Migrant Laborer - No Easy Choices

Unfortunately a lot of time, energy, and resources on both sides of the question have been wasted tilting at windmills. Regrettably no one can usually challenge the initiative until after the citizen’s vote. The courts have repeatedly held that an action to determine the validity of an initiative petition is not ripe for decision until the voters actually approve the ordinance. In other words the courts refuse to speculate about the validity of an initiative prior to the vote since the voters may reject the initiative.

Citizen Signing Petition

The legal difficulties could have easily been avoided by the proponents steadfastly following the Arizona E-verify law that was recently upheld by the United States Supreme Court in Chamber of Commerce of U. S. v. Whiting. The United States Supreme Court provided a well-defined road map based on the Arizona law but as we shall see the Ordinance strayed from the path.

What are the defects? The Springfield E-verify Ordinance provides that a business license shall be suspended or revoked and a $499 penalty imposed by the director of finance for a second or third violation without proper notice or a hearing as required by the Fourteenth Amendment to the United States Constitution and the Missouri Constitution. One of the great rights that we all enjoy under the Missouri and the United States Constitution is the right to procedural due process before the government takes our life, liberty or property.  While the Ordinance provides that a Business Entity may challenge the enforcement of the Ordinance after the suspension, revocation, or fine the cases hold a post deprivation hearing does not provide adequate due process. Providing an opportunity to challenge the Ordinance after your business license has been suspended or revoked is no consolation.  After all, when your license is suspended or revoked you are out of business. The provisions in the Springfield Ordinance, which provide for a post deprivation hearing, should be compared to the Arizona law that provides for a judicial determination prior to the suspension or the revocation of the license.

The Springfield Ordinance is also fatally flawed because the Springfield Finance Department makes the determination if the Ordinance has been violated. The Springfield Ordinance states that it is unlawful for any Business Entity to knowingly employ an Unlawful Worker to perform Work within the City. In essence the Ordinance makes it a crime to employ an Unlawful Worker. The Springfield Ordinance provides that the Finance Department determines whether or not the Ordinance has been violated. This provision is directly contrary to the Missouri Supreme Court’s holding in Springfield v. Belt that the enforcement of ordinances is a judicial function, which belongs in the municipal court. Again the proponents of the Ordinance failed to follow the road map set forth in the Arizona law, which provides that the Arizona courts determine it the law has been violated.

The third strike against the Springfield Ordinance is that it imposes a $499 fine for the second and third violations directly contrary to federal law, which expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” In Chamber of Commerce of U.S. v. Whiting the United States Supreme Court stated that state laws imposing civil fines for the employment of unauthorized workers are expressly preempted. Again the Arizona law did not have any civil penalties.

I will not discuss numerous other significant flaws in the Ordinance – although there are many – because as they say:  “Three strikes and you are out.”

While the Ordinance has a severability clause that provides guidance to a court in the event parts of the ordinance are found to be invalid and other parts are found to be valid the savings clause works only if a court finds that the valid provisions, standing alone, are complete and are capable of being executed in accordance with the legislative intent. It is clear that the remaining provisions of the Ordinance cannot stand by themselves because you cannot suspend or revoke a license without providing due process of law.  Nor can the Finance of the Department take any action to enforce the Ordinance since the power to adjudicate violations of municipal ordinances is a function of the municipal court.  In short, it is impossible to patch over these fundamental defects.

Initiative petitions present difficult choices for a city because the city cannot normally file a request to determine the validity of the ordinance until after the voters have decided whether or not to approve the ordinance. If the initiative is approved the city has an obligation to defend the ordinance although it may be in the very difficult position of defending a law that is on its face indefensible. As officers of the court, the attorney’s defending the ordinance have an obligation to call to the court’s attention the law even if it is adverse to their position. About the only other option for the city – after the ordinances has been approved by the voters – is to file a request for a declaratory judgment asking the court to determine the validity of the ordinance. There are no easy choices.

Howard Wright @2012

See and Record Everything.

Two recent court decisions highlight the conflict between the effort of the government to use your personal information without obtaining a warrant and your right of privacy. When a recent case involving the use of a GPS tracking device was argued before the United States Supreme Court, George Orwell’s, classic book “1984” loomed over the case like a dark cloud warning us that the collection of personal data could turn our country into an Orwellian police state. Orwell’s book “1984” was mentioned 4 to 5 times during oral argument with Justice Beyer stating to the Government Attorney: “If you win this case there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” That “sounds like 1984.”

So what were the facts that brought U. S. v. Jones to the U. S. Supreme Court?  In Jones the Government installed a Global-Positioning System (GPS) to a motor vehicle used by Jones who was the subject of a criminal investigation without obtaining a search warrant.  The Government relied on an earlier case where it has placed a beeper inside a bottle and the fact that movements of the car in the public did not require a search warrant. The GPS tracked the movements of the vehicle for 28 days obtaining some 2,000 pages of information about where the vehicle traveled.  The government filed charges against Jones using the GPS data and other evidence resulting in a conviction by a jury and a sentence to life imprisonment based upon his connection to some 97 kilos of cocaine and $850,000 at a stash house.

