2006, the Cobb County Sheriff’s Office had already directed most of its 200 sex offenders to vacate by July 1. See id. at 37-40. Corporal Stephen Lifland testified that the DeKalb County Sheriff’s Office had imminent plans to “start arresting” people who remained at a residence within 1,000 feet of a school bus stop. See id. at 65-66.
18 See M. Doctoroff Decl. (Ex. 9) at ¶ 12; Attachment C (compiling sheriffs’ discovery responses admitting to at least 43 actual evictions due to the school bus stop provision in 2006). See also L. Collins Decl., June 19, 2008 at 6-7 [Doc. No. 187-10] (stating that Collins was forced from her home in Rockdale County due to school bus stop provision); A. Norton Decl., June 12, 2008, [Doc. No. 186, Ex. 5 ¶ 13] (stating that he and his wife and children were forced to move from a rented residence when Cobb County law enforcement officials told them that a school bus stop had been designated within 1,000 feet of his residence); A. Raines Decl., Sept. 3, 2009 (Ex. 21) (stating that he, his wife and their 11-month-old daughter were forced to move from their home in Columbia county due to the bus stop provision); J. Jones Decl., Jan. 29, 2008 [Ex. C to Doc. No. 169] (stating that the bank foreclosed on his home and that he lost approximately $25,000 after a Cobb County sheriff’s deputy ordered him to move from his home within 30 days because it was within 1,000 feet of a school bus stop).
19 See n. 16, 17; Statement of Facts ¶ 8-13.
9

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 10 of 27
mean any location where a school district’s buses regularly pick up students.20 This position was identical to that of the Bill’s sponsor.21 Some school districts interpreted the phrase differently, to exclude stops at individual students’ homes.22 See Konikov v. Orange Cty., 410 F.3d 1317, 1330-31 (11th Cir. 2005) (differences in interpretation by enforcing agents supports vagueness).23 The State defendants have insisted that their interpretation of the provision is definitive, but government officials cannot cure vagueness by “settl[ing] upon a
20 See id.; Pls’ Br. in Resp. to Court’s July 12 Ruling Regarding the Definitions of “School Bus Stops” [Doc. No 40] at 19. 21 R. McDonald, Court Weighs if Laws Will Banish Sex Offenders; State Attorneys at Odds with Legislature, Sheriffs Over Bus Stops, FULTON COUNTY DAILY REPORT, July 14, 2006 (quoting Rep. Keen as stating “[d]esignated means the appointed areas that a school bus driver is given that they are to go and pick children up.”). 22 See Testimony of Robin Blackburn, Seminole County, Tr. of Hearing, July 11, 2006 [Doc. No. 42] at 94-99. 23 Kolender v. Lawson, 461 U.S. 352, 361 (1983) (statute requiring persons on public streets to provide “credible and reliable identification” to police was vague because it encouraged arbitrary enforcement). See also James v. United States, 550 U.S. 192, 230 (2007) (Scalia, J., dissenting) (The legislature has “abdicated its responsibility when it passes a criminal statute insusceptible of an interpretation that enables principled, predictable application.”).
10

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 11 of 27
definition” of an otherwise vague term. See Ga. Pacific Corp. v. Occupational Safety
and Health Rev. Comm’n, 25 F.3d 999, 1005 (11th Cir. 1994).24
As this Court correctly predicted, the school bus stop provision continued
to cause confusion even after the Court’s July 26, 2006 order.25 In 2008, a private
school sought to designate school bus stops, but its attorney told the Attorney
General that the statute was unclear:
The purpose of this letter is for Woodward Academy to designate the bus stops on the enclosed list . . . for the purpose of prohibiting registered sex offenders from residing within 1,000 feet of these bus stops. Because the statute does not provide private schools with guidance as to how to designate its school bus stops, the enclosed list is being sent to your office . . . .26
24 The combination of patently vague terms and dramatically different interpretations of a statute supports a finding of vagueness. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1048-51 (1991). In Gentile, the Supreme Court determined that a particular rule was void for vagueness because its safe harbor exception contained no clarifying interpretation, requiring one who sought to avail himself of it to guess at its contours. Id. at 1048. The vagueness of the language misled the petitioner to think his actions fell within the exception partly because the terminology (“general nature” and “without elaboration”) had no settled usage or traditional interpretation in law, effectively blurring the line between what was acceptable and what was forbidden. Id. at 1048-1049. Despite petitioner’s conscious effort to understand and comply with the exception, the Court noted that the rule ultimately created a trap for those wary and unwary, leading to the impermissible risk of discriminatory enforcement. Id. at 1051.
25 See Order, July 25, 2006 at 6 (“This ruling, therefore, may only result in delay, confusion, and inconsistent actions at the local level.”).
26 See Ex. 8.
11

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 12 of 27
Defendants argued in 2009 that Georgia’s Open Meetings law renders the term “school bus stop” clear.27 Yet, even the state defendants have acknowledged the confusion caused by the school bus stop provision:
THE STATE: What is troubling, I think, for everybody involved in this situation is there has been an inundated panic with sheriffs holding up maps, saying we don’t know.28 This admission that the statute caused “panic” and that sheriffs did not know how to interpret it weighs in favor of a finding of vagueness. Compounding this admission, the state acknowledged that the term “designated” is unclear: THE STATE: The Legislature made a decision to define school bus stops as those designated by the local school board. Now whether or not it’s sufficient to have a designee who creates the list and then has the school board approve it, what criteria is needed, that needs to play itself out, I think, in the Georgia courts . . . . THE COURT: Most people would assume that if a school board gave you a list of school bus stops they were probably designated by the local school board. THE STATE: Well, I can’t help what people assume. I think the statute speaks for itself, Your Honor. THE COURT: The statute doesn’t clarify that, though.29
27 See Defs’ Resp. to Pls’ Mot. Summ. J., Oct. 30, 2009, at 21. 28 See Tr. of Hearing, July 11, 2006 at 13 [Doc. No. 42] (Sr. Asst. Att’y Gen. Devon Orland). 29 See id. at 16.
12

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 13 of 27
A statute that infringes so substantially on a person’s home and family relationships – and which subjects violators to 10 to 30 years in prison – must provide clear notice of what is required. The school bus stop provision fails so monumentally in this regard that numerous, reasonable law enforcement officials misinterpreted the provision, mistakenly forcing plaintiffs to abandon homes. There is no reason to believe that the confusion that ensued in 2006 will not again ensue if the school bus stop provision is permitted to go into effect.
B. The School Bus Stop Provision Does Not Provide Reasonable Notice of Prohibited Conduct.
Aside from the matter of “designation,” the school bus stop provision is vague in that it does not provide plaintiffs with reasonable notice of what conduct is prohibited. There are thousands of school bus stops in counties that have designated them.30 School bus stops are not always marked. Many are impossible to identify, and plaintiffs do not have access to bus stop lists. Unlike a school or child care center, bus stops have no set boundaries, making it impossible to measure 1,000 feet from each one.31 Moreover, bus stops are a
30 See Ex. 1, 2; Statement of Facts ¶ 15-17. 31 Cf. Hill v. Colorado, 530 U.S. 703, 733 (2000) (rejecting vagueness challenge to criminal statute and explaining that “one of the [statute’s] virtues is the specificity of the definitions of the zones described in the statute.”).
13

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 14 of 27
moving target; they are inherently transient and may be designated by school boards at any time, significantly limiting the permanency of plaintiffs’ residences. The school bus stop provision is unconstitutionally vague.
C. Instant Criminal Liability for the School Bus Stop Provision Allows Criminal Sanction Without Fair Warning of Illegality.
O.C.G.A. §§§ 42-1-15, 42-1-16, 42-1-12(a)(12) are unconstitutionally vague because they do not provide fair warning of prohibited conduct such that plaintiffs could take steps to comply with the law. While § 42-1-15(g), 42-1-16(g) provide that residence at a prohibited location must be “knowing,” there is no opportunity to move from one’s unlawfully located home to avoid criminal sanction. Once a person becomes aware (“knowing”) that his home is in a prohibited location, he immediately commits the criminal act and “shall be punished by imprisonment” for 10-30 years. Id. (emphasis added). O.C.G.A. § 42-1-15 and 42-1-16 premise criminal liability on mere geographic positioning – creating criminal liability as soon as a plaintiff knows of the prohibited location. The lack of notice and time for opportunity to comply is particularly problematic for plaintiffs who find themselves living in proximity to a school bus stop; unlike a school, church, or pool, bus stops do not need to be constructed, but can spring into existence in an instant.
14

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 15 of 27
Criminal laws generally provide an intent element and an act requirement;32 here, there is no act, only presence. The moment a plaintiff becomes aware of a school bus stop, the crime is complete. The “act” in question is by a third party who designates a bus stop. And, as the Georgia Supreme Court noted in Mann v. Georgia Department of Corrections:
O.C.G.A. 42-1-15 looms over every location appellant chooses to call home, with its on-going potential to force appellant from each new residence whenever, within that statutory 1,000-foot buffer zone, some third party chooses to establish any of the long list of places and facilities encompassed within the residency restriction. While this time it was a day care center, next time it could be a playground, a school bus stop, a skating rink or a church. 282 Ga. 754, 759 (2007). The bus stop provision lacks a warning requirement or even a narrow time period to move one’s home, an essential element which would form the basis for a criminal act. Davis v. City of Peachtree City, 251 Ga. 219, 221 (1983) (application of ordinance to defendant who lacked criminal intent violated due process clause). The bus stop provision fails to provide fair warning of prohibited conduct.
32 See generally Sheffield v. State, 281 Ga. 33, 35 (2006); Moody v. State, 253 Ga. 456, 456 (1984); Carr v. State, 196 Ga. App. 397 (1990).
15

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 16 of 27
III. THE SCHOOL BUS STOP PROVISION VIOLATES THE SUBSTANTIVE DUE PROCESS CLAUSE, ESPECIALLY AS APPLIED TO CHILDREN AND PERSONS WITH DISABILITIES.
A. The Freedom to Maintain One’s Home and Family Without Being Subject to 10 to 30 Years Imprisonment Is a Protected Liberty Interest that the State Cannot Infringe Upon Absent a Countervailing Interest Sufficient to Justify Such a Massive Intrusion.
The Due Process Clause is a “bulwark[]…against arbitrary legislation.”
Hurtado v. California, 110 U.S. 516, 532 (1884). The liberty guaranteed by
substantive due process “includes a freedom from all substantial arbitrary
impositions and purposeless restraints,” and “recognizes…that certain interests
require particularly careful scrutiny of the state needs asserted to justify their
abridgement.” Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J. dissenting).
Moving away from the traditional substantive due process analysis,33
where grouping rights as “fundamental,” or not, and applying strict scrutiny, or
the rational basis test dictated the Due Process inquiry, the United States
Supreme Court recently advanced a more nuanced analysis. In 2003, the Court
33 In the classic due process analysis, government actions that interfere with “fundamental rights” protected by the Due Process Clause are subject to strict scrutiny, and will be upheld only if they are “necessary” to achieve a compelling interest and are “narrowly tailored” to that end. Roe v. Wade, 410 U.S. 113 (1973). Government actions implicating all other rights are subject to the rational basis test, and pass muster so long as they are rationally related to a legitimate state interest. See id.
16

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 17 of 27
in Lawrence v. Texas, 539 U.S. 558, struck down the Texas sodomy statute as violative of substantive due process. The Court did so without using either the strict scrutiny or rational basis test, holding instead that the statute “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Id. at 578 (emphasis added).34
Whether using the traditional “fundamental rights” analysis or the newer, more nuanced due process analysis developing in the Supreme Court to scrutinize the school bus stop provision, the significant impact of the provision is central to the inquiry. If the consent orders are lifted, as many as 66 people will be subject to immediate eviction in “school bus stop” counties, driving them away from spouses, children, or other family they do not wish to abandon. (Facts ¶ 29-30). Some, like Walter Smiley, are disabled. (Facts ¶ 48). Others, like G.W., are children. (Facts ¶ 31). Moreover, other counties are waiting in the wings to designate bus stops, upend families and send class members packing.
The school bus stop provision affects not only plaintiffs’ homes, but also their family relationships. “The institution of the family is deeply rooted in this Nation’s history and tradition,” Moore v. City of East Cleveland, 431 U.S. 494, 503
34 See Lofton v. Sec'y of Dep't of Children and Family Serv., 358 F.3d 804, 816 (11th Cir. 2004) (recognizing that in Lawrence v. Texas, the Supreme Court dispensed with the “standard fundamental-rights analysis”).
17

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 18 of 27
(1977), and “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974). As the Court stated in Moore, “when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.” 431 U.S. at 499.
Because of the expansiveness of the bus stop provision,35 spouses, parents, and children of people on the registry will be faced with the Hobson’s choice of moving suddenly or being separated. The provision has caused and will continue to cause enormous upheaval and stress for plaintiffs’ families. See Elwell, 2006 WL 3797974 at *15 (ordinance prohibiting sex offenders from residing near bus stops “substantially intrude[d] upon significant family matters,” including “how to raise and care for children”).36
35 See Maps (Ex. 1, 2); see also Doc. 274 (Ex. 1-4). 36 See Luna Decl. (Ex. 19) (stating that he wishes to remain in his home with his pregnant wife and 5-year-old daughter). See also Danner Decl., Dec. 19, 2007 (Ex. 20) (stating that she and her late husband, who died of cancer, were forced to move three times due to the Statute; further stating that they were ordered to move a fourth time while her husband was under hospice care); Early Decl., July 27, 2006 [Ex. 1 to Doc. No. 63] (stating that school bus stop provision would
18

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 19 of 27
Under traditional due process analysis, the impact on plaintiffs’ families is
relevant because it shows an imposition on the fundamental right to cohabit with
one’s family, Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984) (describing the life
activities entitled to constitutional protection as “those that attend the creation
and sustenance of a family,” including “cohabitation with one’s relatives”).
Under the Court’s Lawrence approach, this Court must consider how the school
bus stop provision affects plaintiffs’ liberty interest in maintaining their homes
and families, and how deeply the provision infringes on those interests. Either
way, the question is whether the State’s interest justifies such an enormous
infringement on plaintiffs’ liberty interests.
States are permitted to infringe on basic liberty interests, but only “in
separate him from his wife who has multiple sclerosis); Sponsler Decl., June 25, 2006 [Ex. 1 to Doc. No. 12] (describing the stress and uncertainty wrought by the school bus stop provision and its effect on family life as parent of 4-year-old and infant); Mauldin Decl., June 25, 2006 [Ex. 2 to Doc. No. 12] at 2-3 (describing predicament of being expectant mother married to a person on the registry and being faced with the possibility of separation from husband while 8 ½ months pregnant; fearing that statute “will hinder us from raising our child in a stable environment”); Corbin Decl., June 25, 2006 [Ex. 4 to Doc. No. 12] (describing emotional effects of possibility of separation from husband on registry, with emphasis on hardship on special-needs child); Whitaker Decl., June 28, 2006 [Doc. No. 19-6] (expressing concerns about separation from disabled father, for whom registrant was primary caregiver); Hodges Decl., Sept. 4, 2009 (Ex. 15 ) (stating that he had two strokes, is paralyzed on one side, is confined to wheelchair, relies on family for assistance, and resides within 1,000 feet of a school bus stop in Bulloch County).
19

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 20 of 27
certain narrow circumstances.”37 The hallmark of a permissibly narrow infringement in instances where the person’s liberty is severely damaged is an individualized assessment to ensure the State does not step beyond what is strictly necessary.38 The bus stop provision provides for no such assessment.
To give an example, in Sell v. United States, 539 U.S. 166 (2003), the Court recognized that individuals have a “liberty interest” in “avoiding the unwanted administration of antipsychotic drugs,” and sought to determine whether the government’s interest in having a criminal defendant competent to stand trial justified an infringement of the criminal defendant’s liberty interest. Id. at 176. Because forced medication infringes so seriously on a person’s liberty interest in bodily integrity, the Court established individualized assessment criteria to ensure
37 See Kansas v. Hendricks, 521 U.S. 346, 357 (1997) (upholding statute permitting civil commitment of sexually dangerous persons, but only where state provided a full-blown trial on the issue of dangerousness). Under the statute in Hendricks, persons at risk of commitment are entitled to: counsel; funds for a mental health examination; the right to cross-examine witnesses; the right to review documents; and annual review to determine whether the state continues to meet its burden to keep the individual confined. Hendricks, 521 U.S. at 352-53, 357-58. Upholding this statute against a substantive due process challenge, the Supreme Court was apparently impressed by the pains taken by the state to ensure that it was justified in committing a person under the statute. See id. 38 See e.g. United States v. Loy, 237 F.3d 251, 269 (3d Cir. 2001) (a state may not restrict a sex offender’s parental rights without first determining in an individualized hearing that the parent’s custody threatens the child’s safety).
20

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 21 of 27
that the government intrusion is justified. Id. at 180-181. The Sell Court’s
analysis offers guidance on whether the State’s interest in protecting children
here justifies enforcement of a law that summarily ousts people from their homes
without any individualized determination of dangerousness:
First, a court must find that important governmental interests are at stake…Second, the court must conclude that involuntary medication will significantly further those concomitant state interests. It must find that administration of the drugs is substantially likely to render the defendant competent to stand trial. At the same time, it must find that administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense…Third, the court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results…Fourth, as we have said, the court must conclude that administration of the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition…
Id. at 180-81. After balancing all factors, the Sell Court determined the state
interest in making Mr. Sell competent could not justify the intrusion on Mr. Sell’s
interest in remaining free of forced medication. Id. at 185-86.
Losing one’s home and being driven from one’s community is a similarly
serious loss of liberty. Yet plaintiffs stand to be summarily evicted from their
homes without any assessment as to whether their residence in proximity to a
school bus stop poses a risk. Lacking a procedure to determine which
individuals could legitimately be subject to the 1,000 foot buffer, the school bus
21

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 22 of 27
stop provision “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Lawrence, 539 U.S. at 578.
Finally, for the reasons set forth in Doc. 262, p. 14-19, due process prohibits enforcement of the school bus stop provision even under rational basis review. Disabling plaintiffs from securing a place to live advances no legitimate state interest and is so irrational that it runs afoul of the Due Process Clause.
B. The School Bus Stop Provision Violates the Substantive Due Process Clause As Applied to G.W. and Other Children.
There are 18 children on Georgia’s sex offender registry, four of whom live in Chatham County.39 All four – including R.W., age 15, G.W., age 17, J.M., age 17, and K.M., age 16 – will be unable to live in their homes with their families if the bus stop provision is enforced, in violation of the Due Process Clause.40
Parents and children have a right to live together without governmental interference.41 The “integrity of the family unit” is further protected by the Due
39 See Statement of Facts ¶ 31. 40 See id. See also R.W. and B. W. Decls. (Ex. 13); G.W. and R.W. Decls. (Ex. 14); J.M. Decl. (Ex. 22). 41 See Troxel v. Granville, 530 U.S. 57, 65 (2000) (“[T]he interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by this Court.”); Santosky v. Kramer, 455 U.S. 745, 753 (1982); Stanley v. Illinois, 405 U.S. 645, 651 (1972).
22

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 23 of 27
Process Clause.42 The school bus stop provision substantially impedes the right of parents and children to live together by making it impossible for a child on the registry to find a permanent home without facing a perpetual risk of eviction.43
Even under the rational basis test, the school bus stop provision cannot stand as applied to children. See State v. C.M., C.D.M., and S.D., 746 So.2d 410, 419 (Ala. Ct. Crim. App. 1999) (striking down residence restriction as applied to juvenile sex offenders whose parents lived within 1,000 feet of child care centers and finding that the “provisions of the Act as applied to juveniles are excessive”). In C.M., C.D.M, and S.D., the Alabama Court of Criminal Appeals held:
[C.]M. and C.D.M. are under the minimum work age and are unable to support themselves. These juveniles would become wards of the state if they were not allowed to return to their families. . . .We are also concerned about the effect this law has on the parents and siblings of a juvenile sex offender. The Act forces a parent who has children other than the juvenile sex offender to choose which child may live with the parent. Certainly, no parent should have to make this choice. Id. at 415, n. 8.
42 Stanley, 405 U.S. at 651; Doe By and Through Doe v. Public Health Trust of Dade County, 696 F.2d 901, 908 (11th Cir. 1983) (recognizing “a constitutional right of continuing parental oversight”). 43 Mann, 282 Ga. at 755 (finding that O.C.G.A. § 42-1-15 is so extreme that “there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected.”).
23

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 24 of 27
It shocks the conscience to turn children into nomads, requiring them to be
“repeatedly uprooted and forced to abandon homes.” Mann, 282 Ga. at 756.
C. The School Bus Stop Provision Violates the Substantive Due Process Clause As Applied to Walter Smiley and Others With Disabilities.
Unlike sex offender residence laws in other states, Georgia’s school bus
stop provision does not make an exemption for persons who no longer pose a
threat due to infirmity, illness, or disability. 44 In 2006, plaintiff class members –
including a man in hospice care with weeks to live and an Alzheimer’s patient —
were forced to seek injunctions to block their evictions from nursing homes.45
Walter Smiley, who is blind, now faces immediate eviction absent action by this
44 See O.C.G.A. 42-1-15, 42-1-16. Pursuant to a new code section adopted in 2010, certain sex offenders may now petition to be released from the residence restrictions if they are in nursing homes, or are “totally and permanently disabled” or “seriously physically incapacitated,” but only if they have completed probation or parole. See O.C.G.A. 42-1-19(a).
45 See Pls’ Mot. for Prelim. Inj., Oct. 12, 2006 [Doc. No. 99]; Consent Order, Oct. 19, 2006 [Doc. No. 105] (agreement between plaintiffs and Cherokee County Sheriff to permit plaintiff to remain in nursing home within 1,000 feet of a church pending resolution of this action); Consent Order, Oct. 17, 2006 [Doc. No. 104] (agreement between plaintiffs and Sheriff of Candler County to permit three plaintiffs to remain in nursing home within 1,000 feet of a church pending resolution of this case); Resp. of Sheriff Whittle to Pls’ Mot., Oct. 13, 2006 [Doc. No. 102] (permitting certain plaintiffs to remain in nursing homes pending resolution of this case).
24

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 25 of 27
Court.46 Forcing disabled people out of their homes because they live near a school bus stop “shocks the conscience,” Carr v. Tatangelo, 338 F.3d 1259, 1271 (11th Cir. 2003), and fails the rational basis test. See Joel v. City of Orlando, 232 F.3d 1353, 1358 (11th Cir. 2000). As applied to Smiley and others with disabilities, “the relationship between the classification and the goal” of protecting children from sex offenses is “so attenuated as to render the distinction arbitrary or irrational.”47 A civilized society does not turn persons with disabilities into nomads, requiring them to be “repeatedly uprooted and forced to abandon homes.” Mann, 282 Ga. at 756.
CONCLUSION For the foregoing reasons, plaintiffs ask this Court to grant their motion and to issue a permanent injunction against enforcement of the school bus stop provision of O.C.G.A. § 42-1-15(b), § 42-1-16(b), and § 42-1-12(a)(19).
46 See Smiley Decl. (Ex. 18) (stating Smiley is on probation, disqualifying him from seeking a “disability exemption” pursuant to § 42-1-19(a)). 47 Mikaloff v. Walsh, 2007 WL 2572268 at *11 (N.D. Ohio 2007) (finding sex offender residence law excessive where “[a] feeble, aging paraplegic must leave his home just as a younger one.”); Open Homes Fellowship, Inc. v. Orange County, Fla., 325 F. Supp. 2d 1349 (M.D. Fla. 2004) (finding zoning restrictions on ministry for “substance-addicted” persons, including sex offenders, was unconstitutional under rational basis review because of insufficient showing of “threat to safety”).
25

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 26 of 27
Respectfully submitted this 15th day of September, 2010.48 s/ Sarah Geraghty SOUTHERN CENTER FOR HUMAN RIGHTS Stephen B. Bright (Ga. Bar No. 082075) Sarah Geraghty (Georgia Bar No. 291393) Gerald R. Weber (Georgia Bar No. 744878) 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Telephone: (404) 688-1202 Fax: (404) 688-9440 sbright@schr.org sgeraghty@schr.org gweber@schr.org
48 Pursuant to L.R. 7.1, the undersigned counsel hereby certifies that this document has been prepared in compliance with L.R. 5.1B.
26

Case 4:06-cv-00140-CC Document 285-1 Filed 09/15/10 Page 27 of 27
CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing document upon Defendants by causing a true and correct copy thereof to be delivered by the Court’s ECF filing system to Defendants’ counsel of record at the following addresses: Mr. Joseph Drolet Ms. Devon Orland Office of the Attorney General 40 Capitol Square Atlanta, GA 30334 Mr. David E. Hudson Hull Barrett, PC Sun Trust Bank Building 801 Broad Street, Seventh Floor Augusta, Georgia 30901 This 15th day of September, 2010.
s/ Sarah Geraghty Sarah Geraghty Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122 Tel: (404) 688-1202 Fax: (404) 688-9440 Attorney for the Plaintiffs
27

 
 Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

WALTER SMILEY, et al.

