11-10-2009 New Jersey:
by Gregg Browne
UPPER TWP.--- On Monday night the Township Committee voted unanimously to introduce an ordinance that would have the effect of invalidating an existing 2005 ordinance that regulates where convicted sex offenders can live.
Like well over 100 other municipalities in the state, Upper Twp. did not feel that Megan's Law, introduced in 1994, went far enough to protect local children.
The 2005 ordinance that Upper Twp. enacted, restricted how close, a convicted sex offender, could live to schools, daycare centers, parks and playgrounds.
In May, the New Jersey Supreme Court ruled that Megan's Law adequately protected children from sexual predators, and that local laws went too far, effectively restricting sex offenders right out of many towns and cities, "....the State Supreme Court has determined that the townships and municipalities are not authorized to adopt such ordinances," said Township Solicitor, Daniel Young.
With such local laws now 'invalidated' by the court ruling, most municipalities are striking them from their books to avoid possible future lawsuits.
Upper Township Committee will vote on the ordinance at a scheduled public meeting on December 14th. ..Source..
November 10, 2009
NJ- NJ SUPREME COURT RULING FORCES UPPER TWP., OTHERS, TO CHANGE SEX OFFENDER LAWS
September 9, 2009
VT- Vermont Court Rules In Favor Of Sex Offender
9-9-2009 Vermont:
Barre Not Allowed To Limit Residency
MONTPELIER, Vt. -- A Vermont court has ruled that a convicted sex offender cannot be barred from living in areas near where children are often found.
Twenty-nine-year-old Chris Hagan had been ordered by Barre officials to move under a new ordinance passed last year that blocks convicted sex offenders from living within 1,000 feet of schools or other places children gather.
Hagan, who is represented by American Civil Liberties Union of Vermont Staff Attorney Dan Barrett, alleged that the ordinance barring him from living with his wife and children in a Barre apartment was null and void under Vermont law because the city lacked the legal authority to control where individuals may live. In late June, the Washington Superior Court issued a preliminary injunction forbidding Barre from enforcing the ordinance against Hagan and ruled in Hagan's favor Sept. 4.
"We are very pleased by the ruling," said ACLU of Vermont Executive Director Allen Gilbert, noting that "Vermont municipalities cannot just take it upon themselves to decide who gets to move in to town or to dictate where people can and can't live."
Barrett praised the court's ruling as a victory for the rule of law: "If a Vermonter is convicted of a crime, his or her punishment is determined by a court of law - not by a city council or a town selectboard. Vermont municipalities can't simply decide to evict individuals who have paid their dues to society and are free."
The ACLU believes this case could have a wide-reaching impact on other towns and cities if it's appealed to the Supreme Court.
"Based on the strength of the ruling so far, in this case, it seems pretty clear cut that municipalities in Vermont simply don't have the authority to adopt and enforce these kinds of ordinances," Gilbert said in a previous interview with WPTZ.com. ..Source.. by WPTZ.com
August 26, 2009
NJ- Westville Sex Offender Ordinance Declared Un-Constitutional
8-26-2009 New Jersey:
To come into compliance with the state law, Westville Borough Council repealed Ordinance #12-07 entitled “Sex offender residency restriction.” The state had ruled the restriction was un-constitutional.
Many governing bodies previously had passed the same type of ordinance that restricted where known sex offenders may live.
Now, most of them have also repealed the ordinance that was put in place to protect children and adults in the community.
“If we did not repeal the law that we did pass several years ago, the borough may have been sued by certain individuals,” said Council President, Michael Ledrich, who presided over the Wednesday, August 12 meeting in the mayor’s absence. ..Source.. by Sara Martino, NEWS Correspondent
August 25, 2009
NH- Dover won't fight for curbs on sex offenders
8-25-2009 New Hampshire:
Dover – Police will not appeal a district court ruling last month that struck down a city ordinance restricting sex offenders from living within 2,500 feet of a school or daycare.
“The Dover Police Department has decided not to appeal the Court’s decision in State v. Jennings. Chances of success on appeal are only fair based upon the ruling in this particular case,” police said in a statement issued this morning.
“The Dover Police Department will continue to provide aggressive enforcement of the sex offender registration laws and to provide educational programs to provide for the safety of citizens of all ages. Dover will continue to have its fair share of citizens with criminal records, but with proactive law enforcement, Dover will continue to be a safe place to live, to work and to raise a family.”
The decision means that although Dover’s ordinance is nullified, similar ones from several towns across the state can continue. An appeal to a higher court likely would have led to a precedent-setting ruling that could have either strengthened or quashed sex offender residency ordinances statewide.
Dover stopped enforcing its ordinance shortly after Judge Mark Weaver ruled last month that it violated the state constitution’s equal protection rights. Weaver said the city had to prove its ordinance was “substantially related to an important governmental objective.”
“In this case, the state offered no such evidence,” Weaver wrote.
Former Dover resident Richard Jennings was charged with violating the city ordinance in November 2007 because his Locust Street home fell within a restricted zone.
Jennings sued the city last year with the help of the New Hampshire Civil Liberties Union and claimed that the ordinance was unconstitutional. The case was heard in Dover District Court in September 2008, but a ruling was only issued earlier this month.
Jennings’ was expected to be a test case that could set a larger precedent, but that appears very unlikely now.
In his ruling, Weaver repeatedly said the city did not show how restricting where sex offenders live would protect children. He noted that the city did not seek input from experts when it passed the ordinance in 2005, but instead relied upon testimony from former police Chief William Fenniman.
Weaver also said police had not proven that the city children have been any safer since the ordinance went into effect.
“Without any evidence to relate the passing of the ordinance to its stated purpose, the state cannot meet its burden,” he wrote.
Dover was the largest New Hampshire municipality to restrict where sex offenders could live, though others, including Manchester, had considered similar ordinances.