U. S. Supreme Court

The United States Supreme Court ruled that the attachment of the GPS to the car without a warrant for the purpose of obtaining information on the movement of Jones was a violation of his Fourth Amendment right against unreasonable searches and seizures. Justice Scalia wrote the opinion for the Court noting that the government physically occupied the private property of Jones for the purpose of obtaining information by attaching the GPS to his car much like a common law trespass. Scalia wrote that the Court must assure preservation of the degree of privacy against the government that existed when the Fourth Amendment was adopted in 1791. Justice Scalia’s opinion was joined by four other judges, however Justice Sotomayor  - who joined in Justice Scalia’s opinion – wrote a separate concurring opinion stating she concurred only in the result in this case while expressing grave doubts about the ability of the Scalia test to analyze other situations that did not involve a physical trespass.  Four other judges – while agreeing that the attachment of the GPS device was a invalid search under the Fourth Amendment – based their opinion on its length of time it was attached – applying (the Katz test) to determine whether or not a person had a “reasonable expectation of privacy under the circumstances.”

The concurring opinion by Justice Sotomayor does an excellent job in laying out the issues, although she leaves the resolution of developing a better-suited test for another day.  She notes that in many instances physical intrusion is not necessary in order to conduct surveillance rendering the majority opinion nearly useless with respect to how 18^th Century tort law applies to a “World Without Walls.” She cogently notes that: “Awareness that the government may be watching chills associational and expressive freedoms.”  She observes that government monitoring of your e-mail or a trip to the “… psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense lawyer, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on provides the government with intimate personal information about a person’s lifestyle.” In short, she was expressing the same view as Justice Beyer that if GPS surveillance was allowed Big Brother could watch your every move.

Government tries to monitor all of your movements

While the U. S. Supreme Court unanimously concluded that placement of the GPS tracking device by the Government required a search warrant, the Court was split evenly (4 to 4) on what test to apply with Justice Sotomayor, leaving to another day the development of an appropriate test to analyze these cases. One day after the United States Supreme Court’s decision in U. S. v. Jones, the Missouri Court of Appeals for the Western District answered the question of what test to apply in Missouri in State of Missouri v. Clampitt. In this case, Missouri charged the Defendant with first-degree involuntary manslaughter and leaving the scene of a motor vehicle accident. The State obtained information from U. S. Cellular about the content of Defendants text messages and details for incoming and outgoing text messages as well as the phone number under different accounts starting June 13, 2010 through July 2010, without obtaining a search warrant based upon four investigative subpoenas. The Western District in its effort to read U. S. Supreme Court tea leaves applied the “reasonable expectation or privacy” test used by the Sixth Circuit in U.S. v. Warshak, which held that individuals had a reasonable expectation of privacy in the contents of their emails and applied this to text messages.  While cell phone providers have the ability to access their subscribers text messages the ability to access the messages does not diminish the subscriber’s expectation of privacy in their text messages communicated through cell phone.  The Court reasoned that what could now be sent in a text message was historically protected when sent by mail and phone calls.  It therefore follows that society expects the content of text messages to receive the same Fourth Amendment protections afforded letters and phone calls.

While these cases protect your personal movements and the contents of your text messages from the prying eyes of the government, George Orwell served us well when he wrote “1984” as we struggle to apply outmoded laws to new technology in the “World Without Walls.” Facebook, Goggle and others collect our personal information and sell this information for billions of dollars. Some have suggested that the better way to deal with this highly complicated matter is to pass laws limiting the power of the government to access our personal information except with a warrant. Orwell’s “1984” has many reminders of the need to control the power of government. Will we have to worry about  committing a “facecrime?”

“It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. In any case, to wear an improper expression on your face… was itself a punishable offense. There was even a word for it in Newspeak: facecrime…”  
 George Orwell, “1984” – Book One, Chapter V.

Howard Wright@2012

In the meantime the City of Springfield is considering restoring its intersection traffic safety program involving camera enforcement.

Howard Wright@2012

Dogs crowded in cage

What is an initiative? The initiative allows citizens to initiate laws through a process where signatures are collected and if there is a sufficient number as required by law the law is submitted directly to the voters for their approval or disapproval. If approved by a majority of the voters the initiative becomes a law. The initiative is a direct form of democracy. The initiative and referendum movement grew out of the Progressive Movement in the 1890s. It was a reaction to the corruption of government that was not responsive to the needs of its citizens.