:

:

Plaintiffs,

:

:

v.

:

CIVIL ACTION NO.

:

SONNY PERDUE, et al.,

:

4:06-CV-140-CC

:

Defendants.

:

DEFENDANTS PERDUE, BAKER1 AND DEAN’S SUPPLEMENTAL BRIEF ON ARTICLE III AND CLASS
CERTIFICATION ISSUES

Come now Defendants the Governor of Georgia; the Attorney General of Georgia; and Scot Dean, Probation Officer with the Georgia Department of Corrections; by counsel, the Attorney General of the State of Georgia, and pursuant to this Court’s order of September 13, 2011 (doc-305) file this Supplemental Brief in regard to Article III and class certification issues.

1 It should be noted that the Defendants names should reflect the changes in executive officers that have occurred since the inception of this litigation; Nathan Deal is now Governor of Georgia and Samuel S. Olens is now Attorney General.

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 2 of 23
I. Statement of the Case Plaintiffs filed this action on June 20, 2006, complaining that the enactment of changes in O.C.G.A. § 42-1-15 and O.C.G.A. § 42-1-12 contained in House Bill 1059, Georgia’s sex offender statute, would cause “catastrophic” results for sex offenders in Georgia (doc-1, 2). The Complaint alleged that the residence requirements in Georgia’s sex offender law were too restrictive, that “Plaintiffs cannot find anywhere to live” and that “hundreds, if not thousands, of people on the registry will lose their jobs” (doc-1, 2,4). The complaint alleged that “[t]he Act banishes Plaintiffs from their homes and communities” (doc-1, 34). This case has had a long history and, with changes in the law, the issues in this case, as of September of 2010, had been distilled down to the following issues:
i. “School bus stop” claim as to substantive due process. ii. “School bus stop” claim as to vagueness. iii. Whether the term “areas where minors congregate” (which includes the term “school bus stop”) is vague. The parties twice previously filed Motions for Summary Judgment, including the motions filed in September of 2010 on the above issues. This Court has denied the motions without prejudice (doc-283, doc-305).
2

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 3 of 23
The Plaintiffs in this case now consist of four individuals: Walter Smiley, a resident of Chatham County; Ruben Luna, a resident of Columbia County; G.W., who Plaintiffs concede is incarcerated (doc-280, 5, n. 8); and R.W., a resident of Chatham County.
The only remaining sub-class previously certified by this Court was the class of persons who registered, are required to register, or in the future will be required to register as sex offenders pursuant to O.C.G.A. §42-1-12 for acts committed on or after July 1, 2006 who (1) reside in counties in which the school board has designated school bus stops for purposes of O.C.G.A. §42-1-15 or §42-1-16; and (2) do not fall within the exemptions in O.C.G.A. § 42-1-15(e) or (f) or §42-116(e) or (f).
As of the filing of the motions for summary judgment in September of 2010, there were only three counties in Georgia that had designated school bus stops during the four and a half years since enactment of the law: Columbia, Bulloch, and Chatham counties. Since the filings of the motions for summary judgment, the boards of education in all three of these counties have rescinded those designations (doc-300, doc-302). There are now no counties in Georgia in which the boards of
3

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 4 of 23
education have designated school bus stops.2 As a result, there are no named plaintiffs of the class of persons living in counties that have designated school bus stops. Nor are there any named plaintiffs with standing.
In regard to the definition of “areas where minors congregate,” none of the named plaintiffs has expressed any specific complaint except in regard to the inclusion of the term “school bus stop” in that definition.
II. Argument and Citation of Authority A.
ARTICLE III STANDING AND MOOTNESS
“No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Hein v. Freedom From Religion Foundation, 551 U.S. 587, 127 S. Ct. 2553, 2562 (2007) citing Raines v. Byrd, 521 U.S. 811, 818 (1997).
2 Woodward Academy, a private school in Fulton County, reported in 2008 that they had 4 school bus stops in Cobb County, 25 in Fulton County, 10 in DeKalb County, 3 in Fayette County, 3 in Clayton County, 2 in Douglas County, 2 in Gwinnett County, 1 in Spalding County and 1 in Henry County. These were for the 2008-2009 school year. There is no evidence that this school has officially designated school bus stops since that time nor do any named Plaintiffs live in any of these counties. There is also no evidence any registered sex offender has ever been impacted or threatened with any injury as a result of any designation by this school.
4

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 5 of 23
“The requirement that a claimant have ‘standing is an essential and unchanging part of the case-or-controversy requirement of Article III.’. . . [A] claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.” Davis v Federal Election Commission, 554 U.S. 724; 128 S. Ct. 2759, 2768 (2008), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560; 112 S. Ct. 2130 (1992). The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. Mills v. Green, 159 U.S. 651 (1895).
The controversy must remain “extant at all stages of review, not merely at the time the complaint is filed.” United States v. Juvenile Male, ____U.S. ____, 131 S. Ct. 2860, 2864 (2011), citing Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). “ ‘[A] plaintiff must demonstrate standing for each claim he seeks to press’ and ‘for each form of relief’ that is sought.” Davis v Federal Election Commission, 554 U.S. 724; 128 S. Ct. 2759, 2769 (2008), citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).
5

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 6 of 23
“ ‘[T]hroughout the litigation’ the party seeking relief ‘must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’ ” United States v. Juvenile Male, ____U.S. ____, 131 S. Ct. 2860, 2864 (2011), citing Spencer v. Kemna, 523 U.S. 1, 7 (1998).
All of the original plaintiffs in this case have departed from this litigation. The four substitute plaintiffs were from the three counties that had designated school bus stops. Those counties no longer have designated school bus stops. Those plaintiffs no longer have standing.
None of the plaintiffs should harbor any fear of arrest or prosecution. They cannot be prosecuted because there are no designated school bus stops. A generalized fear of prosecution is insufficient to create standing. Pittman v. Cole, 267 F.3d 1269, 1283-84 (11th Cir. 2001). No injury or threat of injury can be shown. Injury must be distinct and palpable, not abstract, conjectural, or hypothetical. Saladin v. City of Milledgeville, 812 F.2d 687, 691 (11th Cir. 1987). Thus, standing in this case can no longer be established by these new Plaintiffs.
In addition, this matter is moot. This is not a damages case, in which a past injury is to be addressed. Like the case of Alvarez v. Smith, ___U.S. ____, 130 S. Ct. 576, 580 (2009), “we have before us a complaint that seeks only declaratory
6

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 7 of 23
and injunctive relief, not damages.” Like the dispute in Alvarez, “that dispute is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights. Rather, it is an abstract dispute about the law. . .” Alvarez v. Smith, 130 S. Ct. at 580. As such, this case falls outside the definition of cases and controversies. The elimination of designated school bus stops in Bulloch, Columbia and Chatham counties leaves nothing but the abstract question of law.
This case does not fit within the exception to the mootness doctrine for cases that are “capable of repetition yet evading review.” “The capable-of-repetition doctrine applies only in exceptional situations.” Alvarez v. Smith, 130 S. Ct. at 581. “This exception, however, only applies where ‘(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration; and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.’ ” United States v. Juvenile Male, ____U.S. ____, 131 S. Ct. 2860, 2864 (2011), citing Spencer v. Kamna, 523 U.S. 1, 17, (1998). Plaintiffs obviously do not meet the first of these two requirements. This action has been pending for over five years. This was not a matter with an expiration date or of limited duration. Neither is this a matter in which one can show that there is a reasonable expectation that school bus stops will again be designated and that the same issue will recur. Such would be pure speculation.
7

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 8 of 23
This matter is moot. Plaintiffs have previously argued that a defendant may not render a matter
moot by “voluntary cessation” of the challenged practice (see doc-301). The doctrine, however, applies to voluntary cessation of the challenged practice by the defendant. The defendants here have not ceased any challenged practice; only unrelated third parties beyond the control of the defendants have ceased any activity (local boards of education have withdrawn the designation of school bus stops). The very footnote of a case cited by Plaintiffs in their previous pleadings (doc-301) shows that the “voluntary cessation” principle does not apply here. In City News and Novelty v. City of Waukesha, 531 U.S. 278, 284; 121 S. Ct. 743, 747, n. 1 (2001) the Court notes that “that rule traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” The Court further notes that the principle does not aid the plaintiff, City News, for it was not the conduct of its adversary (the defendant) “whose conduct saps the controversy of vitality.” The rule only applies if the defendant has ceased the challenged practice; that has not happened in this case. Other factors, beyond the control of the parties, has rendered the case moot.
Lacking standing and being faced with a moot matter, this Court lacks Article III jurisdiction.
8

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 9 of 23
B. PLAINTIFFS CAN NO LONGER SHOW THE ELEMENTS REQUIRED TO
MAINTAIN THIS ACTION AS A CLASS ACTION UNDER FEDERAL RULE OF CIVIL PROCEDURE 23(a)
A. Standard for Decertification In moving for class certification Plaintiffs bore the burden of establishing
that that they satisfied the requirements of Fed. R. Civ. P. 23. Buford v. H & R Block, 168 F.R.D. 340, 348 (S.D. Ga. 1996), aff’d 117 F.3d 1433 (11th Cir. 1997)(party seeking class certification bears the burden of proof). Because “actual, not presumed,” conformance with Rule 23(a) is “indispensable” throughout the litigation, Plaintiffs continue to bear the burden of showing, with evidence, that certification is appropriate. See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982); In re Dennis Greenman Secs. Litig., 829 F.2d 1539, 1543 n. 4 (11th Cir. 1987)(reversing certification of class; “Since a district court is free to modify the certification, all class certifications are essentially temporary until a final judgment is entered.”).
Accordingly, if Plaintiffs cannot show, with evidence, that this class action continues to satisfy the requirements of Fed. R. Civ. Pro. 23--including that Rule’s express requirement that common questions of law and fact “predominate over any questions affecting only individual members”--the class should be decertified.
9

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 10 of 23
Bradberry v. John Hancock Mut. Life Ins. Co., 222 F.R.D. 568, 573 (W.D. Tenn. 2004)(decertifying class where remaining claims would require “fact-intensive, individualized inquiry” to resolve).
1. Plaintiffs are not adequate class representatives Since none of the named Plaintiffs has standing to represent the “class” in
regard to issues related to designated school bus stops, there no longer exist any appropriate class representatives.
The standing of each of the four Plaintiffs (one of whom is incarcerated) was dependent on the existence of designated school bus stops in Bulloch, Columbia and Chatham counties. There are no longer any designated school bus stops in any of these counties.
2. The requirements of Fed. R. Civ. P. 23 Class certification decisions must be based on a determination by the Court
that the prerequisites set out in Rule 23 of the Federal Rules of Civil Procedure have been met.
Rule 23(a) provides as follows: (a) Prerequisites to a class action. One or more members of a class may sue or be
sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class,
10

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 11 of 23
and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23 (a).
Rule 23(b) provides as follows:
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantively impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Fed. R. Civ. P. 23(b)
Plaintiffs sought certification as a Rule 23(a) class and under Rule 23(b)
(Pl.’s motion for class certification p. 19, 23). Continued certification under either
of these provisions would be inappropriate.
11

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 12 of 23
The fundamental purpose of the class action device is to provide a consistent and efficient mechanism for addressing factually and legally connected claims. General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 (1982). The mere fact that there is an allegation of discrimination or wrongdoing does not determine whether a class action can be maintained, nor does it define the putative class, since there is often a gap between an individual’s claim and the existence of a class of persons who have suffered the same injury as that individual. See Falcon, 457 U.S. at 156-57; Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1004 (11th Cir. 1997).
A class action may be maintained only when it satisfies all of the requirements of Fed. R. Civ. P. 23(a) and at least one of the alternative requirements of Rule 23(b). Jackson, 130 F.3d at 1005. The requirements for maintaining a class action set forth in Rule 23 are designed to ensure that only those actions which advance this objective are certified for class treatment. The burden of establishing these requirements by specific evidence is on the plaintiffs who seek to certify the class. Falcon, 457 U.S. at 157-58. In evaluating whether this burden has been met, a court must ensure the named plaintiffs’ compliance with Rule 23 is “actual,” as compliance cannot be merely “presumed.” Id. at 15860 (reversing the Court of Appeals' affirmation of the district court's certification
12

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 13 of 23
due to its failure to evaluate the across-the-board class allegations for actual compliance with Rule 23(a)). Class certification is strictly a procedural matter, and the merits of the claims at stake are not to be considered when determining the propriety of the class action vehicle. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974). “The burden of proving these prerequisites is on the representative party or parties seeking class certification.” Hudson, et al. v. Delta Air Lines, 90 F.3d 451, 456 (11th Cir. 1996).
Assuming Plaintiffs ever were able to do so, they can no longer meet this burden with respect to requirements stated in F.R.C.P. 23 and therefore their class must be decertified.
B. Plaintiffs have failed in their continuing duty to meet their burden under F.R.C.P 23 (a).
The Court is required to undertake a “rigorous analysis” to ensure that Rule 23(a) requirements have been met. Falcon, 457 U.S. at 161. To assist the Court in this analysis, Defendants will treat each requirement separately.
13

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 14 of 23
1. Plaintiffs Fail to Satisfy the Requirements of Rule 23(a)(1)-Numerosity. “It is elementary that in order to maintain a class action, the class sought to
be represented must be adequately defined and clearly ascertainable.” DeBremaecker v. Short, 433 F.2d 733, 734(11th Cir. 1970). The class that was previously defined has since disappeared, first as a result of changes in the law in 2010, and more recently with the disappearance of designated school bus stops. The only recent claims remaining related to the school bus stops. Those claims no longer exist as there are no designated school bus stops.
The Supreme Court has repeatedly held that: “a class representative must be a part of the class and ‘possessed the same interest and suffer the same injury’ as the class members,” a requirement which effectively limits class claims to those fairly encompassed by the named plaintiffs’ claims. General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 156 (1982). Looking at the “class” as one which must be defined and limited to persons sharing plaintiffs’ experience and “injury,” the injury suffered for the named Plaintiffs is non-existent; thus, they cannot meet this prong of the test.
Since none of the named Plaintiffs has standing to globally challenge what remains of the statute, Plaintiffs have not shown numerosity. Moreover, none of the statistical data collected during the course of discovery has any merit because
14

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 15 of 23
the numbers are not reflective of the impact on the statute since the changes in the law in 2010 (House Bill 571) and the lack of any designated school bus stops. There is no one who left who has shown any injury or threat of injury; there is no one left in any class.
Broad across-the-board claims are inadequate to support a class action. Griffin v. Dugger, 823 F.2d 1476, 1486-87 (11th Cir. 1987); see also East Texas Motor Freight Systems, 431 U.S. at 405-406 (noting that casual and over broad certification can jeopardize the claims of absent individuals).
The Plaintiffs’ class should thus be decertified. 2. Plaintiffs Fail to Satisfy the Requirements of Rule 23(a)(2)-Commonality.
The second requirement of Rule 23 (a) is that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23 (a)(2). Plaintiffs cannot show commonality between what remains of their claims and any potential other persons.
To satisfy the commonality requirement, a plaintiff must show the presence of questions of law or fact common to the entire class. “[A] plaintiff who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject.” Blum v. Yaretsky, 457 U.S. 991, 999 (1982). The
15

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 16 of 23
commonality requirement demands that a class action must involve issues that are susceptible to class-wide proof. Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001)(citation omitted). As amplified by the Eleventh Circuit, “[e]ach claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one plaintiff has suffered the injury that gives rise to that claim.” Griffin, 823 F.2d at 1483. The requirements of Rule 23(a) “effectively limit the class claims to those fairly encompassed by the named plaintiffs’ claims.” Griffin, 823 F.2d at 1486 (citing Falcon, 457 U.S. at 156). None of the named Plaintiffs retains standing and none can show any actual harm or even a threat of harm that relates commonly to any class.
As a general rule, commonality may be disproved by showing that the various departments or subdivisions of the offending organization are not interdependent, are extremely autonomous, and decisions are independently made at each subdivision or department without input from the other subdivisions. See Stastny v. Southern Bell Tel. and Tel. Co., 628 F.2d 267, 279 (4th Cir. 1980) (holding that distinctions between employer’s subdivisions can thwart a plaintiff's attempt to establish commonality); see also Lumpkin v. E.I. Du Pont de Nemours & Co., 161 F.R.D. 480, 482 (M.D. Ga. 1995) (holding that plaintiffs did not meet commonality because they were employed by different departments and supervised
16

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 17 of 23
by different people). “Commonality requires that generalized proof will be applicable to the class as a whole.” Lumpkin, 161 F.R.D. at 482 (citation omitted). Since proof of harm, even if any existed, will be specific to the individual, this case is inappropriately brought as a class action. 3. Plaintiffs Fail to Satisfy the Requirements of Rule 23(a)(3)-Typicality
Under Rule 23(a)(3), the claims of the proposed class representatives must be “typical” of the class. “The claim of a party is typical if it arises from the same event or course of conduct which gives rise to the claims of other class members and is based on the same legal theory.” Meyer v. Citizens & Southern National Bank, 106 F.R.D. 356, 361 (MD Ga. 1985). Since the named plaintiffs lack standing and can show no injury of threat of injury, they have no claims and neither does any other person in a similar situation. To the extent the named Plaintiffs claims are typical, then there are no remaining claims for the class. Plaintiffs do not meet the requisite typicality to raise all the claims on behalf of the proposed class because the named Plaintiffs lack standing to raise the claims. See Hines v. Widnall, 334 F.3d 1253 (11th Cir. 2003)(holding that if a class representative does not have individual standing to raise a legal claim, the class representative does not have the required typicality to raise the claim on behalf of the class).
17

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 18 of 23
4. Defendants do not contest Plaintiffs’ satisfaction of Rule 23(a)(4)-Class Representation.
Defendants do not dispute that Plaintiffs meet this criteria.
C. THE PLAINTIFFS’ CLAIMS DO NOT SATISFY THE REQUIREMENT OF RULE 23(b)(2) AS TO THE GOVERNOR OR THE ATTORNEY GENERAL.
The Plaintiffs in this case chose to seek class certification through Rule 23(b)(2), which requires that the Plaintiff show that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” The Governor and the Attorney General are proper parties simply for the facial challenge to the statute. Plaintiffs repeatedly make reference to individualized enforcement and misapplication of the statute. This prerequisite does not apply to the Defendants. Neither the Governor nor the Attorney General have the authority to arrest or charge persons who fail to comply with the residency provision and the Chief Probation Officer of Polk County has no ability to act outside the scope of his county. Moreover, the best Plaintiffs have been able to show is pure speculation. Plaintiffs cannot rely on speculation to
18

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 19 of 23
support an element of Fed. R. Civ. P. 23. See Kornick v. Talley, 86 F.R.D. 715 (ND Ga. 1980).
When this action was originally filed, the restrictions on persons living near school bus stops appeared to apply to all registered sex offenders. Since that time, with the passage of House Bill 571 by the 2010 session of the Georgia General Assembly, the number of sex offenders subject to restriction shrank to a very small number as the adoption of that legislation specifically excluded most sex offenders from the restriction. Since the reversal of designation by the only three counties ever to designate school bus stops, there is no one left in any class.
“Actual, not presumed” conformance with Rule 23(a) is “indispensable” throughout the litigation. See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982); In re Dennis Greenman Securities Litigation, 829 F. 2d 1539, 1543, n. 4 (11th Cir. 1987)(reversing certification of class; “Since a district court is free to modify the certification, all class certifications are essentially temporary until a final judgment is entered.”) Plaintiffs no longer have a certifiable class.
19

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 20 of 23
D. PLAINTIFFS HAVE NOT SUSTAINED THEIR BURDEN Plaintiffs have the burden of proof. They must establish their case by a preponderance of evidence. The claim should be supported by showing facts “consistent with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1969 (2007). This they have not done. In addition, “[l]egislative classifications . . . are presumed to be constitutional, and the burden of showing a statute to be unconstitutional is on the challenging party, not on the party defending the statute.” New York State Club Association v. City of New York, 487 U.S. 1, 17; 108 S. Ct. 2225, 2236 (1988)(emphasis in original). Courts have an obligation to interpret a statute “in a manner that renders it constitutionally valid.” Communications Workers of America v. Beck, 487 U.S. 759, 762; 108 S. Ct. 2641, 2657 (1988).
III. Conclusion For all of the above and foregoing reasons, Defendants request that the Court dismiss this action for failure to have Article III jurisdiction and decertify any remaining classes.
20

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 21 of 23

Respectfully submitted this 12th day of October, 2011.

SAMUEL S. OLENS Georgia Bar No. 551540 Attorney General

MARY BETH WESTMORELAND Georgia Bar No. 750150 Deputy Attorney General

KATHLEEN M. PACIOUS Georgia Bar No. 558555 Deputy Attorney General

/s/ Joseph Drolet ________________ Georgia Bar No. 231000 Senior Assistant Attorney General

Please Serve: JOSEPH DROLET Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 657-3983 Facsimile: (404) 463-8864 E-mail: jdrolet@law.ga.gov

/s/ Devon Orland ___________ Georgia Bar No. 554301 Senior Assistant Attorney General

21

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 22 of 23
CERTIFICATION AS TO FONT
Pursuant to N.D. Ga. Local Rule 7.1 D, I hereby certify that this document is submitted in Times New Roman 14 point type as required by N.D. Ga. Local Rule 5.1(b).
/s/ Joseph Drolet Georgia Bar No. 231000 Senior Assistant Attorney General

Case 4:06-cv-00140-CC Document 307 Filed 10/12/11 Page 23 of 23

CERTIFICATE OF SERVICE

I hereby certify that on this day, I electronically filed this

SUPPLEMENTAL BRIEF IN REGARD TO ARTICLE III JURISDICTION AND

CLASS CERTIFICATION with the Clerk of Court using the CM/ECF system

which will automatically send email notification of such filing to the following

attorneys of record:

Sarah Geraghty Stephen Bright Gerald Weber Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, Georgia 30303-2122

Mr. David E. Hudson Hull, Towill, Norman, Barrett & Salley, PC P.O. Box 1564 Augusta, GA 30903-1564
This 12th day of October, 2011.