Other communities that continue to restrict where sex offenders can live include: Franklin, Tilton, Northfield and Boscawen. ..Source.. by CLYNTON NAMUO
August 6, 2009
NH- Sex Offender Calls Rejected Ordinance Too Broad
8-8-2009 New Hampshire:
Jennings Successfully Fought Dover Residency Restrictions
ROCHESTER, N.H. -- A convicted sex offender who took his case against the city of Dover's residency restrictions and won said Wednesday that he fought the law because the ordinance painted sex offenders with the same broad brush.
Richard Jennings successfully fought Dover's ordinance that prohibited convicted sex offenders from living within 2,500 feet of a school or day care. This week, a judge agreed the ordinance violated Jennings' rights and threw it out.
"There are a lot of decent men and women out there who are registered sex offenders," he said. "Very decent people that have just made some really poor decisions in their lives."
The ordinance meant that Jennings couldn't live in a Locust Street apartment with his then-fiancee because it was too close to a kindergarten.
"This ordinance blanketed all sex offenders," Jennings said. "And to me, there's so many levels of sex offenses."
Ten years ago, Jennings admitted, he had sex with a teenager when he was 32. He said that he has owned up to his past. During an interview with News 9, he was quick to correct his wife when she tried to defend what he did as "a simple mistake."
"No, it wasn't a mistake, not a mistake," he said. "It was a poor decision. There's no such thing as a mistake on something like this. There's just not."
But Jennings said Dover's ordinance wouldn't let him move on after serving his sentence. He and his wife now live in Rochester.
Jennings maintains he is not violent. But he and his wife said they did consider the ramifications of sex offenders of all kinds now being able to live anywhere they want in Dover.
"Well yeah, we both did," said his wife, Janice Jennings. "At one point, he almost wanted to drop the whole case because of that."
"The ordinance has basically portrayed to the public that all sex offenders are dangerous -- watch out," Richard Jennings said. "And I think that's really ethically wrong."
City officials have a different take on this. On Tuesday, Dover's police chief said the ordinance was a tool to help protect children, and now it's one less tool police have. He said the city hasn't yet decided whether to appeal the judge's ruling.
There are at least five other communities in the state with similar ordinances that restrict where sex offenders live, including Franklin, Northfield, Tilton, Holderness and Boscawen. Officials in those towns said they are closely monitoring what Dover officials decide to do. ..Source.. by WMUR.com
NH- Local officials mull sex offender ruling
Good explanation of the court's reasoning.
8-6-2009 New Hampshire:
As the lower court decision disallowing the city of Dover's sex offender residency restrictions reverberates around the Three Rivers area, officials in Franklin, Tilton and Northfield are undecided as to the future of their own similar restrictions.
Franklin City Manager Elizabeth Corrow said she has received a preliminary opinion from City Attorney Paul Fitzgerald and believes her city's ordinance was adopted differently and should still be enforced.
"The comment that struck me was we did provide areas of the city where there was affordable housing," Corrow said.
It was not long ago that Franklin faced a similar lawsuit when a convicted sex offender who was returned to prison for failing to register in both Tilton and Northfield said he was unable to get paroled because his intended place of residency violated Franklin's sex offender residency restrictions.
Corrow said Frank Singleton III no longer intends on moving to West Bow Street because his partner no longer lives there. His attorney, Barbara Keshen of the New Hampshire Civil Liberties Union, had previously withdrawn as his lawyer because she said there were "irreconcilable differences with respect to strategy in the case."
"We've filed for a dismissal but haven't heard anything yet," Corrow said.
Keshen also represented Richard Jennings in the recent Dover decision and spoke publicly against residency restrictions during the public hearing the town of Northfield held in June 2007 before that community passed a similar ordinance.
She said similar ordinances and laws in other states and municipalities do not work, citing the state of Iowa passing a statewide residency restriction law that is now being opposed by its county attorneys.
"The myth of the lurking stranger is powerful and scares us all, but it really is a myth," she said.
She also spoke that night to the possible legal challenges the ordinance could face, including the four challenges she posed in the successful Jennings suit — it is beyond the scope of a city or town's authority; it is preempted by state laws governing convicted sex offenders; it violates the defendant's due process rights under the State and Federal Constitutions and it violates the defendant's equal protection rights.
In Dover's case, Special Justice Mark F. Weaver said the ordinance violates the defendant's equal protection rights, which is why he dismissed the charges against Jennings filed by the city of Dover after he violated the ordinance.
Selectman Stephen Bluhm was the chair of the Northfield selectmen when the board passed the ordinance unanimously.
"I'm disappointed," he said, referring to the Dover decision.
As to what his town will do, he said he could not comment because the selectmen had not met since learning of the ruling and Police Chief Stephen Adams is on vacation.
"I would imagine it will be discussed on Tuesday when the board next meets," he said.
Tilton Police Chief Robert "Bobby" Cormier said pretty much the same thing.
"I personally haven't read the decision, but will continue to enforce all the town's ordinances until directed otherwise," Cormier said.
Tilton Selectmen Chair Katherine Dawson said she didn't necessarily support the ordinance, but said the town passed it at Town Meeting so, as a selectmen, she is powerless to do anything unless Tilton's ordinance is directly challenged. Should that happen, she said, the board would meet and take it from there.
"I would be interested in reading it, though," Dawson said. ..Source.. by GAIL OBER
August 4, 2009
NH- Court shoots down Dover sex offender ordinance
8-4-2009 New Hampshire:
DOVER — A registered sex offender has won his battle against the city's sex offender ordinance after a district court judge ruled it unconstitutional.
District Court Judge Mark Weaver issued a ruling Friday that stated Dover City Code, 131-20, which prohibits registered sex offenders from living within 2,500 feet of a school or day care center, is unconstitutional because it violates Richard Jennings' equal protection rights.
The ordinance came under challenge last year by the New Hampshire Civil Liberties Union, which filed a motion to dismiss the ordinance on behalf of Jennings.
