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New Jersey #1: Ordinance Lawsuit
Don't forget to visit our "No Sex Offender Residency / Proximity Laws" page.
Lawyer/Lawfirm: American Civil Liberties Union of New Jersey
Post Office Box 32159 -- Newark, New Jersey -- 07102 -- Tel: (973) 642-2084 -- Email: info@aclu-nj.org
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2-16-2007 New Jersey:
Galloway officials back appeal of sex-offender ruling |
.GALLOWAY TOWNSHIP — Galloway Township will fight a judge's decision that would allow convicted sex offenders to live near schools, playgrounds or parks. The Township Council met in a closed session this week and unanimously passed a resolution supporting an appeal of the decision made Feb. 5 by Superior Court Judge Valerie Armstrong. Armstrong overturned a township ordinance passed in 2005 that restricted where convicted sex offenders could live. According to Mayor Tom Bassford, the appeal will be filed on behalf of the township by attorneys from the American Center for Law and Justice, or ACLJ. The Washington, D.C.-based group touts itself as a family values and public interest law firm and is handling the case pro bono.
ACLJ senior attorney Vince McCarthy, who will oversee the appeal, said the case fits the firm's niche of trying to “protect the family when we feel it's under attack” and the firm “needed to get involved” to overturn the decision. The ACLJ also intends to file a motion seeking a stay of the current ordinance while the appeal is pending, McCarthy said. The group will also ask that the case be heard in state Supreme Court instead of by an Appellate Division panel, McCarthy said, because cases of this nature already have been heard in lower courts and the issue is bound to come up again in other New Jersey towns with similar ordinances. The township will not bear any cost for this, nor for any subsequent legal proceedings in the case, Bassford said, no matter how far it goes — the Township Council believed strongly enough in the law, and that passing it was the right thing to do to protect “the health and welfare of citizens in Galloway Township,” to appeal, he said.
Armstrong's decision has caused three state legislators to call for a bill similar to the Galloway ordinance to be heard by the state Assembly Law and Public Safety Committee. State Sen. Leonard T. Connors Jr., Assemblyman Christopher J. Connors and Assemblyman Brian E. Rumpf, all R-Ocean, Burlington, Atlantic, sent a letter Thursday to Assemblyman Peter Barnes, D-Middlesex, , the committee chairman, requesting that their bill, which would restrict sex offenders from living within 500 feet of schools, playgrounds and day-care centers, be posted at the committee's next meeting. “Like many local officials, we too are deeply concerned this judgment could have a ripple effect for the more than 50 municipalities in the state that have enacted similar ordinances, restricting the residency of sexual offenders,” the letter said. “The absence of a statewide law, as proposed under our bill, leaves local ordinances susceptible to legal challenges such as the case in Lower Township.”
No date has been set for the next committee meeting. The Lower Township ordinance, which mirrors the bill in Trenton, fell last December after a convicted sex offender was prevented by Lower from moving his family there from Middle Township; he subsequently sued and won. The Galloway ordinance was successfully challenged by a Richard Stockton College of New Jersey student who wasn't allowed to live on campus because he would have been within 2,500 feet of a school, playground, day-care center or park. Armstrong presided over both cases.
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: by SHAWN HARDIE
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Actions speak louder than words to this judge! |
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12-21-2006 New Jersey:
Lower's sex offender law tossed |
.ATLANTIC CITY — Superior Court Judge Valerie Armstrong has struck down a Lower Township ordinance that restricts where convicted sex offenders may live. In a ruling issued Friday, Armstrong said the Lower Township ordinance was too broad, violates the state constitution and conflicts with the intent of Megan's Law, the state law that requires convicted sex offenders to notify law enforcement of their whereabouts. The ruling could have far-reaching implications. Acc-ording to the judge's written decision, at least 45 New Jersey municipalities have passed ordinances similar to Lower Township's.
Middle Township resident Steven Elwell, a Tier 1 sex offender, challenged the ordinance soon after Township Council passed it in 2005. Elwell, who is married with two young children, had planned to move into Lower Township until the ordinance prevented him from doing so. The ordinance prohibits registered sex offenders from residing or loitering within 500 feet of any school, park, playground, recreation area or day-care facility or within 25 feet of a school bus stop located in Lower Township or adjacent municipalities. It applies to sex offenders older than 18 who are required to register under Megan's Law.
