Dayton City Paper » AJ Wagner

Raising the Bar

AJWagner — Tue, 29 May 2012 21:43:15 +0000

A Case of a Liquor License Lost

By AJ Wagner

A few weeks back the Dayton City Paper had a debate about liquor licenses and the City of Dayton’s request to the Ohio Liquor Control Commission not to renew the licenses of five different bars. This week, Ohio’s Tenth District Court of Appeals in Columbus weighed in on the subject with the kind of authority that could doom the five bars in question.

Jeffrey Allen Douglas operated a bar and grill known as Jeff’s Place in Columbus. The real estate at that location is owned by Edward M. Douglas (“Mr. Douglas”), the father of appellant.

The Columbus City Council passed a resolution objecting to the 2010-2011 renewal of the liquor permit at Jeff’s Place. The objection was based upon legal grounds set forth in R.C. 4303.292.

A hearing was held at which the following witnesses testified: Detective Allen Brown and Officer Robert C. Vass, both employees of the Columbus Police; and Edward Douglas.

Detective Brown said there were 130 dispatched runs to Jeff’s Place, which he classified as “an extremely high number” as well as a “burden on the police resources.” The reasons for the runs spanned various categories, including traffic accidents, traffic violations, domestic violence disturbances, suspicious persons, stolen vehicles, shots fired, calls to report persons with guns, shootings, narcotics activity and robberies. In addition, Detective Brown testified he participated in a nuisance abatement group with the Columbus Department of Health, which inspected premises for violations and documented health and safety violations.

Officer Vass testified that Jeff’s Place has always had its problems, but in the past two-to-two and one-half years, the establishment has become a cause for concern for the officers working in that precinct, as well as the citizens in the area. Officer Vass further acknowledged that of all the bars in precinct five, Jeff’s Place was the most problematic. Officer Vass also testified to the presence of gang members at Jeff’s Place.

Mr. Douglas testified that crime in precinct five and in the neighborhood around Jeff’s Place has increased in the last two or three years. Mr. Douglas testified all of the patrons at the club have guns in their pockets and he did not know what to do about it besides call the police. He testified that he would remove patrons from the bar he suspected were gang members, but sometimes those patrons would jump the fence and re-enter the bar. Mr. Douglas acknowledged he did not try to increase the presence of security by either adding special duty police officers or additional security in the parking lot or inside the establishment.

After a hearing, the license renewal was denied for the following reasons: (1) the place for which the permit is sought is so located with respect to the neighborhood that substantial interference with public decency, sobriety, peace or good order would result from the issuance and operation of the permit; (2) the applicant has shown a disregard for the laws, regulations or local ordinances of the state and will operate the permit business in a manner which demonstrates a disregard for said laws, regulations or ordinances; (3) the permit location does not conform to applicable building, safety or health requirements; and (4) for good cause.

At the Court of Appeals, Edwards made several arguments to support his position for renewal of the license. First, he disputed the conclusion that the renewal of the permit license would substantially interfere with the public decency, sobriety, peace or good order of the neighborhood, arguing the neighborhood is not residential, the operation of the establishment has very little impact on an already crime-ridden area and there is no nexus between the environmental conditions and appellant’s operation of the business.

The Court said, “A permit holder is entitled to a renewal, pursuant to R.C. 4303.271, unless good cause exists to reject the renewal application. Pursuant to R.C. 4303.292(A)(2)(c), the division of liquor control may refuse to issue, transfer, or renew a retail permit if it finds ‘[t]hat the place for which the permit is sought * * * [i]s so located with respect to the neighborhood that substantial interference with public decency, sobriety, peace or good order would result from the issuance, renewal, transfer of location or transfer of ownership of the permit and operation under it by the applicant.’ . . . A renewal application is properly rejected under R.C. 4303.292(A)(2)(c), even if the permit holder’s operation does not per see cause the illicit activity, because there can be good cause to reject the permit application where it constitutes a breeding ground for a deleterious environment. ”

The Court also found that, although in an industrial area, the bar was within 500 feet of a house and other nearby residences. Further, the Court noted the violations of health codes.

Last call.

(Taken from Douglas v. Ohio Liquor Control Comm., 2012-Ohio-2218.)

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

The Bars That Bind

AJWagner — Tue, 15 May 2012 21:25:35 +0000

On The Job, With a Conviction

By AJ Wagner

One of the issues facing many of those looking for employment is a criminal record. A conviction for committing a crime can often have far reaching and long lasting consequences for employment and advancement within a company.