As a result of the decision, the city will no longer enforce the ordinance, Police Chief Anthony Colarusso said this afternoon.
"We're disappointed in the ruling and at this point we're weighing our options on whether or not it should be appealed to the Supreme Court," he said.
The city has 30 days to decide whether or not it will appeal the decision. In that time, Colarusso said he would be consulting with City Attorney Allan Krans, City Manager Mike Joyal and the state Attorney General's Office. ..Source.. by Aaron Sanborn
N.H. Civil Liberties Union sues Dover over sex offender ordinance
3-26-2008 New Hampshire:
CONCORD — The New Hampshire Civil Liberties Union sued the City of Dover on Wednesday, alleging that its ordinance banning registered sex offenders from living within 2,500 feet of a school or day-care center is unconstitutional, subjecting them to “arbitrary, capricious and unreasonable restrictions” on their movement.
“This is the first case of its kind in the state,” said Barbara Keshen, staff attorney for the New Hampshire Civil Liberties Union.
The suit was filed in Strafford County Superior Court in Dover on behalf of Richard Jennings, 41, who had pleaded guilty to felonious sexual assault in 2000 and received a sentence of two to four years at the New Hampshire State Prison.
At the time of the offense, the victim was 15, and thus Jennings is required to register as a sex offender for life.
In October, Jennings, his girlfriend and her 13-year-old daughter, moved from their apartment in Portsmouth to a more affordable apartment in Dover. When Jennings went to register his new address, as he is required by law to do, he was charged with being in violation of the city code. A hearing on that violation is scheduled for June 3 in Dover District Court.
Phone messages left at home for Dover Mayor Scott Myers and City Attorney Allan Krans were not immediately returned Wednesday night. The City Council was meeting Wednesday night; Keshen said she had not yet heard from anyone representing the city.
The 2,500-foot restricted area “encompasses virtually the entire downtown area of Dover, where all of the affordable housing is located,” the lawsuit says. The enforcement of the code “will serve to effectively banish Richard Jennings from the City of Dover because its geographic restrictions substantially impair his ability to find a residence there.”
As a result, Jennings can no longer live at the Dover address and is now living with his parents. If he were to return, he’s subject to a $500 fine for a first offense, then a $1,000 fine for subsequent offenses.
Keshen said there are six other ordinances in New Hampshire that restrict sex offenders from residing within a 2,500-foot radius of a school or day-care center; there are others with lesser distances.
Jennings, a carpet layer, has suffered, “and will continue to suffer, irreparable injury, in that he has been and will continue to be, deprived of his constitutional rights not to be subject to additional or greater punishment than allowed by law at the time the criminal act was committed,” the lawsuit said.
Jennings served his time and is at a low risk to re-offend, the lawsuit said. He has not been charged with any other sexual offense and he successfully completed an outpatient course of sex-offender counseling, the suit said.
The ordinance applies to all offenders across the board whether they are at high risk or not, Keshen said. Further, she said, the law diverts attention and resources away from those people who are the most likely to offend against a child — a family member or trusted friend of the family.
“If you really wanted to do something that would be effective in controlling sex offenders then you would maybe put them on GPS systems, you’d give them specialized treatment,” Keshen said. “You’d do assessment of future dangerousness upon release from prison; there’d be categories of risk; there’d be pre-release planning relative to housing and employment and all of that involves funding and it involves a development of expertise,” she said.
Keshen said when Dover’s code went into effect in 2005, the city had 45 registered sex offenders. Last year, there were 35, so some of them either no longer live in Dover or have been discouraged from registering, she said.
The suit comes as state lawmakers are working on a bill that would better identify and track those listed in the state’s sex offender registry. ..Source.. by Kathy McCormack
July 15, 2009
NY- Local sex offender law shot down
7-15-2009 New York:
Judge says Albany County residency law is invalid because state statute preempts it
ALBANY -- A state judge has struck down the Albany County sex offender residency law, declaring it invalid because it's preempted by state statue, and, in effect, halting enforcement of it.
The long-awaited ruling by Acting State Supreme Court Justice Roger D. McDonough -- signed Friday and made public Tuesday -- paves the way for the three-year-old county law that prohibits convicted Level 2 and 3 sex offenders from living within 1,000 feet of schools or child care facilities to proceed to the next phase of the legal challenge.
Both county lawmakers who support the measure and Albany attorney Terence Kindlon who challenged such laws in Albany, Rensselaer and Washington counties want to see the issue played out in the state's appeals courts.
McDonough's ruling comes just days after a decision by Acting State Supreme Court Justice Henry Zwack in Rennselaer County that knocked out that county's law on the same basis -- that state statute preempts the local law. The Rensselaer law was tougher, restricting residency to 2,000 feet of a school or day care center.
The Albany Police Department's Children and Family Services Unit has been enforcing Albany County Local Law No. 8 since its passage by the County Legislature in July 2006. The three convicted sex offenders on whose behalf Kindlon sued the county were all charged with violating the law, a misdemeanor.
"We haven't had a chance to read the ruling, and, obviously, it's something we want to talk with the district attorney about regarding further enforcement down the road," city police spokesman Detective James Miller said Tuesday.
Attorney Kathy Manley, an associate of Kindlon's who worked with him on the lawsuits, said, "It's becoming more and more clear that the counties and towns can't pass their own laws, when it's up to the state to act ..."
"Now the law is invalid in Rensselaer and Albany counties, so it can't be enforced," she added.
Manley said local laws push people "into motels away from treatment, away from services where they can walk and away from families."
County lawmakers on both sides of the aisle want an appeal.
"I'm really let down over this," Albany Democrat Daniel McCoy said. A city firefighter and father of three, he was a lead sponsor of the measure after learning a convicted sex offender lived near his kids' elementary school.
He said the next step is to appeal immediately to the Appellate Division.
