Sex offender residency case dropped

9-15-2012 New Hampshire:

The city of Franklin has dropped its legal fight to overturn a January court decision that found its ordinance restricting the residency of sex offenders unconstitutional. But the city will try other ways to keep sex offenders from living near schools, parks and other places children congregate, Mayor Ken Merrifield said.

The city's appeal was scheduled to be heard by the state Supreme Court next week.

"We have conferred with our legal counsel, and we really had only filed the appeal to keep that door open," Merrifield said. "It really was never our most likely response to this. We recognized the expense would be tremendous, so the city council has opted not to keep that door open right now."

The decision means the city cannot enforce the residency part of the 2007 ordinance, which forbids registered sex offenders from living within 2,500 feet of schools, playgrounds, athletic fields, public beaches, child-care facilities and municipal ski areas.

But Merrifield said the city can continue to enforce the other part of the ordinance prohibiting a registered sex offender from entering a school or child-care facility, unless specifically authorized by the school administration or child-care facility administrators.

The city adopted the ordinance in 2007. It wasn't challenged until 2010, when William Thomas, a Massachusetts sex offender, moved into a Franklin apartment.

Thomas had served three years in a Massachusetts prison nearly 25 years earlier for sexually assaulting a child. When he registered his new address with the Franklin police in 2010, he was told he had to give up his apartment because it was within 2,500 feet of a school.

A few weeks later, Thomas sued with the help of the New Hampshire Civil Liberties Union. Barbara Keshen, staff attorney for the nonprofit, argued that the city could not restrict where a person lived without showing a compelling reason justifying the restriction.

In January Merrimack County Superior Court Judge Larry Smukler ruled against the city, saying the city had failed to show the restriction would actually protect children. Smukler also said in his ruling that the city failed to show that its infringement on a person's right to live where he or she wants meets "an important government interest," which in this case is the protection of children.

Keshen told the Monitor in April that she welcomed the city's appeal because she believed a win at the state Supreme Court would discourage other towns from adopting ordinances restricting where registered sex offenders could live.

Yesterday, Keshen said she was disappointed the high court won't get the case. But she thinks the lower court challenge of Franklin's ordinance, and Dover's before that, have been effective.

"It's been several years since Dover was decided," she said. "In that time, no city or town has tried to enact a residency restriction. I don't think New Hampshire citizens are going to be pursuing it. And now (with the Franklin appeal dropped) there is even more a reason for not doing so."

Currently, Tilton, Northfield and Boscawen have ordinances restricting where registered sex offenders can live. They were adopted before the Dover ordinance was thrown out. Those ordinances have not been challenged, but Keshen said they would be if she heard from a sex offender affected by ordinances in those communities.

Merrifield said yesterday the city may try to revise its ordinance in a way that passes constitutional muster. City officials may also ask the Legislature to pass a law allowing communities to restrict where a sex offender can live, he said.

Keshen said she doesn't believe either effort would be successful because there has been no evidence that residency restrictions protect children. She said the evidence shows otherwise.

Sex offenders tend to "go underground" and fail to register their address where ordinances exist because they can't find housing within the permitted areas. That makes it harder for the police to keep track of them, she said.

Merrifield said he continues to find it frustrating that the court found against the city because it did not sufficiently show a residency restriction would protect children. He said common sense answers that concern. ..Source.. by Annmarie Timmins