Kentucky Supreme Court to determine whether panhandling is a crime

LOUISVILLE, Ky. (WDRB) – A Jefferson District Court judge on Thursday ruled that the city's 2007 law against panhandling is unconstitutional.

The decision by Judge Eric Haner comes just a day before the state Supreme Court will hear arguments on whether Kentucky cities should be able to charge a person for panhandling.

Haner ruled in four cases involving Keith Gough, who was cited repeatedly for panhandling in 2015, including for "bothering patrons at 4th Street Live, asking them for money and cigarettes, and then following them," according to Haner's ruling. Gough was also charged with disorderly conduct.

In Jefferson County, people can be fined as much as $250 and jailed for up to 90 days for panhandling. The city has different punishments for "aggressive" versus "passive" panhandling. 

But Haner found that a 1975 state law prohibits local governments from "criminalizing an offense as this power is exclusively reserved for the legislature."

Legislators made it clear, Haner ruled, that they "did not intend to delegate …authority to enact and define crimes and criminal offenses to local municipalities."

"Allowing Louisville Metro to enact ordinances which include incarceration is tantamount to allowing Louisville Metro to rewrite the Kentucky Penal Code," the judge wrote in an order.  

Josh Abner, a spokesman for the Jefferson County Attorney's office, said prosecutors were reviewing the decision. 

Clay Kennedy, Gough's attorney, said they were happy with the ruling; but he noted that the ruling is not binding for other judges unless the state appeals or Supreme Court comes to the same conclusion.

The thrust of Haner's ruling is one of the main arguments the Kentucky Supreme Court tomorrow will hear Friday in the case of Dennis Champion, who was jailed in 2015 for violating a Fayette County ordinance prohibiting "begging and soliciting upon public streets."

Champion, according to court documents, was caught standing at an intersection holding a sign that read "begging for alms" in December 2014.

In the appeal to the Supreme Court, defense attorney Linda Horsman argues, in part, that while cities have the right to make ordinances that can impose civil fines, it is up to legislators to decide if something is unlawful.

Both Horsman and Haner pointed to a Jefferson County case where a woman was sentenced to 90 days in jail when her dog attacked another dog in 2011.

A Jefferson District Court judge found the woman guilty of a misdemeanor for violating a city ordinance by failing to "restrain a dangerous dog" -- even though the dog had been in the care of the woman's mother at the time.

In that case, three members of the Kentucky Supreme Court wrote in an order that the Kentucky General Assembly, not the Metro Council, has "exclusive authority to enact and define crimes and criminal penalties." But a majority did not address the constitutional issue since it had not been raised on appeal.

However, while not legally binding, the ruling 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 lies," Justice Mary Noble wrote.

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 share the same opinion.

"If the citizens of this great Commonwealth chose, through their duly-elected representatives, to criminalize poverty in this manner, a statute would have been enacted," Horsman wrote. "Most of us can spare a dime for our fellow man. The citizens of Lexington deserve the opportunity to be gracious and humane, just like the citizens of every other locality."

At the time, the three justices were also concerned about the "astounding incongruity in criminal ordinance and punishments" among various Kentucky counties.

In Newport, Ky., 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.

In his ruling on Thursday, Haner pointed out that Louisville has more than 25 different municipalities, raising the possibility that each could have different offenses and punishments.  

Fayette County Attorney Larry Roberts, however, 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.

Another key issue in the Supreme Court case is whether 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,'" Horsman argued in a motion. "The beggar's message, and indeed their very presence, contributes to the interchange of ideas regarding homelessness."

Beggars, according to the motion, "serve a public good, particularly in a country as bountiful as ours" and could be considered "political speech," highlighting the problem of poverty.

Roberts, however, argued that it was public safety, not speech, that was at the heart of the issue.

"It is not the speech that is being restricted," he wrote. "It is stepping into the street to get money from the motorist and then walking in the street to the next car in line to get money from the next motorist, and so on. In addition to being dangerous for the pedestrian, it disrupts the safe and efficient flow."

Horsman argues that the U.S. Supreme Court "has made it clear that public streets are the most public of public forums."

"Clearly, the roadways of Lexington are a public forum and the proper review of any restrictions of speech uttered upon them should be strict scrutiny," she wrote.

As part of the city’s argument, Roberts points out that intersections and public streets are not a typical public forum -- and are a danger if they become one.

"The intersection of two streets in downtown Lexington is not normally a place where pedestrians and motorists mingle, chat, exchange ideas, engage in commerce, or discuss religion and politics," Roberts wrote.

Champion, however, was not charged for interfering with traffic or endangering himself, but with "solicitation/begging for alms," Horsman countered.

"There was no indication that he was impeding traffic in any way and the focus of the charge was his speech," she said.

Louisville Metro council member David Tandy, who helped pass the panhandling ordinance, released a statement Thurdsay night:

“While I  certainly respect Judge Haner’s ruling, there are differing opinions about the enforcement and penalties for panhandling. It may be best to wait on how the Kentucky Supreme Court weights in on panhandling before we move forward.”

Below is a copy of the judge's ruling:

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