On December 21, 2017

Judge invalidates sex offender “nuisance” ordinance

By Alan Keays, VTDigger

A judge has struck down an ordinance in Rutland that limited where convicted sex offenders can live in the community.

“The case hinges on the question whether the City of Rutland has the power to declare people nuisances,” Rutland Superior Court Judge Samuel Hoar wrote recently in the strongly worded 13-page ruling. “It does not.”

The ordinance, which the city’s Board of Aldermen adopted in 2008, prohibited any offender convicted of a sex crime against a child from living in the city within 1,000 feet of a school, day care or recreation area. That restriction precluded child sex offenders from living in much of the city.

“What the city has done here is effectively to declare an entire class of persons to be a public nuisance, by simple virtue of their physical existence,” Hoar wrote. “Plaintiffs have been convicted and punished; the City cannot now say to them, any more than they could to any other citizen, ‘We don’t want your type in our town.’ The boldness and breadth of this assertion is virtually without precedent,” the judge added.

The lawsuit was filed in Rutland Superior Court by the state’s Prisoners’ Rights Office. It was brought on behalf of three convicted sex offenders, identified in documents only as John Does 1, 2 and 3, and includes “parties similarly situated.”

The lawsuit asked the court to find that what the city calls its “child safety ordinance” violates state law. The complaint asked the judge to “cease any attempt” to remove the plaintiffs from their residences.

In 2009 a Vermont judge struck down a similar ordinance in the case Hagan v. City of Barre. Judge Helen Toor, presiding then in Washington Superior Court, said the city had not shown it had the legal authority to adopt such an ordinance. The city never appealed that ruling to the Vermont Supreme Court.

State Defender General Matthew Valerio, who oversees the Prisoners’ Rights Office, said Wednesday that the decision by the judge was expected in the Rutland case.

“Rutland’s ordinance was obviously illegal from day one based upon the ruling we were part of in Barre declaring that ordinance illegal years ago,” he said, adding that before it could be challenged there had to be “aggrieved” parties.

“[The state Department of Corrections] would keep moving the clients around and mooting the cases out,” Valerio added. “Once we were finally able to get the case to court the result was clear, based upon the reasoning in the Barre case.”

The lawsuit brought in Rutland raised many of the same arguments as in the Barre case: that Rutland, or any other city in Vermont, lacks the power to enact or enforce such an ordinance since it is not authorized by state law.

According to the suit filed by Patricia Lancaster, an attorney with the state’s Prisoners’ Rights Office, all three of the convicted sex offenders were in compliance with their sex offender registry requirements. All three had also received approval from the Department of Corrections to live at their current homes, the filing stated.

Then, on May 6, 2016, each of the John Doe plaintiffs received notice from the city that he was in violation of the ordinance. They were told they must move “forthwith” or face fines of up to $500 a day, the filing stated.

In a later filing seeking summary judgment in the case, Lancaster argued that no state statute empowers municipalities to regulate sex offenders’ activities or residences.

“Nor does Rutland’s charter confer the power it purports to exercise,” the filing stated. “To the extent the charter confers powers related to safety, it does so only in the context of sewers, roads, minimum housing standards, and nuisances. … Merely having a prior conviction for a sex offense does not create a public nuisance.”

Charles Romeo, the former city attorney for Rutland and now in private practice at the law firm Ryan Smith & Carbine, filed the brief earlier this year on the city’s behalf.

“[T]he Court should apply the plain meaning of the City’s charter language, construe its authority to abate, enjoin, and remove nuisances liberally in its favor, and conclude the adoption of the City’s Child Safety Ordinance was a valid exercise of Rutland’s municipal authority,” the filing states.

Hoar ruled that Rutland didn’t have the power to declare people nuisances.

“[W]hile the City may identify certain conditions as nuisances, it lacks authority to expand or contract the law of public nuisances,” he wrote, adding, “The common law of public nuisance does not contemplate the City’s definition.”

Valerio said Wednesday he didn’t know whether the city would appeal to the Vermont Supreme Court. Similar types of cases are purposely not appealed by municipalities for fear of an adverse ruling that could strike down all such ordinances in Vermont at once, he said.

“So we have to pick them off one at a time as they come up,” he said.

 

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