Rutland defends city ordinance on sex offender
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By BRENT CURTIS Rutland Herald Staff - Published: November 17, 2009
RUTLAND – Rutland's city attorney is arguing that the municipality's ordinance restricting where sex offenders can live isn't to blame for James Oney's continued incarceration.
Oney, 38, has been eligible for furlough since January. But the Rutland man, who was sentenced to 2 1/2 years in jail for setting fire to several trash bins in the city, has remained behind bars because Corrections officials denied his release to two addresses in Rutland and Bennington.
Both of the state's denials revolved around Oney's 1991 conviction for lewd and lascivious conduct with a child.
In Bennington, Corrections officials said his proposed residence was too close to a school and would have him living in a home with children.
In Rutland, his proposed residence — the home at 64 Grove St. where he lived with his wife before his incarceration — was denied because placing Oney there would put him in violation of the city's child safety ordinance which prohibits convicted sex offenders from living with 1,000 feet of a school, playground or day care.
In April, Oney filed a complaint in Rutland Superior Court against the city's ordinance, which he argued was unfairly keeping him in jail. Judge Harold Eaton has scheduled an injunction hearing on Dec. 23 to listen to arguments made by the city and Oney, who is represented by the state Prisoners' Rights Office.
Two weeks after the last hearing before Eaton, the assistant attorney general representing the Department of Corrections said he won't issue a response to Oney's complaints.
"The department is taking no position on the city ordinance," Assistant Attorney General David McLean said. "We believe the matter is between Mr. Oney and the city of Rutland."
But in a six-page response filed by the city, city attorney Andrew Costello argued that the source of Oney's continued incarceration was his failure to satisfy Corrections' residency guidelines — not the city ordinance.
While Oney's arguments centered on his denial for release to a single address, Costello argued that Oney was still free to seek release anywhere else in the state or in the city where the ordinance didn't apply. In addition, Costello said there was no guarantee that Corrections officials would release Oney to his Grove Street home if the ordinance didn't exist since the residence is in close proximity to a school.
"The only thing keeping Mr. Oney in prison is his lack of a suitable furlough residence, not the city of Rutland's child safety ordinance," Costello said. "Even if the child safety ordinance did not exist, the department would still be free to reject 64 Grove St. if it did not meet the department's various other standards for furlough residences."
While the case has drawn comparisons to a lawsuit in Washington County Superior Court which successfully invalidated a residency law in Barre, Costello argued that the case in Rutland didn't carry the same risk of "irreparable harm" to Oney.
In the Barre case, the residency restriction threatened "imminent and actual homelessness."
"Here, there is no contention that Mr. Oney will face homelessness or lose any benefits as a result of the denial of his furlough residence … ." Costello said.
brent.curtis@rutlandherald.com
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