Teddy Roosevelt - a proponent of direct democracy

The initiative process was included in the Missouri Constitution in 1908. Unfortunately, there was no limitation on the power of the legislature to override voter-approved initiatives by a simple majority of the House and the Senate like there was in many other states. In other words the legislature can change a voter-approved law by a simple majority of the House and the Senate. This has caused a lot of consternation by proponents of the initiative and in recent years proponents have proposed amendments to Missouri Constitution to limit the power of the General Assembly from amending a voter approve initiative.

The recent repeal of the voter approved Anti-Puppy Mill law generated a lot of controversy. Animal rights activist tried for years to get the General Assembly to act without success.  This was particularly frustrating because it was widely recognized that Missouri had one of the weakest animal rights laws in the United States and was known as the puppy mill capitol of the United States having 30% of all the puppy mills. With no response from the Missouri legislature animal rights activists – as a last resort – decided to initiate a law know as the Anti-Puppy Mill law to provide safe and humane conditions to protect animals. After spending thousands of dollars and hours collecting signatures, processing the initiative petition, running a campaign to educate the voters and getting a majority of the voters to approve the law the legislature responded by repealing most of the key provisions that had just been approved by about 1,000,000 voters and by enacting a much weaker law even before it became effective. According to animal rights activists the new rules adopted by the legislature weakened and virtually overruled what 52% of the voters just approved. No matter how you feel about whether or not Missouri needed a new animal rights law, it is not a pretty sight when one hundred members of the General Assembly can overrule what almost 1,000,000 voters just approved.  No wonder the proponents of the Anti-Puppy Mill law are mad. While this may be the most prominent example of legislative disdain for voter approved laws there are other examples of the General Assembly busting voter approved laws like the legislative change in 2009 altering a 2008 voter approved casino tax for school funding. Other voter approved voter initiatives have suffered similar fates.

Legislature Overrides Voter Approved Laws

In 2006 the voters approved a state minimum wage law by 76% of the voters. Again from day one after the voters approved this law the General Assembly of Missouri was busy trying to repeal the law. In 2011 amendments to lower the state minimum wage law were approved in the Missouri House but died in the Senate.  You can expect there will be continued efforts to lower the minimum wages for Missouri employees.

Why does this happen? It happens because it can. There is no limits in the Missouri Constitution, which restrict  the state legislature from repealing or amending a voter approved initiative. Unlike many other states Missouri allows voter approved initiatives to be overruled by a simple majority vote of the House and the Senate.

In Springfield, the results were much different. The Springfield City Charter prohibits any change to a voter-approved ordinance for six months and thereafter only with the unanimous consent of the entire city council. Other City Charters like Joplin and Columbia have similar charter provisions. In Springfield after the expiration of six months opponents of the Indoor Clean Air ordinance requested the City Council amend the voter-approved ordinance. However, after it became clear that the opponents could not obtain the unanimous consent of all of the City Council they prepared an initiative petition to repeal the Indoor Clean Air ordinance and enact a new one to their suiting. Opponents to the voter approved Springfield Indoor Clean Air ordinance are now collecting signatures for an initiative petition to repeal the current voter approved Indoor Clean Air ordinance and replace it with a new law. This is how a democracy should work.

In reaction to the willingness of the legislature to overrule voter-approved initiatives there is now a broad-based movement to change the Missouri Constitution to require a 3/4th approval by the members in the House and the Senate to override a voter approved law. The effort to change the Missouri Constitution is headed up by a group known as “Your Vote Counts.” They are now in the process of circulating a petition which would amend the Missouri Constitution to require a 75% vote in order to override the voters, which would be considered in November of 2012. This proposal is supported by many different groups across the ideological spectrum because the change in the Constitution has everything to do with protecting the fundamentals of our democracy and little to do with a person’s ideology. The 1,000,000 voters who voted for the Anti-Puppy Mill law watched the legislature tear apart the Anti-Puppy Mill law and will remember this when they vote to require a 3/4th vote of the House and the Senate to change voter approved initiatives. Voters who approved the minimum wage law will also remember how close the legislature came to repealing this law. Stayed tuned.

Howard Wright@ 2012

A recent case involving the City of Hazelwood illustrates the difficulties and the potential liabilities for local government for failure to provide due process. In the Hazelwood case a police officer stopped a St. Louis County resident when he noticed that the vehicle lacked a front license plate as required by state law. The Officer ran a record check of the Driver, which revealed an outstanding warrant for his arrest in St. Louis County. The Officer asked the Driver if he had any weapons in the car. The Driver disclosed that he had a 9 mm Ruger pistol stored in the front console. The officer seized the pistol based on Missouri law that made it a felony for a fugitive to have a firearm. The Driver was charged with the unlawful use of a firearm; however the charges were later dismissed after it was learned that the firearm was legally purchased by the Driver, that it was properly registered under Missouri law in the Drivers name, and that the Driver had a valid permit to conceal and carry the firearm on his person in the State of Missouri.

