Monday, August 10, 2009

Why The Panhandling Ordinance is Probably Unconstitutional

I have to admit that I have not paid close attention to the panhandling ordinance until tonight. When the issue turned to the constitutionality of the law, that piqued my interest. As an attorney of 22 years, I have often dealt with constitutional questions both in the courtroom and during the 3 1/2 years I spent as a law clerk to a judge on the Indiana Court of Appeals.

Today, during the debate, a councilor called to the podium the head of the litigation department for City Legal, Jonathan Mayes, to answer questions regarding the law's constitutionality. One of the Democrats asked whether Mayes was a constitutional lawyer, to which Mayes answered that he was. Uh, no, he is not.

Jonathan Mayes had just two years of experience when Mayor Ballard appointed him head of the city's litigation division. In that position, I have squared off against him on a number of cases. Mayes has repeatedly displayed the inexperience one would expect of an attorney who has only been practicing two years. That inexperience has shown up not only in how he has represented the City, but also in a lack of basic knowledge about the law, including constitutional law. Not that there is anything wrong with that. I don't think that two years out of law school, I had any more knowledge about the practice of law than Mayes has at this point in his legal career, and probably had less. But for the council to ask for Mayes' "expertise" on a constitutional question and to rely on his legal advice, is pure folly.

Contrary to what Mayes represented, there are most certainly constitutional problems with the panhandling ordinance. Here is the problem. Political speech is given almost maximum protection under the Free Speech Clause of the First Amendment. Commercial speech - which would include the solicitation of money - is given much less protection. While a municipality could ban a person from holding a sign asking for money, an ordinance that would also ban that person from holding a "Ron Paul for President" sign is probably going to be unconstitutional as applied to political speech.

The problem with the proposed ordinance is that all speech is being treated the same. My guess is that the drafters of the ordinance (and I understand City Legal was involved) read cases about the need to treat speech the same to be constitutional and did not make a distinction in the ordinance in order to protect political speech. That would reflect a misunderstanding of the holdings. The requirement is to treat each type of speech the same within that classification. All political speech has to be treated the same. For example, the law can't allow political signs for Republicans and Democrats, but ban Libertarian signs. It is the same with commercial speech. You can't allow one type of commercial speech, while banning another type. The cases say you have to provide greater protection for political speech or the law will be unconstitutional.

Unless the panhandling ordinance excepts out political speech it probably will be held unconstitutional as applied to political speech. If the ordinance is amended so it is restricted to commercial activities, including the solicitation of money, it will probably be held to be constitutional.

As a side note, every year the Catholic Church sponsors a "life chain." In Indianapolis, that involves people lined up along Meridian Street with signs, standing in quiet prayer about the abortion issue. Many protesters stand within 50 feet of an intersection. It would appear that the ordinance would severely restrict that political protest. One wonders if the Republicans gave serious thought to the political ramifications of a panhandling issue being used against political protesters, including pro-lifers who faithfully vote Republican.


Diana Vice said...

No problem, Paul. When someone sues the city, and they will, then city lawyers will make more money off taxpayers defending the lawsuits. These types of lawyers don't care if laws are constitutional or not. They just care about the money they make off of it.

Patriot Paul said...

If there was a bright spot on Monday night, it is that this proposal was shot down, 16/13. The original broad 50' has no restriction; only that it was to be 50' from any intersection having a stop light or stop sign. If the original proposal would have been adopted it would have encroached 18' inside Jimmy Johns, 15' inside Dunkin Donuts, 24' inside Stake N Shake, 32' inside LePeeps, 18' inside Acapulco Joes, according to the distance I measured on Sunday.
For once, property rights avoided a bullet and the City avoided a potential lawsuit that would have been a dream for any panhandler. Seems like we've been down this road before with the ACLU and the last panhandling lawsuit which the City lost.

Paul K. Ogden said...

PP, you misunderstood the vote. The panhandling proposal was not defeated. It was sent back to committee.

While the law might be unconstittional as applied to panhandlers, i.e commercial speech, it certainly is unconstititutional as applied to political speech. They have to have an exception in the law for political speech or it will not fly.

Patriot Paul said...

Paul, I understand the vote. It didn't pass. I have no doubt the issue will be reworded and the proposal reissued at a later date. But for the time being, at least we don't have to deal with any lawsuit based on an overly broad and poorly written ordinance.

Paul K. Ogden said...

Yeah, PP, but the proposal didn't fail either. It was just recommitted to a committee, a committee on which Republicans have a majority and will vote it out again.

The proposal will be back in front of council. I guarantee it.

By the way, I think the vote to recommit was 15-14, with Barb Malone voting with the Ds.

Patriot Paul said...

Could you double check that vote total? The Indianapolis Star agrees with me & also reports 16/13 (pg. A20)

Paul K. Ogden said...

PP, you could be right. I thought I recall Barb Malone voting with the Ds to give it 15 to recommit. I'm not sure where to look to confirm.

Carlos F. Lam said...

Paul, if the ordinance restricts requests for work in exchange for money (this is what the guys near the interstates panhandle for), then it would survive rational basis scrutiny because the city could argue that it does not want such types of commercial transactions on its sidewalks or interstate ramps.

FYI: the Life Chain isn't just a Catholic-sponsored event; an amalgamation of religious organizations sponsor it.