"I'm gong to ask the county attorney tomorrow to start an appeals brief," McCoy said, noting he's also "going to check with the state Senate and Assembly to see what they have and what bills may contain sex offender legislation."
Christine Benedict of Colonie, Republican minority leader, agreed. She favors an appeal and a review of the state law. "I think that the state should take another look at theirs."
She said the original law proposed by former Gov. George Pataki "was really strong," and it passed the Senate but not the Assembly. Eventually, a watered-down version passed both houses.
Benedict favors the town of Colonie's proposal that would limit the number of sex offenders a hotel or motel could house. That measure is slated to be introduced at Thursday's Town Board meeting.
In his legal papers, Kindlon argued state law trumps those enacted by local governments. Counties throughout the state have adopted residency laws, and earlier this year a state judge struck down a Rockland County law.
McDonough, in his five-page ruling, said arguments by the three sex offenders "demonstrate that the state has expressed a desire to legislate in the field of sex offender monitoring, regulating and management, thereby preempting and prohibiting localities from doing so."
County lawmakers, on the other hand, argued state law applies only to sex offenders who are on parole or probation, while the county law applies to all convicted offenders, including those who no longer are under supervision.
"We took the position that the state didn't address those unsupervised sex offenders, and therefore the local ordinance, we viewed, as not preempted by the state legislation but supplemental to it by embracing those unsupervised sex offenders," said Albany attorney Thomas J. O'Connor who represented the county.
McDonough found the lawmakers' "argument to be unpersuasive" that state law doesn't apply to sex offenders no longer under supervision. The judge referred to a set of laws, enacted by the state legislature in September 2008 and which took effect in January. A review of the so-called Chapter 568 "reveals that it also addresses the residential status of certain 'unsupervised sex offenders,'" the judge wrote.
Specifically, the state laws address the "residential status of level two and level three offenders who are seeking shelter assistance from local social service officials," and is in no way limited to those on parole, probation or subject to post-release supervision.
"It is therefore manifestly clear that the Legislature enacted legislation that significantly impacts the residential status of both supervised and unsupervised level two and level three sex offenders," the judge decided.
O'Connor said he had to discuss the possibility of an appeal with county officials. It's a matter "that is appropriate for the courts to determine because there are reasonable people on both sides of the issue," he said.
O'Connor was certain, though, that enforcement has to cease. "It's been declared invalid, and until, or if and when it's reversed, we have to respect Judge McDonough's decision," he said.
Legislator McCoy wants the Court of Appeals, the state's top tribunal, to have the final say. "Hopefully, they will overturn the lower courts, and if they don't, I will lobby the hell out of the Senate and Assembly to pass a law that applies to everybody and protects our children." ..Source.. by CAROL DeMARE, Staff writer
July 13, 2009
IN- Court limits sex-offender residency law
7-4-2009 Indiana:
Retroactive penalty reversed in Indiana
INDIANAPOLIS — Convicted sex offenders who lived near schools or other places frequented by children before a state law restricting their residency was enacted in 2006 would not have to move under a ruling by the Indiana Supreme Court.
The court ruled Wednesday that the residency law violated the Indiana constitution by retroactively punishing Anthony W. Pollard, a Blackford County sex offender who died in December.
Pollard had owned his home in northeastern Indiana for about 10 years when he was convicted of a sex offense against a child in 1997. He was then charged in January 2007 with violating the 2006 law that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center.
Blackford Superior Court Judge John Forcum dismissed the charge as unconstitutional, and the state appealed.
The Court of Appeals and the state Supreme Court both upheld Forcum's decision.
The state Supreme Court decision said the residency law prevents a sex offender from living in his home — even if he bought it before the law took effect and even if a school or youth center moved within 1,000 feet of a home where he already lived.
"Although the statute does not affect ownership of property, it does affect one's freedom to live on one's own property," Justice Robert Rucker wrote. "A sex offender is subject to constant eviction because there is no way for him or her to find a permanent home in that there are no guarantees a school or youth program center will not open within 1,000 feet of any given location."
Bryan Corbin, a spokesman for the attorney general's office, which handled the appeal, said a staff attorney interpreted the ruling to apply only to offenders who were charged, convicted and sentenced before the residency law was enacted.
Attorneys for the state Supreme Court declined to comment because they are prohibited from interpreting the court's rulings.
The decision was the latest by the state Supreme Court to find that certain laws regarding state oversight of sex offenders violate the Indiana constitution's ban on laws punishing people for acts that were legal when they were committed.
In April, the court overturned a man's conviction for not registering as a sex offender because he had already completed a sentence for child molestation before the state's Sex Offender Registration Act was passed.
In light of that ruling, the Pollard decision "was not surprising," said Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council.
However, he said the ruling might be interpreted differently depending on the circumstances.
"For example, I would hope that the residency restriction law would apply to a person convicted of child molesting in 2005 and who then intentionally moved across the street from an elementary school in 2009," Johnson said in an e-mail.
Corbin said the attorney general's staff doubted the ruling would have a wide effect.
"We doubt that this will impact a significant number of cases," he said. ..Source.. by Charles Wilson
June 30, 2009
VT- City loses in sex offender case
6-30-2009 Vermont:
MONTPELIER, Vt. (AP) - A judge has blocked the city of Barre from enforcing an ordinance that would have required a convicted sex offender to move.
Twenty-9-year-old Chris Hagan had been ordered by city officials to move under a new ordinance passed last year that blocks convicted sex offenders from living within 1,000 feet of schools or other places children gather.
The preliminary injunction issued by Washington Superior Court Judge Helen Toor blocks the city from forcing Hagan to move at least until the full case is heard in court.
Hagan has been getting help from the American Civil Liberties Union's Vermont Chapter.
Hagan was convicted of lewd and lascivious conduct over a contact with a 15-year-old girl that occurred when he was 18. ..Source.. by FOX News44
March 11, 2009
OH- Ohio Senate Approves New Sex Offender Law
3-11-2009 Ohio:
COLUMBUS, Ohio -- The Ohio Senate has passed a bill to prevent sex offenders from living within 1,000 feet of schools or day care facilities even if they committed their crimes before passage of a state law prohibiting such residency.