9 mm Ruger

The Driver sent the City police department numerous requests asking for the return of his pistol. Notwithstanding the dismissal of the original charge the Hazelwood police department refused to return the pistol after learning that there was another warrant for the Drivers arrest by the City of Edmundson. Even after Hazelwood learned that at the warrant by Edmundson for the Drivers arrest had been dropped it still refused to release the firearm relying on a City policy that it would not return a firearm that it lawfully seized unless ordered by a court. This of course prompted the Driver to file a civil rights lawsuit against the police chief and Hazelwood in federal court alleging that he had been deprived of his property without due process of law in violation of the 5th and 14th amendments and that the same conduct violated his right to keep and bear arms under the 2nd amendment.

The federal district court ruled for Hazelwood and the Driver appealed to the Eighth Circuit, which held that the United States Constitution requires a hearing once it is determined that the initial seizure of the ammunition and the weapon was not required as evidence in a court proceeding or the items were not contraband. The need for an immediate hearing occurred after it was determined that the initial charge filed in St. Louis County was dismissed and the fugitive warrant in Edmundson County was dropped.  A post-deprivation remedy will suffice only when the challenged acts of state officials can be characterized as random and unauthorized. In the Hazelwood case, the City sought to hold the property pursuant to established procedures without providing an opportunity for a hearing, which violated the due process rights of the Driver. With respect to the 2nd amendment claim the Eighth Circuit affirmed the trial court’s decision on the grounds that the 2nd amendment protects generally the right to bear arms but does not protect the right to a particular firearm.

This case could be a game changer since my experience suggests that the policy followed by Hazelwood is pretty common. Public officials should consider checking with their  police department and their city attorney to determine how the city has handled the return of property confiscated as part of an arrest. Police departments will be required to return property it seizes at the time of the arrest after the underlying charge is disposed of provided the property is not contraband or conduct an immediate hearing to establish if the city has the right to continue to hold the property. This is similar to the situation where the police tow and impound a vehicle.

Howard Wright @2011

State Capitol

The process for adoption of this law was critical to the outcome of the case. In 2010 the General Assembly passed a law directed at the secondary effects of adult entertainment after holding extensive Committee hearings. Testimony at the Committee hearings included reports and other evidence from police officers, health officials, concerned citizens, and business owners relating to the connection between sexually oriented businesses and a variety of detrimental secondary effects, including crimes such as prostitution and drug use, health and sanitation problems, and decreased property values. The testimony included statements from experts concerning their research and scientific studies showing that sexually oriented businesses increased crime, drug use, and had other negative effects. A number of businesses and residents sued the State of Missouri challenging the constitutionality of the Act claiming that the law violated their freedom of speech as protected by the First Amendment to the United States Constitution.

Free Speech?

The Missouri Supreme Court determined that the law did not reduce protected speech and serves a substantial government interest in reducing the secondary negative effect of sexually oriented businesses. In upholding the law the law Court determined that it was content neutral and was aimed at the negative secondary effects of the activity and not the content of the restricted speech; it was a time place and manner restriction and not a total ban on speech; and it was designed to serve a substantial government interest leaving open alternative avenues of communication. The Court relied extensively on the record made at the Committee hearings at the time the General Assembly considered the legislation.

Local government officials may want to simply rely on the state law rather than enact local ordinances in order to save time, effort, and money. To the credit of Missouri, it used  an expert to assist in the drafting of this legislation, presentation of evidence for the Committee meetings and the  ensuing litigation.  After all a poorly drafted earlier Adult Entertainment law that focused on the advertising sexually explicit materials was held to be unconstitutional.  In the event a decision is made to adopt a local adult entertainment ordinance the Court’s opinion in this case provides a road map showing how to make a record to support a local ordinance.

Howard Wright@ 2011

FCC Adopts Anti-Discrimination Rules

Since this topic is temporarily on break, it is an ideal time to stand back and examine what is at stake. Unfortunately Internet discrimination – framed in the context of  “Net Neutrality” rules – has developed into a highly partisan political debate, making it even more important to have your bearings.

Before discussing the FCC “net neutrality” rules, some background is useful. In 2005 AT&T suggested that it would like to charge some Web companies more for preferential treatment of their traffic. This caused a huge public outcry by consumer groups, Goggle, and Amazon, leading to AT&T shelving its proposed extra charge for preferential treatment for 2 ½ years in order to get approval of its acquisition of BellSouth. Next in 2007 Comcast slowed down or actively interfered with BitTorrent file sharing services bringing this to a head. The FCC sanctioned Comcast for its actions relating to its interference with BitTorrent file sharing services. Comcast appealed the decision winning on the grounds that the FCC did not have authority to sanction Comcast. Thereafter, the FCC regrouped and proceeded by using its rule making powers to adopt net neutrality rules. These rules are currently being challenged in the courts and in Congress, although the Congressional effort is stalled for now.