Please Serve: JOSEPH DROLET Senior Assistant Attorney General 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 657-3983 Facsimile: (404) 463-8864 E-mail: jdrolet@law.ga.gov

/s/ Joseph Drolet__________ Georgia Bar No. 231000 Senior Assistant Attorney General

 
 Case 4:06-cv-00140-CC Document 217 Filed 01/14/09 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ROME DIVISION

FILED IN CLERK'S OFFlCE 1J.S.D C. Atlanta JAM 14 2089

WENDY WHITAKER, et al.,

Plaintiffs,

v. SONNY PERDUE, et al.,

Civil Action NO. 4:06-140-CC

Defendants.

ORDER DENYING WENDY WHITAKER'S MOTION FOR PRELIMINARY INJUNCTION
This matter is presently before the Court on Plaintiffs' Motion for Preliminary Injunction to Prevent the Eviction of Wendy Whitaker from Her Lawfully Purchased Home [Doc. No. 1881. After briefing of the parties, the Court scheduled a hearing for purposes of determining whether the Columbia County Sherriff should be enjoined from enforcing O.C.G.A. 42-
1- 15 against Wendy Whitaker. Specifically,Ms. Whitaker claims that she is
a registered sex offender and her home is within 1000 feet of a daycare center. Under Georgia's Sex Offender Residency statute, a registered sex offender is prohibited from living within 1000 feet of a daycare center. This provision of the Act has been in place since 2006.
At the hearing, Ms. Whitaker testified that she purchased the home in

Case 4:06-cv-00140-CC Document 217 Filed 01/14/09 Page 2 of 5
2006 although her name did not appear on the deed until 2007. She further testified that the daycare center was established prior to the purchase of her home and that the home therefore did not comply with the residency restrictions at any point during her residence at the property. She further testified that she had moved from the property and had recently returned and then was notified by the local Sherriff that she had 72 hours to change her residence. Ms. Whitaker confirmed that her residence was a short distance from other counties.
Ms. Whitaker also offered the testimony of Peter Wagner. Mr. Wagner testified that there were some areas where sex offenders could live within Columbia County, that approximately 50 registered sex offenders live in the county, and that the surrounding counties did not have designated school bus stops so there was available housing in the other counties. Mr. Wagner further testified that he had not extensively looked at the surrounding counties but there may be available housing in those counties a short distance from where Ms. Whitaker currently resides.
"[A] preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion." Canal Authority of Florida v. Callaway, 489 F.2d 567, 573 (1lth Cir. 1974). The "sole purpose is to preserve the relative positions of the

Case 4:06-cv-00140-CC Document 217 Filed 01/14/09 Page 3 of 5
parties until a trial on the merits can be held." Institute of Texas v. Camenisch, 451 U.S. 390, 395 (1981). "The movant must show (I) a substantial likelihood of prevailing on the merits; (2) that Plaintiff will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damages .the proposed injunction may cause the opposing party; and (4) that if issued, the injunction would not be adverse to the public interest." Baker v. Buckeye Cellulose Corn., 856 F.2d 167, 169 (1lth Cir. 1988); Levi Strauss and Company v. Sunrise International Trading Inc., 51 F.3d 982 (11th Cir. 1995). Plaintiffs carry the burden of persuasion on all four standards. Jefferson County, supra, 720 F.2d at 1519. "The 'sine qua non' of the preliminary injunction test is whether the movant is likely to succeed on the merits." Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993). See also, Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (1lth Cir. 1986).
Ms. Whitaker contends that she has evidenced both an ex post facto claim and a claim for a violation of her substantive due process rights and thus is entitled to relief from this Court. Defendants Perdue and Baker argue first that this issue is not properly before this Court because this is a class action and because Ms. Whitaker is attempting to have the Court revisit prior

Case 4:06-cv-00140-CC Document 217 Filed 01/14/09 Page 4 of 5
decisions. They next contend that Ms. Whitaker has not met her burden under any of the four prongs necessary to establish the need for an injunction
Without reaching the issue of whether this issue is properly before this Court, and after considering the evidence, briefing and argument of the parties, the Court finds that Ms. Whitaker has not met her burden of showing that she has a substantial likelihood of prevailing on the merits as to either her claim under the ex post facto clause or for an alleged violation of her right to substantive due process.
Specifically the Court finds that Ms. Whitaker has not shown that she has been "banished" from Columbia County, even assuming that "banishment" from one county is sufficient to equate to punishment as defined by the ex post facto clause, nor has she shown that she would be unable to find an appropriate residence in the surrounding counties. Similarly, Ms. Whitaker has not shown a likelihood that she would succeed on her claim alleging a violation of her substantive due process rights. Accordingly, Plaintiffs' Motion for Preliminary Injunction to Prevent the Eviction of Wendy Whitaker from Her Lawfblly Purchased Home [Doc. No. 1881 is hereby DENIED.
[Signature to follow on next page]

Case 4:06-cv-00140-CC Document 217 Filed 01/14/09 Page 5 of 5
So Ordered this / (/' Day of January, 2009.
Judge, United States ~ i s t r i cktourt Northern District of Georgia

 
 Case 4:06-cv-00140-CC Document 288 Filed 09/24/10 Page 1 of 5
FILED IN CLERK'S OFFICE
U.S.D.C. Aome

SEP 242010

IN THE UNITED STATES DISTRICT COURT . - . N1joATEN. ele,r,~,'

FOR THE NORTHERN DISTRICT OF GEORGIA'" \)'",ry

~CI!.1t:

ROME DIVISION

, ,I

~ ,

WENDY WHITAKER, et aI.

)

)

Plaintiffs,

)

) CIVIL ACTION

v.

)

SONNY PERDUE, et aI.,

) No.4:06-cv-140-CC )

)

Defendants.

)

ORDER APPROVING DISMISSAL OF CERTAIN CLAIMS This matter is before the Court on the Plaintiffs' Motion for an
Order Approving Dismissal of Certain Claims. Based on that motion, the Joint Notice to the Court Regarding the Passage of House Bill 571 (doc­ 278), the status conference/hearing held on August 16,2010, and the entire record before the Court, it is ORDERED and ADJUDGED as follows: 1. On May 20,2010, the Governor signed into law House Bill 571 (Act Number 389 of the 2010 Georgia General Assembly). The legislation makes a number of changes to Georgia's sex offender law. Among other changes, this legislation amends the residency and employment provisions to eliminate retroactive application, adds protections for renters, amends the church "volunteer" provision to provide a definition of "volunteer,"

Case 4:06-cv-00140-CC Document 288 Filed 09/24/10 Page 2 of 5
and provides a mechanism for certain persons to petition to be removed from the registry or to be relieved from residence and employment restrictions. 2. In light of the passage of House Bill 571, the Plaintiffs have agreed
I'
to dismissal of the following claims: 1. Plaintiffs' general ex post facto claims including those ex postfacto claims for subclass (2) on page 17 of this Court's order of March 30,2009 and all claims set forth for subclass (3) on page 18 of this Court's order of March 30,2009 (doc-223); 11. Plaintiffs' general overbreadth claim including claims for overbreadth for subclass (1) on page 17 of this Court's order of March 30, 2009 (doc-223);
111. Plaintiffs' Takings Clause claim; IV. Plaintiffs' general claims in regard to the church
employment and volunteer provisions including such claims for subclass (1) on page 17 of this Court's order of March 30, 2009 (doc-223).
2

Case 4:06-cv-00140-CC Document 288 Filed 09/24/10 Page 3 of 5
3. The Court agrees with Plaintiffs and Defendants Perdue, Baker and Dean, that, subject to the existence of class representatives, the claims set forth in ,-r 4 of the Joint Notice to the Court Regarding Passage of House Bill 571 (doc-278) survive the passage of House Bill 571 and remain potentially viable claims. 4. In accordance with Fed. R. Civ. P. 23(e), Plaintiffs have provided class members with notice of the proposed dismissal of the claims listed in ,-r 2 in the following manner: (i) Notice was provided by U.S. mail to the named plaintiffs and to all plaintiff-witnesses who provided testimony in this case with respect to the church "volunteer" provision; (ii) Notice was provided by email to the over 1,000 persons who subscribe to Plaintiffs' class member email listserv, maintained by the Southern Center for Human Rights; (iii) Notice was posted on the website of the Southern Center for Human Rights. 5. This Court finds that the manner of notice described above constitutes the most effective, reasonable, and practicable notice under the circumstances of this case, and constitutes due and sufficient notice to all persons entitled to receive notice required by due process and Rule 23(e)( 1) of the Federal Rules of Civil Procedure.
3


Case 4:06-cv-00140-CC Document 288 Filed 09/24/10 Page 4 of 5
6. After reviewing the Joint Notice to the Court Regarding the Passage of House Bill 571 (doc-278) in the context of the record of this action and controlling legal authority, the Court finds that the dismissal of the claims listed above in ~ 2 is sufficiently fair, reasonable, adequate, and consistent with relevant federal law to warrant final approval and entry of an order of dismissal of these claims.
WHEREFORE, Plaintiffs' Motion for an Order Approving Dismissal of Claims is hereby GRANTED and the following claims are hereby DISMISSED WITH PREJUDICE:
1. Plaintiffs' general ex post facto claims including those ex postfacto claims for subclass (2) on page 17 of this Court's order of March 30, 2009 and all claims set forth for subclass (3) on page 18 of this Court's order of March 30,2009 (doc-223);
11. Plaintiffs' general overbreadth claim including claims for overbreadth for subclass (1) on page 17 of this Court's order of March 30, 2009 (doc-223);
111. Plaintiffs' Takings Clause claim;
4


Case 4:06-cv-00140-CC Document 288 Filed 09/24/10 Page 5 of 5

IV. Plaintiffs' general claims in regard to the church

employment and volunteer provisions including such

claims for subclass (1) on page 17 of this Court's order of

March 30, 2009 (doc-223).

A SO ORDERED, this2.yJday of f \ ~

.

CLARENCECOOPER~~
UNITED STATES DISTRICT JUDGE

5


 
 Case 4:06-cv-00140-CC Document 305 Filed 09/13/11 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

WALTER SMILEY, et al., Plaintiffs,
vs. SONNY PERDUE, et al.,
Defendants.

:

:

:

:

CIVIL ACTION NO.

:

:

4:06-CV-0140-CC

:

:

:

ORDER This matter is presently before the Court on Defendants Perdue, Baker and Dean’s Renewed Motion for Summary Judgment [Doc. No. 286] and Plaintiffs’ Renewed Motion for Summary Judgment and for a Permanent Injunction to Enjoin Enforcement of the “School Bus Stop” Provision of O.C.G.A. § 42-1-15(B) and § 42-116(B) [Doc. No. 287]. After the filing of the motions for summary judgment, documents were filed indicating that no designated school bus stops remain in the State of Georgia. (See [Doc. Nos. 300, 302].) Defendants Perdue, Baker, and Dean’s motion for summary judgment raises standing and numerosity challenges; however, at the time the summary judgment motions were filed and briefed, designated school bus stops existed in the State of Georgia and the standing and numerosity challenges were brought in this factual context. The existence of standing and challenges to the class certification in this action (as well as any additional Article III matters) must be addressed prior to the Court’s consideration of the substantive claims in this case. To that end, the Court DIRECTS Defendants Perdue, Baker and Dean to file supplemental briefing on any applicable Article III and class certification issues within the next thirty (30) days. The Court will permit response and reply briefs to be filed pursuant to the Local Rules of this Court. The two pending summary judgment motions are hereby DENIED without prejudice, and the Court

Case 4:06-cv-00140-CC Document 305 Filed 09/13/11 Page 2 of 2 will determine whether and to what extent the parties may renew the motions after the Court considers the issues raised by the supplemental briefing.
SO ORDERED this 13th day of September, 2011. s/ CLARENCE COOPER CLARENCE COOPER SENIOR UNITED STATES DISTRICT JUDGE
- 2 -

 
 Case 4:06-cv-00140-CC Document 313 Filed 09/30/13 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

WALTER SMILY,1 RUBEN LUNA,

:

GERMANY WHITFIELD, and R. W., :

:

Plaintiffs,

:

:

vs.

:

:

SONNY PERDUE Governor of the

:

State of Georgia in his Official Capacity, :

THURBERT E. BAKER Attorney

:

General of the State of Georgia in his

:

Official Capacity, SCOT DEAN Chief :

of Probation, Cedartown, Polk County, :

Georgia, in his Official Capacity,

:

CLAY N. WHITTLE Sheriff of

:

Columbia County, SHERIFF PHIL

:

SUMMERS Defendant Sheriff

:

Summers, ATTORNEY NATHAN T. :

LEE, SHERIFF TIM BURKHALTER, :

SHERIFF GARY GULLEDGE,

:

SHERIFF KELLY MCLENDON,

:

SHERIFF STACY L. NICHOLSON,

:

ATTORNEY WILLIAM D. NESMITH, :

and SHERIFF PETE SMITH,

:

:

Defendants,

:

:

WILLIAM H. BLALOCK, JR.,

:

:

Respondent.

:

CIVIL ACTION NO. 4:06-CV-00140-CC

OPINION AND ORDER

This class action has been pending in this Court since 2006. Most recently, the

parties were asked to brief the Court on any Article III and class certification issues.

(Order, Sept. 13, 2011 [Doc. No. 305].) After thoroughly considering the parties’

arguments, the facts of this case, and the applicable law, and for the reasons stated

below, the Court DISMISSES the case for lack of jurisdiction.

1

Plaintiff’s name is docketed incorrectly as “Walter Smily,” rather than

“Walter Smiley.” The Court DIRECTS the Clerk of Court to correct the spelling of

Plaintiff’s last name.

Case 4:06-cv-00140-CC Document 313 Filed 09/30/13 Page 2 of 7
I. BACKGROUND This case has a particularly protracted history because of changes in Georgia
law and changes to the named-parties. Originally, Wendy Whitaker, Joseph Linaweaver, Janet Jenkins Allison, James Victor Wilson, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, and Rev. Joel Jones (the “Whitaker Plaintiffs”) filed suit for injunctive relief, among other remedies, against Sonny Perdue, the former Governor of Georgia, Thurbert Baker, the former Attorney General of Georgia, Scot Dean, the Chief of Probation of Cedartown in Polk County, and Robert Sparks, the Sheriff of Polk County. (Compl. [Doc. No. 1].) In the Complaint, the Whitaker Plaintiffs challenge discrete portions of Georgia’s sex offender residency law, codified at O.C.G.A. § 42-1-15 (the “Act”), including the portion that prohibits anyone on the registry from living within 1,000 feet of any school bus stop in Georgia. (See Doc. No. 1 ¶ 58 (citing § 42-1-15 (2006) (“No individual required to register pursuant to Code Section 42-1-12 shall reside . . . within 1,000 feet of any . . . area where minors congregate.”)); see also § 42-1-12(a)(3) (“‘Area where minors congregate’ shall include all . . . school bus stops[.]”); § 42-112(a)(19) (“‘School bus stop’ means a school bus stop as designated by local school boards of education or by a private school.”)).
After the Whitaker Plaintiffs amended their Complaint, in July 2006, this Court certified a Plaintiff class consisting of all persons who are registered, are required to register, or in the future will be required to register as sex offenders pursuant to § 42-1-12. (Order, July 28, 2006 [Doc. No. 65].) In light of certain changes to § 42-1-15, in March 2009, the Court decertified the previously defined class and certified several subclasses. (Order, Mar. 30, 2009 [Doc. No. 223].) One of the subclasses includes all persons who are registered, are required to register, or will be required to register in the future as sex offenders pursuant to § 42-1-15 who
- 2 -

Case 4:06-cv-00140-CC Document 313 Filed 09/30/13 Page 3 of 7
(1) reside in counties in which the school board has designated school bus stops for purposes of § 42-1-15 and (2) either do not own their own homes or do not fall within the homeowner exemption of § 42-1-15(f) or (g), as determined by the sheriff in the county where such persons are registered. (See Doc. No. 223 at 9-17.) The Court also concluded that Whitaker Plaintiff Janet Jenkins Allison had standing to represent this subclass because she was leasing a residence that fell within 1,000 feet of a school bus stop in Columbia County. (Id. at 10.)
In September 2010, the Court approved the dismissal of several claims. (See Order Approv. Dismiss. Certain Cls. [Doc. No. 288].) But the school bus stop claim as to substantive due process and vagueness remained. (Id. at 3.) Then, in March 2011, the Court allowed the Whitaker Plaintiffs to substitute Walter Smiley, Ruben Luna, and Germany Whitfield (the “Smiley Plaintiffs”) as named-plaintiffs. (Order, Mar. 28, 2011 [Doc. No. 303].) The Court also granted the Smiley Plaintiffs’ Motion to Add R. W. as another substitute named-plaintiff. (Order, Sept. 9, 2011 [Doc. No. 304].) These substitute named-Plaintiffs assert that they represent the same subclass of persons that Whitaker Plaintiff Allison had previously represented. (See Pls.’ Mot. to Substitute Named Pls. [Doc. No. 280] at 3-5.) The Smiley Plaintiffs live in Chatham and Columbia counties. (Doc. No. 280 at 4; Doc. No. 294 at 2.) Although Chatham and Columbia counties had designated school bus stops, the counties have since rescinded those designations. (Docs. No. 300, 302.) II. LEGAL STANDARD
Under Article III of the United States Constitution, federal court jurisdiction is confined to “Cases” and “Controversies.” U.S. Const. art. III, § 2. One part of the case and controversy requirement is the standing doctrine, which determines whether a plaintiff is the proper party to bring a claim in federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351
- 3 -

Case 4:06-cv-00140-CC Document 313 Filed 09/30/13 Page 4 of 7
(1992). This doctrine “requires federal courts [to be satisfied] that the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.” Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S. Ct. 1142, 1149, 173 L. Ed. 2d 1 (2009) (citation and internal quotation marks omitted).
Specifically, the Supreme Court has stated: [T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact”–an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical[.]’” Second, there must be a causal connection between the injury and the conduct complained of–the injury has to be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan, 504 U.S. at 560-61, 112 S. Ct. at 2136 (citations omitted). The party invoking federal jurisdiction has the burden of proof and persuasion on the existence of standing. 504 U.S. at 561, 112 S. Ct. at 2136 (citations omitted). III. DISCUSSION In their Supplemental Brief on Article III and Class Certification Issues, Defendants argue that the Smiley Plaintiffs lack standing because the counties where they reside no longer have designated school bus stops, and thus, they cannot be forced to vacate their homes. (Defs.’ Suppl. Br. [Doc. No. 307] at 6.) In response, the Smiley Plaintiffs contend that standing does exist because certain members of the subclass will, in the future, reside in counties with designated school bus stops. (Pls.’ Resp. to Defs.’ Suppl. Br. [Doc. No. 308] at 13-15.) To satisfy the standing requirement in a class action, a named-plaintiff cannot merely point to a class member’s injury. Instead, the named-plaintiff must meet the constitutional requirement on his own. See Brown v. Sibley, 650 F.2d 760, 771 (5th Cir. Unit A July 1981) (citing Allee v. Medrano, 416 U.S. 802, 828-29, 94 S. Ct. 2191,
- 4 -

Case 4:06-cv-00140-CC Document 313 Filed 09/30/13 Page 5 of 7
2206-07, 40 L. Ed. 2d 566 (1974) (Burger, C. J., concurring)) (“Standing cannot be acquired through the back door of a class action.”). This is true because standing focuses on the party trying to get into federal court and not on the justiciability of the issue itself. Flast v. Cohen, 392 U.S. 83, 99-100, 88 S. Ct. 1942, 1952, 20 L. Ed. 2d 947 (1968). Indeed, litigants should not ask courts to opine on what the law might be in a hypothetical or abstract situation. Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 241, 57 S. Ct. 461, 464, 81 L. Ed. 617 (1937) (citations omitted). Accordingly, the Smiley Plaintiffs must show that they, on their own, have standing to seek injunctive relief against the enforcement of the school bus stop provision.
When a plaintiff seeks injunctive relief, standing exists only if the plaintiff can show that there is a substantial likelihood that they will suffer an injury in the future. Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1340 (11th Cir. 2000) (citing Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346-47 (11th Cir. 1999)). The threatened injury must be “certainly impending.” Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S. Ct. 1717, 1724-25, 109 L. Ed. 2d 135 (1990) (internal quotation marks omitted) (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S. Ct. 2301, 2308-09, 60 L. Ed. 2d 895 (1979)).
Here, the Smiley Plaintiffs assert that they “face a threat of being subject to removal from their homes” whenever “a local school board chooses to designate a school bus stop” in the counties where they live. (Doc. No. 308 at 16.) This injury is not certainly impending. Although a plaintiff need not wait for the injury to occur, in this circuit, immediacy requires a showing that “the anticipated injury [will] occur within some fixed period of time in the future.” ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1193-94 (11th Cir. 2009) (citation and internal marks omitted). Because the Smiley Plaintiffs’ threatened injury depends on whenever a local school board chooses to designate a school bus stop, (Doc. No.
- 5 -

Case 4:06-cv-00140-CC Document 313 Filed 09/30/13 Page 6 of 7
308 at 16), it is not an injury that will occur within a fixed period of time. Compare Elend v. Basham, 471 F.3d 1199, 1209 (11th Cir. 2006) (“Plaintiffs’ intention . . . to protest ‘in concert with presidential appearances at the USF Sun Dome and at other locations around the country’” described unlimited possibilities of when the protests would occur, and thus, was inadequate for the immediacy requirement.), with Fla. State Conference of the NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008) (where plaintiffs sued defendants in September 2007 and the alleged injury to their voting rights would occur before the scheduled November 2008 elections, the injury satisfied the immediacy requirement), and ACLU of Fla., Inc., 557 F.3d at 1193-94 (where plaintiffs “alleged that they will be injured by the removal of [certain books]” from the school district’s libraries, one plaintiff’s July 2006 declaration stating that his son anticipated checking out a book when school resumed in August 2006 was deemed sufficient to meet the immediacy requirement). Therefore, the Smiley Plaintiffs have not shown that the threat of being removed from their homes is certainly impending. In light of this, and the fact that the Smiley Plaintiffs do not live in counties with designated school bus stops, they have not shown a substantial likelihood that they will suffer an injury in the future. Consequently, the Smiley Plaintiffs do not have standing to seek injunctive relief against the enforcement of the school bus stop provision. IV. CONCLUSION
Without satisfying their burden of establishing standing to pursue this case, the Smiley Plaintiffs’ class action must be DISMISSED for lack of jurisdiction.
(SIGNATURE ON THE FOLLOWING PAGE)
- 6 -

Case 4:06-cv-00140-CC Document 313 Filed 09/30/13 Page 7 of 7 SO ORDERED this 30th day of September, 2013. s/ CLARENCE COOPER CLARENCE COOPER SENIOR UNITED STATES DISTRICT JUDGE
- 7 -

