Suit Challenging Registered Sex Offender Ban Moving Towards Trial

In November 2012, a registered sex offender, Theodore Whipple, and his wife, filed suit against the Valley View Village Condominium Homeowners Association.    The case is pending in federal court in the United States District Court for the Western District of Texas, Austin Division.  The lawsuit challenges the Association’s Rule banning registered sex offenders as occupants. The Rule states:  “No person who is required by law to register as a sex offender with the Texas Sex Offender Registry shall reside on any property subject to the Declaration which is within two-thousand (2000) feet of any location at which children congregate, including, but not limited to, school bus stops, parks, green belts, the Valley View Village community pool, other community common areas, and other such similar places.” The plaintiffs seek damages and injunctive relief challenging the Rule on five grounds: (1) as against public policy; (2) an infringement on the right to alienate property (the freedom to transfer ownership of property); (3) in violation of alleged constitutional rights; (4) in breach of the condominium declaration; and (5) in violation of the Texas Deceptive Trade Practices Act.


Pending before the Court is the Association’s motion for partial dismissal of claims, which argues three main points.  First, the motion argues that there is no cause of action for a violation of public policy. Second, the motion argues that the Rule is not an infringement on the right to alienate property because the Rule fails to limit to whom an owner may sell their property.  Third, the motion argues that the Plaintiff does not have a valid Section 1983 claim for damages for alleged violations of constitutional rights. A Section 1983 claim, which may only be brought against state and local governments and officials, is based upon Section 1983 of Title 42 of the United States Code.  A Section 1983 claim can only be brought against a private entity when the entity acts “under color of state law.”


The Association argues that it did not act under color of state law, and further that the Rule does not violate any fundamental right of the plaintiffs.  Specifically, the Association argues the scope of the fundamental right to personal choice regarding family does not include a fundamental right to choose where one wants to live.  The Association relies upon an Eighth Circuit opinion, Doe v. Miller, which upheld an Iowa statute that prohibited a person who had committed a criminal sex offense against a minor from residing within two thousand feet of a school or child care facility.


The plaintiffs argue in response to the motion that the Rule violates public policy because “Texas laws relating to registered sex offenders strike the important balance between rehabilitating the sex offender and protecting the general public . . . by  . . . distinguishing between offenders’ risk levels and past offenses.”  Because Mr. Whipple’s plea occurred more than 20 years ago and he is a low-risk offender, the plaintiffs argue the Rule should be invalidated.  The plaintiffs further argue that the Rule’s restraint on alienation is unreasonable because the Association specifically targeted the plaintiffs in adopting the Rule.  The plaintiffs argue that the Association acted under color of state law because it “exercises an unquestionable state power—the regulation and enforcement of residency restrictions placed on registered sex offenders by the State of Texas.”  Finally, the plaintiffs’ position is that the “right to make personal choices regarding their family is a fundamental right,” and that the Rule unreasonably denies Mr. Whipple the opportunity to live with his wife.


In a joint report to the court last week, the parties indicated that the plaintiffs had made a settlement demand, contingent upon the Association not disclosing the terms of the demand to the Association members.  Both parties indicated mediation would not be fruitful at this time.


The case is scheduled to go to jury trial in April 2014.