FCC Fights Internet Discrimination

The FCC Network Neutrality Report and Order adopted December 21, 2010 established three basic Rules. The Rules require transparency by fixed and mobile broadband providers and prohibits fixed broadband providers from blocking services and unreasonable discrimination. The transparency Rule requires fixed and mobile broadband providers to disclose their management practices, performance characteristics and terms and conditions of their broadband services. Disclosure helps the consumer and the FCC determine if the service provider is engaging in a discriminatory practice. The no blocking Rule prohibits a fixed broadband provider from blocking lawful content, applications, services, or non-harmful devices. Mobile broadband providers may not block applications or websites that compete with their voice or video telephony services. Fixed broadband providers may not unreasonably discriminate in transmitting network data. The Rules also make it clear that a fixed broadband provider may charge more for heavy users than light users and that they may offer tiered and usage based pricing.

According to an analysis by Miller & Van Eaton the Rules protect local government from broadband Internet access providers control although when providing certain mass marketed services like broadband Internet services, Wi-Fi or pay for access to highly specialized GPS maps local government is required to comply with the rules. The Miller & Van Eaton analysis provides a good starting point for understanding the Rules.

So what is the big fuss about? It is simple. You know the rule, follow the money. If an Internet service provider can unreasonably discriminate, block access, or slow the access of one company in favor of another it gets to pick winners and loser, while making billions.  Consumers and small businesses also have a stake in protecting the neutrality of the Internet. It is estimated that the economic benefits to the consumer is about $5,686 per year. A lot is at stake.

The Internet has been described as the most important invention since the printing press and is recognized as the communications tool of the 21st Century. At a recent meeting of Silicon Valley Innovators – discussing their vision of the future –made the following comments: “We’re moving from an ownership society to an access society.” “You’re not defined by what you own but by experiences you have.”  To reinforce this point consider Apple has recently replaced Exon Mobile as the world’s wealthiest company. Besides creating opportunities for new companies, Internet technology can in a blink of the eye change an industry. We now buy music on-line, not in stores. Borders, once a giant in the book industry, did not anticipate change and is gone as a majority of shoppers shifted to the acquisition of digital books. In a relatively short time period, the Internet has transformed our world, rewarding some businesses and punishing others.

On a personal level, when I wake up in the morning I am ready to go to work because I have at my fingertips a world-class high-speed legal research and information system that is cost effective and extremely efficient. The Internet has changed how I work, think, shop, and communicate in less than a decade.

At the community level, local government officials are users of Internet services, as well as providers of applications, services or devices that run on the Internet. Some communities, like North Kansas City and Springfield, also provide broadband Internet services and Wi-Fi services. If you want to find out information about a community, you go to their Web site where you can find all sorts of community information and links ranging from an application for a license, city council agendas, forms for applying for employment, paying taxes, or filing a citizen complaint. Generally, as noted in the Miller and Van Eaton, analysis it would appear that local government is protected. Even though the Rules have a minimal impact on local government as citizens, we have a big stake in the outcome of this battle. Well it is really more like a war with the current battle being fought over the FCC Net Neutrality Rules.

For the most part we love the Internet and you would think protecting it from discriminatory practices like blocking, slowing down communications, and other actions to favor one company over another would be a pretty simple sale. Not so, due to the sheer amounts of money and consequences that are at stake for winners and losers. So I ask, why are the net neutrality proponents having such trouble winning this battle?

My take is that part of the problem is bound up in basic terminology. Professor Tim Wu, a brilliant law school professor at Columbia University, in 2002 first used the term “net neutrality” when writing about broadband discrimination.  Professor Wu explains that he also used the term “net neutrality” to capture the concept of broadband discrimination.  To his surprise the term “net neutrality” became the default, which – in my opinion – was unfortunate because the term broadband discrimination is a better understood term by the average person. After all, when you say that an Internet provider is engaging in broadband discrimination by blocking my access, slowing down the transmission of information, or is unreasonably discriminating while favoring others most of us know this is a bad thing.  When you say an Internet service provider is violating the principles of net neutrality the average citizen does not immediately know what is meant by net neutrality, even though this concept can be stated in a few simple sentences.  If a term does not convey the message and needs an explanation – however simple – you have lost the communications battle at the outset.