 
 Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 1 of 36
4months,CLASS,CLOSED,EXH
U.S. District Court Northern District of Georgia (Rome) CIVIL DOCKET FOR CASE #: 4:06−cv−00140−CC

Smiley et al v. Perdue et al Assigned to: Judge Clarence Cooper Case in other court: 11th Circuit, 06−13668−J Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 06/20/2006 Date Terminated: 09/30/2013 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Wendy Whitaker TERMINATED: 03/28/2011

represented by Elizabeth Lynn Littrell Lambda Legal Suite 1070 730 Peachtree Street, NE Atlanta, GA 30308 404−897−1880 ext. 231 Fax: 404−897−1884 Email: bethlittrell@bellsouth.net TERMINATED: 04/23/2007 LEAD ATTORNEY

Gerald R. Weber Law Offices of Gerry Weber, LLC P.O. Box 5391 83 Poplar Street Atlanta, GA 31107 404−522−0507 Email: wgerryweber@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa L. Kung Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, GA 30303−2122 404−688−1202 Email: lkung@schr.org TERMINATED: 05/02/2012 LEAD ATTORNEY

Margaret Fletcher Garrett The Law Office of Margaret Fletcher Garrett 850 East Tower 1301 K Street, NW Washington, DC 20005 202−466−3234 Ext. 226 Email: garrett@au.org TERMINATED: 06/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah E. Geraghty Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, GA 30303−2122 404−688−1202 Email: sgeraghty@schr.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 2 of 36

Stephen Brooks Bright Southern Center for Human Rights 83 Poplar Street, N.W. Atlanta, GA 30303−2122 404−688−1202 Email: sbright@schr.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Joseph Linaweaver TERMINATED: 03/28/2011

represented by Elizabeth Lynn Littrell (See above for address) TERMINATED: 04/23/2007 LEAD ATTORNEY

Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa L. Kung (See above for address) TERMINATED: 05/02/2012 LEAD ATTORNEY

Margaret Fletcher Garrett (See above for address) TERMINATED: 06/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah E. Geraghty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Brooks Bright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Janet Jenkins Allison TERMINATED: 03/28/2011

represented by Elizabeth Lynn Littrell (See above for address) TERMINATED: 04/23/2007 LEAD ATTORNEY

Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa L. Kung (See above for address) TERMINATED: 05/02/2012 LEAD ATTORNEY

Margaret Fletcher Garrett (See above for address) TERMINATED: 06/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah E. Geraghty

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 3 of 36

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Brooks Bright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
James Victor Wilson TERMINATED: 03/28/2011

represented by Elizabeth Lynn Littrell (See above for address) TERMINATED: 04/23/2007 LEAD ATTORNEY

Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa L. Kung (See above for address) TERMINATED: 05/02/2012 LEAD ATTORNEY

Margaret Fletcher Garrett (See above for address) TERMINATED: 06/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah E. Geraghty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Brooks Bright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jeffery York TERMINATED: 03/28/2011

represented by Elizabeth Lynn Littrell (See above for address) TERMINATED: 04/23/2007 LEAD ATTORNEY

Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa L. Kung (See above for address) TERMINATED: 05/02/2012 LEAD ATTORNEY

Margaret Fletcher Garrett (See above for address) TERMINATED: 06/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah E. Geraghty

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 4 of 36

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Brooks Bright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Dewayne Owens TERMINATED: 03/28/2011

represented by Elizabeth Lynn Littrell (See above for address) TERMINATED: 04/23/2007 LEAD ATTORNEY

Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa L. Kung (See above for address) TERMINATED: 05/02/2012 LEAD ATTORNEY

Margaret Fletcher Garrett (See above for address) TERMINATED: 06/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah E. Geraghty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Brooks Bright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Al Reginald Marks TERMINATED: 03/28/2011

represented by Elizabeth Lynn Littrell (See above for address) TERMINATED: 04/23/2007 LEAD ATTORNEY

Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa L. Kung (See above for address) TERMINATED: 05/02/2012 LEAD ATTORNEY

Margaret Fletcher Garrett (See above for address) TERMINATED: 06/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah E. Geraghty

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 5 of 36

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Brooks Bright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Lori Sue Collins TERMINATED: 03/28/2011

represented by Elizabeth Lynn Littrell (See above for address) TERMINATED: 04/23/2007 LEAD ATTORNEY

Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa L. Kung (See above for address) TERMINATED: 05/02/2012 LEAD ATTORNEY

Margaret Fletcher Garrett (See above for address) TERMINATED: 06/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah E. Geraghty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Brooks Bright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Rev. Joel Jones TERMINATED: 06/01/2007

represented by Elizabeth Lynn Littrell (See above for address) TERMINATED: 04/23/2007 LEAD ATTORNEY

Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa L. Kung (See above for address) TERMINATED: 05/02/2012 LEAD ATTORNEY

Margaret Fletcher Garrett (See above for address) TERMINATED: 06/23/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah E. Geraghty

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 6 of 36

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Brooks Bright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Ruben Luna

represented by Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah E. Geraghty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Brooks Bright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Germany Whitfield

represented by Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah E. Geraghty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Brooks Bright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff R. W.

Plaintiff Walter Smiley

represented by Gerald R. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah E. Geraghty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Brooks Bright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 7 of 36

Defendant
Sonny Perdue Governor of the State of Georgia in his Official Capacity

represented by Devon Orland Office of State Attorney General 40 Capitol Square, S.W. Atlanta, GA 30334−1300 404−463−8850 Fax: 404−651−5304 Email: dorland@law.ga.gov ATTORNEY TO BE NOTICED

Joseph J. Drolet Attorney Gerneral's Office 40 Capitol Square, SW Atlanta, GA 30334 404−657−3983 Email: jdrolet@law.ga.gov ATTORNEY TO BE NOTICED

Kay Denise Baker State Attorney General 40 Capitol Square, S.W. Atlanta, ga 30334 404−657−3980 Email: kay.baker@law.state.ga.us TERMINATED: 04/06/2007

Defendant
Thurbert E. Baker Attorney General of the State of Georgia in his Official Capacity

represented by Devon Orland (See above for address) ATTORNEY TO BE NOTICED

Joseph J. Drolet (See above for address) ATTORNEY TO BE NOTICED

Kay Denise Baker (See above for address) TERMINATED: 04/06/2007

Mary Beth Westmoreland Mary Beth Westmoreland 2408 Mill Ridge Trail Atlanta, GA 30345 404−656−3349 Email: westmorelandmb@gmail.com ATTORNEY TO BE NOTICED

Defendant
Scot Dean Chief of Probation, Cedartown, Polk County, Georgia, in his Official Capacity

represented by Devon Orland (See above for address) ATTORNEY TO BE NOTICED

Joseph J. Drolet (See above for address) ATTORNEY TO BE NOTICED

Kay Denise Baker (See above for address) TERMINATED: 04/06/2007

Defendant

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 8 of 36

Robert Sparks Sheriff of Polk County, in his Official Capacity TERMINATED: 06/01/2007

Defendant
Clay N. Whittle Sheriff of Columbia County

represented by David Eugene Hudson Hull Barrett Suite 700 P.O. Box 1564 801 Broad Street Augusta, GA 30903−1564 706−722−4481 Email: DHudson@hullbarrett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Sheriff Jerry Davis TERMINATED: 06/22/2007

represented by Suzanne H. Smith Gordon County Courthouse P.O. Box 580 Calhoun, GA 30703 706−629−3795 Email: shutchinson@gordoncounty.org ATTORNEY TO BE NOTICED

Defendant
Sheriff Bruce Harris TERMINATED: 06/28/2007

represented by Lani Gardner Skipper Vinson Talley Richardson &Cable P.O. Box 197 367 West Memorial Drive Dallas, GA 30132 770−445−4438 Email: lskipper@trc−lawfirm.com ATTORNEY TO BE NOTICED

Defendant
Sheriff Phil Summers TERMINATED: 07/31/2007

represented by Clifton M. Patty , Jr. Patty &Young, Attorneys at Law, LLC P.O. Box 727 7731 Nashville Street Ringgold, GA 30736 706−935−9100 Email: pattylaw@catt.com ATTORNEY TO BE NOTICED

Defendant
Myron Freeman TERMINATED: 08/17/2007

represented by Nikisha L. McDonald DeKalb County Law Department 1300 Commerce Dr. 5th Floor Decatur, GA 30030 404−371−3011 Fax: 404−371−3024 Email: nmcdonald@dekalbcountyga.gov ATTORNEY TO BE NOTICED

Nwakaego Ijeoma Nkumeh Office of the Fulton County Attorney 141 Pryor St. Suite 4038 Atlanta, GA 30303

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 9 of 36
404−612−0286 Fax: 404−730−6540 Email: nnkumeh@kennesaw.edu TERMINATED: 02/04/2009 ATTORNEY TO BE NOTICED
Overtis Hicks Brantley Office of Fulton County Attorney 141 Pryor Street, S.W. Suite 4038 Atlanta, GA 30303 404−730−7750 Email: ov.brantley@co.fulton.ga.us TERMINATED: 01/07/2008
Defendant Sheriff Victor Hill TERMINATED: 08/29/2007
Defendant Sheriff Phil Summers Defendant Sheriff Summers
Defendant Attorney Nathan T. Lee
Defendant Sheriff Tim Burkhalter
Defendant Sheriff Gary Gulledge
Defendant Sheriff Kelly McLendon
Defendant Sheriff Stacy L. Nicholson
Defendant Attorney William D NeSmith
Defendant Sheriff Pete Smith

V. Respondent William H Blalock, Jr.

Date Filed 06/20/2006

# Docket Text
1 CLASS ACTION COMPLAINT with jury demand filed by Plaintiffs. Consent form to proceed before U.S. Magistrate and pretrial instructions provided. (Filing fee $350 receipt number 365643) (Attachments: # 1 Civil Cover Sheet and Copy of Receipt)(bjj) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 06/20/2006)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 10 of 36

06/20/2006 06/20/2006 06/20/2006 06/20/2006 06/20/2006 06/21/2006 06/21/2006
06/22/2006
06/22/2006
06/23/2006
06/23/2006 06/26/2006
06/26/2006 06/26/2006 06/26/2006

2 Summons Issued as to Governor Sonny Perdue. (bjj) (Entered: 06/20/2006)
3 Summons Issued as to Thurbert E. Baker, Attorney General. (bjj) (Entered: 06/20/2006)
4 Summons Issued as to Scot Dean, Chief Probation Officer. (bjj) (Entered: 06/20/2006)
5 Summons Issued as to Robert Sparks, Sheriff of Polk County, GA. (bjj) (Entered: 06/20/2006)
6 ORDER OF RECUSAL by Judge Harold L. Murphy. Case reassigned to Judge Clarence Cooper for all further proceedings. Signed by Judge Harold L. Murphy on 6/20/06. (bjj) (Entered: 06/21/2006)
Remark: All Counsel, Please note that this Civil Action has been reassigned to Judge Clarence Cooper, therefore please ensure any pleadings filed reflect the initials of "CC" in the style. (bjj) (Entered: 06/21/2006)
7 DOCUMENT FILED WITH SEVERAL ERRORS MOTION for Preliminary Injunction with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Brief Brief in Support of Motion for Preliminary Injunction# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Appendix Index of Exhibits)(Geraghty, Sarah) Modified on 6/22/2006 to restrict document access (bjj). (Entered: 06/21/2006)
8 MOTION for Preliminary Injunction with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Brief Brief in Support of Preliminary Injunction# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Appendix Index of Exhibits)(Geraghty, Sarah) (Entered: 06/22/2006)
9 MOTION for Temporary Restraining Order with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Brief Brief in Support of Motion for Temporary Restraining Order# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Appendix Index of Exhibits)(Geraghty, Sarah) (Entered: 06/22/2006)
10 DOCUMENT NOT CAPTIONED/STYLEDCERTIFICATE OF SERVICE re 9 MOTION for Temporary Restraining Order filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver (Geraghty, Sarah) Modified on 6/23/2006 to restrict document access (bjj). (Entered: 06/23/2006)
11 NOTICE of Appearance by Devon Orland on behalf of Sonny Perdue, Thurbert E. Baker, Scot Dean (Orland, Devon) (Entered: 06/23/2006)
12 NOTICE by Janet Jenkins Allison, Wendy Whitaker, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver re 9 MOTION for Temporary Restraining Order of Filing of Additional Exhibits (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Geraghty, Sarah) (Entered: 06/26/2006)
13 NOTICE of Appearance by Joseph J. Drolet on behalf of Sonny Perdue, Thurbert E. Baker, Scot Dean, Robert Sparks (Drolet, Joseph) (Entered: 06/26/2006)
14 NOTICE of Appearance by Kay Denise Baker on behalf of all defendants (Baker, Kay) (Entered: 06/26/2006)
15 MOTION to Certify Class with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Brief Memorandum in Support of Motin to Provisionally Certify a Class for the Duration

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 11 of 36

06/26/2006 06/27/2006
06/27/2006 06/28/2006 06/28/2006 06/29/2006 06/29/2006
06/30/2006 06/30/2006 06/30/2006 06/30/2006 06/30/2006

of the TRO Already Granted)(Geraghty, Sarah) (Entered: 06/26/2006)
20 Minute Entry for proceedings held before Judge Clarence Cooper : Motion Hearing held on 6/26/2006 re 9 MOTION for Temporary Restraining Order filed by Plaintiffs. Preliminary Injunction set for 7/11/06 @ 1:30 p.m. (Court Reporter Amanda Lohnaas.)(bjj) (Entered: 06/29/2006)
16 ORDER temporarily granting 9 Motion for TRO and Defts are TEMPORARILY RESTRAINED from taking any action to enforce the portion of GA. Code Ann. Section 42−1−15(a) that prohibits living w/in 1,000 feet of a school bus stop, as applied to the named Plas in this case. The Court ORDERS the parties to appear before the Court on July 11, 2006 at 1:30 p.m. for a hearing on Plas' Motion for Preliminary Injunction. The Court ORDERS Plas to produce by July 7, 2006 at 5:00 p.m., information regarding the number and location of school bus stops that are pertinent to this litigation and the corresponding areas impacted by the Act. The Court DENIES Defts' Oral Motion for a Stay of this Order. The Court will consider Plas' Motion to Provisionally Certify a Class on an expedited basis and requests Defts submit a Response by 1:00 p.m. on June 28, 2006, and that Plas file a Reply by 12:00 p.m. on June 29, 2006. Signed by Judge Clarence Cooper on 6/27/06. (bjj) (Entered: 06/27/2006)
Set Deadline as to 8 MOTION for Preliminary Injunction. Motion Hearing set for 7/11/2006 @ 01:30 PM before Judge Clarence Cooper. (bjj) (Entered: 06/27/2006)
17 NOTICE of Appearance by Mary Beth Westmoreland on behalf of Thurbert E. Baker (Westmoreland, Mary) (Entered: 06/28/2006)
18 RESPONSE re 15 MOTION to Certify Class filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Drolet, Joseph) (Entered: 06/28/2006)
19 REPLY to Response to Motion re 15 MOTION to Certify Class filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Geraghty, Sarah) (Entered: 06/29/2006)
21 ORDER PROVISIONALLY granting 15 Motion to Certify Class. The Court provisionally certifies a class consisting of all persons who registered as sex offenders pursuant to Section 42−1−12 on or before July 1, 2006 and who reside w/in 1,000 feet of a currently−designated school bus stop or a school bus stop designated in the future. Unless otherwise ordered, this provisional certification is only for the duration of the TRO. The relief granted to the named Plaintiffs in the Court's June 27, 2006 Order on Plaintiffs' Motion for Temporary Restraining Order is hereby extended to all members of the provisionally certified class. Signed by Judge Clarence Cooper on 6/29/06. (bjj) (Entered: 06/29/2006)
22 MOTION to Stay Proceedings with Brief In Support by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Brief In Support of Defendants' Motion To Stay Proceedings)(Orland, Devon) (Entered: 06/30/2006)
23 MOTION for Leave to File Evidence with Brief In Support by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Brief In Support Of Defendants' Motion for Filing Of Evidence)(Orland, Devon) (Entered: 06/30/2006)
24 ORDER denying Defts' 22 Motion to Stay for failure to comply with Local Rule 7.1(A)(1). Signed by Judge Clarence Cooper on 6/30/06. (bjj) (Entered: 06/30/2006)
25 Second MOTION to Stay Proceedings with Brief In Support by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Brief In Support of Defendants' Second Motion to Stay The Certification Of The Provisional Class)(Orland, Devon) (Entered: 06/30/2006)
26 NOTICE OF APPEAL as to 21 Order on Motion to Certify Class and 16 Order on Motion for TRO by Sonny Perdue, Thurbert E. Baker, Scot Dean. Filing Fee $455.00; Receipt Number 552947. Transcript Order Form due on 7/17/2006 (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Appeal Fees)(kac) (Entered: 06/30/2006)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 12 of 36

06/30/2006 06/30/2006 07/05/2006 07/07/2006
07/07/2006 07/07/2006
07/07/2006
07/07/2006 07/07/2006 07/07/2006
07/07/2006
07/07/2006 07/07/2006 07/11/2006

27 Transmission of Certified Copy of Notice of Appeal, Orders and Docket Sheet to US Court of Appeals re: 26 Notice of Appeal. (kac) (Entered: 06/30/2006)
28 ORDER denying with prejudice Defts' 25 Second Motion to Stay. Signed by Judge Clarence Cooper on 6/30/06. (bjj) (Entered: 06/30/2006)
29 NOTICE OF REQUIREMENT TO FILE ELECTRONICALLY pursuant to Standing Order 04−01 re: 26 Notice of Appeal. (dfb) (Entered: 07/05/2006)
30 RESPONSE re 8 MOTION for Preliminary Injunction filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Attachment 1−Cited Authority# 2 Attachment 1−Part Two−Cited Authority# 3 Attachment 2−Statutes# 4 Affidavit Attachment 3−Richard Oleson# 5 Exhibit A to Attachment 3−Chart of Parolees Residence# 6 Affidavit Attachment 4−Affidavits of School Officials# 7 Attachment 5−Affidavit of Laura Tate# 8 Attachment 6−Affidavit of Michele Knox# 9 Attachment 7−Affidavit of Dr. Mario J.P. Dennis# 10 Exhibit A to Attachment 7−Curriculum Vitae of Dr. Dennis)(Orland, Devon) (Entered: 07/07/2006)
31 MOTION for Leave to File Excess Pages by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Text of Proposed Order Proposed Order)(Drolet, Joseph) (Entered: 07/07/2006)
32 DOCUMENT FILED IN ERROR/WRONG PDF ATTACHED MOTION to Dismiss in Lieu of Answer with Brief In Support by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Brief in Support# 2 Exhibit A Part One# 3 Exhibit A Part Two# 4 Exhibit B)(Drolet, Joseph) Modified on 7/7/2006 to restrict document security (jta). (Entered: 07/07/2006)
33 RESPONSE in Support re 8 MOTION for Preliminary Injunction Pre−Hearing Brief filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Exhibit 1)(Geraghty, Sarah) (Entered: 07/07/2006)
34 MOTION to Dismiss in Lieu of Answer with Brief In Support by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Brief in Support# 2 Exhibit A part one# 3 Exhibit A part two# 4 Exhibit B)(Drolet, Joseph) (Entered: 07/07/2006)
Notification of Docket Correction re 32 MOTION to Dismiss in Lieu of Answer. Wrong pdf attached. Atty to re−file. (jta) (Entered: 07/07/2006)
35 RESPONSE re 16 Order on Motion for TRO,,, Regarding Number and Location of School Bus Stops filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Geraghty, Sarah) (Entered: 07/07/2006)
36 First AMENDED COMPLAINT against all defendants, filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Geraghty, Sarah) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 07/07/2006)
39 TRANSCRIPT of Motion for Temporary Restraining Order Proceedings held on 6/26/06 before Judge Clarence Cooper. Court Reporter: Amanda Lohnaas. (bjj) (Entered: 07/11/2006)
50 ORDER granting Defts' 31 Motion for Leave to File Excess Pages, up to 33 pages in length for their Brief in support of their Motion to Dismiss. Signed by Judge Clarence Cooper on 7/7/06. (bjj) (Entered: 07/25/2006)
37 NOTICE Of Filing by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver re 8 MOTION for Preliminary Injunction Additional Exhibits in Support of Motion for Preliminary Injunction (Attachments: # 1 Exhibit 1: Declaration of Chief Deputy Joel McSwain# 2 Exhibit 2: Declaration

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 13 of 36

07/11/2006 07/11/2006 07/11/2006 07/12/2006 07/12/2006 07/17/2006
07/17/2006
07/19/2006 07/19/2006 07/19/2006 07/19/2006 07/19/2006 07/20/2006
07/20/2006

of Mike Jolley, Sheriff of Harris County# 3 Exhibit 3: Declaration of Steve Dunn, Superintendent, Pelham City Schools# 4 Exhibit Declaration of W.E. Bozeman, Sheriff of Mitchell County# 5 Exhibit 5: Declaration of Gary Thornton# 6 Exhibit Declaration of Robert Wadford)(Geraghty, Sarah) (Entered: 07/11/2006)
38 ORDER extending the Temporary Restraining Order for an addt'l 10 days or until the Court rules on Plas' Motion for Preliminary Injunction, whichever is earlier. Signed by Judge Clarence Cooper on 7/11/06. (bjj) (Entered: 07/11/2006)
51 ORDER allowing Attys to bring certain items to the 17th Floor U.S. Courthouse for the purpose of the hearing set for 7/11/06. Signed by Judge Clarence Cooper on 7/11/06. (bjj) (Entered: 07/25/2006)
52 Minute Entry for proceedings held before Judge Clarence Cooper : Motion Hearing held on 7/11/2006 re 8 MOTION for Preliminary Injunction filed by Plaintiffs. Evidence Admitted − P−1,2,3 and D−6, and P−5,8,16,17,18,4. (Court Reporter Amanda Lohnaas.)(bjj) (Entered: 07/25/2006)
Submission of 8 MOTION for Preliminary Injunction, to District Judge Clarence Cooper. (bjj) (Entered: 07/12/2006)
53 Minute Entry for proceedings held before Judge Clarence Cooper : Motion Hearing continued on 7/12/2006 re 8 MOTION for Preliminary Injunction filed by Plaintiffs. Evidence Admitted − P−19−25, D−8, P−26−29, D−13,14,10,12,9,17, P−10,12. (Court Reporter Amanda Lohnaas.)(bjj) (Entered: 07/25/2006)
40 BRIEF IN RESPONSE to the Court's July 12, 2006 Verbal Order Regarding the Definition of "School Bus Stops" filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Geraghty, Sarah) Modified on 7/18/2006 to edit Title Language (bjj). (Entered: 07/17/2006)
41 SUPPLEMENTAL BRIEF Pursuant to the Verbal Order of July 12, 2006 and re 40 Response filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Exhibit A to Defs' Supplemental Brief Pursuant to Court Order of July 12 2006# 2 Exhibit B to Defs' Supplemental Brief Pursuant to Court Order of July 12 2006# 3 Exhibit C to Defs' Supplemental Brief Pursuant to Court Order of July 12 2006)(Orland, Devon) Modified on 7/18/2006 to edit Title Language (bjj). (Entered: 07/17/2006)
42 TRANSCRIPT of Motion for Preliminary Injunction Proceedings held on July 11, 2006 before Judge Clarence Cooper. Court Reporter: Amanda Lohnaas. (bjj) (Entered: 07/19/2006)
43 TRANSCRIPT Volume 2 of Motion for Preliminary Injunction Proceedings held on July 12, 2006 before Judge Clarence Cooper. Court Reporter: Amanda Lohnaas. (bjj) (Entered: 07/19/2006)
44 DOCUMENT UNSIGNEDPROPOSED ORDER Denying Plaintiffs' Motion for Preliminary Injunction. (Orland, Devon) Modified on 7/20/2006 to restrict document access (bjj). (Entered: 07/19/2006)
Submission of 23 MOTION for Leave to File Evidence, to District Judge Clarence Cooper. (bjj) (Entered: 07/19/2006)
45 PROPOSED ORDER Order Granting Plaintiffs' Motion for Preliminary Injunction re: 8 MOTION for Preliminary Injunction. (Geraghty, Sarah) (Entered: 07/19/2006)
46 MOTION to Certify Class with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Brief Memorandum of Law in Support of Motion for Class Certification)(Geraghty, Sarah) (Entered: 07/20/2006)
47 USCA Acknowledgment of 26 Notice of Appeal, filed by Thurbert E. Baker, Sonny Perdue, and Scot Dean. Case Appealed to 11th Circuit. Case Number

