By BOB TUROSZ
NORTH READING – The state Attorney General’s office has approved the town’s Sex Offender Residency Bylaw approved by the voters at the Oct. 6 annual town meeting. But, in an unusual move, the AG’s office attached a significant number of caveats to its approval, essentially saying the law and others like it passed by other communities, may be vulnerable to future legal challenges.
Back in October, Town Meeting voters unanimously approved the bylaw, which places restrictions on where a “finally classified” Level 3 sex offender may establish a permanent residence in town, within 1,000 feet of any elderly housing facility, school, day care center or park and within 250 feet of any school bus stop.
In its opinion, the AG’s office notes it has limited power of disapproval over town bylaws and that generally, presumption is made in favor of the validity of local municipal bylaws and that numerous other towns in Massachusetts have passed sex offender residency bylaws similar to North Reading’s. But while giving its approval to North Reading’s bylaw, the AG’s office wrote, “we do not opine as to whether (the bylaw) would be held constitutional if reviewed by a court on a fuller factual record.”
Basically, the AG’s office cautioned the town that “no Massachusetts appellate court has yet reviewed sex offender restrictions similar to that which North Reading has adopted” and since the state constitution puts greater restrictions on the exercise of police powers than the U.S. Constitution, “it would be possible for sex offender restrictions to be affirmed under the federal Constitution but struck down under the Massachusetts Constitution.”
The opinion cited a specific case regarding sex offender residency restrictions, Doe vs. Police Commissioner of Boston, which the state Supreme Court ruled was invalid because the restrictions did not provide for “an individualized balancing of interests.”
“Whether the courts would reach the same conclusion with respect to North Reading is unclear,” the AG said but they strongly suggested the matter be discussed with Town Counsel.
Other red flags raised in the approval letter are whether a court could find that the bylaw violates the fundamental right of free movement within the state. It noted North Reading supplied a map showing the parts of town where Level 3 sex offenders would be prohibited from living. “It is unclear whether the bylaw … makes it reasonably possible for a sex offender to reside” in town.
In addition, a bylaw that “effectively bans” sex offenders from living in town could fall prey to a due process or other constitutional challenge in court and the law might be seen as an effort to avoid the town’s “shared burden” of accommodating sex offenders. For instance, if all neighboring cities and towns enact similar residency restrictions, it could have the effect of creating a state wide ban on sex offenders.
The AG’s office said the town’s public safety concerns about Level 3 sex offenders are legitimate and the AG’s office shares these concerns. But to some extent bylaws like this could frustrate the intent of the Sex Offender Registry Act by creating a “disincentive” for sex offenders to register as required by law.
So, although the AG’s office approved the town’s bylaw, they urged further discussion with Town Counsel on how the law will be applied and enforced.