So what is the big picture? This is a war and the battle over the FCC Net Neutrality Rules is just one battle in a larger war over control of the Internet by companies who want to exert monopolistic power.  Professor Wu has recently made an important contribution to our understanding of information empires with his book, “The Master Switch: The Rise and Fall of Information Empires.” He describes in great detail how information empires are built and how they organize so they can exercise monopoly power. He explains that after the court mandated breakup of AT&T in 1984 there was explosive communications growth and innovation. By 1996 the Baby Bells – who were spun off into separate independent companies  in the 1984 court mandated breakup – were able to slip out from the strictures of the court order as part of the Telecommunications Act of 1996. Ever since 1996, the Baby Bells have been consolidating back into what looks like the old pre-1984 AT&T structure with an east and west empire once again exerting monopolistic power by threatening to slow down communications to favor one company over another. It is as though the Evil Empire was blown into parts and thrown into space and is now reconstituting itself through the gravitational force of monopoly power. 

Professor Wu explores the question of whether or not the Internet is fundamentally different from earlier communication systems that resulted in monopolies. Will the structure of the Internet allow it to fend off discriminatory practices or will it remain open or will some company control and dominate the Internet?

This is a story that is still unfolding. Sir Tim Berners-Lee the founder of the Web described in his article called “Long Live The Web” what is at stake: “The Web is critical not merely to the digital revolution but to our continued prosperity – and even our liberty. Like democracy itself it needs defending.”  I echo his voice. “Long Live The Web.”

Creve Coeur City Hall

In the Creve Coeur case, the back of Mary Nottebrok’s vehicle and license plate were photographed by the City’s red light camera as the car entered and exited the intersection on red. She was mailed copies of the photographs and a Notice of Violation that stated her car had been “illegally present in the intersection during red light.” She lost her challenge at the trial court and appealed to the Missouri Court of Appeals for the Eastern District on the grounds that the ordinance violated her due process rights and that state law preempted the City ordinance.

The due process question in the Creve Couer case focused on whether or not the City ordinance was civil in nature. The Court of Appeals noted that the fine was under $100; that municipal ordinances have historically been classified as civil in nature; that the City declared that it’s purpose was to impose a civil fine without regard to intent with no criminal penalties; that there was no disability or restraint of the individual under the ordinance; and that the City Council had declared that the ordinance was not a moving violation. In addition, the purpose of the ordinance was to improve safety, which was rationally related to the ordinance. The Court compared the ordinance to a parking violation where the owner of the vehicle is responsible for the vehicle.

Photo Red Light Camera

After determining that there was no violation of due process the Court addressed the preemption question concluding that the Creve Coeur ordinance did not constitute a moving violation because the purpose of the ordinance is clear in that the violation is based upon the presence of the vehicle in the intersection when the light is red. The ordinance does not duplicate any state moving or non-moving traffic law.

The Court in the Creve Coeur case concluded that the City had authority under sections 71.010 and 305.120 to adopt the photo red light ordinance. The opinion in the Creve Coeur case notes that section 305.120 specifically authorizes municipalities to adopt additional rules of the road. In addition, the Court cites section 71.010 noting that there is no inconsistency between the city ordinance and state law so as to constitute a conflict between state law and the ordinance. The Creve Coeur opinion should overrule an earlier opinion by Judge Neill – a St. Louis Circuit Court Judge – who held in May of 2011 that the City of St. Louis ordinance was not authorized by state law. The Creve Coeur opinion also reinforces an earlier decision by the Federal District Court in Missouri, which held that there was no violation of federal law with respect to a photo red light ordinance adopted by the City of Arnold.

Despite the good news, proponents of photo red light ordinances need to recognize that challenges will continue until there is a Missouri Supreme Court decision deciding the legal issues; therefore municipalities considering the adoption of similar ordinances may want to first see if the Missouri Supreme Court hears the Creve Coeur case. For municipalities considering a photo red light ordinance this case is also extremely useful in that it offers a detailed road map showing how to draft a photo red light ordinance.

The release of a study by MoDot in 2011 showing that the use of photo red light ordinances can significantly reduce serious accidents at intersections where there are traffic lights is very useful. This study reinforces information developed by Kansas City, Springfield and others showing significant reductions in serious accidents where photo red light cameras are used. These studies show that photo red light ordinances can significantly reduce serious accidents. The reality is that without the use of photo red light cameras there is no other realistic way to reduce the number of incidents where persons run traffic lights. See my earlier Posts on photo red light ordinances on August 8, 2011 and March 29, 2011.

It is important for municipalities to follow standards for the timing of traffic lights established by the International Traffic Engineers (ITE) in order to eliminate arguments that municipalities are jerry-rigging the timing to produce violations in order to enhance revenues. Proper interval timing of the lights can reduce the number of violations. This is what occurred in Springfield, when MoDot teamed up Springfield to reset the timing to conform to ITE standards. MoDot is now setting signals on state highways to conform to ITE standards.

Municipalities should consider – when adopting a photo red light ordinance – the public safety factor in reducing serious accidents at intersections. In addition, they should follow ITE standards for setting the intervals between lights in order to avoid accusations that the program is just intended to enhance revenues. The decision in the Creve Coeur case should  allow public officials to focus on the public safety aspects of  photo red lights. Stay tuned as we continue to follow this story.

