VT- Inmate challenges Rutland sex offender ordinance

4-9-2009 Vermont:

The man convicted in a series of Rutland trash bin fires has challenged Rutland's sex offender residency ordinance.

James Oney, 37, an inmate at the South Burlington prison, filed a lawsuit in Rutland County Superior Court, though court officials said they could not release the complaint because not all parties had been served as of Wednesday afternoon.

Oney is serving time for arson convictions following a long string of fires in 2006. In 1991, he had been convicted of lewd and lascivious conduct with a child.

Rutland's law forbids a convicted sex offender from living within 1,000 feet of a school, playground or day-care facility, putting almost the entire city off-limits. Barre also has such an ordinance, and other communities have discussed similar measures.

The law exempts offenders already living in one of the buffer zones when it took effect. Oney had a residence in Rutland at the time of his arrest but was in prison when the law took effect. It was unclear Wednesday what role the residency issue might play in the case but it appears it would block him moving back into his home.

(eAdvocate Post)

Vermont Defender General Matthew Valerio, who oversees the Prisoners Rights Office, said Oney was one of a couple inmates who filed the action representing themselves. He said they were referred to the PRO.

"We'll be ultimately receiving that paperwork and likely revising the complaint," he said. "They're not lawyers."

Valerio said his office has been preparing for the case.

"I know we have done all of the research regarding a challenge," he said. "It was only a matter of time before one of them was challenged. … The bottom line is there are constitutional issues when you impact someone's ability to live in the community."

While such ordinances have been upheld in some states and struck down in others, Valerio said they have yet to be put to the test in Vermont. The fundamental issue, he said, is whether the state has granted Rutland the authority to adopt such restrictions.

"I don't know the answer yet, but I'm sure we'll find out," he said.

Valerio also pointed to a section of the new sex offender law approved by the Legislature, which discourages such ordinances. While the language was nonbinding, Valerio said it could still play a role in a court case.

"We might argue there's a clear policy choice that's being advocated by the Legislature that might override some of these ordinances," he said.

American Civil Liberties Union of Vermont executive director Allen Gilbert said he has been waiting for such a lawsuit to appear.

He said the ACLU may offer amicus briefs on the case, and that the law has problems with the First, Fifth, Eighth and 14th amendments as well as Article 1 of the Constitution.

Valerio and Gilbert also argued that such laws just don't work, pushing problems around and driving offenders underground, where they become harder to track.

"If (residency restrictions) are so ineffective, then why are judges and the DOC imposing them?" Rutland Mayor Christopher Louras argued. "If it's good enough for DOC I see no reason why it shouldn't be employed by municipalities."

Louras made the comment at around midday, but could not be reached later in the day with questions on the legal issue.

Oney's 1991 conviction was for inappropriately touching a 10-year-old girl. He later got into trouble for failing to follow a treatment program. ..News Source.. by Gordon Dritschilo Staff Writer