NH - City appeals sex offender policy ruling

Original Article

04/30/2012

By Molly A.K. Connors

Ordinance declared unconstitutional

In a move that could have implications across New Hampshire, the city of Franklin is appealing a recent court decision that said its ordinance limiting where convicted sex offenders could live was unconstitutional.

Merrimack County Superior Court Judge Larry Smukler ruled in January that a Franklin measure barring registered sex offenders from living within 2,500 feet of a school violated their right to equal protection under the law.

In his decision, Smukler said that when the city council adopted the rule in 2007, the body failed to show that the restriction would actually protect children.

Since then, the city has filed paperwork with the New Hampshire Supreme Court saying it intends to appeal, and though the city currently cannot enforce the measure, Mayor Ken Merrifield said officials stand by their belief that convicted sex offenders should not live within roughly a half mile of playgrounds, athletic fields, public beaches, child-care facilities and municipal ski areas.
- So your belief should not trump facts.  If someone is intent on harming a child at any of these places, which is very rare, all they have to do is walk or drive in their care and commit a crime, so it doesn't really protect anybody.

"We thought it was good public policy, we felt that it would work at least to some degree," Merrifield said.

The nuanced legal arguments will not become clear until early next month after Franklin's attorney files a detailed brief with the state Supreme Court and the New Hampshire Civil Liberties Union, which is representing the registered sex offender who brought the suit, responds.

But a notice of appeal filed in February shows the city is likely to ask the court to review Smukler's ruling that the ordinance violated residents' rights to equal protection and his assertion that the city council failed to present sufficient evidence the ordinance would protect children.

"The judge seemed to conclude that we didn't do enough homework, therefore it was invalid," Merrifield said.

Barbara Keshen, the staff attorney with the New Hampshire Civil Liberties Union who argued the case, said she welcomed the challenge.

"I want the Supreme Court to weigh in on it," she said. "Even if they rule only that Franklin's (ordinance) is unconstitutional, I think that would be sufficient cause for towns to be very cautious before they tried to enact these ordinances."

Franklin's city council unanimously adopted the ordinance, which also prevented landlords from renting to registered sex offenders, in May 2007.
- And this is basically forcing these ex-offenders to live on the streets homeless.

Three years later, [name withheld], 66, moved to Franklin from Massachusetts. About 27 years ago, [name withheld] had been convicted of sexually assaulting a child in Middlesex County, Mass., and was incarcerated for three years, according to Smukler's ruling.

There is no evidence that [name withheld] has ever failed to comply with the requirement that he register as a sex offender for the rest of his life, Smukler wrote.

In September 2010, when [name withheld] registered as a sex offender with the Franklin police, he was told he had to give up his apartment within 30 days because it was within the prohibited 2,500-foot radius.

The move would have compromised the $1,000 deposit [name withheld], who is unemployed, put down. A few weeks later, he sued.

"People have a constitutional right to live where they want to in this country, and the government can't simply restrict that right without showing a compelling reason why that right needs to be restricted," Keshen said. "So it's the court's job to make that determination."

In his ruling, Smukler wrote that the city failed to show 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.

Smukler also noted that - according to city council meeting minutes - one city councilor who voted for the measure, Jeff Rabinowitz, said he had "not seen one single piece of evidence that the ordinance will protect children."

It is a point Merrifield still disputes.

"It seems to me that public policy, to some degree, you're going to rely on common sense and your own wisdom," Merrifield said.

He said the city council might also consider amending its current law to try to make it comply with Smukler's ruling.

"There might be other strategies," Merrifield said.

An ordinance similar to Franklin's has already been struck down in Dover, and the court's action could impact those still on the books in Tilton, Northfield and Boscawen, Keshen said.

"It really depends on the questions that are posed to them on appeal," she said.

The goal, she said, is not to protect sex offenders but to protect children. When the lists of registered sex offenders become thousands of names long, it becomes impractical for parents and officials to identify those who are a true threat, she said. And, she argued, if the restrictions on the sex offenders are too onerous, they can simply go underground and be impossible to find.

"Towns ought to be able to look at the history of these regulations and realize that they don't work," Keshen said. "They're not sound public policy."

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