Downtown Cape Girardeau

In early 1970s blacks began to assert their rights by picketing businesses and engaging in other activities urging change in Cape Girardeau. Confrontation was used as a means to defy old established values in an effort to bring about change. As city attorney, I did not get to pick my side. I just did my job, which included prosecuting violations of municipal ordinances.

As the regional center for the area, Cape Girardeau – population 32,000 – attracted protesters from other communities such as Cairo, Illinois a town about 40 miles southeast of Cape, which sits at the confluence of the Mississippi and the Ohio rivers, with Pruitt Igoe housing projects and a large minority population stuck in high unemployment and poverty. It was clearly one of those failed communities like East St. Louis, Illinois.

One of the confrontations in Cape Girardeau in the early 1970′s involved the picketing of a grocery store and bothersome activities in the adjoining shopping center retail stores that did not violate the law. The bothersome activities involved selecting merchandise from the store shelves and filling a shopping cart, which was pushed to the checkout counter at which time the protester would present his or her gasoline credit card for payment. When the protester was told that a gasoline credit card could not be used to purchase the merchandise, the protester left the store leaving the clerk with the job of putting the items back on the shelves.

Bobby Williams, the leader of the protest movement and spokesperson for the United Front, was at a small retail store in the shopping center when a picketer from a nearby grocery store rushed in to tell Bobby that there was a commotion at the nearby grocery store where the civil rights picketers were engaged in a confrontation with the grocery store clerks. Bobby immediately ran a half block to the grocery store to find that the police had arrived and were trying to separate the picketers and the store clerks. Naturally, Bobby immediately interjected himself into the middle of the confrontation and when asked by the Police Chief what he was doing Bobby called the police chief,  “A no good, MF,” which immediately resulted in the arrest of Bobby, who was charged with a violation of the peace disturbance ordinance. Under the circumstances, these were fighting words with the potential to incite a riot not protected by the free speech clause of the constitution.

I tried the case in the municipal court where Bobby Williams was found guilty and fined $20. You would think that would have ended the matter, but Bobby wanted to make a statement and filed a de novo appeal to the circuit court of Cape Girardeau, County asking for a jury trial. On the day of the jury trial Bobby showed up in court with his attorney, Dick Snider, who was an incredibly nice guy and the perfect civil rights lawyer. Dick was a midget who I understood to also have a bone disease, which caused his bones to crumble. He was on crutches and as he moved about the courtroom I knew the jurors were watching him, admiring his strength and perseverance.

Court of Common Pleas Building, Cape Girardeau

Bobby Williams was another story. He showed up in Army fatigues wearing a black beret. Judge Osler Statler, presided over the case as Dick and I took turns asking prospective jurors questions to determine if they were qualified and could judge this matter fairly. Dick Snider questioned the jurors first and asked about civil rights matters giving me an opening. I followed up with questions about whether or not any of the jurors or their family were members of the NAACP, SNCC, the Black Panthers, the United Front (the local umbrella organization for the protest movement with close connections to Cairo) and other black organizations involved in the civil rights movement. Almost immediately, it became apparent to the prospective jurors that this case was more than your run-of-the-mill municipal ordinance violation. As I questioned the juror’s, they began to drop like flies from the panel, requiring Judge Statler to bring in additional jurors. Finally I completed my voir dire and we ended up with a jury.

I presented the case on behalf of the City based upon the protest activities in the retail store, the picketing of the grocery store, and the confrontation between Bobby Williams with the Police Chief where he called the Police Chief, “A no good MF.” Dick Snider followed by putting his client on the witness stand giving me the opportunity to cross-examine Bobby. I was worried that the jurors might consider the use of this phrase just one-time inconsequential. After all – unless you led a pretty sheltered life – almost everyone has heard or used these words. To emphasize the explosive nature of this situation I asked Bobby what he was doing before, during and after he called the Police Chief, “A no good MF.”

The jury deliberated quickly and returned a verdict of 90 days in jail. Once again, I thought this ought to take care of it, but there was another problem. The City jail was in the basement of an old converted Church that was literally a dungeon with cages in the basement serving as jail cells and a low ceiling preventing you from standing up straight. I immediately struck a deal with Dick Snider based on the fact the City did not have any authority to arrest Bobby outside of Cape Girardeau County. The deal was if Bobby Williams would just stay out of the Cape Girardeau County he would not have to serve jail time, although there would always be an arrest warrant on file for Bobby in case he returned. I do not know if this worked although Bobby lived in Cairo, Illinois, while his family continued to reside in Cape Girardeau.

