VT- Court motion seeks ruling against Barre sex offender ordinance

7-17-2009 Vermont:

MONTPELIER – Christopher Hagan and the city of Barre took another step forward Thursday in their legal battle over the city's sex offender ordinance.

A lawyer representing Hagan filed a motion on Thursday afternoon, asking a judge to make a final ruling in favor of Hagan based on the undisputed facts in the case. The motion was filed in Washington Superior Court in Montpelier just hours after lawyers from the two sides met for a brief status conference.

Hagan sued the city of Barre in May, arguing that the city did not have the authority to pass its "Child Safety Ordinance," which prevents convicted sex offenders from living within 1,000 feet of schools and recreations areas.

Hagan, 29, is a convicted sex offender, and in April he moved to within 1,000 feet of two schools in violation of the ordinance. Under the ordinance, which was adopted about a year ago, he would have to move or could face up to about $500 in fines per day.

Judge Helen Toor ruled in favor of Hagan last month when she issued a preliminary injunction that rejected the city's arguments that it had the right to create the ordinance. Toor's decision prevented the city from enforcing the ordinance in Hagan's case until a final decision is made.

If Toor rules in favor of Hagan on the motion filed Thursday, that would be a final ruling, though it could be subject to an appeal.

Hagan's lawyer, Dan Barrett, a staff attorney with the Vermont chapter of the American Civil Liberties Union, did not repeat his earlier legal arguments in the motion filed Thursday. Toor has already ruled in favor of his arguments in her preliminary decision, strongly indicating she will rule in Hagan's favor in Thursday's motion, unless Barre City Attorney Oliver Twombly presents some new legal reasoning.

At Thursday's hearing, Twombly gave no indication he had any new legal arguments up his sleeve.

Instead, Twombly and Toor talked in circles about an issue of evidence discovery.

Twombly is hoping to get his hands on evidence related to Hagan's past, such as a pre-sentence investigation conducted by the Department of Corrections, his risk assessment and his psycho-sexual evaluation.

Toor, however, indicated she believes the evidence Twombly is seeking is irrelevant to the case.

"How does that matter?" asked Toor.

Twombly said some of the evidence he is seeking might undermine Hagan's credibility.

Toor, who pointed out that the case is about legal issues and not a particular individual, remained skeptical.

"Let's say you take discovery and find out he lied. How would that matter, ultimately?" Toor asked.

Twombly and Toor went back and forth until Twombly gave up.

"That's all I can really say, and if it's not persuasive, it's not persuasive," Twombly said.

Twombly did not return a call seeking comment on Thursday afternoon.

Hagan was accused in 2001 of sexual assault as a result of what he claimed was consensual sex with a 15-year-old. Eighteen years old at the time of the offense, Hagan pleaded guilty to a lesser charge in exchange for a reduced sentence.

That conviction is what has caused him to run aground of Barre's sex offender ordinance, which was the first such ordinance adopted in Vermont. Rutland enacted a similar ordinance shortly after Barre, which has also been challenged.

James Oney, a 37-year-old who is imprisoned for arson, is a convicted sex offender, and he filed a lawsuit in April challenging Rutland's ordinance. The city of Rutland, however, has not yet been served in the case. ..Source.. by Thatcher Moats Times Argus Staff