VT- Putting laws to the test

One day the house of cards will come tumbling down and all these local ordinances will fall. The unfortunate result which occurred in Georgia was, a child was murdered because of the effects of clustering caused by many local communities forcing offenders to live together. Then it was a child of a RSO, in the future, who knows, but these will tumble. I would much rather see them tumble in courts!

4-19-2009 Vermont:

While three Vermont communities prepare to defend local laws defining where sex offenders can live, key cases have been fought - even at the federal level - and precedents have been set.

Nationwide, federal courts have shot down constitutional arguments that residency laws prohibiting sex offenders from living in certain areas violate an individual's rights.

"At the federal level, it's been almost a complete loss," said Corey Rayburn Yung, assistant professor at the John Marshall Law School in Chicago. "At the state level, it can be harder to judge, and I don't know all of the cases. But they've sustained challenges in a number of states.

"The key rationale that the courts hone in on is that these laws aren't punitive, they're regulatory with penalties that are civil in nature," Yung said.

Challenges linked to state law have had more traction and some observers wonder how courts in Vermont, where the state's constitution has been interpreted as being more protective of an individual's rights, will weigh in on the issue.

An answer to that question could come soon.

Child safety ordinances in Barre and Rutland, where certain types of sex offenders are prohibited from living with 1,000 feet of establishments such as schools and playgrounds, are on the verge of going to court.

Barre passed its ordinance first last summer, with Rutland only about a month behind. The ordinances vary somewhat in regards to what kinds of sex offenders are affected and what sorts of establishments they are prohibited from living near.

But their common effect has been to exclude large swaths of both cities as potential places for affected sex offenders to live.

(eAdvocate Post)

In Rutland last week, a lawsuit challenging the city's ordinance was filed by an incarcerated sex offender hoping to return to the city. That complaint, filed by James Oney, a 37-year-old convicted arsonist is on the state's sex offender registry for a 1991 conviction of lewd and lascivious conduct with a child.

The lawsuit filed pro se by Oney, who is still an inmate at the South Burlington prison, has not been made public yet because all parties in the case have not been served.

In Barre, no legal challenge has been made yet, but resident and registered sex offender Christopher Hagan has promised one.

Unlike the ordinance in Rutland which targets only child sex offenders, the law in Barre restricts residency for anyone on the sex offender registry. Hagan, who has said he was convicted of having sex with a 15-year-old girl when he was 19 years of age, has said the city's ordinance punishes his wife and child for a crime he already was punished for.

Legal challenges have long been anticipated in both communities where officials said this week that the ordinances were drafted with resiliency in mind.

In Rutland, city attorney Andrew Costello said he did his homework when he drafted the four-page ordinance last summer.

"We were confident when it was brought up that there would be a challenge," he said. "That's why we looked at the merits of these ordinances when we first got into it."

What the research revealed, he said, was that the majority of legal challenges against residency ordinances were defeated.

As an added precaution, Costello said the Rutland ordinance was drafted to affect only a narrow portion of the sex offender population and it allowed child sex offenders living within restricted zones before the law took effect to remain in their homes.

In Barre, Mayor Thom Lauzon said the drafters in his city spent a lot of time too researching how to build a residency ordinance that would last.

"We looked at the ones that worked and the ones that didn't and we looked at when they were struck down, why they were struck down," Lauzon said.

The work done by the drafters led to a number of changes, including the size of the restricted zones - which were originally larger - and the type of establishments they would be centered on. Originally, Lauzon said the city's schools, recreation areas and daycares would have triggered the law's 1,000-foot restricted area. But after looking at what little room would have been left in the city for sex offenders to call home, day cares were removed from the list.

"We didn't want a defacto banishment," Lauzon said. "We tried to craft something that had that in mind."

Whether those safeguards will stand the legal test remains to be seen, but they're resiliency derives in part from the fact that they derive their authority from zoning bylaws, according to Florida State University College of Law Associate Dean Wayne Logan.

"It's the same thing as saying you can't put an adult book store in a certain neighborhood," Logan said. "That's the justification and the fulcrum. It's the same argument for taking of use that you have with zoning."

That basis has allowed residency laws to survive challenges in states such as Georgia and Florida where Logan said the laws are so "draconian" that police have had a hard time finding places to release offenders where they wouldn't be violating the law.

But in a few states, such as New Jersey, residency laws adopted by local municipalities have been nullified after state courts found them to be in opposition with state law, Wade said.

"It's an issue of pre-emption," he said. "State law trumps local ordinances."

That incompatibility is one of the primary arguments that Barbara Keshen is hoping will overturn residency ordinances in two New Hampshire communities.

Keshen, a staff attorney for the American Civil Liberties Union in New Hampshire, said when her organization challenged the city of Dover's residency law last year, the argument that the state of New Hampshire already oversees and manages the sex offender population - not Dover - was one of two arguments she said have the best chance of prevailing.

The other high percentage argument in the case, which remains under review by a Dover District Court judge, is that Dover, and other communities in the state, lack explicit authority under state statute to create residency laws in the first place.

"They're the two arguments that I think will have the most success even though they're the least sexy," she said.

The other arguments the ACLU in New Hampshire have made lie along Constitutional lines, including an argument that in cases where the government seeks to regulate a specific class of individuals, it needs a compelling reason to do so.

Residency restrictions don't meet that test, Keshen said, because statistics from other states where similar laws have existed for years indicate that the restrictions do little or no good and create unintended consequences.

"They actually make a community less safe by destabilizing the sex offender population," she said. "In many cases, these laws drive offenders underground."

In Vermont, ACLU executive director Allen Gilbert said he's been thinking about potential legal challenges for the ordinances since they were passed last summer. Hagan had said he planned to talk to the ACLU about challenging Barre's ordinance, but Gilbert said this week that he couldn't comment on possible cases the organization might bring.

That said, he didn't have a problem talking about potential legal strategies.

Like Keshen, Gilbert said the ordinances could be challenged on the ground that they pre-empt authority that the state already exercises over the sex offender population through its registry and monitoring programs.

He also said a legal challenge could be fashioned from the after-the-fact changes the ordinances imposed on plea deals reached with prosecutors.

While the ordinances in Barre and Rutland seek to protect themselves from ex-post facto arguments - essentially the concept of changing the rules after a punishment has been set - by "grandfathering" sex offenders already living in restricted areas, Gilbert said the residency restrictions essentially change the terms for offenders who agreed to plea deals with prosecutors before the ordinances went into effect.

"Plea agreements are often looked at as contracts," he said. "You can't go back later and change a contract. How can you be subjected to penalties put in place after you're convicted?"

Gilbert is also hoping that Constitutional arguments concerning lack of due process, cruel and unusual punishment, taking of property and even first amendment violations could stand up in a Vermont court where he said the state's Constitution places more emphasis on individual liberties than other states.

"There have been a number of different Supreme Court decisions that lay out the importance of individual rights," he said. "A lot of the case law has focused on search and seizure, but some talks about due process."

Gilbert also said any case brought in the state would be bolstered by the recent passage in the Legislature of a bill that frowns on the use of residency restrictions in Vermont.

"The general assembly is very concerned that such policies could have a negative impact on public safety in our rural state by isolating offenders or driving them underground. Densely populated towns and city centers that have ordinances push offenders out into more rural communities where there are fewer opportunities for successful community reintegration and law enforcement supervision," the law reads. ..News Source.. by BRENT CURTIS