There was also another protest that started with the arrest of a number of black mothers who were picketing. The Municipal  Court Judge released the mothers on their own recognizance, but they refused to leave the jail even though they could have just walked out of the jail without posting bail. A few days later there was major confrontation at a late evening City Council meeting where the protesters has signs with stating:    ”Free The Mothers.”   OK, now I understood.  The signs , “Free The Mothers”  would not have worked at the City Council meeting if the mothers were free.  In the middle of this packed and highly charged meeting the lights went out for about 15 seconds, making the room pitch black. Fortunately, no one moved or said anything until the lights flickered back on. I attribute this to self preservation, since the narrow wooden stairs to the second floor City Council meeting room was  blocked with protesters.  The mothers left the  jail the very next day having served their purpose as symbols for the protest.

A few months later matters reached a fever pitch with the burning of Mayor Howard Tooke’s  lumberyard along with a number of city trash trucks.  The local newspaper pleaded for calm and reason.  I am sure that Mayor Tooke was a major influence in preventing any further escalation of this matter by  urging calm. After all Mayor Tooke was the one that lost the most and had the moral authority to speak on behalf of the community. Finally things settled down and the protests ended. In a few years, the Vietnam War ended along with  violent protests by blacks.  By the mid 1970′s our country and communities settled back into more normal times.

Howard Wright@2011

The Eighth Circuit Court of Appeals recently declared that a Manchester, Missouri ordinance that regulated picketing of funerals was invalid on the grounds that it violated the Free Speech Clause of the First Amendment of the United States Constitution. While seemingly another victory for the Westboro Baptist Church, this case could be the beginning of the end of their picketing activities within 300 feet of a funeral, including funerals for veterans. You might ask how a defeat could lead to a victory? Well let’s see.

Hate Picketing

The Manchester City ordinance prohibited picketing or other protest activities within 300 feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during, or within one hour before or after the conducting of a funeral or burial service at that location. The ordinance was passed in response to picketing by the Westboro Baptist Church of veteran’s funerals where signs were displayed stating that the veteran’s death was God’s vengeance for homosexuality in America. In the Manchester case the Eighth Circuit relied on its earlier 2008 opinion where it found there was no compelling interest in protecting funeral attendees from unwanted communications; that the ordinance was not narrowly tailored; and it was facial overbroad. In its 2008 opinion the Eighth Circuit refused to extend the U. S. Supreme Court’s reasoning prohibiting picketing in front of a residence to funerals. In short, in 2008 the Eighth Circuit stated that until the Supreme Court provides additional guidance we are not going to extend the reasoning of the Supreme Court to funeral processions.

Now lets look at the good part. The opinion by the Eighth Circuit creates a split between the Eighth Circuit and the Sixth Circuit Courts of Appeals since the Sixth Circuit in the Strickland case found that an ordinance very similar to the Manchester ordinance was valid. A split between Circuits is significant because it gives the Supreme Court a basis for hearing this case in order to clarify the differences between the Circuits.

Will the Manchester Case Be Heard by the Supreme Court?

Also of significance was the finding by the Eighth Circuit that  the Manchester ordinance was not regulation of speech since all that was needed was a cursory examination of the speaker’s words to determine if he or she was engaged in picketing or other protest activity regulated by the Manchester ordinance. This is significant point because the Eighth Circuit is saying that the ordinance did not regulate speech, just where it occurs. While I am not sure I buy this distinction, it does focus the argument away from the content of the speech.

In the Manchester case, the ordinance was narrowly drawn eliminating other issues allowing the Supreme Court – if it hears this case – to  focus  on the central  issue of whether or not picketing can be limited for short periods of time before, during, and after a funeral when family and friends gather to mourn the loss of a friend or loved one.

In addition, Justice Murphy wrote a powerful concurring opinion in the Manchester case indicating that but for the earlier 2008 decision by the Eighth Circuit the results in this case could have been much different. Justice Murphy makes a strong case for an alternative theory to validate the ordinance based upon a significant government interest in protecting the rights of funeral attendees. He notes that survivors of deceased veterans should have a right to privacy, citing the Sixth Circuit in Strickland. To conclude that funeral attendees do not have these rights prevents them from having privacy at a moment when they are mourning the loss of a friend or loved one. This argument also shifts the emphasis to a countervailing right, the right of privacy.

The decision in the Manchester case is not unexpected,  as noted in my earlier Posts on this topic on March 3, 2011 and February 24, 2011 where I stated that it was unlikely that the Eighth Circuit would deviate from its earlier opinions based upon current United States Supreme Court decisions.

So the good news is that the opinion by Eighth Circuit in the Manchester case clearly provides a strong rationale for the Supreme Court to consider this case while establishing  a roadmap to hold that the ordinance is valid based upon the reasoning in Strickland and the concurring opinion in the Manchester case. This was not an accident. The Eighth Circuit was begging for additional guidance. Stayed tuned.