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11/26/2010 7:11:00 AM
County lawyers won't commit to constitutionality of new code
Large-assembly ordinance “likely” defensible, attorneys tell supervisors

News Analysis

Oneida County's assistant corporation counsel walked a fine line last month when he presented a revised version of the county's large-assembly ordinance to supervisors for consideration, refusing to firmly commit to the proposed ordinance's constitutionality but advising that it would probably hold up in a court challenge.

Tom Wiensch, the assistant county attorney, had been pursuing the revision with a working group for some time, though he said he wasn't quite sure what ignited the push to revise the ordinance, which regulates events attracting large numbers of people, be it a country music festival or a political protest.

"I'm not sure what the impetus was," Wiensch said. "We attempted to write it in a way that was constitutional, given a lawsuit in southern Wisconsin, and that is more user-friendly to the public."

The ordinance revision passed 19-1 (supervisor Jack Martinson voted no; supervisor Scott Holewinski was absent).

Under the previous law, the county required a permit for any assembly of 1,500 or more people that was expected to continue for four or more consecutive hours. Event organizers had to apply for a license at least 30 days prior to the gathering and also had to pay a one-time $500 area fee. In addition, the county charged $100 for each event.

Under the new ordinance, licenses are required for an actual or reasonably anticipated assembly of 1,000 or more people that will last for eight or more consecutive hours, for events of 5,000 anticipated people lasting for four or more consecutive hours, and events of 10,000 or more anticipated people lasting one or more consecutive hours.

Regulations govern such health-and-safety matters as having potable water, providing a sufficient number of toilets and disposal of waste water.

The new code still requires a permit application 30 days prior to an event, with the county required to approve or deny the application within 20 days of receiving it. The county abandoned the one-time $500 area fee, but retained the $100 fee per event.

Constitutional muster

The question is, if a group challenged the ordinance on constitutional grounds, could the county successfully defend it?

It's not an abstract inquiry because through the years groups across the country have routinely challenged local large-assembly codes. The underlying questions revolve around free speech, or First Amendment, complaints, and Wiensch said it was that issue the working group focused upon.

"Ordinances that enforce rules on assemblies are looked at strictly by the courts because they are looked at as prior restraint in free speech and not presumed to be constitutional," he advised supervisors. "What drives the law in this area is political association. It's very clear under the law that an ordinance can't differentiate between groups based on the type of language."

In Forsyth County, Georgia v. Nationalist Movement, a 1992 decision, the U.S. Supreme Court underscored four overall standards for meeting First Amendment mandates related to the right of assembly.

An ordinance, the court stated, "may not delegate overly broad licensing discretion to a government official"; in addition, "any permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave ample alternatives for communication."

Courts have thrown out ordinances and parts of ordinances for not meeting those standards, including in Wisconsin, in a 2003 decision by the state court of appeals, in Sauk County v. Marcus Gumz.

In that case, in 2000, Sauk County had moved to block an annual "Weedstock" festival on the Gumz property promoting the beneficial properties of hemp, according to court documents. That led to claims and counterclaims about whether the event organizer was adhering to the county ordinance, with the court ultimately voiding certain provisions of the code.

"We conclude that, based on the undisputed facts, the following provisions of the ordinance do not meet the requirement that they be narrowly tailored to achieve a significant government interest and are therefore invalid under the First Amendment: the sixty-day advance filing requirement; the forty-five day processing time period; the prohibition against advertising, promoting, and selling tickets before a license is issued; the requirement of the zoning administrator's certification; and the license fee in excess of $100 per application," the court ruled. "We also conclude that without a processing time for applications, the entire ordinance violates the First Amendment."

After the decision, Sauk County rewrote its ordinance to overcome the court's objections. Wiensch said his working group had tried to incorporate much of that new ordinance language.

In the end, though, when asked directly by supervisor David O'Melia if he felt comfortable that the proposed code could withstand a legal challenge, Wiensch could not answer yes.

"The answer is no," he replied. "I think we've come up with a good ordinance. I would be more comfortable if it was exactly like Sauk's. I think it's (Sauk's ordinance) more defensible since it is tailored to the court ruling. But ours is very likely defensible."

It certainly was more defensible than the ordinance the county has had in place, added corporation counsel Brian Desmond.