Two weeks ago Leaders for Equality and Action in Dayton (LEAD) asked the City of Dayton and Montgomery County to establish laws for equal hiring that help those with a past they likely regret. LEAD has provided the City and County with guidance on how they would like to see the legislative bodies proceed, but guidance may also be available from the Federal government.

Last month the Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance that clarified the agency’s position on employment qualification for those with a criminal past. The advisory reminds employers that by denying employment, solely on the basis of a checked box next to the statement, “Have you ever been arrested for or convicted of a crime?” may have discriminatory consequences and therefore be in violation of the Civil Rights Act of 1964.

The EEOC Guidance is built on longstanding court decisions and other existing guidance documents that have been issued over the past twenty years, so there is really nothing new here. But by reaffirming the decisions and their positions in one document, the EEOC is making clear that the practice of making employment decisions based solely on an arrest or conviction is not acceptable practice.

The EEOC frames the problem within the context of America’s exploding prison population over the past twenty years. 1 in 17 whites born in the United States in this century will have a felony record. For Hispanics that number will be 1 in 6 and for African-Americans the number will be 1 in 3. Thus, using criminal convictions, without further analysis, as a screening tool will have a discriminatory effect.

But even further analysis can be problematic. Some states allow significant records to prospective employers including the names of those who have been placed on “Watch” lists. These lists are made up of people who may have done nothing wrong but have been seen with a known felon or other suspect in crime.

In a study conducted by the Department of Justice Bureau of Justice Statistics it was discovered that half of all FBI records do not list the outcomes of an arrest. This may lead an employer to assume a conviction where none exists. Misspellings, clerical errors and other inaccuracies also make a records review, in and of itself, unreliable. Since 92% of employers use background checks for all or some prospective employees, this is an important issue.

The EEOC Guidance notes that an arrest does not establish that criminal conduct has occurred and cautions that an exclusion based on an arrest, in itself, is not job related. A conviction record will usually serve as sufficient evidence that a person engaged in a particular conduct. However, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

The Guidance affirms that employers must look at how the use of arrest and conviction information may cause disparate treatment and disparate impact between people of different races or ethnic origin. Specifically, the EEOC will look at any hiring decision for inconsistent use of information, biased testing and other statistical evidence that results in the exclusion or different treatment of members of a specific race or ethnicity.

The Guidance states, “An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).” “Further”, the EEOC notes, “National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.”

The EEOC acknowledges that a criminal record may be used if “job related and consistent with business necessity” and tells employers that they should validate the criminal conduct exclusion for the position in question in light of data or analysis about criminal conduct as related to subsequent work performance or behaviors. Consistent with a federal court’s decision in Green v. Missouri Pacific Railroad, the Guidance suggests employers develop a targeted screen considering at least the nature of the crime, the time elapsed and the nature of the job. The Guidance states, “The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.”

The road for ex-felons will still be tough, but perhaps this Guidance will help those whose past is long gone and, hopefully, forgotten.

What Second Amendment?

AJWagner — Tue, 24 Apr 2012 15:29:23 +0000

A Gun in the Car, Ohio V. King

By AJ Wagner

Guns are legal. The right to have a gun is enshrined within The Bill of Rights in both the United States and the State of Ohio Constitutions. Limitations on gun possession should, therefore, be rare.

A decision last year by Ohio’s Second District Court of Appeals in Dayton does a good job of setting forth the current state of the law in Ohio and the exceptions. In Ohio v. King, the court took a hard look at Ohio Revised Code section §2923.16(B) and found it to be constitutional despite the constitutions’ declarations of rights.

At issue in the case was the criminal conviction of King for improperly handling a firearm in a motor vehicle. King was stopped by Dayton police for having an expired license plate. When King was stopped, he reached toward the back seat. Because of this, the officer called for backup, which arrived minutes later.
King’s passenger was removed from the vehicle by an officer who noted the floor mat was folded back. The officer lifted the mat and found a metal box that he recognized as a gun box. There was a loaded magazine in the box, but no gun. King, after being asked, admitted that the gun was behind him. Sure enough, inside a zipped case, there was a gun. King did not have a concealed-carry permit.

King challenged the statute under which he was charged, telling the court it was in violation of the Second Amendment and the Fourteenth Amendment of the U.S. Constitution.

Because the trial court ruled that the federal gun amendment did not apply to Ohio, King first had to argue to the appeals court that the Second Amendment of the U.S. Constitution applies to all of us. “True,” said the court. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed,” is applicable in Ohio and forty-nine other states.