Elwell, a former teacher and wrestling coach at Lower Cape May Regional High School, was convcited in 2001 of aggravated sexual assault for having sex with a 16-year-old student under his supervision between March 1998 and August 1999. He was sentenced to three years in prison in June 2001. Elwell, represented by attorney Frank Corrado, said the ordinance amounted to another form of punishment that penalized both him and his family. “We are pleased with Judge Armstrong's decision,” Corrado said. “The decision confirms that banishment ordinances, while well-intentioned, are an improper way to address what is a very real concern. The issue is not whether our children should be protected from sex offenders, but how to accomplish this in an effective and meaningful way. Banishment ordinances are neither effective nor constitutionally permissible.”
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Thought that comes to mind reading what this judge wrote: When I was young, a long time ago, my Mom always said, "You can't pull the wool over my eyes, so don't try" whenever I tried to two-step out of doing something I knew was something she didn't like. |
Armstrong agreed. She found that while municipalities have the right to adopt ordinances related to public health, safety and welfare, “such authority is not without limit.” Armstrong ruled that while the township said the ordinance was created to protect the community, and not as a punishment, “A close examination of the specific provisions of the ordinance does indeed suggest that the intent was punitive.” “(The ordinance) assumes that all sex offenders pose the same degree of risk,” Armstrong wrote in a 48-page ruling. Armstrong, referring to Megan's Law, said the state already provides comprehensive and far-reaching standards that regulate the lives of convicted sex offenders, who are classified according to their likelihood to reoffend.
Those classified as Tier 1, like Elwell, are considered the lowest-risk offenders. Armstrong noted that Megan's Law already provides for the regulation of sex offenders by allowing them to live only in residences approved by their parole officers and requiring them to obtain permission before changing residences, permission before leaving the state for any purpose and before accepting employment. “The ordinance conflicts with state law not only because of conflicting policy, but because it forbids what the Legislature has permitted,” she wrote. Armstrong noted that Megan's Law specifically prohibits anyone from using a sex offender's status as a Megan's Law registrant to deny, among other things, “housing and accommodations.”
“The ordinance is in direct conflict with this prohibition,” she wrote. Armstrong also focused on a need for uniformity in the handling of convicted sex offenders. State law uniformly regulates their lives, taking into account the tier rating for each, Armstrong wrote. The various sex offender residency laws passed in towns across the state do not. “The imposition of prohibited buffer zones within the township which are applicable to all sex offenders regardless of their likelihood to reoffend flies in the face of the uniform treatment of sex offenders, based upon individualized assessment of recidivism,” Armstrong wrote.
The judge also found the section of the law related to loitering is also unconstitutionally vague. She pointed to the section of the ordinance that defines a person who is loitering as “a person who wanders or who remains idle …lounges, loafs, walks about aimlessly, or repeatedly frequents the same location ... ” Armstrong asked, “Does the term ‘remaining idle' at the school bus stop apply to Elwell who may be standing there with his child until the bus arrives?” On Friday, Elwell called the judge's decision “a nice little Christmas present” for his family. “We were (challenging) it for our family, our two children,” Elwell said. “We're very pleased. I can now take them to a park, which I couldn't do before.”
Lower Township Mayor Walt Craig, on the other hand, said he was disappointed with Armstrong's findings. “We've maintained this was not to punish anybody. This was to protect our children,” Craig said. Craig said the ruling would affect towns across the state. “This is a wake-up call for communities throughout the state of New Jersey,” he said. Lower Township solicitor Anthony Monzo said he hoped state legislators would now seize on the issue and create regulations related to sex offender residency and loitering. “We feel we defended this not just for Lower Township, but (for) all towns that have similar laws,” Monzo said. “If there's anything good to come from this, it is that the state will do something.” Monzo said he had not spoken to the entire council about the ruling and no decision had been made on whether it would appeal.
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: by Trudi Gilfillian Staff Writer
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Court strikes down sex offender residency law: Elwell says, a nice Christmas present for his family! |
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12-23-2006 New Jersey:
Judge strikes down town's residency restrictions on sex offenders |
.A Cape May County town's ordinance restricting where sex offenders can live was struck down Friday by a judge who found it was too broad, violated the state constitution and conflicted with the intent of Megan's Law. The ruling stemmed from a lawsuit filed late last year by Steven Elwell, a former teacher who claimed the ordinance passed in August 2005 by Lower Township effectively banned him, his wife and their two young daughters from the community. He noted that the law's 500-foot "pedophile-free" zone around schools, parks, day-care facilities and school bus stops encompassed almost the entire town.