The Senate voted 30-0 Tuesday in response to a 2008 Ohio Supreme Court decision that says the sex offender residency law could not be applied retroactively. The Legislature enacted the law in 2003.
The court said the law was vague and that it could not determine that lawmakers wished to make it apply to sex offenders who committed their crimes before the residency law was enacted.
The bill applying the law retroactively now goes to the Ohio House. ..News Source.. by NewsNet5.com
January 23, 2009
NY- State judge throws out Rockland's housing law for sex offenders
1-23-2009 New York:
A state Supreme Court judge sitting in Rockland today invalidated Rockland's law restricting where sex offenders can live.
Justice William Kelly, in an eight-page decision, found that state has specifically taken the responsibility for sex offenders.
Kelly also wrote the state law specifically empowers local probation officers to decide where sex offenders can live without any borders. He also cited a similar decision banning residency boundaries in New Jersey by a judge in the Garden State.
Kelly nullified Rockland's 2007 law. As the first decision on the pre-emption issue, Kelly's ruling becomes precedent and could nullify 80 similar laws across the state that establish some boundaries in which sex offenders cannot live.
In Rockland, for example, sex offenders were prohibited from living, working, and loitering within 1,000 feet of schools, day care centers, libraries or any facilities.
Kelly's decision would dismiss misdemeanor charges against up to 13 sex offenders living in prohibited areas.
Kelly ruled in a case involving Monsey residents Yoel Oberlander and Betzalel Dym, both of whom were charged in August 2007 with violating their probation and the county law.
Oberlander's lawyer, David Goldstein, raised the legal arguments. He said the 1,000 feet or any boundary is arbitrary and meaningless as far as protecting the public.
"The state law of letting probation officers use their discretion is more effective," Goldstein said. "The county law was an over-reaction with a nebulous 1,000-foot magical line."
He said Kelly's decision on the pre-emption issue has implications statewide and could overrule other residency laws.
County Executive C. Scott Vanderhoef said he would await County Attorney Patricia Zugibe's recommendation on whether to appeal. Vanderhoef said the county law is not workable and the state needs to take control of the issue and set standards.
The county has 30 days to file an appeal.
Zugibe said today she had not formulated a position yet and was reviewing Kelly's decision. She said that while Kelly's decision seems solid on the law, she said other judges could decide differently on similar cases before them.
"This is one court's decision," she said. "I can't be so presumptuous to know what other judges will be doing."
Rockland Legislature Ed Day, R-New City, who sponsored the county law, said today that he's disappointed in the decision but stands by the law. ..News Source.. by Steve Lieberman
July 21, 2008
NJ- Sex-offender ordinances face challenges
7-21-2008 New Jersey:
When he was 15 and in foster care, G.H. was accused of wrongly touching a 13-year-old girl. He denied it but was judged a juvenile delinquent and given two years' probation.
Now a college student in Ocean County, he is still dealing with the consequences of Megan's Law and a plethora of other rules that restrict sex offenders after they have served their time.
But a precedent-setting ruling Tuesday by a New Jersey appeals court should make it easier for the Richard Stockton State College student, and others in his situation, to find a place to live.
Identified only as G.H. in court documents, he was classified as a sex offender, under Megan's Law, for fourth-degree sexual contact. For 15 years, he must, among other things, notify police whenever he moves into a community.
Two years ago, when he was a freshman, police gave him 60 days to vacate his dormitory because Galloway Township had just adopted an ordinance barring sex offenders from living near schools, day cares and churches - regardless of the severity of their offenses. The college was deemed a school. He had not committed any other crimes.
G.H. sued, with the help of the state chapter of the American Civil Liberties Union, and that led to the ruling last week. A three-member appeals panel struck down the Galloway ordinance and a similar one in Cherry Hill, saying they were trumped by state law. The ruling also invalidates ordinances passed by 115 other New Jersey municipalities that had restricted residency for sex offenders.
Galloway Township, whose case was argued by Demetrios K. Stratis, an attorney with the American Center for Law and Justice, based in Washington, plans an appeal to the state Supreme Court, saying the protection of children from sex offenders is paramount. Cherry Hill officials are weighing an appeal. The high court, however, has discretion over whether to grant review.
The ordinances, adopted over the last five years throughout the state, run the gamut: Some ban sex offenders from living within a half-mile of convenience stores, bowling alleys, beaches, or anywhere children might congregate. Edgewater Park in Burlington County created a buffer zone around cemeteries, according to Legal Services of New Jersey.
Attorneys say a few other states have adopted residency restrictions to varying degrees. Iowa's statute was upheld, but Georgia's was not.
Besides the ACLU lawyers, attorneys with the state Office of the Public Defender, the state Department of the Public Advocate, and Legal Services of New Jersey, which represents indigent clients, supported arguments against the ordinances. They said these ordinances threatened their clients with homelessness, joblessness, and increased risk of repeat offenses.
On the other side of the emotionally charged issue were the N.J. Crime Victims Law Center and municipal officials, who say the state isn't doing enough to protect residents from sex offenders.
In a 42-page opinion, the appeals court found that the ordinances bordered on "vigilantism and harassment" and went far beyond a carefully crafted state law. Megan's Law, the court said, strikes a balance between protecting children from sexual predators and safeguarding the rights of former convicts who are released into society.
The Legislature adopted Megan's Law in 1994 after 7-year-old Megan Kanka was raped and killed by a twice-convicted sex offender who lived on her street in Hamilton Township. Other states soon followed suit, adopting their own versions after the public outcry.
Over the years, these laws have evolved, leading to an Internet registry of the more serious sex offenders, GPS monitoring, and stringent parole conditions that require lifetime supervision and permission to cross state lines or visit places where children might be. Parole officers also were given the responsibility of approving residences.