A court must always assume that laws passed by the legislature and signed by the governor are constitutional. §2923.16(B) will not be invalidated unless the challenger establishes that it is unconstitutional beyond a reasonable doubt.
The court noted that the right to bear arms is a fundamental right. “However, that right is not unlimited. Regulations regarding the manner in which weapons may be carried involve the police power of the state. Such regulations are constitutionally permissible if they impose reasonable limitations upon an individual’s right to bear arms.”

§2923.16(B) says, “No person shall knowingly transport or have a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle.” The law only limits an individual’s right to transport a loaded gun within reach of the driver or any passenger. That, the court said, is appropriate and reasonable.
Actually, the court noted a non-exhaustive list of five ways a legislature could limit the possession of firearms:

Possession of firearms by felons,
Possession by the mentally ill,
Possession in sensitive places such as schools,
Possession in government buildings, or
Imposition of conditions and qualifications on the commercial sales of arms.

Because this is not an exhaustive list, the court said, “[T]o include restrictions on transport of firearms in a motor vehicle within the listed categories of permissible gun regulations does not mean that a restriction of that type is necessarily unconstitutional.”

King then argued that §2923.16(B) imposes a more severe penalty for violators who do not possess a concealed carry permit than for those who do. That, says King, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. That amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” This clause prohibits states from arbitrarily treating similarly situated people differently under the laws.
The court said, “King is not similarly situated to a permit holder. One who has obtained a permit has successfully completed firearm training and has been fingerprinted and undergone a background check. It is logical to conclude that a permit holder will pose less of a threat to public safety than a non-permit holder, and therefore be deserving of a lesser punishment than a non-permit holder.”

So, King was convicted. If King wishes to carry a gun in the future his felony conviction will make it difficult to obtain a Concealed Carry license. A convicted felon cannot normally obtain a license to carry. However, under Ohio Revised Code § 2923.14, a convicted felon who has completed his or her sentence may appeal to the trial court and convince the judge that he or she has been, and continues to be, a law-abiding citizen. The court may then order the right to carry.
Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

Running Over the Constitution

AJWagner — Tue, 17 Apr 2012 17:22:00 +0000

A $40,000 Speeding Ticket

By AJ Wagner

It was eighty-three years ago next week that the Saturday Evening Post took on the issue of speed traps with the Norman Rockwell cover illustration “Welcome to Elmville.” The illustration, which appeared a few months ago at the Dayton Art Institute, depicts a small town policeman hiding behind a sign, stopwatch in hand, awaiting the next victim of his trap. The cover came as a result of conversation in 1929 America about the appropriate use of speeding fines to raise revenues in small towns and cities.

Enter Dayton, 2012 and the discussion continues. Here is a list of electronic cameras ready to take a picture of your car in action on Dayton’s streets if you run a red light or exceed the speed limit.

Smithville Road at Patterson Road: Red Light Enforced
Smithville Road near Fourth: Speed Enforced
Smithville Road near Marimont: Speed Enforced
Third Street at Edwin C. Moses Boulevard: Red Light Enforced
Third Street at James H. McGee Boulevard: Red Light Enforced
West Third Street near Hatfield : Speed Enforced
East Third Street near Clinton: Speed Enforced
Troy Street at Stanley Avenue: Red Light Enforced
Stanley Avenue at Valley Street: Red Light Enforced
Stanley Avenue near Kuntz: Speed Enforced
South Keowee Street near Fourth: Speed Enforced
North Keowee Street near Stanley: Speed Enforced
Gettysburg Avenue at Cornell Drive: Red Light and Speed Enforced
North Gettysburg Avenue near Fairbanks: Speed Enforced
Main Street at Hillcrest Avenue: Red Light Enforced
US 35 at Abbey Avenue: Red Light and Speed Enforced
Salem Avenue at North Avenue: Red Light Enforced
Salem Avenue at Hillcrest Avenue: Red Light Enforced
Salem Avenue near Otterbein: Speed Enforced

In the first seventeen days after the first four of the speeding cameras had been installed more than 3,500 drivers had been spotted exceeding the limit. At $85 a pop, the City could net an estimated two million dollars each year from of these cameras.

The City Manager has said it’s not about the money, it’s about safety. The cameras have been placed in high accident areas with two cameras at each location, one covering each direction of travel. There are warning signs in place, and although that seems like a reasonable practice, many cities with cameras report an increase in rear end collisions around the cameras while reporting an overall decrease in accidents.