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 14 of 36

07/20/2006 07/24/2006 07/25/2006 07/25/2006 07/25/2006 07/25/2006
07/25/2006 07/25/2006 07/26/2006
07/26/2006 07/26/2006
07/27/2006 07/27/2006 07/27/2006

06−13668−J. (jta) (Entered: 07/20/2006)
48 PROPOSED ORDER Denying Plaintiffs' Motion For Preliminary Injunction. (Orland, Devon) (Entered: 07/20/2006)
49 PROPOSED CONSENT ORDER Consent Order Regarding Plaintiffs' Response to Motion to Dismiss, Rule 26(f) Conference, and Joint Preliminary Report and Discivery Plan. (Geraghty, Sarah) (Entered: 07/24/2006)
Submission of Defts' 34 MOTION to Dismiss in Lieu of Answer, to District Judge Clarence Cooper. (bjj) (Entered: 07/25/2006)
54 ORDER denying w/out prejudice Plas' 8 Motion for Preliminary Injunction. Signed by Judge Clarence Cooper on 7/25/06. (bjj) (Entered: 07/25/2006)
55 MOTION to Dismiss Amended Complaint with Brief In Support by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Brief in Support of Defendants' Motion to Dismiss Plaintiffs' Amended Complaint)(Baker, Kay) (Entered: 07/25/2006)
56 CONSENT ORDER: Plas' Response to Defts' Motions to Dismiss are due 20 days after the filing of Defts' Motion to Dismiss the Amended Complaint; Rule 26(f) Conference is to be held 8/2/06; and the ddl for the Joint Preliminary Report &Discovery Schedule is 8/16/06. Signed by Judge Clarence Cooper on 7/25/06. (bjj) (Entered: 07/25/2006)
57 TRANSCRIPT ORDER FORM for proceedings held on June 26, 2006 before Judge Clarence Cooper, re 26 Notice of Appeal,. Court Reporter: Amanda Lohanaas. USCA Appeal Number 06−13668−J Certificate of Readiness due on 8/8/2006 (smj) (Entered: 07/25/2006)
70 Financial Arrangements Completed re 26 Notice of Appeal filed by Thurbert E. Baker, Sonny Perdue, Scot Dean. Case Appealed to 11th Circuit. Case Number 06−13668−J. (jta) Modified on 8/1/2006 to edit filing date(jta). (Entered: 08/01/2006)
58 MOTION for Temporary Restraining Order with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Brief Brief in Support of TRO# 2 Exhibit Declaration of Bobby Brassell# 3 Exhibit Augusta Chronicle article# 4 Exhibit News 12 article)(Geraghty, Sarah) (Entered: 07/26/2006)
59 MOTION to Amend Complaint with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Exhibit Second Amended Complaint)(Geraghty, Sarah) (Entered: 07/26/2006)
60 MOTION Motion for Leave to File Conventionally 58 MOTION for Temporary Restraining Order by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Text of Proposed Order)(Geraghty, Sarah) (Entered: 07/26/2006)
61 ORDER granting 59 Motion to Amend Complaint and add Defts Sheriff Clay N. Whtittle, Sheriff Ronald Strength, and Sheriff Gregory Coursey. Signed by Judge Clarence Cooper on 7/27/06. (bjj) (Entered: 07/27/2006)
62 RESPONSE re 46 MOTION to Certify Class filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) (Entered: 07/27/2006)
63 NOTICE Of Filing Additional Exhibits in Support of Motion for TRO by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver re 58 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit 1: Declaration of Thomas Early# 2 Exhibit 2: Declaration of Jeffrey Crenshaw# 3 Exhibit 3: Declaration of Stacey Rush# 4 Exhibit 4: Declaration of Roger Rhoden)(Geraghty, Sarah) (Entered: 07/27/2006)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 15 of 36

07/28/2006
07/28/2006 07/28/2006 07/28/2006
07/28/2006
07/31/2006 07/31/2006
08/01/2006 08/02/2006
08/02/2006 08/03/2006
08/03/2006
08/03/2006 08/03/2006

64 ORDER denying Plaintiffs' 58 Motion for TRO as premature as to the Sheriffs of Richmond and Burke Counties. Insofar as the Sheriff of Columbia County has consented to the entry of a TRO and preliminary injunction, the Court DIRECTS counsel for Plaintiffs and counsel for the Sheriff of Columbia County to prepare a consent order for the Court's signature. Signed by Judge Clarence Cooper on 7/28/06. (bjj) (Entered: 07/28/2006)
65 ORDER granting 46 Motion to Certify Class. Signed by Judge Clarence Cooper on 7/28/06. (bjj) (Entered: 07/28/2006)
66 PROPOSED CONSENT ORDER. (Geraghty, Sarah) (Entered: 07/28/2006)
67 CONSENT ORDER: Plaintiffs and Columbia County Sheriff Clay N. Whittle agree that Sheriff Whittle is enjoined from enforcing the portion of Ga. Code Ann. Section 42−1−15(a) that prohibits anyone on Georgia's sex offender registry from living w/in 1,000 feet of a "school bus stop". Signed by Judge Clarence Cooper on 7/28/06. (bjj) (Entered: 07/28/2006)
68 Minute Entry for proceedings held before Judge Thomas W. Thrash, Jr.: Hearing/Pre−Trial/Trial/Evidence held on 7/28/2006 re 46 MOTION to Certify Class filed by Plaintiffs; 58 MOTION for Temporary Restraining Order filed by Plaintiffs. Exhibits 1, 2, 3 Admitted. Court scheduled mtg w/counsel 7/31/06 in Chambers. (Court Reporter Donna Keeble.)(bjj) (Entered: 07/31/2006)
69 NOTICE Of Filing by Sonny Perdue, Thurbert E. Baker, Scot Dean Brief Addressing Certification of Defendant Class (Orland, Devon) (Entered: 07/31/2006)
71 Certified copy of ORDER/ENTRY OF DISMISSAL of USCA, pursuant to the Appellant's Motion for Voluntary Dismissal, re: 26 Notice of Appeal filed by Thurbert E. Baker, Sonny Perdue, Scot Dean. Case Appealed to 11th Circuit. Case Number 06−13668−J. (jta) Additional attachment(s) added on 8/1/2006 (jta). (Entered: 08/01/2006)
77 ORDER granting 60 Motion to File Conventionally a CD−Rom Disc. Signed by Judge Clarence Cooper on 7/27/06. (bjj) (Entered: 08/10/2006)
72 MOTION to Certify Class of Defendant Sheriffs with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Brief Memorandum of Law in Support of Motion to Certify a Defendant Class)(Geraghty, Sarah) (Entered: 08/02/2006)
73 PROPOSED CONSENT ORDER. (Geraghty, Sarah) (Entered: 08/02/2006)
74 Return of Service Executed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. Sonny Perdue served on 6/20/2006, answer due 7/10/2006; Thurbert E. Baker served on 6/20/2006, answer due 7/10/2006; Scot Dean served on 6/20/2006, answer due 7/10/2006; Robert Sparks served on 6/20/2006, answer due 7/10/2006. (Geraghty, Sarah) (Entered: 08/03/2006)
75 Second AMENDED COMPLAINT against all defendants, filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver.(Geraghty, Sarah) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/03/2006)
76 Joint PRELIMINARY REPORT AND DISCOVERY SCHEDULE filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Geraghty, Sarah) (Entered: 08/03/2006)
83 CONSENT ORDER by Plaintiffs and Defts Strength and Coursey enjoining pending further Order of the Court, from enforcing the portion of the Georgia Code Annotated Section 42−1−15(a) that prohibits anyone on Georgia's Sex Offender Registry from living w/in 1,000 feet of a "school bus stop". Further, Defts Strength and Coursey are relieved from any responsibility of filing an Answer to Plaintiffs'

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 16 of 36

08/10/2006 08/14/2006
08/14/2006 08/15/2006 08/15/2006 08/16/2006 08/16/2006 08/16/2006 08/17/2006 08/17/2006
08/17/2006
08/18/2006 08/18/2006
08/18/2006

Amended Complaint or otherwise participating in this litigation... Signed by Judge Clarence Cooper on 8/3/06. (bjj) (Entered: 08/16/2006)
78 MOTION to Dismiss Plaintiff's Second Amended Complaint with Brief In Support by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Brief in support of Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint)(Baker, Kay) (Entered: 08/10/2006)
79 MOTION for Temporary Restraining Order to Enjoin Bulloch County Sheriff From Enforcing School Bus Stop Provision with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Exhibit 1: letter from Sheriff Anderson# 2 Exhibit 2: Declaration of Paul Stewart# 3 Exhibit 3: Declaration of Raymond Lodge# 4 Exhibit 4: Declaration of Robert Ortego# 5 Exhibit 5: Statesboro Herald article# 6 Exhibit 6: Declaration of Robert White)(Geraghty, Sarah) (Entered: 08/14/2006)
80 RESPONSE re 72 MOTION to Certify Class of Defendant Sheriffs filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) (Entered: 08/14/2006)
81 MOTION to Amend Complaint with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Exhibit 1: Third Amended Complaint)(Geraghty, Sarah) (Entered: 08/15/2006)
82 PROPOSED CONSENT ORDER. (Geraghty, Sarah) (Entered: 08/15/2006)
Submission of 34 MOTION to Dismiss in Lieu of Answer, 55 MOTION to Dismiss Amended Complaint, to District Judge Clarence Cooper. (bjj) (Entered: 08/16/2006)
84 RESPONSE in Opposition re 15 MOTION to Certify Class filed by Clay N. Whittle. (Hudson, David) (Entered: 08/16/2006)
85 Joint MOTION for Extension of Time to File Answer by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Geraghty, Sarah) (Entered: 08/16/2006)
86 RESPONSE re 81 MOTION to Amend Complaint filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) (Entered: 08/17/2006)
87 MOTION for Leave to File Excess Pages in Response to Defendants' Motion to Dismiss by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Text of Proposed Order)(Geraghty, Sarah) (Entered: 08/17/2006)
88 DOCUMENT FILED W/OUT LEAVERESPONSE in Opposition re 55 MOTION to Dismiss Amended Complaint, 78 MOTION to Dismiss Plaintiff's Second Amended Complaint, 34 MOTION to Dismiss in Lieu of Answer filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Geraghty, Sarah) Modified on 8/18/2006 to restrict document access (bjj). (Entered: 08/17/2006)
Submission of 87 MOTION for Leave to File Excess Pages in Response to Defendants' Motion to Dismiss, to District Judge Clarence Cooper. (bjj) (Entered: 08/18/2006)
89 CERTIFICATE OF SERVICE re 85 Joint MOTION for Extension of Time to File Answer by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver.(Geraghty, Sarah) Modified on 8/21/2006 to omit double text (bjj). (Entered: 08/18/2006)
90 NOTICE of Appearance by David Eugene Hudson on behalf of Clay N. Whittle (Hudson, David) (Entered: 08/18/2006)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 17 of 36

08/21/2006 08/21/2006 08/22/2006
08/22/2006 08/23/2006 08/24/2006
08/29/2006 08/31/2006
08/31/2006 09/06/2006 09/11/2006 09/12/2006 09/19/2006 10/12/2006

92 ORDER granting Plaintiffs' 87 Motion for Leave to File a Memorandum of Law in support of their Response to Defendants' Motion to Dismiss up to 37 Pages in length. Signed by Judge Clarence Cooper on 8/21/06. (bjj) (Entered: 08/22/2006)
93 ORDER granting 85 Joint Motion for Extension of Time to Answer until 20 days after Plaintiffs' make a renewed demand for filing of an Answer, or until such time as directed by the Court, for Deft Clay N. Whittle. Signed by Judge Clarence Cooper on 8/21/06. (bjj) (Entered: 08/22/2006)
91 DOCUMENT LINKED TO INCORRECT MOTIONREPLY to Response to Motion re 87 MOTION for Leave to File Excess Pages in Response to Defendants' Motion to Dismiss filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) Modified on 8/23/2006 to restrict document access (bjj). (Entered: 08/22/2006)
Submission of Plaintiffs' 72 MOTION to Certify Class of Defendant Sheriffs, to District Judge Clarence Cooper. (bjj) (Entered: 08/22/2006)
94 REPLY to Response to Motion re 78 MOTION to Dismiss Plaintiff's Second Amended Complaint filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) (Entered: 08/23/2006)
95 ORDER granting 72 Motion to Certify Class consisting of all sheriffs in the state of Georgia; in light of this ruling, the Court will dismiss the other Georgia sheriffs that are currently defts in this action, Sheriffs Robert Sparks, Ronald Strength, and Gregor Coursey, w/in 10 days from the date of this Order, unless a party files an Objection to this dismissal w/in this time period. Denying as moot 81 Motion for Leave to Amend Complaint. Signed by Judge Clarence Cooper on 8/24/06. (bjj) (Entered: 08/24/2006)
Submission of Defendants' 78 MOTION to Dismiss Plaintiff's Second Amended Complaint, to District Judge Clarence Cooper. (bjj) (Entered: 08/29/2006)
96 CONSENT ORDER between Plaintiffs and Bulloch County Sheriff, Lynn M. Anderson, agreeing that Sheriff Anderson is enjoined from enforcing the portion of Ga. Code Ann. Section 42−1−15(a) that prohibits anyone on Georgia's sex offender registry from living w/in 1,000 fee of a "school bus stop"....while the Court considers the constitutionality of the provision. In return, Plaintiffs agree not to seek atty's fees against Sheriff Anderson. Further, Sheriff Anderson is relieved from any responsibility of filing an Answer to Plaintiff's Amended Complaint or otherwise participating in this litigation. Signed by Judge Clarence Cooper on 8/31/06. (bjj) (Entered: 08/31/2006)
97 MOTION to Withdraw Kay Denise Baker as Attorneyby Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Text of Proposed Order)(Baker, Kay) (Entered: 08/31/2006)
Submission of Plaintiffs' 79 MOTION for Temporary Restraining Order to Enjoin Bulloch County Sheriff From Enforcing School Bus Stop Provision, to District Judge Clarence Cooper. (bjj) (Entered: 09/06/2006)
98 PROPOSED CONSENT ORDER Regarding Designation of School Bus Stops in Chatham County. (Geraghty, Sarah) (Entered: 09/11/2006)
Submission of 95 Order....the Deft Sheriffs will be dismissed unless an Objection is filed w/in 10 days...., to District Judge Clarence Cooper. (bjj) (Entered: 09/12/2006)
Submission of 97 MOTION to Withdraw Kay Denise Baker as Attorney for Defts, to District Judge Clarence Cooper. (bjj) (Entered: 09/19/2006)
99 MOTION for Preliminary Injunction To Prevent Nine Elderly and Disabled Plaintiffs From Being Evicted From Their Homes, Nursing Homes, and Hospice Care Facilities with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Brief Memorandum of Law# 2 Affidavit Exhibit 1# 3 Affidavit Exhibit 2# 4 Affidavit Exhibit 3# 5 Affidavit Exhibit 4)(Geraghty, Sarah) (Entered: 10/12/2006)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 18 of 36

10/12/2006
10/13/2006 10/13/2006 10/13/2006 10/17/2006 10/19/2006 11/01/2006 11/14/2006
03/14/2007 03/29/2007 03/30/2007

100 MOTION Motion to Proceed Anonymously 99 MOTION for Preliminary Injunction To Prevent Nine Elderly and Disabled Plaintiffs From Being Evicted From Their Homes, Nursing Homes, and Hospice Care Facilities with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Brief Memorandum of Law# 2 Text of Proposed Order Proposed Protective Order# 3 Text of Proposed Order Proposed Order Granting Motion To Proceed Anonymously)(Geraghty, Sarah) (Entered: 10/12/2006)
101 RESPONSE re 99 MOTION for Preliminary Injunction To Prevent Nine Elderly and Disabled Plaintiffs From Being Evicted From Their Homes, Nursing Homes, and Hospice Care Facilities filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) (Entered: 10/13/2006)
102 RESPONSE re 99 MOTION for Preliminary Injunction To Prevent Nine Elderly and Disabled Plaintiffs From Being Evicted From Their Homes, Nursing Homes, and Hospice Care Facilities, 100 MOTION Motion to Proceed Anonymously 99 MOTION for Preliminary Injunction To Prevent Nine Elderly and Disabled Plaintiffs From Being Evicted From Their Homes, Nursing Homes, and Hospice Care Facilities filed by Clay N. Whittle. (Hudson, David) (Entered: 10/13/2006)
103 RESPONSE re 100 MOTION Motion to Proceed Anonymously 99 MOTION for Preliminary Injunction To Prevent Nine Elderly and Disabled Plaintiffs From Being Evicted From Their Homes, Nursing Homes, and Hospice Care Facilities filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) (Entered: 10/13/2006)
104 PROPOSED CONSENT ORDER re: 99 MOTION for Preliminary Injunction To Prevent Nine Elderly and Disabled Plaintiffs From Being Evicted From Their Homes, Nursing Homes, and Hospice Care Facilities. (Geraghty, Sarah) (Entered: 10/17/2006)
105 PROPOSED CONSENT ORDER as to Sheriff Roger Garrison re: 99 MOTION for Preliminary Injunction To Prevent Nine Elderly and Disabled Plaintiffs From Being Evicted From Their Homes, Nursing Homes, and Hospice Care Facilities. (Geraghty, Sarah) Modified on 10/20/2006 to edit text(jta). (Entered: 10/19/2006)
Submission of Plaintiffs' 99 MOTION for Preliminary Injunction To Prevent Nine Elderly and Disabled Plaintiffs From Being Evicted From Their Homes, Nursing Homes, and Hospice Care Facilities; Plaintiffs' 100 MOTION Motion to Proceed Anonymously, to District Judge Clarence Cooper. (bjj) (Entered: 11/01/2006)
106 Withdrawal of 99 MOTION for Preliminary Injunction To Prevent Nine Elderly and Disabled Plaintiffs From Being Evicted From Their Homes, Nursing Homes, and Hospice Care Facilities filed by Wendy Whitaker, Joseph Linaweaver,Janet Jenkins Allison, James Victor Wilson,Jeffery York,Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, AND 100 MOTION to Proceed Anonymously filed by Wendy Whitaker, Joseph Linaweaver, Janet Jenkins Allison, James Victor Wilson, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones. (Geraghty, Sarah) Modified on 11/15/2006 to edit text (bjh). (Entered: 11/14/2006)
107 ORDER granting 23 Motion for Filing of Evidence. Defts are DIRECTED to submit copies of the Exhibits to the Court and to Plas' counsel, and the Clerk is INSTRUCTED to include those Exhibits in the official record of this case. Signed by Judge Clarence Cooper on 3/14/07. (bjh) (Entered: 03/14/2007)
108 MOTION to Withdraw Elizabeth Lynn Littrell as Attorneyby Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Littrell, Elizabeth) (Entered: 03/29/2007)
109 ORDER Denying as Moot Defendants' 34 Motion to Dismiss in Lieu of Answer; Denying as Moot Defendants' 55 Motion to Dismiss Amended Complaint; Granting in Part and Denying in Part Defendants' 78 Motion to Dismiss Second Amended Complaint. The Court will permit Plaintiffs to Amend their Complaint w/in 20 days of the date of this Order to assert a claim that the provision of the Act

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 19 of 36

04/03/2007 04/05/2007 04/06/2007 04/06/2007
04/20/2007 04/23/2007 04/25/2007 06/01/2007
06/13/2007 06/13/2007 06/14/2007
06/14/2007
06/14/2007
06/14/2007
06/21/2007

that prohibits registered sex offenders from working w/in 1,000 feet of churches violates the Free Exercise Clause and to assert vagueness and overbreadth claims, as provided in this Order. Signed by Judge Clarence Cooper on 3/30/07. (bjh) (Entered: 03/30/2007)
110 MOTION for More Definite Statement with Brief In Support by Sonny Perdue, Thurbert E. Baker. (Attachments: # 1 Brief In Support of Motion For More Definite Statement)(Orland, Devon) (Entered: 04/03/2007)
111 PROPOSED CONSENT ORDER Consent Order for More Definite Statement and Extending Time re: 110 MOTION for More Definite Statement. (Weber, Gerald) (Entered: 04/05/2007)
112 ORDER granting 97 Motion to Withdraw Asst. Atty General, Kay Denise Baker as Atty of Record. Attorney Kay Denise Baker terminated. Signed by Judge Clarence Cooper on 4/6/07. (bjh) (Entered: 04/11/2007)
113 ORDER granting Defendants' 110 Motion for More Definite Statement and Plaintiffs shall file an Amended Complaint consolidating remaining claims and addressing Free Exercise, Overbreadth and Vagueness claims by 6/1/07. Signed by Judge Clarence Cooper on 4/6/07. (bjh) (Entered: 04/11/2007)
Submission of Plaintiffs' 108 MOTION to Withdraw Elizabeth Lynn Littrell as Attorney, to District Judge Clarence Cooper. (bjh) (Entered: 04/20/2007)
114 ORDER granting 108 Motion to Withdraw Attorney Elizabeth Lynn Littrell. Signed by Judge Clarence Cooper on 4/23/07. (bjh) (Entered: 04/24/2007)
Remark: Defts' Exhibits submitted in compliance with 107 Order, and placed in vault. (bjh) (Entered: 04/25/2007)
115 Third AMENDED COMPLAINT against all defendants, filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver.(Geraghty, Sarah) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 06/01/2007)
116 CERTIFICATE OF SERVICE Defendants' First Interrogatories by Sonny Perdue, Thurbert E. Baker, Scot Dean.(Orland, Devon) (Entered: 06/13/2007)
117 CERTIFICATE OF SERVICE Defendants' First Request For Production of Documents by Sonny Perdue, Thurbert E. Baker, Scot Dean.(Orland, Devon) (Entered: 06/13/2007)
118 CERTIFICATE OF SERVICE Request for Production of Documents to Sheriffs by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver.(Geraghty, Sarah) (Entered: 06/14/2007)
119 CERTIFICATE OF SERVICE Interrogatories to Defendant Sheriffs by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver.(Geraghty, Sarah) (Entered: 06/14/2007)
120 CERTIFICATE OF SERVICE Request for Production to Defendants Perdue and Baker by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver.(Geraghty, Sarah) (Entered: 06/14/2007)
121 CERTIFICATE OF SERVICE Interrogatories to Defendants Perdue and Baker by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver.(Geraghty, Sarah) (Entered: 06/14/2007)
123 ANSWER to Amended Complaint (Third) by Sonny Perdue, Thurbert E. Baker, Scot Dean.Discovery ends on 11/19/2007.(Drolet, Joseph) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 06/21/2007)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 20 of 36