About five years ago, municipalities began adding layers of restrictions, creating a mosaic of buffer zones that outlined where sex offenders were not permitted to live.
In Franklin Township, Gloucester County, there are 16 categories, including convenience stores and recreation fields, with buffer zones as wide as a half-mile for some sex offenders.
"I've had clients ask me whether they should stop reporting and go underground, or whether they should split up their family and move out of their house where they've lived for years," said Ingrid D. Johnson, a lawyer with Legal Services of New Jersey.
"Some couldn't afford to move and became resigned to the fact that they would just go back to prison because they had no other way to exist," Johnson said. Many of the ordinances carried fines and prison terms if the person wouldn't move.
But Stratis, who at no charge argued Galloway's case on behalf of the nonprofit organization, said the towns just wanted to help parole officers find appropriate places for sex offenders to live.
"Parole officers have many many cases and can't expect to know where children congregate in a township. The town knows, and that's why we are a home-rule state. We set up laws to protect our citizens," he said.
Municipalities adopted their ordinances when they saw the legislators fail to act on a state law that would set up uniform restrictions, Stratis said.
"We believe that if you are a sex offender, you have a high risk of recidivism," Stratis said. "A township should have a right to set up these barriers. . . . The idea is to remove temptation."
But Frank L. Corrado, the attorney whom the ACLU provided to the college student, said parole officers are best equipped to determine the best environment for a sex offender. That normally is "where he's living with family, or one where he can walk to work," he said. Unfortunately, Corrado said, such locations sometimes fall inside a buffer zone.
Two years ago, this happened when a 76-year-old Franklin man who had served time for molesting his two grandchildren wanted to return to his home of four decades and his wife. Police tried to evict him, saying an ordinance barred him from living within 2,500 feet of a beach.
The Public Defender's Office sued, arguing that he was not a threat to strangers and that his family members were already aware of his past and would protect their children. A year ago, the township settled the case, and he was allowed to stay.
Michael Z. Buncher, a deputy public defender, said studies show the ordinances don't work because they create stress that can interfere with a sex offender's rehabilitation. Studies also show that most offenders, if they are going to re-offend, will go at least five miles away so as not to be recognized.
Buncher said the ordinances fail to recognize differences among the sex offenders and their varying risk levels. "They are not a monolithic group of people," he said.
The appeals panel agreed, finding the municipalities had overstepped their bounds and created ordinances that had the effect of denying housing to sex offenders.
"The Legislature did not include residency restrictions in its chosen remedy, but did include a complex system of particularized case-by-case assessment of risk . . . combined with close supervision," the court said.
The court noted that most of Galloway fell into buffer zones and that Cherry Hill had "virtually banished" all sex offenders from within its borders. Only "a desolate field" and a posh neighborhood were outside the township's many buffer zones, the court said. ..News Source.. by Jan Hefler, Inquirer Staff Writer
April 2, 2008
OH- Prosecutors to appeal judge's ruling on sex offender
4-1-2008 Ohio:
TROY — Miami County prosecutors will appeal a judge's ruling that a Piqua sex offender, who has taken his fight against Ohio's residency restrictions to national television, is not covered by the state's 1,000 foot rule because he was convicted before the law was passed.
Common Pleas Judge Robert Lindeman this week dismissed a 2006 case against Edward Burge, 34, finding that an Ohio Supreme Court decision in February means the residency law cannot be applied to Burge. The 2003 law bans registered sex offenders from living within 1,000 feet of schools or school facilities.
When the 2006 case was filed, Burge was living at an East Main Street apartment prosecutors said was within 1,000 feet of a Piqua schools athletic field.
Burge was convicted in 2000 of attempted unlawful sexual conduct with a minor and labeled a sexually oriented offender.
The 2006 case was before Lindeman again after Ohio's 2nd District Court of Appeals last year sent the case back to the county for a hearing on whether the law retroactively imposes punishment in violation of the U.S. Constitution. A hearing on that issue was held in January and lawyers were in the process of filing written arguments when the judge issued a one-page decision dismissing the case.
Prosecutor Gary Nasal said he was surprised by the ruling.
Nasal agreed Burge was convicted before the residency law was passed in 2003 but said prosecutors will argue he did not live at the address in question prior to the law's passage. "The case said you lived there, and you committed the offense prior to (passage). That's our reasoning," he said.
Prosecutors will appeal to the 2nd District Court, and to the state Supreme Court, if necessary, to get a "clarification," he said.
Margie Slagle, a lawyer for Burge at the Ohio Justice and Policy Center in Cincinnati, said she was not surprised by Lindeman's ruling, but somewhat surprised by the plan to appeal. "The Ohio Supreme Court said it (the restriction) does not apply retroactively," she said.
Slagle said the court will be asked to allow Burge to move back with his wife and children in a Wood Street, Piqua, apartment he was ordered to leave earlier in 2006.
Prosecutors have filed actions against Burge five times claiming violation of the 1,000 foot rule. The filing involved in this week's decision was the third.
Burge said Tuesday he's eager to move back with his family. "It feels pretty good. It means that all of this exposure wasn't in vain," he said.
Burge appeared last year on a CBS News segment on sex offender residency restrictions and on "The Montel Williams Show." ..more.. by Nancy Bowman
See earlier story: Sex offenders' lawyers say law requiring moves is unconstitutional
February 23, 2008
OH- Ruling could change where offenders live
2-23-2008 Ohio:
MOUNT VERNON — The Ohio Supreme Court ruled Thursday that the law prohibiting sex offenders from living within 1,000 feet of a school does not apply retroactively. It will be up to local officials to interpret the ruling and decide whether or not some registered sex offenders in Knox County are now allowed to live within that 1,000-foot radius.
In a 6-to-1 decision, the court ruled that any registered sex offender who bought a home and committed the offense before July 31, 2003, is not bound by the 1,000-foot barrier.
