07/05/2011
By Denise M Champagne
The city of Geneva cannot impose residency requirements for convicted sex offenders that exceed state law.
U.S. District Judge Michael A. Telesca of the Western District of New York ruled last week that the state's Sex Offender Registration Act pre-empts the Ontario County municipality's local law. The suit was brought by [name withheld], 41, a Level 3 sex offender who notified the city of Geneva on April 26, 2010, that he had moved to a location within 500 feet of a playground.
[name withheld] was 29 on March 2, 1999, when he was convicted of first- degree sexual abuse of a 13-year-old girl in St. Lawrence County and sentenced to up to nine years in state prison. He was released in 2007 and adjudicated by the state Division of Criminal Justice Services as a Level 3 sex offender. The state classifies Level 3 as having a high-risk of committing another sexual offense.
State law, as a condition of parole or probation, prohibits Level 3 sex offenders whose victims were younger than 18 from living within 1,000 feet of a school.
[name withheld] had served his time and was no longer under state parole or probationary supervision when he notified the city he had moved. The location of his new residence violated the city's ordinance, Chapter 285, passed April 2, 2008, which prohibits Level 2 and 3 sex offenders from living within 1,000 feet from a school or 500 feet from a park, playground or daycare center, regardless of their parole or probationary status.
The city told [name withheld] he had 90 days to find new housing, according to the ordinance, or he would face a civil fine. [name withheld] challenged the local law. He was represented by Darius K. Lind and Jeffrey L. Hogue, attorneys with Legal Assistance of Western New York Inc.
Judge Telesca ruled there was a conflict because [name withheld]'s new residence was not prohibited under state residency restrictions that apply only to Level 3 sex offenders who are also subject to a sentence of probation or parole.
[name withheld] filed a complaint in state court, asserting that Geneva's Chapter 285 is pre-empted by the state SORA law and that his rights under the ex post facto, equal protection, due process and contract clauses of the Constitution were violated.
Based on the constitutional challenges, Geneva removed the complaint to federal court. [name withheld] did not object.
The city, represented by Harris Beach PLLC attorneys H. Todd Bullard and James P. Nonkes, moved to dismiss the complaint, arguing Geneva's law was a proper exercise of a local government's police power to protect the safety and welfare of its citizens. Judge Telesca ruled the local law is pre-empted by the state's "comprehensive, detailed and thorough scheme for regulating sex offenders" and that Geneva's law is invalid.
"New York courts have on numerous occasions dealt with the issue of whether a municipal ordinance is invalid because the state Legislature has pre-empted the area that the municipality had sought to enter," Judge Telesca wrote, citing Village of Nyack v. Daytop Vil. Inc., 78 N.S. 2d 500, 505 (1991). "The pre-emption doctrine represents a fundamental limitation on a municipality's 'home rule' powers."
He notes because of the disposition, it was not necessary to rule on [name withheld]'s federal constitutional claims.
"Our office felt this was a pretty clear-cut issue in that the state had developed a pretty comprehensive plan for the management of sex offenders," Lind said. "We're happy with the results and how quickly the court recognized it. The question is if his constitutional rights have been violated, does he pursue some sort of suit for damages?"
Lind said the next step will be to determine the extent of harm [name withheld] suffered. He said the initial complaint included a claim for damages that he does not believe has been extinguished by Judge Telesca's ruling.
"This has really been about Mr. [name withheld] being able to live with his family and not have to move," Lind said. "His goal has never been to get any money from the city or anything like that. Whether or not we pursue it, we're going to have to determine that."
Lind said he can understand why local municipalities pass such restrictions, but that he doesn't think they are aware that there are restrictive rules that have been put in place by the state.
"To the extent that people are unhappy with them, they have to look to the state Legislature," he said. "When the state determines [sex offenders] can live back in society, our feeling is they should be able to live back in society. If people feel they still pose a threat, the state should pass more restrictive regulations."
That is what Geneva intends to pursue. City Attorney David Lee Foster said he doesn't believe it was the state's intention to pre-empt towns and cities from having their own statutes. He said state legislation usually allows local municipalities their own remedies.
Foster said he suspects the matter will be resolved either legislatively or on appeal, although the former resolution is more likely. He thinks the solution should eliminate pre-emption.
"Different-size municipalities have different issues," he said. "What would be OK for a dense population like New York City may not be acceptable for something like a small city in upstate. It seems to me that the Legislature did not intend to pre-empt this field."
Bullard said the city will not appeal. He said Geneva will redraft its resolution to make it more consistent with the court's ruling.
"There have been a lot of cases like this being raised across the state," he said. "Our intention is to protect children and we believe that our ordinance was reasonable. I think this is a very important issue and I think that it's something that Geneva holds at a higher light of great importance. Obviously, we weren't trying to stigmatize anyone or do anything improper."
Bullard said the state law should be broader and that municipalities should be able to craft legislation to protect their children and communities.
Hogue hopes the decision discourages other municipalities from pursuing legal action. He said Legal Assistance of Western New York is the only legal services provider in a five-county area so it does not take cases unless they have strong legal merit.
"When this city or another agency hears that we're taking a case, it means it made it through our triage process," Hogue said. "Our hope is that they'll pick up the phone and discuss the merits of the case with us and hopefully resolve the matter so we can go about helping other low-income people in our service territory."
Several local ordinances across the state have been struck down. Nassau County's law was ruled invalid in March by a federal judge for similar reasons. Judges in Albany, Rensselaer and Schuyler counties have also ruled similar laws were pre-empted by the state or unenforceable because they conflicted with state law.
Three counties in the Fourth Department -- Cayuga, Niagara and Seneca -- have their own sex offender residency restrictions.
"No one has challenged the local law in Seneca County," said County Attorney Frank R. Fisher. "When they do, we will deal with it appropriately."
Seneca County's law, passed in October 2006, prohibits convicted sex offenders from living within 500 feet from a camp, daycare center, park, playground or school. Certain exemptions are allowed such as permitting people who already lived within the restrictions to remain.