06/22/2007 06/22/2007 06/22/2007
06/28/2007 06/28/2007 06/29/2007 06/29/2007 07/02/2007
07/04/2007
07/05/2007 07/05/2007 07/09/2007 07/10/2007 07/11/2007 07/11/2007 07/12/2007 07/12/2007 07/12/2007 07/19/2007

124 NOTICE of Appearance by Martha Suzanne Hutchinson on behalf of Jerry Davis (Hutchinson, Martha) (Entered: 06/22/2007)
125 CERTIFICATE OF SERVICE filed by Jerry Davis (Hutchinson, Martha) (Entered: 06/22/2007)
126 MOTION for Preliminary Injunction Against Class Plaintiffs Who File Individual Actions with Brief In Support by Sonny Perdue, Thurbert E. Baker. (Attachments: # 1 Brief In Support Of Defendants' Motion For Preliminary Injunction Against Class Plaintiffs Who File Individual Actions# 2 Exhibit A−Battle Complaint# 3 Exhibit B−Order in Battle Dated April 9, 2007# 4 Exhibit C−Battle's Notice Of Lawsuit And Request For Waiver Of Service Of Summons)(Drolet, Joseph) (Entered: 06/22/2007)
127 CERTIFICATE OF SERVICE Local Rule 5.4 Certificate of Service of Discovery Responses by Bruce Harris.(Skipper, Lani) (Entered: 06/28/2007)
128 NOTICE of Appearance by Lani Gardner Skipper on behalf of Bruce Harris (Skipper, Lani) (Entered: 06/28/2007)
129 CERTIFICATE OF SERVICE by Nathan T. Lee.(Lee, Nathan) (Entered: 06/29/2007)
130 CERTIFICATE OF SERVICE of filing discovery by Phil Summers.(Patty, Clifton) (Entered: 06/29/2007)
Notification of Docket Correction re 129 Certificate of Service and 130 Certificate of Service. Attys Nathan Lee and Clifton Patty have been electronically notified to cause any future filings to reflect the ROME Division. Also, atty Clifton Patty has been notified that 130 was not signed. (bjh) (Entered: 07/02/2007)
131 RESPONSE in Opposition re 126 MOTION for Preliminary Injunction Against Class Plaintiffs Who File Individual Actions filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Geraghty, Sarah) (Entered: 07/04/2007)
Submission of Deft's 126 MOTION for Preliminary Injunction Against Class Plaintiffs Who File Individual Actions, with Plas' 131 Response in Opposition, to District Judge Clarence Cooper. (bjh) (Entered: 07/05/2007)
132 CERTIFICATE OF SERVICE of discovery material by Steve Cronic.(Blalock, William) (Entered: 07/05/2007)
134 CERTIFICATE OF SERVICE of Discovery filed by Gene Sorrells.(bjh) (Entered: 07/10/2007)
133 REPLY to Response to Motion re 126 MOTION for Preliminary Injunction Against Class Plaintiffs Who File Individual Actions filed by Sonny Perdue, Thurbert E. Baker. (Drolet, Joseph) (Entered: 07/10/2007)
135 CERTIFICATE OF SERVICE Notice of Serving Discovery Responses by Charles Roper.(Brown, Kevin) (Entered: 07/11/2007)
136 CERTIFICATE OF SERVICE of DeKalb County Sheriff Thomas Brown's Responses to Plaintiff's First Request for Production of Documents by Thomas Brown.(Reed, E.) (Entered: 07/11/2007)
137 NOTICE of Manuel Filing of Entry of Appearance by Atty James M. Skipper, Jr. and of Local Rule 5.4 Certificate of Discovery Materials. (bjh) (Entered: 07/12/2007)
138 NOTICE of Appearance by James M. Skipper, Jr., attorney for Harold Breeden. (bjh) (Entered: 07/12/2007)
139 CERTIFICATE OF SERVICE of Discovery Materials, filed by Harold Breeden.(bjh) (Entered: 07/12/2007)
140 CERTIFICATE OF SERVICE of Discovery Materials by Phil Miller.(Hirsch, Michelle) (Entered: 07/19/2007)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 21 of 36

07/20/2007 07/23/2007 07/23/2007 07/27/2007 07/31/2007 08/01/2007
08/01/2007 08/01/2007 08/01/2007 08/13/2007
08/14/2007 08/15/2007
08/15/2007 08/17/2007 08/17/2007 08/17/2007 08/17/2007 08/20/2007 08/20/2007

141 CERTIFICATE OF SERVICE Responses to Plaintiffs' First Interrogatories &First Request for Production of Documents by Stacy Nicholson.(Clark, Herman) (Entered: 07/20/2007)
142 CERTIFICATE OF SERVICE of Defendant's Discovery Responses by Joseph W Buice.(Mayfield, Larry) (Entered: 07/23/2007)
143 CERTIFICATE OF SERVICE for Sheriff Neil Warren's Responses to Plaintiff's First Interrogatories and Responses to Plaintiff's First Request for Production of Documents by Clay N. Whittle.(Taylor, Elizabeth) (Entered: 07/23/2007)
144 CERTIFICATE OF SERVICE of Discovery Responses by Donald Chaffin.(Jaugstetter, Patrick) (Entered: 07/27/2007)
145 NOTICE of Appearance by Clifton M. Patty, Jr on behalf of Phil Summers (Patty, Clifton) (Entered: 07/31/2007)
146 CERTIFICATE OF SERVICE −Notice Of Service Of Discovery Responses To Plaintiffs' First Interrogatories and Requests For Production Of Documents To Perdue And Baker by Sonny Perdue, Thurbert E. Baker.(Drolet, Joseph) (Entered: 08/01/2007)
147 CERTIFICATE OF SERVICE Responses to Interrogatories by Tim Burkhalter.(Manning, Thomas) (Entered: 08/01/2007)
148 CERTIFICATE OF SERVICE Responses to Request to Produce by Tim Burkhalter.(Manning, Thomas) (Entered: 08/01/2007)
149 CERTIFICATE OF SERVICE re Discovery Requests, file by Sheriff Clark Millsap. (bjh) (Entered: 08/01/2007)
150 CERTIFICATE OF SERVICE of Discovery Responses by Plaintiffs by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver.(Geraghty, Sarah) (Entered: 08/13/2007)
151 CERTIFICATE OF SERVICE /Notice Of Service Of Supplemental Discovery Responses To Plaintiff's First Interrogatories To Defendants Perdue And Baker by Sonny Perdue, Thurbert E. Baker.(Drolet, Joseph) (Entered: 08/14/2007)
152 Joint MOTION for Extension of Time to Complete Discovery with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Geraghty, Sarah) (Entered: 08/15/2007)
153 CERTIFICATE OF SERVICE of Discovery Materials regarding Miller's Supplemental Response to Plaintiffs' First Request for Production by Phil Miller.(Freeman, Theodore) (Entered: 08/15/2007)
154 NOTICE of Appearance by Nwakaego Ijeoma Okparaeke on behalf of Myron Freeman (Okparaeke, Nwakaego) (Entered: 08/17/2007)
155 CERTIFICATE OF SERVICE of Fulton County Sheriff's Responses to Plaintiff's First Request for Production of Documents by Myron Freeman.(Okparaeke, Nwakaego) (Entered: 08/17/2007)
156 CERTIFICATE OF SERVICE of Fulton County Sheriff's Responses to Plaintiff's First Interrogatories by Myron Freeman.(Okparaeke, Nwakaego) (Entered: 08/17/2007)
157 ORDER granting 152 Joint Motion for Extension of Time to Complete Discovery. Discovery extended until 1/15/2008. Signed by Judge Clarence Cooper on 8/17/07. (bjh) (Entered: 08/20/2007)
158 CERTIFICATE OF SERVICE Response of Sheriff Clayton Lowe to First Interrogatories of Plaintiffs by Michael C. Pruett.(McArthur, Malcolm) (Entered: 08/20/2007)
159 CERTIFICATE OF SERVICE Response of Sheriff Clayton Lowe to Plaintiffs' First Request for Production of Documents by Michael C. Pruett.(McArthur, Malcolm)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 22 of 36

08/28/2007 08/28/2007 08/29/2007 09/10/2007 09/11/2007 09/17/2007
12/05/2007
12/06/2007 01/02/2008 01/07/2008 01/30/2008
02/01/2008 02/04/2008 02/06/2008 02/14/2008 02/18/2008

(Entered: 08/20/2007)
160 CERTIFICATE OF SERVICE re Response to Plas' First Interrogatories by Sheriff Joe Nichols. (bjh) (Entered: 08/28/2007)
161 CERTIFICATE OF SERVICE re Response to Plas' Requests for Production by Sheriff Joe Nichols. (bjh) (Entered: 08/28/2007)
162 CERTIFICATE OF SERVICE of Discovery Materials by Victor Hill.(Dearing, James) (Entered: 08/29/2007)
163 CERTIFICATE OF SERVICE re Deft Jimmie Williamson's Responses to Plaintiffs' First Request for Production of Documents and First Interrogatories. (bjh) (Entered: 09/10/2007)
164 CERTIFICATE OF SERVICE of Sheriff Clarance Sanders' Answers to Plaintiffs' First Interrogatories and Response to Request for Production of Documents. (bjh) (Entered: 09/11/2007)
165 NOTICE of Change of Address for Gerald R. Weber, counsel for Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Michael C. Pruett, Joel Jones, Joseph Linaweaver (Weber, Gerald) (Entered: 09/17/2007)
167 Minute Entry for proceedings held before Judge Clarence Cooper: Telephone Conference held on 12/5/2007 to discuss the impact of the Ga Supreme Court's decision in Mann V. Dept of Corrections. Court and Parties agree to stay the case until the Ga Supreme Court rules on the motion in the Mann case. (Court Reporter Amanda Lohnaas.)(bjh) (Entered: 12/10/2007)
166 MOTION to Withdraw Overtis Hicks Brantley as Attorneyby Myron Freeman. (Attachments: # 1 Exhibit #1, # 2 Exhibit #2)(Brantley, Overtis) (Entered: 12/06/2007)
Submission of 166 MOTION to Withdraw Overtis Hicks Brantley as Attorney, to District Judge Clarence Cooper. (bjh) (Entered: 01/02/2008)
168 ORDER granting 166 Motion to Withdraw as Attorney. Attorney Overtis Hicks Brantley terminated as counsel for Deft Myron Freeman, nunc pro tunc 7/24/07. Signed by Judge Clarence Cooper on 1/7/08. (bjh) (Entered: 01/07/2008)
169 MOTION for Reconsideration of Dismissal of Takings Claims and Entry of Partial Summary Judgment on Takings Claims with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Exhibit A: Memoranda from Sheriffs' Association, # 2 Exhibit B: Plaintiff Declaration, # 3 Exhibit C: Plaintiff Declarations)(Geraghty, Sarah) (Entered: 01/30/2008)
170 ORDER denying Defendants' 126 Motion for Preliminary Injunction. Signed by Judge Clarence Cooper on 2/1/08. (bjh) (Entered: 02/01/2008)
171 STATUS REPORT Joint by Sonny Perdue, Thurbert E. Baker. (Orland, Devon) (Entered: 02/04/2008)
172 RESPONSE re 169 MOTION for Reconsideration of Dismissal of Takings Claims and Entry of Partial Summary Judgment on Takings Claims filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) (Entered: 02/06/2008)
173 Minute Entry for proceedings held before Judge Clarence Cooper: In Chambers Conference held on 2/14/2008. (Court Reporter Amanda Lohnaas.)(bjh) (Entered: 02/14/2008)
174 REPLY to Response to Motion re 169 MOTION for Reconsideration of Dismissal of Takings Claims and Entry of Partial Summary Judgment on Takings Claims filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Michael C. Pruett, Joel Jones, Joseph Linaweaver. (Geraghty, Sarah) (Entered: 02/18/2008)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 23 of 36

02/22/2008 03/04/2008 05/13/2008
05/15/2008 05/19/2008 05/20/2008 05/29/2008 06/09/2008 06/09/2008 06/10/2008 06/11/2008
06/18/2008
06/20/2008 06/23/2008
06/24/2008

175 STATUS REPORT By Defendant Class of Sheriffs by Clay N. Whittle. (Attachments: # 1 Exhibit)(Hudson, David) (Entered: 02/22/2008)
Submission of Plaintiffs' 169 MOTION for Reconsideration of Dismissal of Takings Claims and Entry of Partial Summary Judgment on Takings Claims, with Defendants' 172 Response and Plaintiffs' 174 Reply, to District Judge Clarence Cooper. (bjh) (Entered: 03/04/2008)
176 MOTION to Amend Complaint with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Exhibit Fourth Amended Complaint, # 2 Exhibit SB 1, # 3 Exhibit Letter from the Office of the Child Advocate)(Geraghty, Sarah) (Entered: 05/13/2008)
177 NOTICE by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver re 176 MOTION to Amend Complaint (Geraghty, Sarah) (Entered: 05/15/2008)
178 RESPONSE re 176 MOTION to Amend Complaint filed by Clay N. Whittle. (Hudson, David) (Entered: 05/19/2008)
Submission of Plaintiffs' 176 MOTION to Amend Complaint, with Defendant Sheriffs' 178 Response, to District Judge Clarence Cooper. (bjh) (Entered: 05/20/2008)
179 RESPONSE in Opposition re 176 MOTION to Amend Complaint filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) (Entered: 05/29/2008)
180 MOTION for Leave to File Excess Pages by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Text of Proposed Order)(Orland, Devon) (Entered: 06/09/2008)
181 MOTION to Decertify the Class with Brief In Support by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Brief in Support of Their Mtn to Decertify the Class)(Orland, Devon) (Entered: 06/09/2008)
Notification of Docket Correction re Brief in Support of 181 MOTION to Decertify the Class. The Court has not yet ruled on the pending motion for leave to file brief in excess pages. (bjh) (Entered: 06/10/2008)
182 REPLY BRIEF re 176 MOTION to Amend Complaint filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Exhibit Declaration of Angela Coffey, # 2 Exhibit Declaration of Jason Blair, # 3 Exhibit Declaration of George Tsimpides, # 4 Exhibit State v. Levertice Johnson)(Geraghty, Sarah) (Entered: 06/11/2008)
183 MOTION to Withdraw Margaret Fletcher Garrett as Attorneyby Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Michael C. Pruett, Joel Jones, Joseph Linaweaver. (Attachments: # 1 Text of Proposed Order)(Garrett, Margaret) (Entered: 06/18/2008)
184 MOTION for Extension of Time File Response re: 181 MOTION to Decertify the Class by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Text of Proposed Order)(Geraghty, Sarah) (Entered: 06/20/2008)
185 ORDER granting Defendants' 180 Motion for Leave to File Excess Pages; granting Margaret F. Garrett's 183 Motion to Withdraw as Attorney for Plaintiffs; Attorney Margaret Fletcher Garrett terminated; and granting Plaintiffs' 184 Unopposed Request/Motion for a Brief Extension of Time to Respond to Defendants' Motion to Decertify the Class. Signed by Judge Clarence Cooper on 6/23/08. (bjh) (Entered: 06/23/2008)
186 MOTION for Preliminary Injunction to Stop the State of Georgia From Criminalizing Protected Religious Activity with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Brief,

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 24 of 36

06/24/2008
06/27/2008 07/08/2008 07/10/2008 07/10/2008 07/11/2008 07/14/2008 07/15/2008
07/16/2008 07/21/2008 07/28/2008

# 2 Exhibit 1: SB 1, # 3 Exhibit 2: Declaration of Lori Collins, # 4 Exhibit 3: Declaration of Angela Coffey, # 5 Exhibit 4: Declaration of Donnie Boone, # 6 Exhibit 5: Declaration of Andrew Norton, # 7 Exhibit 6: Declaration of Omar Howard, # 8 Exhibit 7: Declaration of Rev. Floyd Rose, # 9 Exhibit 8: Dep't of Corrections Pamphlet on Faith &Character Based Initiative, # 10 Exhibit 9: Index of Exhibits)(Geraghty, Sarah) (Entered: 06/24/2008)
187 RESPONSE in Opposition re 181 MOTION to Decertify the Class filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Exhibit 1: Declaration of Glynda Gowen, # 2 Exhibit 2: Declaration of Angela Coffey, # 3 Exhibit 3: Declaration of Thomas James, # 4 Exhibit 4: Declaration of Andrew Norton, # 5 Exhibit 5: Declaration of Thomas Early, # 6 Exhibit 6: Declaration of Donald Jason Blair, # 7 Exhibit Exhibit 7: Declaration of George Hudson, # 8 Exhibit U.S. Census data, # 9 Exhibit Declaration of Janet Allison, # 10 Exhibit Declaration of Lori Collins, # 11 Exhibit 11: Declaration of Al Marks, # 12 Exhibit 12: Declaration of Jeffery York, # 13 Exhibit Declaration of Wendy Whitaker, # 14 Exhibit Index of Exhibits)(Geraghty, Sarah) (Entered: 06/24/2008)
Submission of Defendants' 181 MOTION to Decertify the Class, with Plaintiffs' 187 Response in Opposition, to District Judge Clarence Cooper. (bjh) (Entered: 06/27/2008)
188 MOTION for Preliminary Injunction to Prevent the Eviction of Wendy Whitaker from her Home by Wendy Whitaker. (Attachments: # 1 Exhibit 1: marriage certificate, # 2 Exhibit 2: Warranty deed, # 3 Text of Proposed Order 3: Consent Order)(Geraghty, Sarah) (Entered: 07/08/2008)
189 RESPONSE re 188 MOTION for Preliminary Injunction to Prevent the Eviction of Wendy Whitaker from her Home filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) (Entered: 07/10/2008)
190 RESPONSE in Opposition re 186 MOTION for Preliminary Injunction to Stop the State of Georgia From Criminalizing Protected Religious Activity filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) (Entered: 07/10/2008)
191 REPLY to Response to Motion re 181 MOTION to Decertify the Class filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) (Entered: 07/11/2008)
Submission of Plaintiffs' 186 MOTION for Preliminary Injunction to Stop the State of Georgia From Criminalizing Protected Religious Activity, with Defendants' 190 Response in Opposition, to District Judge Clarence Cooper. (bjh) (Entered: 07/14/2008)
192 REPLY to Response to Motion re 188 MOTION for Preliminary Injunction to Prevent the Eviction of Wendy Whitaker from her Home filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Exhibit Declaration of Wendy Whitaker, # 2 Exhibit Atlanta Journal−Constitution article)(Geraghty, Sarah) (Entered: 07/15/2008)
Submission of Plaintiffs' 188 MOTION for Preliminary Injunction to Prevent the Eviction of Wendy Whitaker from her Home, with Defendants' 189 Response and Plaintiffs' 192 Reply, to District Judge Clarence Cooper. (bjh) (Entered: 07/16/2008)
193 NOTICE of Hearing: Hearing on all pending motions set for 7/30/2008 09:30 AM before Judge Clarence Cooper. (pds) (Entered: 07/21/2008)
194 REPLY to Response to Motion re 186 MOTION for Preliminary Injunction to Stop the State of Georgia From Criminalizing Protected Religious Activity filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Exhibit Declaration of Andrew Norton, # 2 Exhibit Declaration of Matthew Cornell, # 3 Exhibit Declaration of Omar Howard, # 4 Exhibit Declaration of Andrea Shelton, # 5 Exhibit Declaration of Richard Hemphill, # 6 Exhibit

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 25 of 36

09/30/2008
09/30/2008 10/14/2008 10/27/2008 10/27/2008 10/28/2008 10/28/2008 11/10/2008 11/10/2008 11/11/2008
11/11/2008

Declaration of Charles Ohrenschall, # 7 Exhibit Declaration of Barbara Pritchett, # 8 Exhibit Sheriffs' Association Resolution)(Geraghty, Sarah) (Entered: 07/28/2008)
195 ORDER granting in part and denying in part Plaintiffs' 169 Request for Reconsideration of Dismissal of Takings Claims and Entry of Partial Summary Judgment on Takings Claims and granting in part and denying in part Plaintiffs' 176 Motion for Leave to Amend Complaint. The Court INSTRUCTS Plaintiffs to file an Amended Complaint w/in 10 days that complies with this Order. The Court will hold a Hearing on November 13, 2008 to address the State Defendants' 181 Motion to Decertify and the two pending Preliminary Injunctions Motions 186 and 188 . Signed by Judge Clarence Cooper on 9/30/08. (bjh) (Entered: 09/30/2008)
Set Deadlines: Motion Hearing set for 11/13/2008 @ 09:30 AM in Courtroom 1706 before Judge Clarence Cooper re 181 MOTION to Decertify the Class, 188 MOTION for Preliminary Injunction to Prevent the Eviction of Wendy Whitaker from her Home, and 186 MOTION for Preliminary Injunction to Stop the State of Georgia From Criminalizing Protected Religious Activity. (bjh) (Entered: 09/30/2008)
196 Fourth AMENDED COMPLAINT against all defendants, filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver.(Geraghty, Sarah) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 10/14/2008)
197 MOTION for Oral Argument on Takings Clause Claim by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Geraghty, Sarah) (Entered: 10/27/2008)
198 RE−DOCKETED NO. 197 AS A MULTI−PART MOTION MOTION To Permit Oral Argument On Takings Clause At The November 13, 2008 Hearing and MOTION To Set Summary Judgment Briefing Schedule On All Claims Remaining In This Case, filed by Plaintiffs. (bjh) Modified on 10/28/2008 (bjh). (Entered: 10/28/2008)
Notification of Docket Correction re 197 M0TION for Oral Argument on Takings Clause Claim. This has been re−docketed as a multi−part motion 198 . (bjh) (Entered: 10/28/2008)
199 MOTION to Dismiss Plaintiffs' Claims for Alleged Taking of Property with Brief In Support by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Brief In Support of Motion to Dismiss Plaintiffs' Claims for Alleged Taking of Property−10−28)(Orland, Devon) (Entered: 10/28/2008)
200 RESPONSE re 198 MOTION for Oral ArgumentMOTION To Set Summary Judgment Briefing Schedule On All Claims Remaining In This Case filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) (Entered: 11/10/2008)
201 ORDER granting plaintiffs' request to bring certain evidence (1)One Banker's box filled with legal documents; (2)Four Poster boards with paper exhibits attached; and (3)Two Easels, to the hearing on November 13, 2008. Signed by Judge Clarence Cooper on 11/10/08. (jta) (Entered: 11/10/2008)
202 NOTICE Of Filing Supplemental Exhibits in Support of Plaintiffs' Motion for Preliminary Injunction to Stop the State of Georgia From Criminalizing Protected Religious Activity by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver re 186 MOTION for Preliminary Injunction to Stop the State of Georgia From Criminalizing Protected Religious Activity (Attachments: # 1 Exhibit Declaration of Steven Lee Williams, # 2 Exhibit Declaration of Barry Randolph, # 3 Exhibit Emails produced in response to Open Records Act request, # 4 Exhibit Notification Issued to plaintiff Andrew Norton)(Geraghty, Sarah) (Entered: 11/11/2008)
203 STATUS REPORT and Pre−Hearing Brief by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks,

