VT- Judge reviews Barre's curbs on sex offenders

6-13-2009 Vermont:

MONTPELIER – Christopher Hagan still has a home and the City of Barre still has a Child Safety Ordinance.

For now.

One of those two truths could change – at least temporarily – when Judge Helen Toor finally weighs in on a dispute that pits Hagan, a convicted sex offender, against a city that doesn't want him living within 1,000 feet of any of its schools, parks or playgrounds.

Toor on Thursday listened to nearly 3-1/2 hours of testimony and legal argument in a case that is about much more than whether Hagan can continue living with his young family in their Kent Street apartment in Barre.

Hanging in the balance are the fate of Hagan's family, the rights of others like him, and the validity of a first-of-its kind sex-offender ordinance in Vermont that attempts to regulate where people convicted of certain crimes can and can't live.

Hagan claims he unwittingly ran afoul of Barre's ordinance when he, his wife, Amy, and their two young sons moved into a second-floor apartment in a residential property owned by Maurice Lavanway back in April. He has challenged the local law, and the American Civil Liberties Union of Vermont took up his case in court Thursday, arguing, in part, that the city lacked the statutory authority to adopt the controversial ordinance in the first place.

"There is no pre-existing general power of municipalities in Vermont to legislate on the subject of where individuals may live," said Dan Barrett, the ACLU-Vt. lawyer representing Hagan.

However, Barre officials have stood unflinchingly behind an ordinance that was adopted by the City Council last summer, and since replicated in Rutland. Although they have agreed not to force Hagan to move until July 7 – giving Toor time to rule on his request for a preliminary injunction – they maintain the ordinance is a reasonable means of addressing a legitimate public safety concern.

Toor heard from Hagan, his wife, the housing specialist who helped the couple land the apartment earlier this year, Barre City Manager John Craig, and a state official who might be called on to help the family if the ordinance is upheld. She peppered lawyers for both sides with questions before announcing she had plenty to think about.

"I'm not prepared to make a ruling today," said Toor, who has taken Hagan's request for a preliminary injunction under advisement.

Barrett and Barre's City Attorney Oliver Twombly offered competing opinions on the central question Toor must answer when considering the request for an injunction: Will Hagan suffer irreparable harm if his request is denied?

Barrett argued the answer to that question was undeniably yes, repeatedly suggesting his out-of-work client would be "homeless" – with or without his family.

"I think it's beyond dispute that homelessness is irreparable harm," he said, brushing aside the suggestion that emergency assistance may be available.

"There's a difference between shelter and a stable address," he said.

Twombly accused Barrett of overplaying the homeless card, noting that Hagan's family would almost certainly qualify for emergency assistance given their children, their financial circumstances, and their ability to use a "portable" federal housing subsidy to secure a new apartment. Moreover, Twombly argued Hagan was aware of the city's ordinance before moving into the apartment in the first place.

"This is a self-created crisis," he said. "At the time the Hagans moved into the apartment they had reason to know that there was some concern that this tenancy might violate a law."

The two lawyers also sparred on everything from whether the city had the power to enact and enforce the ordinance in the first place to whether someone convicted of a sex offense could fairly be construed as a "public nuisance."

Twombly argued the answer to the latter question was yes, though Toor questioned his assertion.

"Does that mean you can make any crazy definition you want about what a nuisance is?" she asked, asking Twombly if he believed the city could adopt an ordinance prohibiting those convicted of drunken driving from living near parks or playgrounds as a possible safety precaution.

"Would I have to uphold that?" she asked Twombly. "Must I? Should I?"

She added, "On a legal basis how does one draw the line on what is reasonable and rational in this current conflict?"

Toor also wondered why, if the ordinance was truly crafted to protect children from those who have committed sex offenses, its scope wasn't limited to people whose victims were actually children.

"Why is it so broad?" she asked.

Hagan, who asked the City Council to consider amending the ordinance shortly after learning of its existence back in April, posed the same question at the time. He argued that residency restrictions should be targeted at high-risk offenders, like those convicted of molesting children.

In 2001, Hagan, now 29, was accused of sexual assault as a result of what he has claimed was consensual sexual contact with a 15-year-old girl. Hagan, 18 at the time of the alleged offense, pleaded guilty to a lesser charge of lewd and lascivious conduct in exchange for a reduced sentence. He spent four years in prison in Vermont and Virginia, successfully completing sex offender treatment prior to his release.

Hagan is not on parole or probation and testified Thursday he believes he is considered a "low-risk" to re-offend.

Twombly challenged that assertion, asking Hagan if he could produce documentation to prove that. Hagan said the best evidence could be found on the Internet where he is not listed on the public sex offender registry.

Although Toor was not prepared to issue a ruling from the bench on Thursday, she promised a prompt decision. ..Source.. by DAVID DELCORE STAFF WRITER