Once caught, a letter is mailed to the vehicle owner. Violators are given 15 days to appeal, but never see a judge or a courtroom. About the only way to win an appeal is to provide an affidavit from the owner identifying another driver as the real violator. This is not a criminal action, but a civil action with the owner presumed to be guilty. The $85 charge is not a fine but a civil penalty. If the owner fails to pay the penalty within 15 days, a late fee of $25 is added to the toll. If there are two or more citations for a car the City has started to tow the car wherever it is found.

In my opinion the City is violating more laws than the car owners.

Running a red light and speeding are crimes. If someone commits a crime the Constitution requires they be presumed innocent. A criminal is entitled to confront those who accuse him or her of the crime. There is a right to trial in a court where witnesses can be called and the calibration and effectiveness of sensors, radar, and machinery can be challenged. Dayton plays a game by calling the camera violation a civil offense for the sole purpose of denying its citizens these important constitutional rights.

Additionally, the collection of civil penalties is regulated by state and federal law, which the City of Dayton ignores. Under Ohio law, an automobile is not subject to collection if it is valued at $3,500 or less. If a violator is found guilty of speeding in a court, there is a maximum fine of $150 plus court costs. Under the camera program Dayton can charge up to $250 and may collect a $40,000 vehicle as well without a court hearing.

This past week a 91-year old man went to the Dayton Municipal Courts Building to pay his camera violation. When he came back out, his car was being hooked up to a tow truck. He argued that he had paid the penalties but got no sympathy. His car was towed adding to his expenses and leaving the elderly man without a way home.

My friends at Dyer, Garofalo, Mann and Schultz are preparing a suit against the city. If you’re car has been towed call them at 223-8888 to join the suit.

As my dad said, “Two wrongs don’t make a right.” Speeders are wrong, but so is a city that ignores the constitutional rights of its citizens.

Forum Right, 4/10/12

AJWagner — Tue, 10 Apr 2012 16:29:40 +0000

For the General Population: The Law Left a Solution

By AJ Wagner

In January I did a piece for my Law and Disorder column in which I described a case involving the search of a man’s penis. I set forth the standards for a strip search which come from a United States Supreme Court Case decided in 1979. Because the Fourth Amendment bans “unreasonable” searches, and because “unreasonable” is such a broad term, the Court sought a standard for police to follow. In the case of Bell v. Wolfish the Justices held, “[M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of retained constitutional rights of both convicted prisoners and pretrial detainees.” The Court went further to say that prison security is “peculiarly within the province and professional expertise of corrections officials,” concluding that, “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters.”

For the ten years I was a judge in Montgomery County Common Pleas Court, I spent every week with dozens of prisoners sitting together in the jury box while I handled their cases. For the twelve or so prisoners in the seats there may have been four deputies in the courtroom. I rarely had any problems because the prisoners respected the deputies and seemed to respect the need the deputies had for doing their job. So did I.

The few times there was trouble I left the courtroom, as I was trained to do, and allowed the deputies to do their job, as they were trained to do. And they did. In the case of Florence V. Board of Chosen Freeholders of County of Burlington et al. the five justices of the majority followed this same course by using the test in Bell as a tip of the hat to professionally trained police who know much more about operating a jail than the Justices possibly could.

The Justices found no exaggeration in the possible danger of someone coming into the general population of a jail with hidden contraband, and approved strip searches for everyone to a assure everyone’s safety. Drugs coming into the general population of a jail, where serious criminals are being held, could cause an explosive problem. Weapons coming into the jail would be even more explosive.

Much has been made about the reach of this decision, but Justices Roberts and Alito were careful to limit the results of this decision only to those being admitted to the general population of a jail. Both justices were careful to note that any other kind of situation would need another look/see by the court thereby putting jailers on notice that the practice of strip searches should still be limited.

Specifically, Justice Alito said, “It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible. For example, the Federal Bureau of Prisons (BOP) and possibly even some local jails appear to segregate temporary detainees who are minor offenders from the general population.”

So, the court left a solution – don’t lock up minor offenders with serious offenders. Keep them separate and stop the strip searches.

A.J. Wagner is a retired judge who is trying to decide what to be when he grows up. Reach DCP freelance writer A.J. Wagner at AJWagner@DaytonCityPaper.com.

