Thanks to the many helpful readers who forwarded me the news about this case. Following the lead of its neighbor, New Jersey, a New York has ruled, in State v. Oberlander, that a local residency restriction ordinance is inconsistent with the state's registration scheme. From the opinion:
“Under [the preemption] doctrine, even in the absence of an express conflict, a local law which regulates subject matter in a field which has been preempted by State legislation is deemed inconsistent with the ‘State's transcendent interest.’” Ba Mar, Inc. v. County of Rockland, 164 A.D.2d 605 (2nd Dep’t 1991)(quoting Albany Area Builder’s Assoc. v. Town of Guilderland, 74 N.Y.2d 372 (1989)). “On the other hand, the mere fact that both the State and local governments seek to regulate the same subject matter does not, in and of itself, render the local legislation invalid on preemption grounds.... In nearly factually identical circumstances, a New Jersey Appellate Court struck down local legislation imposing housing restrictions of sex offenders holding that State law preempted local legislation (preempting more than 100 local sex offender ordinances). G.H. v. Township of Galloway, 401 N.J. Super. 392 (App. Div. 2008). In doing so, that Court held that New Jersey’s version of Megan’s Law constituted a comprehensive legislative scheme enacted to protect citizens from sex offenders.... As the State has expressed its intention to preempt the area, and, the ordinance conflicts with State law, Local Law No. 1 of 2007 is invalid. A Violation of Probation based upon such law cannot be maintained.
There are 80 similar laws across the state that could be affected if challenged under the preemption doctrine. (See our prior post from October 2007, discussing a lawsuit challenging the Albany County sex offender law under preemption doctrine). Rules passed by counties and towns often cause ripple effects. Ulster County is currently considering its own ex offender residence restrictions, after a sex offender moved there from Rockland County (see, Sex Offender Issues weblog, Jan. 15, 2009). Ulster County Legislator Glenn Noonan told the The Daily Freeman that: “I’m trying to get Ulster County on board with several other counties who have passed similar legislation. Then it forces the (state) Assembly to get off their butts and do something about this on a state level.” More thoughtful minds will hopefully remind our state leaders that our current State laws and policy work well, and that there is no reason to believe banning offenders from particular zones protects our children. (see, e.g., our post “Sunday papers question sex offender laws“)
I would think that this is to a large extent just a variation on whether a state has an explicit "home rule" provision in its constitution or statutory laws. Most don't, which would suggest that the NJ/NY outcome could be quite common indeed.
Posted by: KipEsquire | January 28, 2009 at 05:40 AM
I greatly appreciate your excellent blog on these laws. I would like to offer our efforts as a link resource. www.constitutionalfights.org
And if there is anything I can assist with in regard to national or Ohio efforts, please let me know.
Constitutional Fights !
Posted by: constitutionalfights | January 29, 2009 at 06:38 PM
The Star-Ledger in NJ, listed the following articles. I've listed the briefs, the complete articles must be purchased from the achieves.
Can someone/ anyone tell me what the law is? Can a sex offender, (PREDATOR) sit on the bench or not? What happens if someone is caught breaking one of these laws? Is this insanity or what?
2006/10/13 Fri Pg 029, 756 words A new try to keep predators from kids -- Union County law prohibits loitering
JOE RYAN ... JOE RYAN STAR-LEDGER STAFF Under a law passed last night by Union County freeholders, registered sex offenders are allowed to swim laps at the Wheeler Pool in Linden, but they are prohibited from sunbathing on the deck. They can supervise their own children at county playgrounds, but they are forbidden from sitting on park benches. And they are allowed to jog the forested trails of the Watchung Reservation, provided they do not stop to rest. Hoping to keep predators away from children,...
2006/11/30 Thu Pg 033, 485 words Roselle adopts limits on sex offenders -- But some fear measure could open town to lawsuits
CARLY ROTHMAN ... from living or loitering near parks, schools and playgrounds. In a 4-1 vote, the council overrode the mayor's earlier veto of an ordinance restricting registered sex offenders from living within 2,500 feet of any school, library, park or playground, and barring sex offenders from loitering within 300 feet of any park or playground. "We back that ordinance 100 percent," said Louis McKnight. Although McKnight, his wife, Ebony Bass, and other parents were relieved to see the measure...