The underlying issues

Several provisions could prove to be the county's undoing, and several other factors made Wiensch less than certain about prevailing in litigation.

For one thing, he said, though the new county ordinance is very similar to the Sauk County code, there's no guarantee the Sauk County ordinance would hold up entirely if someone else challenged it in another venue.

"Our ordinance mimics the Sauk ordinance, but there's no guarantee how a federal court would rule," he said.

For example, in Sauk County, an applicant must have an operational land line telephone, or two operational cell phones, during the event, and the state court of appeals let that stand, saying the requirement was narrowly tailored to serve a significant government interest, i.e., having a dependable means for summoning emergency services in the event of injury or life-threatening situations.

But would a federal court agree? Observing that Oneida County has adopted similar language, O'Melia wondered.

"The conditions for getting a permit are kind of vague," he said. "You're required to have a telephone to get a license. Where does the First Amendment say I have to have a telephone to have an assembly?"

Then, too, both ordinances require applicants to apply for a permit at least 30 days before the event. Though this is a widely used stipulation, free speech advocates say it impedes the ability to quickly assemble people, which they say is often necessary to respond to quickly evolving political events.

"Today, both the requirement that citizens must ask for permission prior to assembling for political purposes and the conditions that the government may place on such assemblies can be used to undermine the effectiveness of public assembly as a mechanism to influence and check representative institutions," writes Tabatha Abu El-Haj, an assistant professor of law at Drexel University Earle Mack School of Law. "The very requirement of a permit creates a delay between the event triggering the desire to assemble and the assembling. Moreover, conditions can and have been used to distance assemblies from their target audiences through space and time."

Indeed the 30-day requirement has already been deemed unconstitutional by one court.

In American-Arab Anti-Discrimination Committee (AAC) v. City of Dearborn, in 2005, the Sixth Circuit of the U.S. Court of Appeals struck down a Dearborn, Mich., ordinance that required applications to be filed 30 days before "special events." In filing its complaint in early 2003, the AAC argued that the the U.S. war with Iraq was imminent, and that the ordinance would restrict its ability to conduct a protest march after the war began.

The court agreed, and declared the time limit unconstitutional, saying the city failed to demonstrate it needed 30 days to prepare for a parade, march or special event. The court specifically cited New York City's ordinance, which required much less notification - 36 hours, to be exact.

"Any notice period is a substantial inhibition on speech," the court decision stated ". . . . Because notice provisions have the tendency to stifle our most paradigmatic examples of First Amendment activity, courts must take special care when reviewing the government's justification for its infringement."

In other words, a 30-day requirement for notification and application might stand, but Oneida County would have the burden of proving it needed that time to adequately prepare for large assemblies, that is, to show that the requirement was narrowly tailored to serve a significant governmental interest.

And then there's bonding. The Oneida County ordinance requires a $2 million liability insurance policy, plus $2 million in fire legal liability, and worker's compensation insurance.

Workers comp for a political rally?

That's readily challengeable - it has been - but on this issue the county would seem to be on firmer ground. In 2000, in Thomas v. Chicago Park District, the Seventh Circuit of the U.S. Court of Appeals ruled that liability insurance requirements were allowable.

"The regulation requires applicants for permits to obtain liability insurance in the amount of $1 million to indemnify the park district against liability arising from a rally that might degenerate into a riot," the court decision stated. "The plaintiffs argue ingeniously that since violence to person or property incidental to a political rally is likely to arise from the unpopularity of the cause espoused by the rally's sponsors or speakers, the requirement of buying insurance amounts to a heckler's veto, which the cases hold is not a proper basis for restricting free speech."

But, the court decided, the amount of insurance was not based on the nature of the event, only on its size and the nature of the facilities involved in it.

A road diverged in an ordinance

On other issues, as Wiensch told the county board, the Sauk County and Oneida County ordinances are not identical.

The most significant divergence - and the one that seemed to bother Wiensch the most - was the tiered-level approach, in which licenses are required for different size groups, depending on the amount of time those groups intend to assemble.

Such an approach - which Wiensch said was not his idea - requires an applicant to estimate crowd size, he said.

"It's important for the county to have an idea so they can plan to police it," he said. "The whole point is to get an idea of the number so we can have some idea how many deputies to send and so the health department knows what it needs to do."

