The Union Leader (Manchester, NH)
BYLINE: Mark Hayward
Ruling appealed: Judge said city didn’t present evidence supporting ban.
The mayor of Franklin said Monday a Superior Court judge went too far when he ruled as unconstitutional an ordinance that restricts where registered sex offenders can live within the city.
Ken Merrifield said the city council has subsequently appealed the ruling to the New Hampshire Supreme Court. He said the appeal was filed to meet a deadline, and city leaders may consider revising the ordinance as an alternative.
Franklin and a handful of New Hampshire towns restrict how close registered sex-offenders can live to schools, parks, child-care facilities and other places where children gather.
“I think it’s judicial overreach,” Merrifield said of the January decision by Superior Court Judge Larry M. Smukler.
The lawyer who argued against the ordinance – New Hampshire Civil Liberties Union staff attorney Barbara Keshen – said such ordinances don’t work.
Rather, she said, they drive sex offenders away from communities where they would find family support, force them underground or send them into communities that don’t have such ordinances.
In court pleadings, the NHCLU said that authorities in Kansas, Colorado, Iowa and Minnesota concluded that residential restrictions had no effect on repeat offenses.
“The evidence is pretty clear these ordinances do not protect children,” said Keshen, whose organization represented a registered offender who challenged the 2007 ordinance.
In 2010, William Thomas, then 66, moved to Franklin with a friend from Massachusetts.
He rented an apartment on Madison Street and signed a lease, according to court records.
Thomas found out about the ordinance when he visited Franklin police to register as a sex offender.
Nearly three decades ago, Thomas spent three years in a Massachusetts prison for sexual contact with a minor, according to court records.
He contacted the NHCLU. Last December, Smukler blocked the ordinance with a temporary injunction. He signed a summary judgment the following month.
Smukler ruled that Franklin had presented no evidence to show such a ban would protect children.
Such evidence is needed if a city wants to restrict the use and enjoyment of property rights, the judge ruled.
Merrifield said Smukler is substituting his own standards and research for that of Franklin.
“We thought it was self-evident that proximity could create dangerous situations for children in Franklin,” he said. Sex offenders are four times as likely to commit crimes than other ex-cons, he said.
Merrifield said the council may consider changing the ordinance by reducing the 2,500 feet restriction or removing some of the restricted living areas.
In 2009, a district court judge threw out a similar ordinance in Dover, and the city did not appeal the action, Keshen said. She said Northfield, Tilton and Boscawen have similar ordinances on the books.
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