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 26 of 36

11/12/2008 11/12/2008
11/12/2008
11/13/2008
11/17/2008 11/19/2008 11/19/2008 11/24/2008 12/04/2008 12/05/2008 12/07/2008 12/10/2008

Lori Sue Collins, Joseph Linaweaver. (Geraghty, Sarah) (Entered: 11/11/2008)
204 ORDER denying Plaintiffs' 198 Motion to Permit Oral Argument on Takings Clause Claims at the Nov. 13, 2008 Hearing, and 198 Motion to Set Summary Judgment Briefing Schedule on All Claims Remaining in this Case. Signed by Judge Clarence Cooper on 11/12/08. (bjh) (Entered: 11/12/2008)
205 NOTICE by Sonny Perdue, Thurbert E. Baker, Scot Dean Defendants' Notice Of Need To File Discovery (Attachments: # 1 Exhibit 1−Sheriff Gerald Lawson's Response To Plaintiffs' First Request For Production Of Documents, # 2 Exhibit 2(Part 1)−Sheriff Clay Whittle's Response To Plaintiffs' First Request For Production Of Documents, # 3 Exhibit 2(Part 2)−Sheriff Clay Whittle's Response To Plaintiffs' First Request For Production Of Documents, # 4 Exhibit 3(Part 1)−Sheriff Logan Marshall's Response To Plaintiffs' First Request For Production Of Documents, # 5 Exhibit 3(Part 2)−Sheriff Logan Marshall's Response To Plaintiffs' First Request For Production Of Documents)(Drolet, Joseph) (Entered: 11/12/2008)
206 NOTICE Of Filing Defendants' Notice Of Filing Affidavits In Support Of Their Objections To Plaintiffs' Motions For Preliminary Injunction by Sonny Perdue, Thurbert E. Baker, Scot Dean re 186 MOTION for Preliminary Injunction to Stop the State of Georgia From Criminalizing Protected Religious Activity, 194 Reply to Response to Motion,, 190 Response in Opposition to Motion (Attachments: # 1 Affidavit Of Tracy D. Masters, # 2 Affidavit Of Ahmed Holt, # 3 Affidavit Of Marsha O'Neal, # 4 Declaration Of Melissa Hood)(Drolet, Joseph) (Entered: 11/12/2008)
210 Minute Entry for proceedings held before Judge Clarence Cooper: Motion Hearing held on 11/13/2008 re 186 MOTION for Preliminary Injunction to Stop the State of Georgia From Criminalizing Protected Religious Activity, 181 MOTION to Decertify the Class, and 188 MOTION for Preliminary Injunction to Prevent the Eviction of Wendy Whitaker from her Home. Court DENIED 188 Motion. Exhibits retained by the Court and to be forwarded to Clerk's Office. Hearing concluded. (Court Reporter Andy Ashley)(bjh) (Entered: 12/02/2008)
207 RESPONSE in Opposition re 199 MOTION to Dismiss Plaintiffs' Claims for Alleged Taking of Property filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Exhibit 1: Collins lease, # 2 Exhibit 2: Allison declaration and lease)(Geraghty, Sarah) (Entered: 11/17/2008)
208 PROPOSED CONSENT ORDER Setting Deadlines for Pending Matters Before the Court. (Orland, Devon) (Entered: 11/19/2008)
Submission of Defendants' 199 MOTION to Dismiss Plaintiffs' Claims for Alleged Taking of Property, with Plaintiffs' 207 Response in Opposition, to District Judge Clarence Cooper. (bjh) (Entered: 11/19/2008)
209 CONSENT ORDER Setting Deadlines for Pending Matters; re 208 Proposed Consent Order. Signed by Judge Clarence Cooper on 11/24/08. (bjh) (Entered: 11/26/2008)
211 MOTION for Extension of Time to File Brief Proposing Subclasses by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Geraghty, Sarah) (Entered: 12/04/2008)
212 REPLY to Response to Motion re 199 MOTION to Dismiss Plaintiffs' Claims for Alleged Taking of Property filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Orland, Devon) (Entered: 12/05/2008)
213 RESPONSE re 210 Motion Hearing,, Plaintiffs' Brief Proposing Subclasses filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Joseph Linaweaver. (Geraghty, Sarah) (Entered: 12/07/2008)
214 EXHIBITS received from Atlanta Courtroom Deputy and placed in Rome's Exhibit room.(bjh) (Entered: 12/10/2008)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 27 of 36

12/22/2008 12/23/2008 01/12/2009 01/14/2009 01/20/2009
01/26/2009 01/29/2009 02/03/2009 02/04/2009 03/30/2009
03/30/2009 04/15/2009 05/08/2009 05/08/2009 05/14/2009

215 RESPONSE re 213 Response (Non−Motion) filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Exhibit A, # 2 Exhibit B−Affidavit of Kara Dolby, # 3 Exhibit B−Attachment A)(Orland, Devon) (Entered: 12/22/2008)
Submission of Plaintiffs' 211 MOTION for Extension of Time to File Brief Proposing Subclasses, to District Judge Clarence Cooper. (bjh) (Entered: 12/23/2008)
216 RESPONSE re 215 Response (Non−Motion) Regarding Plaintiffs' Brief Proposing Subclasses filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Geraghty, Sarah) (Entered: 01/12/2009)
217 ORDER denying Plaintiffs' 188 Motion for Preliminary Injunction to Prevent the Eviction of Wendy Whitaker from Her Lawfully Purchased Home. Signed by Judge Clarence Cooper on 1/14/09. (bjh) (Entered: 01/20/2009)
218 TRANSCRIPT of Proceedings held on 11/13/2008, before Judge Clarence Cooper. Court Reporter/Transcriber Andy Ashley, Telephone number 404−215−1478. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/10/2009. Redacted Transcript Deadline set for 2/20/2009. Release of Transcript Restriction set for 4/20/2009. (Attachment: # 1 Notice of Filing Transcript) (bjh) (Entered: 01/20/2009)
219 ORDER granting Plaintiffs' 211 Motion for Four Day Extension of Time to File Subclass Brief, nunc pro tunc. Signed by Judge Clarence Cooper on 1/26/09. (bjh) (Entered: 01/26/2009)
220 PROPOSED ORDER Granting Preliminary Injunction. (Geraghty, Sarah) (Entered: 01/29/2009)
221 Proposed Findings of Fact by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Drolet, Joseph) (Entered: 02/03/2009)
222 Certification of Consent to Substitution of Counsel. Nikisha L. McDonald replacing attorney Nwakaego Ijeoma Okparaeke. (McDonald, Nikisha) (Entered: 02/04/2009)
223 ORDER GRANTING IN PART and DENYING IN PART Defendants Perdue, Baker, and Dean's 181 Motion to Decertify; GRANTING Plaintiffs' 186 Motion for Preliminary Injunction to Stop the State of Georgia from Criminalizing Protected Religious Activity; and DENYING Defendants Perdue, Baker, and Dean's 199 Motion to Dismiss Plaintiffs' Claims for Alleged Taking of Property. The Discovery period is reopened for 90 days from the date of this Order. At the conclusion of the discovery period, the Court will entertain motions for summary judgment filed in accordance with the Local Rules of this Court. Signed by Judge Clarence Cooper on 3/30/09. (bjh) (Entered: 03/30/2009)
Discovery ends on 6/28/2009. (bjh) (Entered: 03/30/2009)
224 Defendants' Answer And Defenses ANSWER to 196 Amended Complaint (Fourth) by Sonny Perdue, Thurbert E. Baker, Scot Dean.(Drolet, Joseph) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 04/15/2009)
225 CERTIFICATE OF SERVICE For Defendants' Second Interrogatories To Plaintiffs Re: Bus Stops by Sonny Perdue, Thurbert E. Baker, Scot Dean.(Drolet, Joseph) (Entered: 05/08/2009)
226 CERTIFICATE OF SERVICE (Discovery) For Defendants' Second Interrogatories To Plaintiffs by Sonny Perdue, Thurbert E. Baker, Scot Dean.(Drolet, Joseph) (Entered: 05/08/2009)
227 CERTIFICATE OF SERVICE For Defendants' Second Request For Production Of Documents To Plaintiffs by Sonny Perdue, Thurbert E. Baker, Scot Dean.(Drolet, Joseph) (Entered: 05/14/2009)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 28 of 36

05/14/2009 05/21/2009 05/21/2009 05/27/2009 05/27/2009 05/27/2009 06/05/2009 06/05/2009 06/05/2009 06/05/2009 06/05/2009
06/05/2009 06/05/2009 06/09/2009 06/09/2009 06/10/2009 06/12/2009
06/15/2009
06/19/2009

228 CERTIFICATE OF SERVICE For Defendants' First Request For Admissions Of Fact To Plaintiffs by Sonny Perdue, Thurbert E. Baker, Scot Dean.(Drolet, Joseph) (Entered: 05/14/2009)
229 CERTIFICATE OF SERVICE of Sheriff Gene Pope's Responses to Plaintiffs' Second Request for Production of Documents. (Attachment: # 1 Cover Letter)(bjh) (Entered: 05/21/2009)
230 CERTIFICATE OF SERVICE of Sheriff Gene Pope's Responses to Plaintiffs' Second Interrogatories. (Attachment: # 1 Cover Letter)(bjh) (Entered: 05/21/2009)
231 CERTIFICATE OF SERVICE by Clay N. Whittle.(Hudson, David) (Entered: 05/27/2009)
232 CERTIFICATE OF SERVICE Reponses to Second Interrogatories and Request for Production from Sheriff Frank Andrews by Sonny Perdue.(Stockton, L.) (Entered: 05/27/2009)
Notification of Docket Correction re 232 Certificate of Service. Discovery filed in violation of Local Rule 26.3. (bjh) (Entered: 05/27/2009)
233 CERTIFICATE OF SERVICE OF DISCOVERY MATERIAL by William H Blalock, Jr.(Blalock, William) (Entered: 06/05/2009)
234 CERTIFICATE OF SERVICE of Filing Discovery Responses by Phil Summers.(Patty, Clifton) (Entered: 06/05/2009)
235 CERTIFICATE OF SERVICE Serving Discovery Responses by Nathan T. Lee.(Lee, Nathan) (Entered: 06/05/2009)
236 CERTIFICATE OF SERVICE −Notice Of Service Of Discovery Responses To Plaintiff's Second Interrogatories And Requests For Production Of Documents by Sonny Perdue, Thurbert E. Baker.(Drolet, Joseph) (Entered: 06/05/2009)
237 CERTIFICATE OF SERVICE −Notice Of Service Of Discovery Responses For Defendants' Second Supplemental Response To Plaintiffs' First Interrogatories And Requests For Production Of Documents by Sonny Perdue, Thurbert E. Baker.(Drolet, Joseph) (Entered: 06/05/2009)
241 CERTIFICATE OF SERVICE re Sheriff Alvie Lee Kight, Jr.'s Answers to Plaintiffs' Second Interrogatories. (bjh) (Entered: 06/10/2009)
242 CERTIFICATE OF SERVICE re Sheriff Alvie Lee Kight, Jr.'s Response to Plaintiffs' Second Request for Production of Documents. (bjh) (Entered: 06/10/2009)
238 CERTIFICATE OF SERVICE Responses to Second Interrogatories by Tim Burkhalter.(Manning, Thomas) (Entered: 06/09/2009)
239 CERTIFICATE OF SERVICE Responses to Second Requests to Produce by Tim Burkhalter.(Manning, Thomas) (Entered: 06/09/2009)
240 CERTIFICATE OF SERVICE Response to and Interr. and NTP by Gary Gulledge.(Skipper, Lani) (Entered: 06/10/2009)
243 CERTIFICATE OF SERVICE of Discovery Materials for Sheriff Phil Miller's Responses to Plaintiffs' Second Request for Production of Documents and Sheriff Phil Miller's Responses to Plaintiffs' Second Interrogatories by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver.(Linkous, William) (Entered: 06/12/2009)
244 MOTION for Extension of Time to Complete Discovery by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Geraghty, Sarah) (Entered: 06/15/2009)
245 CERTIFICATE OF SERVICE (for Sheriff Thomas Brown's Response to Plaintiff's Second Interrogatories) by Thomas Brown.(Reed, E.) (Entered: 06/19/2009)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 29 of 36

06/19/2009 06/29/2009 07/07/2009 07/17/2009 07/21/2009 07/21/2009 07/23/2009 07/24/2009 07/29/2009
08/10/2009 08/26/2009 09/01/2009
09/10/2009 09/17/2009 09/22/2009 09/25/2009

246 CERTIFICATE OF SERVICE (for Sheriff Thomas Brown's Response to Plaintiff's Second Request for Production of Documents) by Thomas Brown.(Reed, E.) (Entered: 06/19/2009)
247 CERTIFICATE OF SERVICE Defendant's Responses to Plaintiff's Second Interrogatories and Second Request for Production of Documents by Kelly McLendon.(McFall, Brad) (Entered: 06/29/2009)
Submission of 244 MOTION for Extension of Time to Complete Discovery, to District Judge Clarence Cooper. (bjh) (Entered: 07/07/2009)
248 CERTIFICATE OF SERVICE (for Defendant Sheriff Thomas Brown's Supplemental Response to Plaintiff's Second Request for Production of Documents) by Thomas Brown.(Reed, E.) (Entered: 07/17/2009)
249 ORDER granting 244 Joint Motion for Extension of Time until 8/1/2009 to Complete Discovery. Signed by Judge Clarence Cooper on 7/21/09. (bjh) (Entered: 07/21/2009)
250 CERTIFICATE OF SERVICE Filing Certificate (Responses to 2nd Discovery Requests) by Stacy L. Nicholson.(Clark, Herman) (Entered: 07/21/2009)
251 CERTIFICATE OF SERVICE of Discovery Responses by William D NeSmith.(NeSmith, William) (Entered: 07/23/2009)
252 PROPOSED CONSENT ORDER Setting Deadlines For Motion For Summary Judgment Filings. (Drolet, Joseph) (Entered: 07/24/2009)
253 ORDER re 252 Proposed Consent Order: The parties have until 9/30/2009 to file motions for summary judgment, until 10/30/2009 to file responses, and until 11/9/2009 to file replies, if they so desire. Signed by Judge Clarence Cooper on 7/29/09. (bjh) (Entered: 08/03/2009)
254 STIPULATION by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Geraghty, Sarah) (Entered: 08/10/2009)
255 NOTICE FOR RETURN OF EXHIBITS: Counsel to pick up exhibits within 10 days from receipt of notice. (Preliminary Injunction held 7/11/06) (pds) (Entered: 08/26/2009)
256 TRANSCRIPT of Proceedings held on 11/13/2008, before Judge Clarence Cooper. Court Reporter/Transcriber Andy Ashley, Telephone number 404−215−1478. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/22/2009. Redacted Transcript Deadline set for 10/2/2009. Release of Transcript Restriction set for 11/30/2009. (Attachment: # 1 Notice of Filing) (bjh) (Entered: 09/01/2009)
257 CERTIFICATE OF SERVICE for Answers to Interrogatories by Pete Smith.(NeSmith, William) (Entered: 09/10/2009)
258 Joint MOTION for Leave to File Excess Pages (Joint Motion To Exceed Page Limit) by Sonny Perdue, Thurbert E. Baker, Scot Dean and Plaintiffs. (Drolet, Joseph) Modified on 9/17/2009 to add filers (bjh). (Entered: 09/17/2009)
259 ORDER granting 258 Joint Motion for Leave to File Excess Pages in filing their proposed motions for summary judgment, including all subparts, not more than 70 pages. Signed by Judge Clarence Cooper on 9/22/09. (bjh) (Entered: 09/22/2009)
260 MOTION for Partial Summary Judgment on Takings Clause Claim with Brief In Support by Janet Jenkins Allison, Lori Sue Collins. (Attachments: # 1 Brief, # 2 Statement of Material Facts, # 3 Exhibit 1: Defs' First Req. for Admissions of Fact, # 4 Exhibit 2: Declaration of Janet Allison, # 5 Exhibit 3: Declaration of Lori Collins, # 6 Exhibit 4: Probation Case Note Entries, # 7 Exhibit 5: Amendments to HB 908, # 8 Exhibit 6: Minority Report re: HB 908, # 9 Exhibit Index of Exhibits)(Geraghty, Sarah) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 30 of 36

09/28/2009
09/28/2009 09/28/2009
09/28/2009 09/28/2009

Court's website.−− (Entered: 09/25/2009)
261 DOCUMENT FILING ERROR−FILED AS A SINGLE PART MOTION MOTION for Partial Summary Judgment to Enjoin Enforcement of the School Bus Stop Provision with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Brief, # 2 Statement of Material Facts, # 3 Exhibit 1: Map of Chatham County, # 4 Exhibit 2: Map of Columbia County, # 5 Affidavit 3: Declaration of Peter Wagner, # 6 Exhibit 4: Deposition of Ahmed Holt, # 7 Exhibit Columbia County Sch. Bd. Resolution, # 8 Exhibit 6: Bulloch County Sch. Bd. Resolution, # 9 Exhibit 7: Chatham County Sch. Bd. Resolution, # 10 Exhibit 8: Starkman Letter, # 11 Affidavit 9: Declaration of Mica Doctoroff, # 12 Exhibit 10: Bulloch County Interrog. Responses, # 13 Exhibit 11: Chatham County Interrog. Responses, # 14 Exhibit 12: Columbia County Interrog. Responses, # 15 Affidavit 13: Declaration of Rashad Wright, # 16 Affidavit 14: Declaration of Germany Whitfield, # 17 Affidavit 15: Declaration of Benjamin Hodges, # 18 Affidavit 16: Declaration of Elmer Holloway, # 19 Affidavit 17: Declaration of Donald Faulk, # 20 Exhibit 18: Parole Reentry Directory, # 21 Exhibit 19: Deposition of David Rush, # 22 Exhibit 20: Parole Officer Training Document, # 23 Affidavit 21: Declaration of Rebecca Danner, # 24 Affidavit 22: Declaration of Aaron Raines, # 25 Exhibit 23: ARS parole study, # 26 Appendix Index of Exhibits)(Geraghty, Sarah) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− Modified on 9/28/2009 (bjh). (Entered: 09/28/2009)
Notification of Docket Correction re 261 MOTION for Partial Summary Judgment to Enjoin Enforcement of the School Bus Stop Provision. This was incorrectly filed as a single part motion. Clerk will re−file as a dual part motion. (bjh) (Entered: 09/28/2009)
262 RE−FILED MOTION 261 MOTION for Summary Judgment, MOTION for Permanent Injunction by Plaintiffs Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Brief in Support, # 2 Statement of Material Facts, # 3 Exh 1: Map of Chatham Co., # 4 Exh 2: Map of Columbia Co., # 5 Affidavit 3: Declaration of Peter Wagner, # 6 Exh 4: Depo of Ahmed Holt, # 7 Exh 5: Columbia Co. Sch Bd Resolution, # 8 Exh 6: Bulloch Co. Sch Bd Resolution, # 9 Exh 7: Chatham Co. Sch Bd Resolution, # 10 Exh 8: Starkman Letter, # 11 Affidavit 9: Declaration of MIca Doctoroff, # 12 Exh 10: Bulloch Co. Interrog Responses, # 13 Exh 11: Chatham Co. Interogg Responses, # 14 Exh 12: Columbia Co. Interrog Responses, # 15 Affidavit 13: Declaration of Rashad Wright, # 16 Affidavit 14: Declaration of Germany Whitfield, # 17 Affidavit 15: Declaration of Benjamin Hodges, # 18 Affidavit 16: Declaration of Elmer Holloway, # 19 Affidavit 17: Declaration of Donald Faulk, # 20 Exh 18: Parole Reentry Directory, # 21 Exh 19: Depo of David Rush, # 22 Exh 20: Parole Officer Training Document, # 23 Affidavit 21: Declaration of Rebecca Danner, # 24 Affidavit 22: Declaration of Aaron Raines, # 25 Exh 23: ARS Parole Study, # 26 Appendix Index of Exhibits)(bjh) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− Modified on 9/28/2009 (bjh). (Entered: 09/28/2009)
263 MOTION for Partial Summary Judgment on Vagueness and Overbreadth with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Brief, # 2 Statement of Material Facts)(Geraghty, Sarah) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 09/28/2009)
264 MOTION for Partial Summary Judgment on Behalf of "Ex Post Facto" Subclass with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Brief, # 2 Statement of Material Facts, # 3 Exhibit Mica Doctoroff Declaration, # 4 Exhibit Peter Wagner Declaration, # 5 Exhibit Rebecca Danner Declaration, # 6 Exhibit John Colley Declaration, # 7

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 31 of 36

09/28/2009 09/28/2009 09/30/2009
10/21/2009 10/27/2009 10/30/2009 10/30/2009 10/30/2009

Exhibit William Minter Declaration, # 8 Exhibit Johnny D'Antignac Declaration, # 9 Exhibit Ricky Almond Declaration, # 10 Exhibit Christopher Noles Declaration, # 11 Exhibit Chatham employment restriction map, # 12 Exhibit Fulton Employment Restriction Map, # 13 Exhibit Richmond Employment Restriction Map, # 14 Exhibit List of Persons Registered "Homeless", # 15 Exhibit Email from Greg McConnell, # 16 Exhibit AP Article, # 17 Appendix Index of Exhibits)(Geraghty, Sarah) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 09/28/2009)
265 MOTION for Partial Summary Judgment to Stop the State From Criminalizing Protected Religious Activity with Brief In Support by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Brief, # 2 Statement of Material Facts, # 3 Exhibit, # 4 Exhibit)(Geraghty, Sarah) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 09/28/2009)
266 MOTION for Leave to File Excess Pages by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Text of Proposed Order)(Geraghty, Sarah) (Entered: 09/28/2009)
267 MOTION for Summary Judgment with Brief In Support by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Attachments: # 1 Brief Defendants' Perdue, Baker And Dean's Brief In Support Of Motion For Summary Judgment, # 2 Statement of Material Facts, # 3 Defendants' Notice Of Filing Affidavits In Support Of Their Motion For Summary Judgment, # 4 Affidavit Of Karla Dolby(Part 1), # 5 Part 2−Affidavit Of Karla Dolby With Exs. A−C, # 6 Affidavit Of Ahmed Holt, # 7 Affidavit Of Laura Tate, # 8 Affidavit Of Carol Adeyeye, # 9 Affidavit Of Andre Charles Castaing, # 10 Affidavit Of Marsha O'Neal, # 11 Defendants' Notice Of Need To File Discovery, # 12 Exhibit A−Plaintiffs' Response To Defendants' First Request For Admissions Of Fact To Plaintiffs)(Drolet, Joseph) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 09/30/2009)
Submission of 266 MOTION for Leave to File Excess Pages, 260 MOTION for Partial Summary Judgment on Takings Clause Claim, 262 MOTION for Summary Judgment MOTION for Permanent Injunction, to District Judge Clarence Cooper. (bjh) (Entered: 10/21/2009)
Submission of 265 MOTION for Partial Summary Judgment to Stop the State From Criminalizing Protected Religious Activity, 263 MOTION for Partial Summary Judgment on Vagueness and Overbreadth, 267 MOTION for Summary Judgment, 264 MOTION for Partial Summary Judgment on Behalf of "Ex Post Facto" Subclass, to District Judge Clarence Cooper. (bjh) (Entered: 10/27/2009)
268 RESPONSE in Opposition re 267 MOTION for Summary Judgment filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Statement of Material Facts, # 2 Exhibit Sheriff discovery responses, # 3 Affidavit Herschel Harper, # 4 Affidavit Bryan Spell, # 5 Exhibit Governor's Answer to Whitaker v. Whittle Complaint)(Geraghty, Sarah) (Entered: 10/30/2009)
269 MOTION for Leave to File Excess Pages (Defendants' Motion To Exceed Page Limit) by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Drolet, Joseph) (Entered: 10/30/2009)
270 Response to Statement of Material Facts re 264 MOTION for Partial Summary Judgment on Behalf of "Ex Post Facto" Subclass, 263 MOTION for Partial Summary Judgment on Vagueness and Overbreadth, 262 MOTION for Summary Judgment MOTION for Permanent Injunction, 260 MOTION for Partial Summary Judgment on Takings Clause Claim, 265 MOTION for Partial Summary Judgment to Stop the State From Criminalizing Protected Religious Activity (Defendants' Response To Plaintiffs' State Of Material Facts) filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Drolet, Joseph) (Entered: 10/30/2009)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 32 of 36

