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New Hampshire Court Invalidates City’s Sex Offender Residency Ordinance

A New Hampshire Superior Court has invalidated a local ordinance that prohibits sex offenders from living within 2,500 feet of a school, day care center, playground, athletic field, public beach or ski area, finding that it violated the Equal Protection clause of the New Hampshire Constitution.

In May 2007 the City of Franklin adopted ordinance § 247, which included three sections. The first concerned a residency restriction for sex offenders and the third related to landlords not being allowed to rent to sex offenders when the rental residence was within the 2,500-foot exclusion zone. The second section, which was not challenged, prohibited sex offenders from entering a school or daycare center.

When William Thomas and a friend moved from Massachusetts to New Hampshire, they rented an apartment in Franklin within the 2,500-foot zone. Thomas had been convicted of sexually assaulting a minor about 27 years earlier; he served three years in prison and was subject to sex offender registration laws. When he registered as a sex offender with the Franklin Police Department, he was informed that he was in violation of the ordinance and had 30 days to relocate.

Rather than move, Thomas filed a lawsuit challenging the ordinance. The superior court granted a preliminary injunction on December 27, 2010. It then granted summary judgment to Thomas on January 18, 2012.

The court found that Thomas had a substantive right to use and enjoy property, and for the ordinance to stand it had to be substantially related to an important governmental interest.
The court held the ordinance did not meet that test, as it did not protect the asserted interest: child safety. The court noted that one of the city councilors who voted for the ordinance said “he ha[d] not seen one single piece of evidence that th[e] ordinance will protect the children.”

As such, the ordinance was declared unconstitutional as it related to residency requirements that prohibit Thomas from living within 2,500 feet of a school, but “he may not set foot upon [the school] premises without prior authorization.” See: Thomas v. Merrifield, Merrimack, SS. Superior Court (NH), Case No. 10-CV-682.

Related legal case

Thomas v. Merrifield


 

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