[R]UTLAND — Three convicted sex offenders are challenging an ordinance in Rutland that restricts where they can live in the community to just a few areas.
The legal filing, seeking a “review of governmental action,” could be the first to reach the Vermont Supreme Court. The justices would be called on to decide the legality of such a municipal ordinance.
“Plaintiffs and their families are suffering and will continue to suffer irreparable harm due to the enforcement of an illegal ordinance,” the filing states.
The John Does are asking the judge to declare that what the city calls its child safety ordinance violates state law and to order the city to “cease any attempt” to remove the plaintiffs from their residences.
The ordinance, which the Board of Aldermen adopted in 2008, prohibits 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 precludes child sex offenders from living in much of the city.
Rutland Mayor David Allaire said Tuesday that he wasn’t sure if a specific case spurred the city to adopt the ordinance in 2008.
“I do know that there was great concern about protecting our neighborhoods and our kids,” said Allaire, who was a member of the Board of Aldermen at the time.
In 2009 a Vermont judge struck down a similar ordinance in Barre 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 case was never appealed to the Vermont Supreme Court.
Barre Mayor Thomas Lauzon said Tuesday that the city did not challenge that ruling due to the high cost of appealing and concerns over whether the city would prevail.
“It really was a cost-benefit type of thing,” said Lauzon, who was Barre’s mayor at the time of the case. “It’s likely that an appeal would have cost in excess of $50,000.”
Lauzon added, “We believed that we were doing the right thing with the ordinance, and the court obviously felt differently.”
The filing in Rutland raises the same argument as in that Barre case: that Rutland, or any other city in Vermont, does not have the power to enact or enforce such an ordinance since it is not authorized by state law.
On May 6, 2016, each of the John Doe plaintiffs received notice from the city that they were in violation of the ordinance and must move “forthwith” or face fines of up to $500 a day, the filing states.
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 states. “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.”
Lancaster could not be reached Tuesday for comment.
The city has filed its own motion for summary judgment, arguing the ordinance is valid. Charles Romeo, the former city attorney for Rutland and now in private practice at the law firm Ryan Smith & Carbine, filed the brief late last month 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.
Romeo could not be reached Tuesday for comment.
The city’s current attorney, Matthew Bloomer, referred specific questions on the case to Romeo. Bloomer did say the Police Department has stayed the enforcement of the ordinance regarding the John Does while the matter is pending.
According to a city filing, police who were checking compliance with the sex offender registry found that the John Does were living within restricted zones under the ordinance.
“They are entirely counterproductive,” she said of the ordinances, adding they can render offenders homeless, keep them away from support systems and families, and make it more difficult for them to maintain employment or receive any needed services or treatment.
“It essentially ostracizes and isolates people, which is completely counterproductive to helping people not reoffend,” Ernst said. “It works against, rather than for, public safety.”
Ernst said she did not know exactly how many towns in the state have such ordinances, saying it may be a “few.” But, she added, when Barre lost its case, which the ACLU helped bring, the push for those ordinances dropped off.
Both Ernst, in the interview, and Lancaster, in a filing in the recent Rutland case, pointed to language in a law the Legislature adopted in 2009, called an “An Act Relating to Improving Vermont’s Sexual Abuse Response System.”
“Some local communities in Vermont have recently enacted or debated local ordinances that are designed to prevent sexual violence against children by restricting where registered sex offenders can live,” the law states, later adding, “(R)esearch has shown that sex offender residency restrictions are unlikely to deter sex offenders from committing new crimes and should not be considered a viable public safety strategy.”
Though the legislation contained strong language, it did not prohibit ordinances that limit residency for convicted sex offenders.
Instead, it called on the Vermont League of Cities and Towns to work “proactively” with local communities to make sure they “are receiving accurate and substantive information about the lack of efficacy of such laws and to encourage communities to focus on prevention and other strategies to improve community safety.”
It is not clear when a Rutland Superior Court judge would rule on the case.