Easy Riding

AJWagner — Tue, 20 Mar 2012 15:23:25 +0000

Tips for Safe, Responsible Bicycling

By AJ Wagner

The City of Dayton 2025 Bicycle Action Plan opens with this statement: “A simple, accessible, inexpensive, and environmentally-friendly form of transportation, the bicycle continues to be a pivotal part of the City of Dayton’s vision for an active citizenry, vibrant economy, and engaging street life. Every day, citizens across the City of Dayton choose the bicycle to run everyday errands, commute to work, visit friends and neighbors, increase fitness, and have fun. It is vital to the future of the City that citizens are continuously provided the opportunity to choose bicycling as a cost-efficient, viable alternative to the automobile. An active bicycling culture has the potential to be a key factor in attracting the community leaders and entrepreneurs on which the City of Dayton will rely to move into the 21st Century. Across the country, individuals and businesses are choosing to locate or recreate in areas where alternative transportation options are both abundant and convenient. As the centerpiece of the Dayton Region, the City of Dayton and its partner organizations must work to provide these options to those who live, work, learn, shop, and recreate within our borders. The City of Dayton 2025 Bicycle Action Plan provides the comprehensive, strategic pathway to fully incorporate bicycling into our transportation network.”

But what are the rules for biking in Ohio? Spring weather demands an answer.

The most important thing to know about bicycles is that Ohio law defines them as “vehicles.” That means all of Ohio’s laws that apply to cars also apply to bikes. More specifically, it means that if you ride your bike drunk you could be cited for driving under the influence. Run a red light — pay the ticket. Ride against traffic — your mistake. Every rule that you obey when driving a vehicle must be obeyed on the bicycle as well. (There are a few driving rules that apply to “motor vehicles” only, but they are few.)

If you ride the many bike paths in the greater Dayton area, the rules do not change. Stay to the right, heed the stop signs and pass with a signal and with care.

I’m sure you love to give your kid sister a lift every once and a while, but unless there is a separate and firmly attached seat for her you will be violating the law. The peddler must also have a permanent, regular seat. Stay off the handlebars.

Ohio law requires at least one hand be on the handle bar when riding. Thus, the famous line, “Look Ma, No hands!” may be followed by another famous line, “Book him, Dano!” (Okay, it would only be a ticket, but I love that line.)

It is illegal to hang on to a car to hitch a ride. It is also stupid.

A problematic rule is that a bike must ride as near to the right side of the road as is practicable. This can be a problem because if you ride too close to a curb and a car approaches beside you, you will have nowhere to go except into the curb. The word “practicable” gives some room to argue the need to avoid closeness to the curb and possibly the car door opening area but, as I noted, it is problematic.

The law does allow two riders to ride abreast on a roadway but not on a bike path or in a bike lane. The rider on the left would have a different view of “as far to the right as practicable” but that rule doesn’t change.

A bike must have lights and reflectors for night riding. The light facing forward must be white and the one to rear must be red, both with a visibility of 500 feet. If you ride in some cities, such as Dayton, this requirement can be enforced even during daylight hours.

The bike must also have a bell or audible signal that can be heard at least 100 feet. But don’t get carried away. You cannot use sirens or whistles.

Brakes are a must. If you don’t have them, don’t ride, or prepare to answer this question, “What are you thinking?”

A violation will be treated much like any traffic offense. If you’re guilty expect to pay a fine of up to $150.00 plus some court costs, which can add more than $100 to your tab. The penalty goes up if you have a second ticket within a year, and can include a possible 30 days in jail. A third offense within a year gets worse.

Remember that there may be local laws that add to the requirements such as requirements for helmets, registration, or limitations on where you can ride. Get to know the rules of your community before you head out.

Be careful and have fun!

U$A: The Best Elections Money Can Buy

AJWagner — Thu, 01 Mar 2012 14:36:50 +0000

Montana Indicts the U.S. Supreme Court

By AJ Wagner

The Supreme Court of Montana told the Supreme Court of the United States what it thought of its decision in Citizens United v Federal Elections Commission – the decision that said corporations were entitled to the protections of the First Amendment when it comes to campaign financing. They didn’t like it.

In fact, they disliked it so much they ignored the general principal that states cannot limit the rights given in the Constitution of the United States as interpreted by the United States Supreme Court, and in Western Tradition, et al. v Attorney General of Montana, et al, they voted 5 – 2 to uphold a ban of corporate money in their state elections.

The two Montana justices in the minority didn’t like the Citizens United decision either, but felt they were compelled to follow the law as defined by the highest federal court. To quote Justice James C. Nelson, one of the two dissenting Montana Supreme Court justices, “Corporations are artificial creatures of law. As such, they should enjoy only those powers – not constitutional rights, but legislatively-conferred powers – that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people – human beings – to share fundamental, natural rights with soulless creatures of government.”