Elwell, a former wrestling coach at Lower Cape May Regional High School, spent a year in prison for having sex with a 16-year-old girl. He was classified as Tier 1 offender, the category for those considered the lowest risk to re-offend. In his suit, Elwell said he wanted to move to Lower Township but was hamstrung by the law, which barred him from living near or "loitering" in or near the restricted areas, even if he were taking his own children to a park. While the 48-page ruling by state Superior Court Judge Valerie Armstrong affects only the Lower Township, she noted that at least 45 New Jersey towns have passed similar ordinances limiting where convicted sex offenders can live.
Although town officials said the ordinance was intended to protect the community, "a close examination of the specific provisions of the ordinance" suggested its intent was punitive, the judge wrote. Armstrong also wrote that Megan's Law, the state law that requires sex offenders to register with local police, provides comprehensive and far-reaching standards that regulate the lives of convicted sex offenders. It specifically prohibits anyone from using a sex offender's status as a Megan's Law registrant to deny housing and accommodations, she noted. "The ordinance is in direct conflict with this prohibition," Armstrong wrote.
Elwell told The Press of Atlantic City that he was pleased with the ruling, calling it "a nice little Christmas present" for his family. Lower Township Mayor Walt Craig, though, was disappointed with the judge's findings. "We've maintained this (ordinance) was not to punish anybody. This was to protect our children," Craig said. "This (ruling) is a wake-up call for communities throughout the state of New Jersey." The township has not decided whether it will appeal, according to solicitor Anthony Monzo.
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: by The Press of Atlantic City.
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1-18-2006 New Jersey:
Sex offender pressing suit despite change in Lower law |
.LOWER TOWNSHIP — Township Council has approved a new map easing restrictions on where sex offenders can live and loiter but it is not stopping a lawsuit filed by one of them. The map reflects changes to the local sex predator ordinance council approved back in December when council increased the area where those registered under Megan’s Law can live. The original ordinance adopted in August banned them from “residing or loitering” within 2,500 feet of any school, park, playground, recreation area, daycare facility, or school bus stop. The amendments reduced the footage to 25 feet around school bus stops and 500 feet from other public areas.
There was some hope that Steven Elwell, a Middle Township resident challenging the law, would drop his lawsuit claiming the ordinance is unconstitutional. He has merely filed new paperwork with the court reflecting the changes. Township Attorney Tony Monzo said he received the paperwork this week. “They amended the complaint. It doesn’t stop the suit. We were never told it would but we thought there was a possibility it would,” Monzo said. Elwell’s attorney, Frank Corrado, who is fighting the case with help from the American Civil Liberties Union or ACLU, could not be reached for comment on Tuesday.
Monzo, however, said the amended complaint includes many of the original issues Elwell raised. This includes alleged violations of constitutional protections including the due process and ex post facto clauses. There are also allegations that the local ordinance amounts to double jeopardy by making Elwell suffer for a crime he already paid for — he served time in jail for having sex with a minor — and that the state preempts towns on the issue. Monzo said the township does not feel the state preempts the ability of municipalities to adopt their own sex predator laws, but said the township wants the state to take action. There is proposed state legislation.
If state legislation ultimately passes it could reduce the pressure on the township, although Monzo noted that could depend on whether the state law is the only law allowed. The state put in pay-to-play regulations, he noted, but still allows towns to pass even stricter laws on campaign contributions. There is no preemption in that case. “We are hoping the state adopts legislation and clarifies whether there is preemption,” Monzo said. The township has also been hoping other towns that have passed residency restrictions would join the lawsuit. That hasn’t happened yet. Egg Harbor City, another town facing a sex offender lawsuit, amended its ordinance to exclude Tier I offenders.
“They did that to get rid of the lawsuit. Their Megan’s Law offender is a Tier I and now he has lost standing,” Monzo said. There are three tiers under Megan’s Law with Tier I being the least likely to offend again. Elwell is a Tier I and has previously argued they should be excluded, a stance the township declined to take. Elwell has previously supported the residency law for Tier III offenders, which are considered the worst of the sex offenders. The new map of what is termed the “Megan’s Law Zone” is now available in Township Hall. It shows the majority of the township is now open for registered sex offenders to live and loiter. There are still 11 parks, 13 school properties, 7 daycare facilities and hundreds of bus stops, but the prohibited zone from them is much smaller. The original zone of prohibition was about 90 percent of the township. The new zone is about 20 percent. Township officials caution those are just estimates. The new maps also remove the beaches as recreational areas.
Township Councilman Wayne Mazurek, who said council was just trying to “protect the kids,” was worried easing the restrictions would not “appease these people.” Now he is worried about an expensive lawsuit “We don’t have the juice to take on the ACLU. That could cost a fortune. If other towns don’t join us I don’t see it going too far. I thought it would be challenged in the bigger towns and cities, not little old Lower Township,” Mazurek said.
