NH- ACLU moves on sex-offender rule

This is the case that was originally brought in Dover then dropped and is now back again, maybe he wil win this time.

5-22-2008 New Hampshire:

DOVER — The latest challenge to the city's sex offender ordinance has been filed at the District Court.

New Hampshire Civil Liberties Union Attorney Barbara Keshen filed a motion to dismiss on behalf of convicted sex offender Richard Jennings, asking the court to both drop the ordinance violation charged against Jennings and to rule the ordinance itself unconstitutional.

The ordinance, Dover City Code, 131-20, prohibits registered sex offenders from residing within 2,500 feet of a school or day care center.

In March, Keshen filed a civil suit against the city on behalf of Jennings, also claiming the ordinance was unconstitutional. She decided to drop the suit in April, in order to fight the ordinance in the lower court to move the case along faster and to defend Jennings at his ordinance violation hearing.

The motion is based on three main arguments challenging whether the city has the right to establish such an ordinance.

Keshen claims in the motion the Legislature doesn't authorize cities to regulate where various people or classes of people can reside.

"Since Dover's sex offender ordinance is far beyond the bounds of any power delegated to it by the Legislature, and is contrary to the welfare of the region, it is beyond the authority of Dover to enact," Keshen writes in the motion. "The Defendant cannot be found guilty of violating an ordinance which the city had no power to promulgate."

The ordinance also goes against state law, Keshen said. The state has set a number of guidelines for sex offenders and none of them include an ordinance regarding where they may not reside.

"The state Legislature could have chosen to restrict where offenders reside, but chose not to do that. To permit a local entity such as the City of Dover to enact its own residency requirements permits the city 'impermissible veto power' over a statewide regulatory plan," Keshen wrote.

Since Dover enacted its ordinance in 2005, the communities of Tilton, Franklin, Northfield and Boscawen have followed suit with similar ordinances. Other communities have also considered such ordinances.

Keshen also says the ordinance doesn't differentiate between the different types of sex offenders and their risks and asks if the ordinance even works.

"This ordinance was passed on overbroad generalization and unsubstantiated fears about offenders," Keshen wrote. "There is simply no evidence that the City can produce to demonstrate that residency restrictions have the desired effect of making children in the community safer. Consequently, the ordinance offends the equal protection rights afforded all citizens."

The state has until July 1 to respond to the motion and then a hearing will be scheduled. City officials have said on a number of occasions that they would defend the ordinance.

Jennings, 41, was charged with violating the ordinance in November 2007 after being charged with felony-level failure to register as a sexual offender for not notifying police that he moved from Portsmouth to 175 Locust St. in the city.

Since 175 Locust St. is located about 1,200 feet from My School Kindergarten at 118 Locust St., police added on the ordinance violation.

Jennings was convicted in May 2000 on a charge of felonious sexual assault on a minor. Since the victim was 15 at the time of the offense, Jennings is required to register as a sex offender for life.

Jennings is currently being held at Strafford County jail on $25,000 cash bail following an arrest an April for again living at the Locust Street address and not registering with city police.

Jennings had claimed he was living with his parents in Epping but several neighbors tipped police off about Jennings still living at the address, which led to police performing surveillance in the area.

His fiancee, Janice Sessler, 47, of 175 Locust St., was arrested last month and charged with one felony count of registration of criminal offenders, which alleges she harbored Jennings when police tried to arrest him at her residence on a felony charge of duty to report. ..more.. by AARON SANBORN