Actually, Justice Nelson makes five points in his dissenting opinion that contradict the Citizens United decision while upholding that decision out of obligation to the law.

First, Justice Nelson attacked the notion in Citizens United that corporations were somehow disadvantaged. “The truth is,” he stated, “that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment’s “open marketplace” of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy.”

Second, the good justice disagreed with the premise that unlimited corporate political speech is essential to “enlightened self-government” and aids the electorate in making “informed choices.” Justice Nelson said, “For one thing, voters generally do not have the desire, much less the time, sophistication, or ability, to sift through hours upon hours of attack ads, political mumbo jumbo, and sound bites in order to winnow truth (of which there often seems to be very little) from fiction and half-truths (of which there unfortunately seems to be an endless supply). The Supreme Court believes the solution for false or misleading speech is more speech. Yet, an endless barrage of accusations and counteraccusations providing more fodder than fact only serves to overwhelm, confuse, and disenchant voters.”

A third point: Citizens United allowed that corporate shareholders could object to the spending with which they disagree. Justice Nelson opined, “I do not believe that participation in ‘corporate democracy’ actually accounts for anything—unless, of course, the objecting shareholder is an insider or owns a controlling percentage of the outstanding stock.”

Justice Nelson continued, “Fourth, I absolutely do not agree that corporate money in the form of ‘independent expenditures’ expressly advocating the election or defeat of candidates cannot give rise to corruption or the appearance of corruption. Of course it can.

Fifth, therefore, I cannot agree with the holding that the prevention of corruption in the form of independent expenditures is not a compelling state interest … Indeed, I am shocked that the Supreme Court did not balance the right to speech with the government’s compelling interest in preserving the fundamental right to vote in elections.”

This all comes up now because last week the Supreme Court of the United States, via Justice Ruth Bader Ginsburg and Justice Stephen Breyer, blocked the Montana decision while allowing the case to be heard by the top court. In their statement blocking the Montana decision, Justice Ginsberg wrote, “Montana’s experience, and experience elsewhere since this court’s decision” in Citizens United “make it exceedingly difficult to maintain that independent expenditures by corporations give rise to corruption or the appearance of corruption, A petition for certiorari will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”

Because the Montana court actually heard evidence as to the corruption of money in politics, some believe their decision should be given a hearing. In Citizens United the Supreme Court concluded that expenditures might result in “influence over or access to elected officials” but would not “corrupt” them. Montana’s case shows the lived experience over the hoped-for ideal of Citizens United.

Though not likely, this opens the door for Citizens United to be put to rest.

Forum Right, 2/21/12

AJWagner — Tue, 21 Feb 2012 20:39:19 +0000

Can’t Rent Out Your Rights

By A.J. Wagner

It is seldom as easy as saying “I have Constitutional right!” because the likely response is, “So do I!” When a court hears these two statements, or something similar, a fair amount of analysis is brought to bear on the two sides with the outcome dependent on facts.

So, when a right to contract faces the right to free speech on government property, we get an analysis. Using the case of Bays, et al. v City of Fairborn, et al., recently decided by the United States Court of Appeals for the Sixth District, we can take a look at such an analysis.

The Fairborn Arts Association (FAA) and the Fairborn Lions Club (Lions Club) agreed, by contract with the City of Fairborn (Fairborn) that a city park could be rented for the Sweet Corn Festival. The FAA and Lions Club agreed that promotion, conduct, registration, fund raising and other festival-related issues were their responsibility. Fairborn agreed to put up festival banners, provide picnic tables and bleachers, and supply general labor. The park was to remain free and open to the public during the Festival.

Booth space for those wishing to sell merchandise, food, or arts and crafts was made available for a fee. Vendors were told that there should be no sales or soliciting of causes outside of the booth space.

Tracey Bays and Kerrigan Skelly planned to meet at the park during the festival to express their religious views to whoever would listen. Bays wore a 2’ x 2’ sandwich board that said, “Jesus is the Way, the Truth and the Life. John 14:6” on the front and “Are you born again of the Holy Spirit?” on the back.

Bays was asked by a festival worker to remove his sign or leave the park. Bays failed to obey the request. He was then approached by an official of the Fairborn Parks and Recreation Department, who told Bays he could not display a sign or distribute literature in the park. Bays found Skelly to talk with him about the matter when they were approached by three Fairborn police officers. Bays and Skelly were told by the officers that they could not display signs or hand out literature without a permit, and that they would be arrested for criminal trespassing if they did not stop such activities. Bays and Skelly left the park and filed suit to enjoin Fairborn to allow them to preach in the park during the festival.

