SUNDAY EDITION | Kentucky high court could cause 'upheaval' for Louisville laws
Ordinances in Louisville and other cities that call for criminal penalties could soon be ruled unconstitutional.
LOUISVILLE, Ky. (WDRB) – In Louisville, a person can be convicted and sent to jail for any of the following:
Failing to restrain your dog. Driving in a bike lane. Not maintaining your property.
These are among dozens of illegal offenses created by city ordinances that call for potential criminal penalties.
But these kinds of measures – in Louisville and across the state – now are under scrutiny and could soon be ruled unconstitutional.
Jefferson District Court Judge Eric Haner tossed out Louisville’s panhandling ordinance last month, ruling that state legislators -- not local government -- are responsible for passing laws that call for criminal penalties.
The same issue is currently before the Kentucky Supreme Court in a case involving Dennis Champion, a Lexington resident convicted of panhandling. His defense attorney also is arguing, in part, that while cities have the right to make ordinances that can impose civil fines, it is up to the General Assembly to decide if something is unlawful.
The high court heard arguments in October but has yet to rule.
“We would have major issues and upheaval within our cities if suddenly they lost that ability to impose criminal penalties,” said Laura Ross, an attorney with the Kentucky League of Cities. “We are following this (Supreme Court case) very closely.”
And some of the Supreme Court justices have already made their feelings about the issue known.
Champion’s attorney, Linda Horsman, and Judge Haner both pointed to a Jefferson County case in which Olivia Johnson was sentenced to 90 days in jail when her dog attacked another dog in 2011.
Three of the seven justices agreed in that case that the General Assembly has the “exclusive authority to enact and define crimes and criminal penalties.”
“In the present case, Louisville Metro is essentially rewriting the Kentucky Penal Code,” Justice Bill Cunningham wrote in the Dec. 18, 2014 order, in which Justices Daniel Venters and Mary Noble agreed.
At the time, however, a majority did not address that specific constitutional issue since it had not been properly raised on appeal.
While the order was not legally binding, it should be “a clarion call to the legislature to remove any doubt as to where the authority to enact a criminal statute and fix its penalties lie,” Justice Noble wrote at the time.
To change the laws, another case with an ordinance calling for jail time would have to be appealed and a majority of the seven-member Supreme Court would have to agree.
The Champion case, which was argued in front of the high court last month, could be that case.
“Based upon the reasoning expressed by Justices Cunningham, Venters and Noble in (the Johnson case), it follows that any punishment of incarceration enacted by an ordinance is unconstitutional and should be vacated,” said Dan Goyette, the head of the Louisville Metro Public Defender’s office, who represented Johnson.
The Jefferson County’s Attorney’s office is also monitoring the case closely, agreeing that the ruling could have a “big impact” on local laws, said Sarah Martin, the office’s legislative services director.
Martin said her office has identified more than 50 local ordinances with criminal penalties and is preparing to work with the Metro Council on how to handle an adverse ruling.
“Obviously that would be a lot of changes," Martin said.
Despite the opinions of the three justices, it is possible that the high court will avoid the issue altogether.
In the Champion case, attorney Horsman also is arguing that people have a First Amendment right to panhandle.
“The personal request for assistance from one’s fellow man ‘should be accorded the highest level of First Amendment protection,” she argued in a motion. “The beggar’s message, and indeed their very presence, contributes to the interchange of ideas regarding homelessness.”
And during oral arguments last month, the justices focused more on the First Amendment issues in their questioning of attorneys.
Supreme Court Justice Lisabeth Hughes, for example, indicated that was the argument she was more interested in, saying that it appears there are two “competing” statutes on whether cities can pass their own criminal laws, according to a story by the Lexington Herald-Leader.
Two state laws give cities the authority to “pass and enforce by fines and penalties” ordinances to maintain “the peace, good government, health and welfare” of citizens.
“We think that the legislature is authorized to delegate the authority to cities to impose these penalties and they have lawfully done so in statute,” said Ross, of the Kentucky League of Cities.
Haner, the Louisville judge, addressed the competing statutes in his recent ruling
“On its face, the legislature delegated a power it reserved for itself to cities and Louisville Metro to adopt, enforce and impose fines and penalties, including incarceration, for violation of its ordinances,” Haner said. “However, is such delegation of power constitutional?”
Haner argued that a 1975 law supersedes the more recent ones and made it clear the legislature was responsible for passing criminal laws.
And Supreme Court Justice Cunningham has already come to that conclusion on Johnson’s dangerous dog case, saying to do otherwise would create an “absurd result.”
“To do so would permit the circumvention of our penal code by the creation of countless satellites of criminal law in the scores of municipalities and counties within our state,” he wrote.
Cunningham said that there is no shortage of these laws across the state and pointed out the “astounding incongruity in criminal ordinance and punishments” among various Kentucky counties.
Lexington's dog ordinance, for example, carries only a fine but no jail time. But in Louisville, dog owners like Johnson can face stiffer penalties than someone who is convicted of selling a firearm to a minor.
Meanwhile, other cities have ordinances that create crimes the justices deemed absurd – and exclusive only to those places.
In Newport, Kentucky, for example, spitting on the sidewalk is a misdemeanor crime, according to its city ordinance.
In Fort Thomas, selling dyed chicks or rabbits is a misdemeanor.
“Surely the citizens do not expect to face disparate treatment from place to place for the same acts because one city makes certain conduct a crime, another merely makes that conduct a violation,” Noble wrote.
In the Champion case, however, Fayette County Attorney Larry Roberts argues "while there is a risk that unusual ordinances may be on the books from city to city … the legislature no doubt understood" that different cities may have the need for different laws.
And "state law currently gives cities the authority to make the violation of an ordinance a misdemeanor criminal charge, punishable by fine or jail time," he added.
Tony Hyatt, a spokesman for Metro Council Democrats, said many of the city’s ordinances have “severability” clauses, meaning if a judge ordered a portion of the law invalid, it would be removed but the rest of the ordinance would remain.
For example, in the panhandling case thrown out in Louisville, the county attorney’s office had argued that even if the judge agreed with the Supreme Court justices in the Johnson case, only the criminal penalty in the panhandling ordinance would be unconstitutional.
In Jefferson County, people can be fined up to $250 as well as being jailed for up to 90 days for panhandling.
“They go on to say that fines are probably OK,” Assistant County Attorney J.P. Ward said during a July hearing on the local panhandling issue in talking about the Johnson case.
If the Supreme Court does find the criminal penalties are unconstitutional, Ross, with the Kentucky League of Cities, said the General Assembly would have to pass new legislation making the intent clear.
“We’re hopeful (the justices) see it in the same light we do and cities will be able to maintain the authority they have always had – and hasn’t been brought into question until now,” Ross said. “We’ll be waiting anxiously on the edge of our seats.”
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