Writing for the majority, Chief Justice Thomas Moyer said that because the law did not specifically say it was meant to be enforced retroactively, it could not constitutionally be applied to those who had already committed their offenses before 2003.
Knox County Prosecutor John Thatcher said that this decision is the binding authority and “the prosecutors office will not file legal action against registered offenders who bought their home and committed their offenses before 2003.”
Thatcher added, “I personally disagree with the majorities conclusion that the statute doesn’t include a declaration that the law was meant to be retroactive.”
A review of the sexual offender registry reveals that there are 32 registered sex offenders in Knox County who committed their offenses before the 2003 cutoff date. It is unknown how many, if any, of those offenders bought a home before 2003 that lies within 1,000 feet of school property.
The Supreme Court case involved a Hamilton County man convicted of sexual imposition in 1995 and sexual battery in 1999. Gerry R. Porter Jr., had owned his home for 14 years, when after passage of the 1,000-foot barrier law, local prosecutors forced him to leave the home he and his wife and two children lived in.
Margie Slagle of the Ohio Justice and Police Center, the Cincinnati based organization who represented Porter, told the News that Porter was “delighted” by the decision and has already moved back in with his family.
“I expect to see an awful lot of offenders go back to their homes and their families,” said Slagle.
Slagle said that an “amicus curiae” (Latin for “friend of court”) brief was filed by several independent organizations on Porter’s behalf. She said the brief “had a real effect on the decision because the justices mentioned it several times during the argument.”
The brief was endorsed by the University of Cincinnati College of Law, the Iowa County Attorneys Association, the Iowa Coalition Against Sexual Assault, the Iowa State Sheriffs and Deputies Association, and several other victim’s rights organizations.
In it, the brief argues that Ohio’s law banning offenders from living within 1,000 feet of a school “may significantly increase the danger that sex offenders will [re-offend] by depriving them of housing and decreasing their access to social services and support networks.”
The brief cited a widely reported study conducted by the State of Minnesota that found that residential restrictions “would not reduce sex offender recidivism.”
The Minnesota Department of Corrections released a report in April, 2007 which examined 224 cases of recidivism (repeat offenses) among sex offenders and concluded that “not one of the 224 sex offenders would likely have been deterred by a residency restrictions law.”
The amicus brief says that residence restrictions laws are “driven by fear, not facts.”
“A 2000 Department of Justice study found that 93 percent of child sexual abuse victims knew their abuser, 34.2 percent were family members, and 58.7 percent were acquaintances. In the 2007 Minnesota study, the vast majority (79 percent) of [repeat offenders] selected victims with whom they had a previous relationship — whether social or biological.”
Currently, the Ohio Justice and Policy Center has filed a class action lawsuit in Hamilton County on the behalf of local registered offenders and is arguing that sex offender residency laws are actually doing more harm than good to Ohio communities. While the case is still pending, the OJPC suit intends to prove that the retroactive portions are unconstitutional and should be overturned.
Slagle said that no date has yet been set for courts to review the case. ..more.. by Anton Hepler, News Staff Reporter
February 20, 2008
Sex Offender Who Owned Home, Committed Crime Before Residency Law Passed Not Required to Move
2-20-2008 Ohio:
The Supreme Court of Ohio held today that, because a 2003 state law barring certain sex offenders from residing within 1,000 feet of a school does not expressly provide that its provisions apply retrospectively, the statute does not apply to an offender who bought his home and committed his crime before the law took effect. The 6-1 decision was authored by Chief Justice Thomas J. Moyer.
Because the Court found that the residency statute does not apply retroactively, the justices did not reach or decide the issue of whether such a law, if expressly made retroactive by the legislature, would violate the Ohio Constitution’s prohibition against retroactive laws that infringe on an individual’s substantive right.
The case involved a challenge by Gerry Porter to R.C. 2950.031, a state law effective on July 31, 2003, that prohibits certain sexually oriented offenders from “establishing a residence or occupying residential premises” that are within 1,000 feet of any school property.
Porter purchased a home in 1991 where he lived with his family for 14 years. He was required to register as a sexually oriented offender following his conviction of a sexual battery charge in 1999. Following the legislature’s enactment of the sex offender residency statute, Green Township chief legal officer Francis Hyle sought a court injunction to force Porter to move out of his home because a portion of his property was within 1,000 feet of school premises. Porter opposed the injunction, arguing that the residency statute was unconstitutional as applied to him.
The Hamilton County Court of Common Pleas issued an injunction requiring Porter to move out of his house. On review, the 1st District Court of Appeals affirmed the action of the trial court. However, the 1st District also certified that its decision in this case was in conflict with a 2006 decision by the 2nd District Court of Appeals, Nasal v. Dover, in which that court found the residency restriction was unconstitutional because it retroactively infringed on a sex-offender’s vested right to live in a home he had purchased before the “1,000-foot rule” became law in 2003. The Supreme Court agreed to hear arguments in the case to resolve the conflict between appellate districts.
Writing for the majority in today’s decision, Chief Justice Moyer noted that the Supreme Court’s decisions in Van Fossen v. Babcock and Wilcox Co. (1988) and State v. Consilio (2007) have established a two-part test for reviewing challenges to the retroactive application of a law. “Under this test, we first ask whether the General Assembly expressly made the statute retroactive,” Moyer wrote. “If it has, then we determine whether the statutory restriction is substantive or remedial in nature. ... We do not address the question of constitutional retroactivity unless and until we determine that the General Assembly expressly made the statute retroactive.”
Applying the first prong of the test, the Chief Justice cited a rule of statutory construction set forth in R.C. 1.48 that “(a) statute is presumed to be prospective in its operation (i.e., to apply only to events that take place after the effective date of the law) unless expressly made retrospective.” He wrote: “In order to overcome the presumption that a statute applies prospectively, a statute must ‘clearly proclaim’ its retroactive application. ... Text that supports a mere inference of retroactivity is not sufficient to satisfy this standard; we cannot infer retroactivity from suggestive language.”
