Has anyone ever come up against a conflict between a probation conditions regarding a sex offender safety zone, i.e. 1000 feet from schools, and a city ordinance on the same subject?
December 19, 2012, 10:13
Mack T. Harrison
What sort of conflict? If the conditions say 1,000 feet and an ordinance says 1,500 feet, wouldn't the probationer still have to avoid breaking other laws (including any ordinance) as part of the probation?
In other words, the probationer must stay 1,000 feet away in towns without an ordinance or with a less restrictive ordinance. In cities with a more restrictive ordinance, the probationer must comply with that ordinance. Or am I missing something?
December 19, 2012, 21:27
JohnR
Well, state law says 1,000, but district court can modify under certain circumstances. If city comes along and says 1,000--period--is that not a conflict? I'm unsure. There is an AG opinion that says such ordinances are, in the abstract, a possibility, but they did not have any actual ordinance or that fact particular pattern to evaluate. Can a city "zone out" sex offenders? How about just plain felons?
January 02, 2014, 15:50
rk
Any resolution to this?
We just had this issue pop up and now there's a hearing scheduled rather quickly.
I'd be thankful for any research (I believe we've got the same AG opinion).
January 06, 2014, 11:50
A. Diamond
It does not seem that there would ever be a 'conflict' in the classic sense -- it is completely possible to comply with both rules and the person would presumably be required to comply with both.
A classic conflict is when there are two things required that are inconsistent and you can't do both. You can always do both if one rule says stay 50 feet away and another says stay 100 feet away. You comply with both by staying 100 feet away. The less restrictive rule does not give you permission to ignore the more restrictive one.
If they are challenging the validity of a municipal ordinance, the burden will be on the challenger to do so. There would be a presumption that a muni ordinance, like any legislation, is valid unless/until a court strikes it down. Surely a criminal court is not about to strike down a muni ordinance unless the city enacting it is a party to some kind of court challenge, right?