VT- Residency law challenge moves forward

11-2-2009 Vermont:

A convicted sex offender's legal challenge of a residency ordinance that prohibits him from living in Rutland is getting attention beyond the city's limits.

Seven months after 38-year-old James Oney filed a lawsuit suing both the state Department of Corrections and the City of Rutland, a Rutland Superior Court judge said last week that he will hold a hearing to consider suspending the city's child safety ordinance.

It's a court review being watched closely by officials in Barre where a similar ordinance has been inactive since a court ruling in September found the city lacked legislative authority to pass a law that restricted residency.

The Rutland ordinance, passed by the aldermen in 2008, prohibits sex offenders from living 1,000 feet of a school, playground or day-care facility. The ordinance excludes offenders who were living in the city before the law went into effect and Oney, who was convicted of lewd and lascivious conduct with a child in 1991, was living on Grove Street before the aldermen passed the measure.

But Oney was sent to jail in September 2007 after he was convicted of setting several trash bin fires around the city. Under the terms of his 1-1/2 -year to 6-year sentence, Oney became eligible for release in January, but he has remained in the Rutland jail because as far as the city is concerned, his time in jail has eliminated the exemption allowing him to return home and Corrections will not release Oney unless he has a residence.

Oney filed a lawsuit seeking his release in April. But the complaint, which he brought without a lawyer, wasn't served upon the city.

Now represented by the state Prisoners' Rights Office, Oney's case is moving swiftly toward a showdown that will test Rutland's ordinance and inform officials in Barre about whether to begin enforcing their own ordinance again.

"We're watching because the ruling up here was clear. That's why we chose not to appeal it," Barre Mayor Thomas Lauzon said. "If there's a different ruling down there, then we may in fact begin enforcing our ordinance again because then, if we're challenged again, we'll have a precedence to contest the other ruling."

During a brief hearing in Rutland Superior Court last week, Judge Harold Eaton gave Rutland two weeks to file an answer to Oney's complaint. Once the city answers, Eaton said he would hear arguments for an injunction that would allow Oney to return to his home.

The case before Eaton bears a lot of resemblance to the case decided two months ago by Judge Helen Toor in Washington County.

The ordinance in Rutland is similar in many respects to the one in Barre and the arguments brought by Rory Malone, the lawyer representing Oney, rest on the same principle used in the Barre case: that Rutland lacks express authority from the Legislature to "bar individuals from living within its borders."

"The City of Rutland charter does not grant the municipality the power to enact ordinances that regulate where certain individuals may or may not live within the municipality's borders," Malone wrote. ..Source.. by Brent Curtis Staff Writer