In analyzing R.C. 2950.031 under that standard, the Chief Justice rejected arguments by Mr. Hyle that statutory language referring to a person who “has been convicted of” specified categories of sexual offenses and prohibiting such a person to “occupy residential premises” clearly indicated legislative intent for the restriction to apply to a convicted sexual offender who committed his offense and lived in his house before the residency law was enacted.
He pointed to wording in two other Ohio statutes as examples of clear and unequivocal language indicating the legislature’s intent that those laws be applied retroactively.
“Both former R.C. 4121.80(H) and former 2950.09(C)(1) expressly make their provisions applicable to acts committed or facts in existence prior to their effective dates. In addition, R.C. 4121.80(H) expressly proclaimed its applicability in spite of contrary preexisting law by including the phrase, ‘notwithstanding any provisions of any prior statute or rule of law of this state,’” wrote Chief Justice Moyer. “These examples demonstrate that the drafters of legislation know the words to use in order to comply with the Ohio Constitution and the requirement created by the General Assembly (R.C. 1.48). The text of R.C. 2950.031, by contrast, does not feature a clear declaration of retroactivity in either its description of convicted sex offenders or its description of prohibited acts. The statute does not proclaim its applicability to acts committed or facts in existence prior to the effective date of the statute or otherwise declare its retroactive application. In the present case, the absence of a clear declaration comparable to the two excerpted above precludes the retrospective application of R.C. 2950.031.”
Chief Justice Moyer’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp. Justice Maureen O’Connor concurred in judgment only.
Justice Terrence O’Donnell dissented, stating that in his view the plain language of R.C. 2950.031 does clearly indicate legislative intent: 1) that the 1,000-foot residency restriction be applied to sex offenders regardless of whether their crimes were committed before or after the effective date of the statute; and 2) that covered offenders be barred both from “establishing a residence” and from “occupying residential premises” that are within 1,000 feet of a school after July 31, 2003 – regardless of whether an offender “occupied” those premises before the law was enacted.
“If the General Assembly had intended only to prohibit individuals from establishing a residence within 1,000 feet of a school after its adoption of this statute, it did not need to also prohibit those individuals from occupying residential premises – but, it did so,” wrote Justice O’Donnell. “The General Assembly, in choosing to prohibit both the establishment of a residence and the occupation of a residential premises, intended to preclude present and future conduct regarding the location of a residence of persons described in this statute; and it did so by using language to preclude both establishing a residence or occupying one.
Justice O’Donnell added that, having found clear legislative intent that the challenged statute be applied retroactively, he would go on to hold that the 1,000-foot residency restriction is remedial rather than substantive in nature, and therefore that retroactive application of the statute to require Porter to vacate his home did not violate Porter’s rights under Section 28, Article II of the Ohio Constitution. ..more.. Full court decision:
Contacts
David A. Singleton, 513.421.1108, for Gerry Porter.
Paula Adams, 513.946.3228, for Green Township Law Director Francis Hyle and the Hamilton County prosecutor’s office.
William P. Marshall, 614.466.8980, for Amicus Curiae Ohio Attorney General’s Office.
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Sex offender law not retroactive, Ohio Supreme Court rules
2-21-2008 Ohio
Columbus -- Convicted sex offenders who were already living close to a school before a 2003 law barring such arrangements can stay put, says the Ohio Supreme Court.
The high court, in a 6-1 ruling on Wednesday, said a state law blocking offenders from living within 1,000 feet of school buildings cannot be applied retroactively because lawmakers didn't stipulate that when the measure was written.
The ruling means potentially hundreds of ex-offenders who committed their crimes before 2003 and were already living near a school when the law took effect won't have to move, regardless of what lawmakers intended.
It could also help settle five other Supreme Court cases -- including two from Cuyahoga County -- that have drawn a mixture of interpretations about the law and whether it can be applied retroactively, or is even constitutional.
Chief Justice Thomas Moyer wrote for the court's majority and blamed the confusion on the law's wording, calling it ambiguous. He said it "presents at best a suggestion of retroactivity, which is not sufficient to establish that a statute applies retroactively."
Justice Terrence O'Donnell dissented. He said the law clearly bars sex offenders, regardless of when they were convicted, from establishing or occupying a residence too close to a school. Every intent of a law does not have to be explicitly spelled out, he said.
"We have never required the General Assembly to recite talismanic phrases or magic words when expressing its intent for a statute to be applied retroactively," O'Donnell wrote.
The lawsuit, Hyle v. Porter, was brought by Gerry Porter Jr., a Cincinnati-area man twice convicted in the 1990s of sexual offenses - including having sex with a 14-year-old. He was forced from the home he had lived in since 1991.
"At the most basic level this means Mr. Porter gets to go home and live with his family," said Porter's attorney, David Singleton. "And it says the court is not afraid to scrutinize sex offender legislation to make sure it is being applied properly."
But because it did not find the law to be retroactive, it declined to take the next step and decide whether the provision is unconstitutional, as Porter contends. That leaves open the possibility for the legislature to revisit the statute.
"We are going to urge the legislature to take another look at that and address it," said Leo Jennings Jr., a spokesman for Attorney General Marc Dann, whose office argued that the law should be applied retroactively.
Singleton doubts the legislature will do that because he believes the high court would throw it out for being unconstitutional.
"I think there is a growing awareness that these provisions are just stupid, they don't protect children," Singleton said. "If we have to go back to court, I think we win."
Porter, 45, a registered offender, was forced from his Green Township, Hamilton County home in 2005 after the chief legal counsel there, Francis M. Hyle, using the law, ordered Porter out.
A Hamilton County court backed Hyle, as did the 1st Ohio District Court of Appeals. The appeals court admitted, however, that another state appeals court had ruled differently and urged the high court to rule. ..more.. by Reginald Fields