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: by Richard Degener Staff Writer
News & Noteworthy ©
Breaking News 12-3-05 |
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Explanation of Current U.S. Supreme Court Denial of Cert In Iowa Case!
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12-3-2005 New Jersey:
Offender laws still face test |
.Despite the Supreme Court's decision Monday not to hear a case on an Iowa law restricting where sex offenders can live, similar bans in Hamilton and a dozen other state municipalities are far from legally secure, experts on sex offender laws said this week. The Iowa law, which restricts anyone convicted of a sex crime against a minor from living within 2,000 feet of a school or day-care center, was challenged and upheld by a state appellate court.
The petitioners, a class of convicted sex offenders, appealed the case to the U.S. Supreme Court where it was expected to be the test for similar laws nationwide, including in Hamilton, where the restricted area approved in April is 2,500 feet. The high court's decision to stay out of it for now means the law has been upheld, but it may be temporary. "The fact that the Supreme Court denied (a hearing to the case) does not constitute an approval of that statute," said Trenton attorney John S. Furlong. "In my opinion it means they will wait for a statute to come before them where someone has been harmed."
Furlong said the court also declined to hear the first cases against Megan's Law, the sex-offender registry law named for Megan Kanka, a Hamilton girl who was raped and murdered by a convicted sex offender living across the street from her home. It took seven years for the Supreme Court to eventually hear and uphold Megan's Law. David Singleton, who as executive director of the Ohio Justice and Policy Center filed a friend-of-the-court brief opposing the Iowa law with the Supreme Court on behalf of the Association for the Treatment of Sexual Abusers, said the court's decision not to hear the case will have a disastrous nationwide domino effect.
The dominoes have already begun to fall in Hamilton, Brick, Keansburg and other New Jersey municipalities, which have enacted similar ordinances, as well as nationwide in places like Miami Beach, Fla. "What it will mean nationwide is you will have towns and cities across the country rushing to outdo each other in terms of who can have the most restrictive law," he said. "The reason it's a domino effect is if you have one town saying `we won't have sex offenders living here,' the concern in the next town is that town A's sex offenders will move to town B and they don't want them either."
Singleton said the court's decision will hasten the trend as towns rush to enact increasingly restrictive laws. "The logical plane if this continues is there will be very few places where people convicted of sex offenses can live," he said. The court's decision not to hear the case may also strengthen other existing laws such as Hamilton's, said Philip B. Mears, who was the attorney for the Iowa class action. "The Supreme Court's action simply leaves the 8th circuit decision as the only federal court of appeals decision to have addressed the issue," Mears said. "As such, while it is not binding precedent outside of the 8th circuit, it is authority."
Mears said while the high court does not provide a reason for refusing the case, it may have been that the case is too new. "Sometimes the Supreme Court will wait to get involved until several different courts have talked about it, possibly taking different sides of the issue," he said. "One of the reasons the Supreme Court gets involved is if there is a split among circuit courts." But under a legal principle known as state pre-emption, challenges to the local laws may be unnecessary because existing or proposed state laws will make the municipal laws meaningless, Furlong said.
"What pre-emption does is prevents local municipalities from creating a patchwork of NIMBYesque laws," he said. "In an effort to avoid any sort of exodus or dislocation of property owners, you want the state to regulate these issues regardless of where you stand on their constitutionality." One example of a state law that might pre-empt the local law is the sex offender lifetime supervision law, which requires that certain offenders be monitored by parole officers. That law allows the parole officer to determine suitable residence, Furlong said, and would take precedence over local law.
The state has also considered its own version of the residency restriction. In May, a state Assembly committee voted to release a law banning anyone convicted of a sex offense against a minor from living within 500 feet of a school, park or day-care center. That law would also pre-empt more stringent laws such as Hamilton's, which bans offenders from living within 2,500 feet of a school, park or playground, unless a specific provision is included in the state statute to allow municipalities to enact their own, more stringent laws. What could have more effect on Hamilton's ordinance than the Supreme Court's decision on the Iowa statute is a challenge to a residency ordinance enacted in Lower Township, Cape May County.
In a civil suit filed Monday, Steven Elwell, a former teacher who spent a year in prison for having sex with a 16-year-old girl, said the Lower Township ordinance violates the New Jersey Constitution because its 2,500-foot buffer zones cover the entire township. The suit was brought by two Wildwood attorneys, along with the American Civil Liberties Union. The attorneys and an ACLU representative did not return calls seeking comment on the local case. While he will watch the case closely, Hamilton Mayor Glen Gilmore said he is confident in his local ordinance, which he said hopefully has been strengthened by the Supreme Court's decision not to hear the Iowa case.
