2-19-2009 New York:
ALBANY -- A City Court judge has dismissed a charge against a convicted sex offender accused of violating a county law that limits where sex offenders can live, ruling the county's law usurps state authority.
The decision this week by Judge Thomas K. Keefe runs counter to one by his colleague, Judge Rachel Kretser, last summer and would seem to deepen the legal uncertainty surrounding more than 80 similar laws that have popped up across the state.
A constitutional challenge to the Local Law No. 8 of 2006 is pending in state Supreme Court. On Jan. 22, a judge struck down a nearly identical measure in Rockland County for the same reasons as Keefe.
Keefe's decision cites the Rockland case and echoes that judge's view that the state has already made clear its intent to regulate where sex offenders can live.
The decision also refers to efforts in Colonie to evaluate whether the town should pass its own law to prevent clustering of sex offenders in motels.
Albany County's law bans Level 2 and 3 sex offenders from living within 1,000 feet of schools and day care facilities. It was under that statute that John Blair was charged last May. His attorney, assistant public defender Julianne Girard, moved to dismiss the misdemeanor on the grounds that the county law is pre-empted by state authority. Keefe agreed.
Last July, Kretser upheld the charges against four men in a similar situation to Blair, finding the county law "has not been pre-empted by the New York law, either expressly or by implication."
The conflicting decisions from the same court could send mixed messages to city police.
Attorney Terence Kindlon, whose firm is suing the county pro bono, said he believes it would be "more intelligent than not to refrain from prosecuting these cases."
"I don't think the police are going to be playing judicial roulette here in an effort to convict half of the people all of the time," Kindlon said.
Detective James Miller, a spokesman for the Albany Department of Public Safety, said officers in the city will keep making arrests.
"Until told otherwise, we'll continue to enforce it," he said. He echoed the position of the district attorney's office, which will continue to prosecute "unless and until the law is changed," said spokeswoman Heather Orth.
Mary Witkowski, a county spokeswoman, declined to comment on Keefe's ruling but reiterated the county's stand that residency restrictions need to be addressed at the state level.
The residency issue is unlikely to be resolved before heading to an appeals court. ..News Source.. by JORDAN CARLEO-EVANGELIST, Staff writer
Court decision is available here on The Parson's Net
February 19, 2009
NY- Albany judge says sex offender law usurps state
September 20, 2008
IA- Court upholds 2,000-foot rule against sex offender
9-20-2008 Iowa:
The Iowa Supreme Court on Friday ruled that a sex offender was not discriminated against when he was charged with violating a residency rule that he claimed was not in effect when he bought his house.
Timothy Willard, 39, of Alburnett, was convicted in 1997 as a sex offender. He bought a house within 2,000 feet of a school in 2005.
Willard was charged with and convicted of an aggravated misdemeanor for violating the residency restrictions. He filed a motion to dismiss, arguing that his rights to due process and other constitutional protections were violated.
Willard contended that he had bought the house based on a February 2004 U.S. District Court of Southern Iowa decision that found the 2,000-foot rule was unconstitutional. He argued there was a federal court injunction in effect when he purchased the house.
The 8th U.S. Circuit Court of Appeals reversed the decision in April 2005. Willard signed a contract to buy the house in May 2005.
Sixth Judicial District Judge Fae Hoover-Grinde ruled his rights were not violated.
Willard then appealed to the Iowa Supreme Court, arguing discrimination based on his conviction and denial of equal protection and due process.
The court Friday upheld the district court's decision.
The court stated the enforcement of the rule was to resume Sept. 1, 2005, and Willard shouldn't have been "under any illusion" that he could live in the house.
"Iowa's 2,000 foot rule has withstood constitutional challenges on several occasions," the ruling stated.
Willard argued he was being punished because he was a sex offender, but the court concluded he was punished for violating the residency restriction that was in place to protect children.
Willard also argued the restriction denies his right to make a home with his family and a right to travel based on his criminal history.
The restriction doesn't prevent sex offenders from living with their families, but does regulate where they live, according to the court.
The right to travel argument also was denied because Willard didn't argue that point to the district court and this court couldn't consider it. ..News Source.. by The Gazette