2006/11/10 Fri Pg 031, 443 words Mayor vetoes sex offender zone law in Roselle -- Council questions the action by Smith
CARLY ROTHMAN ... CARLY ROTHMAN STAR-LEDGER STAFF Roselle Mayor Garrett Smith vetoed an ordinance creating sex-offender-free zones passed last month by the borough council - a move that caught several council members by surprise. With Wednesday's council meeting canceled because of flooding in the basement of Borough Hall, several council members said they were not informed of the veto. "I think that it's disrespectful (not to be told)," said Councilman Jamel C. Holley, who proposed the ordinance....
2006/10/26 Thu Pg 037, 1099 words Council contenders voice their big fixes -- Plainfield forum will tackle isssues Nov. 1
2006/10/20 Fri Pg 053, 451 words Roselle approves ban on loitering -- Law sets limits on sex offenders
CARLY ROTHMAN ... CARLY ROTHMAN STAR-LEDGER STAFF An ordinance creating sex-offender-free zones in Roselle passed by a council vote of 3 to 1 Wednesday, but Mayor Garrett Smith said he may veto the measure because of concerns over its constitutionality. "We have not done a lot of our homework on this . I want to make sure that we are not incurring any major liability," Smith said. "I support the concept of protecting our children . but I want to do it in the correct way." Introduced last month...
2006/10/20 Fri Pg 054, 451 words Loitering law targets sexual offenders -- Roselle council OKs ordinance 3-1
CARLY ROTHMAN ... CARLY ROTHMAN STAR-LEDGER STAFF An ordinance creating sex-offender-free zones in Roselle passed by a council vote of 3 to 1 Wednesday, but Mayor Garrett Smith said he may veto the measure because of concerns over its constitutionality. "We have not done a lot of our homework on this . I want to make sure that we are not incurring any major liability," Smith said. "I support the concept of protecting our children . but I want to do it in the correct way." Introduced last month...
2006/10/13 Fri Pg 029, 756 words A new try to keep predators from kids -- Union County law prohibits loitering
JOE RYAN ... JOE RYAN STAR-LEDGER STAFF Under a law passed last night by Union County freeholders, registered sex offenders are allowed to swim laps at the Wheeler Pool in Linden, but they are prohibited from sunbathing on the deck. They can supervise their own children at county playgrounds, but they are forbidden from sitting on park benches. And they are allowed to jog the forested trails of the Watchung Reservation, provided they do not stop to rest. Hoping to keep predators away from children,...
2006/10/13 Fri Pg 029, 756 words A new attempt at keeping predators from kids -- County passes law prohibiting loitering near recreation areas
JOE RYAN ... JOE RYAN STAR-LEDGER STAFF Under a law passed last night by Union County freeholders, registered sex offenders are allowed to swim laps at the Wheeler Pool in Linden, but they are prohibited from sunbathing on the deck. They can supervise their own children at county playgrounds, but they are forbidden from sitting on park benches. And they are allowed to jog the forested trails of the Watchung Reservation, provided they do not stop to rest. Hoping to keep predators away from children,...
2006/09/12 Tue Pg 021, 441 words Plainfield restricts most sex offenders -- Council's ban won't let them live in city
ALEXI FRIEDMAN ... approved an ordinance to that effect last week. The legislation bars those convicted sex offenders from living or loitering within 2,500 feet of any school, park, playground, recreation area, day care facility or school bus stop. The law excludes sex offenders who already reside in Plainfield. Because the city is only 6 square miles, the measure covers every square inch of land. The ordinance's author, Councilman Rashid Burney, has stressed that it will protect the city's children;...
2006/09/12 Tue Pg 023, 441 words Plainfield restricts most sex offenders -- Council's ban won't let them live in city
ALEXI FRIEDMAN ... approved an ordinance to that effect last week. The legislation bars those convicted sex offenders from living or loitering within 2,500 feet of any school, park, playground, recreation area, day care facility or school bus stop. The law excludes sex offenders who already reside in Plainfield. Because the city is only 6 square miles, the measure covers every square inch of land. The ordinance's author, Councilman Rashid Burney, has stressed that it will protect the city's children;...