But allowing large-assembly events without a license based on both estimated size and length of event - rather than using one size to trigger a license for all - could bring charges that the county is being arbitrary. After all, why would a crowd of 10,000 meeting for one hour need a license when 9,000 could meet for three hours without one?

What's more, based on earlier court cases, free-speech advocates are almost certainly to argue that the differing license levels gives the county too much discretion in approving or denying the application. Each application is reviewed by the large assembly committee, which could accept or reject the crowd size estimation.

Such discretion is view suspiciously by the courts.

"In order to regulate competing uses of public forums, government may impose a permit requirement on those wishing to hold a march, parade, or rally, if, inter alia, the permit scheme does not delegate overly broad licensing discretion to a government official and is not based on the content of the message," the court stated in Forsyth.

That possibility, in turn, is reinforced by the fact that each applicant must state the nature and purpose of the assembly.

Indeed, the large assembly committee could conceivably evaluate the "nature and purpose" of the event to determine if the crowd estimate was correct. That's exactly what the Forsyth court said happened in that case.

"The ordinance is unconstitutionally content based because it requires that the administrator, in order to assess accurately the cost of security for parade participants, must examine the content of the message conveyed, estimate the public response to that content, and judge the number of police necessary to meet that response," the court determined.

The city of Chicago seems to have charted a safer course on that account. It prevailed in a 2001 challenge to its parade ordinance in Windy City Hemp Development Bd. v. city of Chicago in part because, as the court observed, "the permit application does not ask for any information about the purpose of the parade or the motive of the participants."

Finally, the Forsyth case also concerned the constitutionality of charging event organizers for law enforcement services. While not part of the proposed ordinance, that matter was raised on the county board floor, especially by supervisor Paul Dean, who has long favored such a fee.

Other supervisors did not go for the idea, for economic if not for constitutional reasons.

"I think it's bad for business for Oneida County," O'Melia said. "You can look at it as a double tax. A lot of people pay for outside security anyway."

Supervisor Romelle Vandervest agreed.

"The amount of money these assemblies bring to Oneida County should offset the cost of law enforcement, and if we start charging for it, it could deter them and then where's our economy?" she asked.

All in all, supervisors supported the revised version of the code, lingering constitutional questions notwithstanding.

"There's a good reason for having this type of ordinance," supervisor Tom Rudolph said. "It's our duty to protect the health, safety and well-being of our citizens, and when you have 30,000 people descending on the county, it's possible and probable that some incident could occur that would impact the health, safety and well-being of the people. The ordinance is detailed enough that it doesn't infringe on people's right to assemble, but on the other hand I don't think we want to have a free-for-all, either."

The county does not have many events that would fall under the ordinance requirements. The Tomahawk Fall Ride, the Hodag Festival and the Three Lakes block party are the three events usually requiring regulation.

Richard Moore can be reached at rmmoore1@frontier.com.

Reader Comments

Posted: Friday, November 26, 2010
Article comment by: Decending On Oneida County?

Tom Rudolph's commentary of the county boards "duty" to provide health, safety, and well being is so ludicrous of a cry that it almost weeps of treason.

Not two months ago the Oneida County Agriculture Committee was left with no voting quorum in the middle of it's duty under his leadership. And within the past month the acquisition of the Advantage Bldg for a new senior center, brings with it unforeseen obscene remodeling costs with it. Mr. Rudolph stated in an interview that the county board needed to be more informed in matters such as these referring to the outrageous remodeling costs. And now the same group of leaders wish to delve into descending community crowd control. Obviously the County now thinks that 10 days is adequate for a promoter to wait before learning of a permission slip to hold an event. This kind of time frame for a permit shows how lacking in leadership any of the County Board members actually have.

Terminology is paramount in what elected officials spew, and I take offense to the idea that Mr. Rudolph perceives that people "descend" on Oneida County as if to destroy it! Descending?

Perhaps 'citizens', you know the people who elect you to office, travel and attend functions of their liking, for enjoyment. Perhaps those same vacationers bring millions of dollars to a local community with their descent. If the County board and it's so called economic development leaders got off their descended keesters and actually did something to develop an infrastructure in stead of trying to fill a lunchbox with budgetary shortfalls, perhaps they wouldn't feel so threatened by those that "descend" on their community.

Save a tree and bankrupt the county. Stop me when I lie, as Ted Nugent says so eloquently.

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