"I'm determined to do all that we can to keep our restriction intact," Gilmore said. "I'm hopeful that it will strengthen the force and effectiveness of our restriction." But Singleton said that is just the argument he fears. "Regardless of why the court didn't take the case, I think that you have communities feeling like the Supreme Court has given its stamp of approval, which is not how you are supposed to read (the court's) denial," he said.
For now, the attorneys say they will watch and wait. "Eventually some town will go too far and I think we will see it before the Supreme Court," Singleton said.
: by Darryl Isherwood (disherwood@njtimes.com or (609) 989-5708).
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11-29-2005 New Jersey:
Sex offender files suit challenging residency restrictions |
.LOWER TOWNSHIP, N.J. - A sex offender is suing over an ordinance restricting where he can live, mounting New Jersey's first legal challenge to local laws that ban such convicts from taking up residence near schools, parks and playgrounds. More than a dozen New Jersey towns have established so-called sex offender-free zones, but critics say the ordinances are ineffective in practice and unfair punishment for people who have already paid for their sins. In a civil suit filed Monday, former teacher Steven Elwell, 34, said an ordinance passed in August by Lower Township effectively banishes him, his wife and their two young daughters from living there because its 2,500-foot buffer zone - around schools, parks, day-care facilities and school bus stops - encompasses almost the entire town.
Elwell, a former wrestling coach at Lower Cape May Regional High School, spent a year in prison for having sex with a 16-year-old girl. He lives in Middle Township and wants to move to neighboring Lower Township, but he is hamstrung by the law, which bans him from living near or "loitering" in or near the restricted areas, even if he is taking his own children to a park, according to the lawsuit. The ordinance violates the New Jersey Constitution by subjecting him to double jeopardy, depriving him of his right to live or move freely in Lower Township and injecting the town into the regulatory process New Jersey uses to deal with sex offenders, which has always been the province of the state, the suit claims. The lawsuit was first reported by The Press of Atlantic City in Tuesday's newspapers.
Filed by Wildwood lawyers Frank Corrado and Jennifer Russo and American Civil Liberties Union legal director Edward Barocas, the suit asks that the ordinance be declared unconstitutional and that Lower Township be banned from enforcing it. The township is planning to amend the law to reduce the buffer zone to 500 feet, but it stands by the spirit of the ordinance, which Mayor Walt Craig said was passed to protect children, not to punish sex offenders. "We're going to back it 100 percent. It's an ordinance that's worth fighting for," he said Tuesday. Elwell, who couldn't be reached for comment Tuesday, has said the laws are unfair because they treat offenders like him, considered by the state to be the least likely to again commit crimes, the same as they treat people deemed to be more dangerous.
Lopatcong, Phillipsburg, Cherry Hill, Brick Township, Galloway Township, Lower Township, Middletown and Hamilton Township, Mercer County, have enacted similar bans. Supporters of them point to a ruling last April in which a circuit court upheld an Iowa statute giving municipalities the authority to pass such bans. On Monday, the U.S. Supreme Court balked at hearing a challenge to the Iowa law. But John S. Furlong, a defense attorney active in sex offender litigation, predicted the Lower Township ordinance would be struck down. "I don't think these local ordinances are sustainable. They create a patchwork, they fail to conform with state constitutional principles and by the way, they're just stupid. We have this bottomless well of municipal meddling in the private lives of people over whom they shouldn't be allowed to exercise control," he said.
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: by Associated Press
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11-29-2005 New Jersey:
NJ Sex Offender Fighting Town Ordinance |
.LOWER TOWNSHIP, NJ A former teacher who admitted having sex with a 16-year-old female student is challenging a Lower Township ordinance that restricts where he can live. Steven Elwell alleges the ordinance is unconstitutional and excessive. The Middle Township resident wants to move to Lower Township.
However, he says the town’s ordinance makes it difficult. The township council in August adopted an ordinance that bans registered sex offenders from living or loitering within 25-hundred feet of any school, park, playground, recreation area, day-care or school bus stop. However, the council plans to plans to reduce the distance to 25 feet from school bus stops and 500 feet from other public places because more than 90 percent of the town is off limits to offenders. Elwell says the ordinance does not distinguish between the different levels of sex offenders. As a Tier One offender, Elwell is considered the least at risk of repeating his crime.
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: by Associated Press
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