10/30/2009
10/30/2009
11/09/2009 11/09/2009 11/10/2009 11/13/2009 11/13/2009 11/17/2009 12/01/2009 08/13/2010 08/16/2010 08/18/2010

271 NOTICE by Sonny Perdue, Thurbert E. Baker, Scot Dean re 264 MOTION for Partial Summary Judgment on Behalf of "Ex Post Facto" Subclass, 263 MOTION for Partial Summary Judgment on Vagueness and Overbreadth, 262 MOTION for Summary Judgment MOTION for Permanent Injunction, 260 MOTION for Partial Summary Judgment on Takings Clause Claim, 265 MOTION for Partial Summary Judgment to Stop the State From Criminalizing Protected Religious Activity (Defendants' Notice Of Objections To The Declaration Of Peter Wagner Filed In Support Of Plaintiffs' Motion For Summary Judgment) (Drolet, Joseph) (Entered: 10/30/2009)
272 RESPONSE re 264 MOTION for Partial Summary Judgment on Behalf of "Ex Post Facto" Subclass, 263 MOTION for Partial Summary Judgment on Vagueness and Overbreadth, 262 MOTION for Summary Judgment MOTION for Permanent Injunction, 260 MOTION for Partial Summary Judgment on Takings Clause Claim, 265 MOTION for Partial Summary Judgment to Stop the State From Criminalizing Protected Religious Activity (Defendants' Perdue, Baker And Dean's Response To Plaintiffs' Motion For Summary Judgment) filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Drolet, Joseph) (Entered: 10/30/2009)
273 REPLY BRIEF re 267 MOTION for Summary Judgment, 262 MOTION for Summary Judgment MOTION for Permanent Injunction (Defendants' Reply To Plaintiffs' Response To Defendants' Statement Of Material Facts) filed by Sonny Perdue, Thurbert E. Baker, Scot Dean. (Drolet, Joseph) (Entered: 11/09/2009)
274 REPLY to Response to Motion re 267 MOTION for Summary Judgment filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Geraghty, Sarah) (Entered: 11/09/2009)
275 MOTION for Leave to File Exhibits in Conventional Formatby Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Al Reginald Marks, Lori Sue Collins, Joseph Linaweaver. (Attachments: # 1 Text of Proposed Order)(Geraghty, Sarah) (Entered: 11/10/2009)
276 RESPONSE re 271 Notice of Objections to the Declaration of Peter Wagner filed by Janet Jenkins Allison, James Victor Wilson, Wendy Whitaker, Jeffery York, Dewayne Owens, Lori Sue Collins, Joseph Linaweaver. (Geraghty, Sarah) Modified on 11/13/2009 to edit text (bjh). (Entered: 11/13/2009)
277 NOTICE Of Manual Filing by Plaintiffs of Exhibit 2 and 4 re 274 Reply to Response to Motion re 267 Motion for Summary Judgment. (Attachments: # 1 Exh 2, # 2 Exh 4)(bjh) (Entered: 11/20/2009)
Submission of 269 MOTION for Leave to File Excess Pages (Defendants' Motion To Exceed Page Limit), to District Judge Clarence Cooper. (bjh) (Entered: 11/17/2009)
Submission of 275 MOTION for Leave to File Exhibits in Conventional Format, to District Judge Clarence Cooper. (bjh) (Entered: 12/01/2009)
278 NOTICE by Janet Jenkins Allison, Lori Sue Collins, Joseph Linaweaver, Al Reginald Marks, Dewayne Owens, Wendy Whitaker, James Victor Wilson, Jeffery York Regarding Passage of House Bill 571 (Attachments: # 1 Exhibit House Bill 571)(Geraghty, Sarah) (Entered: 08/13/2010)
279 Minute Entry for proceedings held before Judge Clarence Cooper: Status Conference held on 8/16/2010. Court held status conference to discuss changes in Georgia Statutes relevant to this case. Court instructed parties to withdraw motions for summary judgment and refile within 30 days. (Court Reporter Amanda Lohnaas)(aaq) (Entered: 08/18/2010)
280 MOTION to Substitute Party Walter Smiley, Ruben Luna, Germany Whitfield with Brief In Support by Janet Jenkins Allison, Lori Sue Collins, Joseph Linaweaver, Al Reginald Marks, Dewayne Owens, Wendy Whitaker, James Victor Wilson, Jeffery York. (Geraghty, Sarah) (Entered: 08/18/2010)

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 33 of 36

08/20/2010 08/31/2010 09/02/2010 09/08/2010 09/10/2010 09/15/2010
09/15/2010
09/15/2010

281 MOTION Order Approving Dismissal of Certain Claims with Brief In Support by Janet Jenkins Allison, Lori Sue Collins, Joseph Linaweaver, Al Reginald Marks, Dewayne Owens, Wendy Whitaker, James Victor Wilson, Jeffery York. (Attachment: # 1 Text of Proposed Order)(Geraghty, Sarah) Modified on 8/23/2010 to edit relief to reflect pdf (bjh). (Entered: 08/20/2010)
282 RESPONSE re 280 MOTION to Substitute Party Walter Smiley, Ruben Luna, Germany Whitfield (Defendants Perdue, Baker And Dean's Response To Motion To Substitute Named Plaintiffs) filed by Thurbert E. Baker, Scot Dean, Sonny Perdue. (Drolet, Joseph) (Entered: 08/31/2010)
283 ORDER: On August 16, 2010, this Court held a status conference in the above referenced case to discuss changes to the statutes at issue in this action. The Court instructed counsel to withdraw all pending summary judgment motions and re−file appropriate motions addressing the remaining claims. As of the date of this Order, however, counsel have not withdrawn any previously−filed summary judgment motions. The Court therefore DENIES without prejudice all currently−pending summary judgment motions and associated motions, Doc. Nos. 260 , 262 , 263 , 264 , 265 , 266 , 267 , 269 , and 275 . Signed by Judge Clarence Cooper on 09/02/10. (aaq) (Entered: 09/02/2010)
Submission of 280 MOTION to Substitute Party Walter Smiley, Ruben Luna, Germany Whitfield, 281 MOTION for Order, to District Judge Clarence Cooper. (bjh) (Entered: 09/08/2010)
284 STIPULATION Regarding Numbers Of Sex Offenders In Counties That Have Designated School Bus Stops Filed On Behalf Of Plaintiffs And Defendants by Janet Jenkins Allison, Thurbert E. Baker, Lori Sue Collins, Scot Dean, Joseph Linaweaver, Al Reginald Marks, Dewayne Owens, Sonny Perdue, Wendy Whitaker, Clay N. Whittle, James Victor Wilson, Jeffery York. (Drolet, Joseph) (Entered: 09/10/2010)
285 DOCUMENT FILING ERROR−MULTI PART MOTION FILED AS SINGLE PART MOTION MOTION for Summary Judgment with Brief In Support by Janet Jenkins Allison, Lori Sue Collins, Joseph Linaweaver, Al Reginald Marks, Dewayne Owens, Wendy Whitaker, James Victor Wilson, Jeffery York. (Attachments: # 1 Brief, # 2 Statement of Material Facts, # 3 Exhibit Chatham County Map, # 4 Exhibit Columbia County Map, # 5 Affidavit Wagner Declaration, # 6 Exhibit Holt Deposition, # 7 Exhibit Columbia Resolution, # 8 Exhibit Bulloch Resolution, # 9 Exhibit Chatham Resolution, # 10 Exhibit Starkman Letter, # 11 Affidavit Doctoroff Declaration, # 12 Exhibit Bulloch Interrogatories, # 13 Exhibit Chatham Interrogatories, # 14 Exhibit Columbia Interrogatories, # 15 Affidavit R.W. Declaration, # 16 Affidavit G.W. Declaration, # 17 Exhibit Rush Deposition, # 18 Exhibit Parole Training Materials, # 19 Exhibit GDC Parole Study, # 20 Affidavit Smiley Declaration, # 21 Affidavit Luna Declaration, # 22 Affidavit Danner Declaration, # 23 Affidavit Raines Declaration, # 24 Affidavit J.M. Declaration, # 25 Appendix)(Geraghty, Sarah) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− Modified on 9/16/2010 (bjh). (Entered: 09/15/2010)
286 RENEWED MOTION for Summary Judgment with Brief In Support by Thurbert E. Baker, Scot Dean, Sonny Perdue. (Attachments: # 1 Brief In Support of Renewed Motion for Summary Judgment, # 2 Supplemental Statement of Material Facts, # 3 Affidavit Notice of Filing Affidavits, # 4 Affidavit Karla Dolby (document 1 of 3), # 5 Affidavit Karla Dolby (document 2 of 3), # 6 Affidavit Karla Dolby (document 3 of 3), # 7 Affidavit Ahmed Holt, # 8 Affidavit Laura Tate, # 9 Affidavit Carol Adeyeye, # 10 Affidavit Andre Castaing, # 11 Affidavit Marsha O'Neal)(Drolet, Joseph) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− Modified on 9/16/2010 to edit text to reflect pdf (bjh). (Entered: 09/15/2010)
287 RE−DOCKETED 285 MOTION for Summary Judgment, MOTION for Permanent Injunction by Plaintiffs Janet Jenkins Allison, Lori Sue Collins, Joseph Linaweaver, Al Reginald Marks, Dewayne Owens, Wendy Whitaker, James Victor Wilson, Jeffery York. (Attachments: # 1 Brief in Support, # 2 Statement of

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 34 of 36

09/16/2010 09/24/2010
10/05/2010 10/05/2010 10/05/2010 10/06/2010 10/06/2010 10/06/2010 10/15/2010 10/19/2010

Material Facts, # 3 Exh Chatham Co Map, # 4 Exh Columbia Co Map, # 5 Decl Peter Wagner, # 6 Depo Ahmed Holt, # 7 Exh Columbia Resolution, # 8 Exh Bulloch Resolution, # 9 Exh Chatham Resolution, # 10 Exh Starkman Letter, # 11 Decl Mica Doctoroff, # 12 Exh Bulloch Interrogatories, # 13 Exh Chatham Interrogatories, # 14 Exh Columbia Interrogatories, # 15 Decl R.W., # 16 Decl G.W., # 17 Depo David Rush, # 18 Exh Parole Training Materials, # 19 Exh GDC Parole Study, # 20 Decl Walter Smiley, # 21 Decl Ruben Luna, # 22 Decl Rebecca Danner, # 23 Decl Aaron Raines, # 24 Decl Mr. J. J.S.M., # 25 Index of Exhibits)(bjh) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− Modified on 9/16/2010 (bjh). (Entered: 09/16/2010)
Notification of Docket Correction re 285 MOTION for Summary Judgment. Filed as a single part motion. Clerk will make the necessary corrections. Attorney has been electronically notified of same. (bjh) (Entered: 09/16/2010)
288 ORDER APPROVING DISMISSAL OF CERTAIN CLAIMS. Granting Plaintiffs' 281 Motion for Order Approving Dismissal of Certain Claims. The following claims are hereby DISMISSED WITH PREJUDICE: i. Plaintiffs' general ex post facto claims including those ex post facto claims for subclass (2) on page 17 of this Court's order of March 30, 2009 and all claims set forth for subclass (3) on page 18 of this Court's order of March 30,2009 (doc−223); ii. Plaintiffs' general overbreadth claim including claims for overbreadth for subclass (1) on page 17 of this Court's order of March 30, 2009 (doc−223); iii. Plaintiffs' Takings Clause claim; iv. Plaintiffs' general claims in regard to the church employment and volunteer provisions including such claims for subclass (1) on page 17 of this Court's order of March 30, 2009 (doc−223). Signed by Judge Clarence Cooper on 8/23/2010. (bjh) (Entered: 09/24/2010)
Submission of 287 MOTION for Summary Judgment MOTION for Permanent Injunction, submitted to District Judge Clarence Cooper. (dob) (Entered: 10/05/2010)
289 RESPONSE in Opposition re 286 MOTION for Summary Judgment filed by Janet Jenkins Allison, Lori Sue Collins, Joseph Linaweaver, Al Reginald Marks, Dewayne Owens, Wendy Whitaker, James Victor Wilson, Jeffery York. (Attachments: # 1 Affidavit Ruben Luna, # 2 Affidavit Vivianne Guevara, # 3 Statement of Material Facts Statement of Additional Facts)(Geraghty, Sarah) (Entered: 10/05/2010)
290 Response to Statement of Material Facts re 286 MOTION for Summary Judgment filed by Janet Jenkins Allison, Lori Sue Collins, Joseph Linaweaver, Al Reginald Marks, Dewayne Owens, Wendy Whitaker, James Victor Wilson, Jeffery York. (Geraghty, Sarah) (Entered: 10/05/2010)
291 Response to Statement of Material Facts re 287 MOTION for Summary Judgment MOTION for Permanent Injunction, 285 MOTION for Summary Judgment filed by Thurbert E. Baker, Scot Dean, Sonny Perdue. (Drolet, Joseph) Modified on 10/7/2010 to edit text to reflect pdf (bjh). (Entered: 10/06/2010)
292 RESPONSE re 287 MOTION for Summary Judgment MOTION for Permanent Injunction, 285 MOTION for Summary Judgment filed by Thurbert E. Baker, Scot Dean, Sonny Perdue. (Drolet, Joseph) Modified on 10/7/2010 to edit text to reflect pdf (bjh). (Entered: 10/06/2010)
293 (Defendants' Renewed Notice Of Objections To The Declaration Of Peter Wagner Filed In Support Of Plaintiffs' Motion For Summary Judgment 285 and 287 by Thurbert E. Baker, Scot Dean, Sonny Perdue (Drolet, Joseph) Modified on 10/7/2010 to delete double wording (bjh). (Entered: 10/06/2010)
294 MOTION to Substitute Party R.W. with Brief In Support by Janet Jenkins Allison, Lori Sue Collins, Joseph Linaweaver, Al Reginald Marks, Dewayne Owens, Wendy Whitaker, James Victor Wilson, Jeffery York. (Attachments: # 1 Affidavit, # 2 Affidavit)(Geraghty, Sarah) (Entered: 10/15/2010)
295 Response and Objection to Plaintiffs' Statement of Additional Facts re 289 Response in Opposition to Motion, filed by Thurbert E. Baker, Scot Dean, Sonny

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 35 of 36

10/20/2010 10/20/2010 10/21/2010 10/29/2010 11/03/2010 11/05/2010 11/29/2010 12/14/2010 01/26/2011 03/28/2011
09/09/2011 09/13/2011 09/13/2011

Perdue. (Drolet, Joseph) Modified on 10/20/2010 to delete double wording (bjh). (Entered: 10/19/2010)
296 RESPONSE re 293 Notice filed by Janet Jenkins Allison, Lori Sue Collins, Joseph Linaweaver, Al Reginald Marks, Dewayne Owens, Wendy Whitaker, James Victor Wilson, Jeffery York. (Geraghty, Sarah) Modified on 10/20/2010 to delete double wording (bjh). (Entered: 10/20/2010)
297 REPLY to Response to Motion re 286 MOTION for Summary Judgment filed by Janet Jenkins Allison, Lori Sue Collins, Joseph Linaweaver, Al Reginald Marks, Dewayne Owens, Wendy Whitaker, James Victor Wilson, Jeffery York. (Geraghty, Sarah) (Entered: 10/20/2010)
Submission of 286 MOTION for Summary Judgment, to District Judge Clarence Cooper. (bjh) (Entered: 10/21/2010)
298 RESPONSE and OBJECTION re 294 MOTION to Substitute Party R.W. filed by Thurbert E. Baker, Scot Dean, Sonny Perdue. (Drolet, Joseph) Modified on 11/1/2010 to delete double wording (bjh). (Entered: 10/29/2010)
Submission of 294 MOTION to Substitute Party R.W., to District Judge Clarence Cooper. (bjh) (Entered: 11/03/2010)
299 REPLY to Response to Motion re 294 MOTION to Substitute Party R.W. filed by Janet Jenkins Allison, Lori Sue Collins, Al Reginald Marks, Dewayne Owens, Wendy Whitaker, James Victor Wilson, Jeffery York. (Geraghty, Sarah) (Entered: 11/05/2010)
300 NOTICE Of Filing by Clay N. Whittle (Attachments: # 1 Exhibit, # 2 Exhibit)(Hudson, David) (Entered: 11/29/2010)
301 RESPONSE re 300 Notice of Filing filed by Janet Jenkins Allison, Lori Sue Collins, Joseph Linaweaver, Al Reginald Marks, Dewayne Owens, Wendy Whitaker, James Victor Wilson, Jeffery York. (Geraghty, Sarah) (Entered: 12/14/2010)
302 Filing of Chatham County Resolution re 286 MOTION for Summary Judgment filed by Clay N. Whittle. (Attachments: # 1 Exhibit, # 2 Exhibit)(Hudson, David) Modified on 1/27/2011 to edit text to reflect pdf (bjh). (Entered: 01/26/2011)
303 ORDER Granting 280 Motion to Substitute Named Plaintiffs. Insofar as Defendants Perdue, Baker, and Dean do not appear to object to the motion and noting that this substitution of named Plaintiffs does not address whether the requirements of Federal Rule of Civil Procedure 23(a) are satisfied or whether the proposed new named Plaintiffs have standing in this matter, the Court GRANTS the motion to substitute, substituting Walter Smily, Ruben Luna, and Germany Whitfield as named Plaintiffs in this case, and DISMISSES as moot the claims of the current named Plaintiffs. Walter Smily, Ruben Luna and Germany Whitfield added. Joseph Linaweaver, Al Reginald Marks, Dewayne Owens, Wendy Whitaker, James Victor Wilson, Jeffery York, Janet Jenkins Allison and Lori Sue Collins terminated. Signed by Judge Clarence Cooper on 3/28/2011. (bjh) (Entered: 03/28/2011)
304 ORDER Granting Plaintiffs' 294 Motion to Add R.W. as Substitute Named Plaintiff. R. W. added. Signed by Judge Clarence Cooper on 9/9/11. (bjh) (Entered: 09/09/2011)
NOTICE of Undeliverable Electronic Mail re: 304 Order on Motion to Substitute Party. Mail returned for Lisa L. Kung due to no longer being employed with the agency. (aar) (Entered: 09/13/2011)
305 ORDER Denying Without Prejudice 286 Motion for Summary Judgment; Denying Without Prejudice 287 Motion for Summary Judgment and 287 Motion for Permanent Injunction. The Court DIRECTS Defendants Perdue, Baker andDean to file Supplemental Briefing on any applicable Article III and class certification issues within the next thirty (30) days. The Court will permit Response and Reply Briefs to be filed pursuant to the Local Rules of this Court. The Court will determine whether and to what extent the Parties may renew the Motions after the

Case: 4:06-cv-00140-CC As of: 11/07/2016 12:41 PM EST 36 of 36

10/05/2011
10/12/2011 10/25/2011 10/31/2011 11/17/2011 04/02/2012 05/02/2012 05/02/2012 09/30/2013
09/30/2013 09/30/2013

Court considers the issues raised by the Supplemental Briefing. Signed by Judge Clarence Cooper on 9/13/2011. (bjh) (Entered: 09/13/2011)
306 MOTION to Withdraw Lisa Kung as Attorneyby Ruben Luna, Walter Smily, R. W., Germany Whitfield. (Attachments: # 1 Exhibit Notice of Intent to Withdraw)(Geraghty, Sarah) Modified on 10/26/2011 to edit text to reflect pdf (bjh). (Entered: 10/05/2011)
307 SUPPLEMENTAL Brief on Article III and Class Certification Issues re 305 Order, filed by Thurbert E. Baker, Scot Dean, Sonny Perdue. (Drolet, Joseph) Modified on 10/12/2011 to cause text to reflect pdf(bjh). (Entered: 10/12/2011)
Submission of 306 MOTION to Withdraw Lisa Kung as Attorney, to District Judge Clarence Cooper. (bjh) (Entered: 10/25/2011)
308 RESPONSE re 307 Supplemental Brief on Article III and Class Certification Issues filed by Ruben Luna, Walter Smily, R. W., Germany Whitfield. (Geraghty, Sarah) Modified on 11/1/2011 to edit text to reflect pdf (bjh). (Entered: 10/31/2011)
309 REPLY to Plaintiffs' 308 Response re 307 Supplemental Brief filed by Thurbert E. Baker, Sonny Perdue. (Drolet, Joseph) Modified on 11/18/2011 to edit text to reflect pdf (bjh). (Entered: 11/17/2011)
310 Petition for Leave of Absence for the following date(s): 4/19/2012−7/19/2012, by Sarah E. Geraghty. (Attachments: # 1 Text of Proposed Order)(Geraghty, Sarah) (Entered: 04/02/2012)
311 ORDER Granting 306 Motion to Withdraw Lisa Kung as Attorney. Attorney Lisa L. Kung terminated. Signed by Judge Clarence Cooper on 5/2/12. (bjh) (Entered: 05/02/2012)
312 ORDER Granting Plaintiffs' counsel's 310 Petition for Leave of Absence pursuant to L.R. 83.1(E)(3). Signed by Judge Clarence Cooper on 5/2/12. (bjh) (Entered: 05/02/2012)
313 ORDER: Without satisfying their burden of establishing standing to pursue this case, the Smiley Plaintiffs class action must be DISMISSED for lack of jurisdiction. Signed by Judge Clarence Cooper on 9/30/13. (bjh) (Entered: 09/30/2013)
314 CLERK'S JUDGMENT dismissing case for lack of jurisdiction. (bjh)−−Please refer to http://www.ca11.uscourts.gov to obtain an appeals jurisdiction checklist−− (Entered: 09/30/2013)
Civil Case Terminated. (bjh) (Entered: 09/30/2013)