2006/09/12 Tue Pg 023, 327 words Plainfield restricts most sex offenders -- Council's ban won't let them live in city
ALEXI FRIEDMAN ... approved an ordinance to that effect last week. The legislation bars those convicted sex offenders from living or loitering within 2,500 feet of any school, park, playground, recreation area, day care facility or school bus stop. The law excludes sex offenders who already reside in Plainfield. Because the city is only 6 square miles, the measure covers every square inch of land. The ordinance's author, Councilman Rashid Burney, has stressed that it will protect the city's children;...
2006/08/24 Thu Pg 035, 713 words Plainfield weighs law to bar sex offenders -- Plan would keep them from living near schools, recreation centers
ALEXI FRIEDMAN ... Burney has proposed an ordinance effectively barring registered sex offenders from moving into the city, similar to laws passed in dozens of New Jersey communities in the past year. Citing the fact that one third of all registered sex offenders in Union County live in Plainfield, Burney introduced legislation like the one Cranford approved in March, which keeps sex offenders from residing or loitering within a half-mile of schools and recreational facilities. "Cranford was a wake-up...
2006/08/24 Thu Pg 036, 482 words Plainfield weighs law to bar sex offenders -- City could join other N.J. municipalities
ALEXI FRIEDMAN ... has proposed an ordinance effectively barring registered sex offenders from moving into the city, similar to laws passed in dozens of New Jersey communities in the past year. Citing the fact that one third of all registered sex offenders in Union County live in Plainfield, Burney introduced legislation like the one Cranford approved in March, which keeps sex offenders from residing or loitering within half a mile of schools and recreational facilities. "Cranford was a wake-up call,"...
2006/08/13 Sun Pg 031, 956 words Sex offenders might have to watch their step -- Roselle considering ordinance that would restrict where they go
CARLY ROTHMAN ... from living — and even traveling — within 1,000 feet of schools, playgrounds and day care centers. "The whole point of this is to protect the children," said Councilman Jamel Holley, who initiated the ordinance. While several other New Jersey towns have created ordinances keeping sex offenders from living in certain parts of town, Roselle would be unusual in restricting sex offenders' movement. The council is still hammering out the specifics of the ordinance, which was discussed...
2006/08/13 Sun Pg 038, 847 words Sex offenders may have to watch their step
CARLY ROTHMAN ... from living — and even traveling — within 1,000 feet of schools, playgrounds and day care centers. "The whole point of this is to protect the children," said Councilman Jamel Holley, who initiated the ordinance. While several other New Jersey towns have created ordinances keeping sex offenders from living in certain parts of town, Roselle would be unusual in restricting sex offenders' movement. The council is still hammering out the specifics of the ordinance, which was discussed...
2006/06/13 Tue Pg 033, 825 words Newton tables ban on sex offenders -- Council concerned about legal issues
JIM LOCKWOOD ... STAFF Newton's council last night decided against becoming the first municipality in New Jersey to ban certain convicted sex offenders from living anywhere in town — at least for now. The Newton Town Council held a public hearing last night on a proposed ordinance that would have made the entire town a "pedophile-free community" off limits to Tier II (moderate risk) and Tier III (high-risk) sex-offenders. After the hearing, the council unanimously voted to table the proposal because...
2006/03/26 Sun Pg 029, 927 words Cranford creates zones where pedophiles are barred -- Sex offenders not be permitted in areas frequented by children
ROBERT E. MISSECK ... to protect their children from sexual predators. The township committeeman voted 5-0 on March 15 to establish "pedophile-free" zones, according to Clerk Rosalie Hellenbrecht. The ordinance, proposed by Committeeman Michael Plick, prohibits "registered sex offenders from residing or loitering within 2,500 feet of any school, park, playground, recreation area, day care facility or school bus stop." It will take effect 90 days after it was approved. "Everybody has been supportive...
2006/03/26 Sun Pg 033, 941 words Town creates zones to bar pedophiles -- Offenders not be permitted in areas frequented by kids
ROBERT E. MISSECK ... to protect their children from sexual predators. The township committeeman voted 5-0 on March 15 to establish "pedophile-free" zones, according to Clerk Rosalie Hellenbrecht. The ordinance, proposed by Committeeman Michael Plick, prohibits "registered sex offenders from residing or loitering within 2,500 feet of any school, park, playground, recreation area, day care facility or school bus stop." It will take effect 90 days after it was approved. "Everybody has been supportive...
--------------------------------------------------------------------------------
All text on this server is COPYRIGHT © The Star-Ledger
Posted by: Question? | January 30, 2009 at 07:07 AM