Legal Commentary

preemption sinks Rockland County sex offender residency law

By David A. Giacalone

We’ve been lax covering sex offender residency news since our marathon posting in 2007.  I’m pleased to report tonight, however, that Supreme Court Justice William Kelly struck down the Rockland County sex offender residency law, in a decision released today.  It is the first case in New York decided on the basis that the State has pre-empted the field, leaving no room for a county or other government unit to impose further restrictions.  See “State judge throws out Rockland’s housing law for sex offenders” (The Journal News, Jan. 23, 2009; via David Hess, TheParson.net).

According to The Journal News: 

“Justice William Kelly, in an eight-page decision, found that state has specifically taken the responsibility for sex offenders.

“Kelly also wrote the state law specifically empowers local probation officers to decide where sex offenders can live without any borders. He also cited a similar decision banning residency boundaries in New Jersey by a judge in the Garden State.”

Attorney David Goldstein represented the plaintiff in the case of Oblerlander v. Rockland County.  Under the Rockland County law, sex offenders were prohibited from living, working, and loitering within 1,000 feet of schools, day care centers, libraries or any facilities. Goldstein told the Journal News that Rockland’s 1,000 feet restriction, or any boundary, is arbitrary and meaningless as far as protecting the public.

“The state law of letting probation officers use their discretion is more effective,” Goldstein said. “The county law was an over-reaction with a nebulous 1,000-foot magical line.”

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“)

Full post as published by f/k/a . . . on January 23, 2009 (boomark / email).