The court noted that on the claim of Bays and Skelly, the first question is “whether the solicitation policy and its enforcement should be considered state action attributable to Fairborn. If there is state action, the question then becomes whether the solicitation policy is constitutional under the First Amendment.”

It matters if this was a government action. Fairborn argued that FAA and the Lions Club are private entities and they made the rules. The court noted that a Fairborn official asked Bays and Skelly to leave and the city police made the threat to arrest them if they didn’t. That, the court noted, is state action.

The constitutionality of the solicitation policy must then be analyzed in three steps. The first step is to determine whether Bays’ and Skelly’s conduct is protected speech. Even Fairborn could not dispute that the expression of religious belief by pamphlet, sign or conversation is protected by the First Amendment of the United States Constitution.

The next step, then, is to determine if the festival is public or private, because the extent to which the Government may limit access depends on that. A public park, both sides agreed, is open to public assembly. But can Fairborn turn it into a private space by contract? Maybe, but not when the sponsored event is free and open to the public. A public event in a public park is exactly where free speech is expected and protected.

But, Fairborn argued, government can limit the time, place and manner of communication. This would be true if the restrictions placed on the speakers served a “significant government interest.” Fairborn told the court its significant interest was crowd control and flow of pedestrian traffic. The court said there is no proof of need for crowd or flow control. The place wasn’t crowded.

In Berger v. City of Seattle, the United States Supreme Court said, “[W]e cannot countenance the view that individuals who choose to enter [parks], for whatever reason, are to be protected from speech and ideas those individuals find disagreeable, uncomfortable, or annoying.”

A city can rent a space where speech can be limited. But when that space is public, remains open to the public and is patrolled and controlled by public officers, there must be a significant reason for control of speech. Otherwise, free speech triumphs.

I’m sorry if that bothers my friend on the other side.

A.J. Wagner is a retired judge who is trying to decide what to be when he grows up. Reach DCP freelance writer A.J. Wagner at AJWagner@DaytonCityPaper.com.

Head to head combat

AJWagner — Tue, 10 Jan 2012 09:00:35 +0000

Do retired NFL players have the right to sue for head injuries?

By A.J. Wagner

My parents had next to nothing. They had each other, they had their 18 children, and they had a three-bedroom house in the poor section of Beaver Falls, Penn., just north of Pittsburgh. After my mother died and her income was lost, my dad sold the house and moved into a mobile home. By that time he had obtained one other prized possession.

A year or so after Mom died, my dad asked me to write his will. Not being licensed to practice law in Pennsylvania I resisted. At my dad’s insistence, however, I finally relented and said, “OK, what do you want to happen to your things?”

He started with that prized possession, “I want my season tickets to the Pittsburgh Steelers to go to my sons.”

I explained, briefly, the ins and outs of seat licensing and the possible barriers the Steelers may have to prevent their tickets from passing to others. I also explained how his daughters would dig him up from his grave to spit on him if only the sons were included in the bequest. He said, “OK. Just put it in there and make sure the tickets don’t go to the in-laws. They’re for my kids.”

I agreed to write it into a will with no guarantee that his wish would be honored by the Steelers. Then I asked him what else he would like to see in his will. He said, “Oh, I don’t care about the rest. Just make sure about the tickets.”

To most folks from the ‘Burgh, there is nothing more important than the Steelers. So when I was Montgomery County Auditor and I heard that Dwight White, a member of the famous Steel Curtain defensive line of the 1970s and now a municipal bond dealer, wanted to visit with me to discuss municipal financing, I was thrilled. We talked football as much as anything else but he asked if he could meet our county treasurer. We took the steps. Dwight could barely navigate them. “Don’t mind me,” he requested. “Most of us retired players have physical problems from years of taking hits.”

So as playoff battles continue on the field, some of those retired players, about 120 of them, are now going to do battle with the National Football League (NFL) in court. The specific focus of their litigation is concussions. The players are asking the NFL and helmet manufacturers to compensate them for their lifelong head injuries which are causing ongoing headaches, memory loss, dementia, disorientation and more.

It is the retired players’ contention that the NFL did not inform them of all that the NFL knew about multiple head injuries. The players believe that the NFL and the helmet manufacturers were aware of research showing the debilitating effects of multiple concussions but that such information was either not shared with players or completely downplayed in a way that caused players to disregard the dangers.

