NH- Dover to defend sex offender ordinance

7-5-2008 New Hampshire:

DOVER — The city is ready to defend its sex offender ordinance against a legal challenge by the New Hampshire Civil Liberties Union.

Earlier this week, the state filed a response at Dover District Court to the NHCLU's motion in May to dismiss on behalf of convicted sex offender Richard Jennings, and with the city insists the ordinance is not only legal, but a legitimate safety measure.

However, the NHCLU has asked the court to both drop the ordinance violation charge 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. Jennings is scheduled to go to trial for violating the city ordinance on July 21 at 9 a.m.

In the motion, the state asks for the dismissal of the NHCLU's motion and claims the ordinance was properly enacted and is constitutional. The NHCLU claims the city had no right to establish such an ordinance because the Legislature doesn't authorize cities to regulate where various people or classes of people can reside.

There have been multiple instances where the state has permitted towns to enact a broad range of ordinances relating to health, safety and welfare under the prudential affairs clause, according to the state's motion.

"The State authorizes a city to enact ordinances for the well being of the city and its residents, providing 'the ordinance is not "repugnant" to the laws of the state,'" the motion says.

The motion goes on to list multiple examples.

The state also claims that extensive research was conducted prior to drafting the ordinance, which included researching other similar state legislation, case law and other sex offender residency rules.

In addition, the motion says the city also sought the advice of several renowned sex offender experts and studies regarding sex offender recidivism rates against children were compiled.

"Based upon the findings from this research, the City determined restricting sex offenders against children from residing only within the 2,500 foot radius of schools and day cares was in the best interests and well being of the children and community," according to the motion.

Prior to filing its motion in May, the NHCLU filed a civil suit against the city on behalf of Jennings, also claiming the ordinance was unconstitutional. Jennings' attorney, Barbara Keshen, later decided to drop the suit in April, in order to fight the ordinance in the lower court, thereby moving the case along faster and allowing her to defend Jennings at his ordinance violation hearing.

It's likely the case will end up in the Supreme Court, regardless of who wins their battle at the district court.

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.

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 also charged him with 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.

He was arrested again in April for also 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.

He is currently serving a six-month jail sentence at the Strafford County House of Corrections for these two charges.

His fiancée, Janice Sessler, 47, of 175 Locust St., was also arrested in April 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. That case has been forwarded to Strafford County Superior Court for possible indictment by a grand jury. ..News Source.. by AARON SANBORN