Cherry Hill, NJ Courier-Post - Cherry Hill Sex Offender Measure Could Set Precedent

March 19, 2007
By LISA GRZYBOSKI, Courier-Post Staff

(Cherry Hill, NJ) -- The township could play a key role in a potentially precedent-setting ruling on where sex offenders may live in New Jersey.

It has until April 9 to appeal last month's decision by Superior Court Judge John McNeill III that struck down an ordinance restricting where sex offenders may live in Cherry Hill.

"We're still evaluating our legal options," said Dan Keashen, the township's spokesman.

McNeill's opinion, which was released Feb. 28, isn't legally binding for other judges because it's a trial-level decision, said Michael Buncher, who's been following the sex offender ordinance issue as deputy public defender with the New Jersey Public Defenders Office.

But an appellate court decision on the legality of Cherry Hill's residency restrictions for convicted sex offenders would affect similar ordinances statewide, said Buncher and other legal experts. About 55 municipalities have passed such ordinances.

Last month, Galloway in Atlantic County became the first New Jersey town to appeal a Superior Court ruling against a local sex offender ordinance.

The Washington D.C.-based American Center for Law & Justice, a conservative nonprofit law firm specializing in constitutional law issues, is representing Galloway. It will file a motion asking the state Supreme Court to hear the appeal, said Vincent McCarthy, a senior attorney with the center.

"That would resolve the issue for all municipalities," McCarthy said.

He will argue that local government has a right and duty to protect its citizens if it believes a state's action is insufficient as long as local ordinances don't conflict with state laws.

"The people of New Jersey understand that the rights of innocent children should not be sacrificed to accommodate the desires of convicted sex offenders," McCarthy said.

To date, there have been only three Superior Court opinions issued on sex offender ordinances -- two from Judge Valerie Armstrong in Cape May and Atlantic counties and one from McNeill in Camden County, Buncher said.

In all three opinions, the judges ruled the ordinances, which ban sex offenders from living near schools, parks and other places where children gather, were unlawful. Their main point was that Megan's Law, a state law requiring sex offenders to inform local police where they live, trumps the local ordinances. The judges said the ordinances violated the constitutional rights of convicted sex offenders and punished them again for their crimes.

Aside from Cherry Hill and Galloway, the rulings affected Lower Township, Cape May County, which has decided to repeal its ordinance rather than appeal.

"They thought the issue was dividing the community and they just wanted to put an end to it," said Paul Baldini, the township's solicitor.

Steven Elwell, a former high school teacher and coach convicted for having sex with a 16-year-old student under his supervision, contested Lower Township's ordinance. Elwell argued it prevented him and his young family from living where they wanted in the township. An unidentified Richard Stockton College student, who is considered a low-risk sex offender, challenged Galloway's ordinance because it barred him from living on campus.

In Cherry Hill, James Barclay and Jeffrey Finguerra, two moderate-risk sex offenders and welfare recipients, fought the township's ordinance, arguing they were penalized for violating the measure even though their county social workers and parole officers approved their housing in a motel near Camden Catholic High School.

Mayor Bernie Platt has asked area state legislators to do what they can to pass a state law allowing municipalities to restrict where sex offenders can live, Keashen said.

More than a dozen bills related to sex offender residency restrictions have been introduced in the 2006-07 legislative session.

"Within the next few weeks we hope to decide how to help Cherry Hill. That could mean crafting our own bill or deciding to support one that's already been introduced into the Legislature," said Assemblywoman Pamela R. Lampitt, D-Cherry Hill, who works with Assemblyman Louis Greenwald, D-Voorhees. Area towns have responded in different ways to the Superior Court opinions.

While places such as Voorhees and Evesham continue to enforce their sex offender ordinances, other communities such as Egg Harbor City in Atlantic County have rescinded them so they can be revised.

Stephen Dymond, a low-risk sex offender who shares a Cherry Hill apartment with his wife, infant daughter, parents and grandmother, is following the situation with relief and trepidation.

The Cherry Hill native pleaded guilty in 2001 as a 21-year-old to intentionally touching a fully clothed, 15-year-old female in the genital area.

The township's ordinance makes most of Cherry Hill off limits to convicted sex offenders. The only reason Dymond is still residing in Cherry Hill is because he lived in the apartment before the ordinance was approved in October 2005.

"Obviously, they're not going to back off, especially because they think the ordinance is right," said Dymond of township officials. "But I hope the judge's decision won't get overturned. I just want my family to be able to live where we want to."