A 2007 pamphlet the league distributed to players stated, “Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is treated properly.” The players claim that this was not the state of “current” research. Doctors are prepared to testify that the NFL statement came from faulty research. It wasn’t until last year, the retired players contend, that the league began taking concussions seriously.

The NFL is gearing up for a vigorous defense. Their lawyers hope to have all the cases treated under collective bargaining agreements rather than through the courts. Barring that, the NFL hopes to see all the cases moved to one federal court in Philadelphia. Then it is their intention to ask that the cases be dismissed.

The league is taking the lawsuit seriously but sees the cases as frivolous. They have many points on their side starting with the known dangers of playing such a violent sport. Not only is the sport violent, but players, by choice, continue to play after they’ve been injured. One cannot complain that they were injured when they have taken on known risks.

The league will ask the players to prove that their injuries were a direct result of playing in the NFL. This will be hard to do since most, if not all, the players suffered injuries in high school or college.

Many players would have faced dementia and other neurological disorders regardless of the sport. How does one prove that it was football that caused this specific dementia?

If I were to handicap this suit, I’d pick the NFL by a touchdown or more. Nonetheless, if the retired players succeed, look for Dwight White to come off the bench and ask, “Now, about my knees?”

The new Civil War

AJWagner — Tue, 03 Jan 2012 09:00:36 +0000

Looking forward to big decisions in 2012

By A.J. Wagner

The Civil War is about to be fought again. The battle will take place near the banks of the Potomac River where the combatants will be armed with briefs, memoranda and pithy statements to fire at their opponents. Their blue and gray suits, this time, will be well-pressed and accompanied by white shirts or blouses.

In 2012 there will be U.S. Supreme Court decisions affecting criminal law, copyright law and affirmative action that will make some headlines, but the cases with the most far-reaching effect are those that deal with health care and immigration. These cases not only could change the direction of current jurisprudence, they may also have a huge impact on the 2012 elections. When these cases are decided, the balance of power between the states and the federal government will be tilted in a way sure to strengthen one side or the other.

We have heard our entire lives that the War Between the States was about “states’ rights.” At issue was slavery in the context of a state’s right under the U.S. Constitution to allow for the ownership of slaves and to have escaped slaves returned to their owners by non-slaveholding states.

This time the issues revolve around the federal government’s authority to usurp state government in the area of immigration and in the area of controlling the commerce of health care. The Constitution provides the federal government with broad, specific powers regarding immigration and commerce. Article I, section 8, where the powers of Congress are enumerated, states, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; . . . To regulate Commerce with foreign Nations, and among the several States . . .To establish an uniform Rule of Naturalization . . .”

On the other side of the equation is the very important Tenth Amendment to the Constitution, which provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The argument goes that if the federal government does not have the power under the “commerce clause” or the “naturalization clause” or the “taxing clause” the power must revert to the states to do with it as they please.

There are three important cases on the health care issue. It will be argued in these cases that when passing the Affordable Care Act (ACA), Congress exceeded its authority under the “commerce clause” by requiring that all U.S. citizens and legal residents be required to buy health insurance.

Usually, when a court finds one provision of a law to be invalid it will allow the remainder of the law to stand. However, arguments will be presented that the entire law should be struck down as a violation of the “commerce clause” and that the law cannot survive without the purchase requirement.

There will be similar arguments focused on the penalties that must be paid should a person fail to buy the required insurance. The question here is whether Congress, under the “taxing clause” can force someone to buy something. The Obama administration argues that this is a permissible “tax.” There will be a question raised as to whether the Supreme Court can even hear the questions about this “tax” since it has not yet been imposed and won’t be imposed until 2014.

The Supreme Court has also agreed to take up the case of Arizona v. United States. This case is a challenge to Arizona’s immigration law known as S.B. 1070. The U.S. will argue that only it can make rules regarding immigration pursuant to the power to make “uniform” rules of naturalization. Arizona insists that it is only trying to supplement that law, not interfere with it.

Whatever the outcome of these cases, they will have an impact on the 2012 election with winners saying, “I told you so” and losers saying that the other side is destroying the true meaning of the Constitution. The losers will certainly hope for a backlash from their supporters.

Some Civil War historians note that one of the reasons the war was won by the Union was that the South could not get its states to work together. The premise for the war was states’ rights. When Jefferson Davis levied taxes against the states to help pay for the war effort, his efforts were rebuffed by states that did not want to give their new federal government such powers.

The battle lines have been drawn. We will know by the end of June if the states will prevail or if the Union’s powers will be preserved.