Supervisors consider ordinance to jail their opponents
July 23, 2012
OPINION By STEW JENKINS
Besides the obvious lack of wisdom inherent in criminalizing someone performing an emergency landing of their airplane or hot air balloon on county owned vacant land, if enacted the ordinance being considered by the Board of Supervisors as their first order of business Tuesday July 24th would infringe basic California Constitutional Rights, as well as U.S. Constitutional rights.
Article I, Sec. 2. (a) of the California Constitution says: Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
Article I, Sec. 3 of the California Constitution says: (a) The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.
(b)(1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.
(b) (2) A statute … shall be … narrowly construed if it limits the right of access [and if] adopted after the effective date of this subdivision … shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
The California right to “instruct” public officials is considerably more robust than the mere right to tamely “petition” guaranteed by the U.S. Constitution’s First Amendment. And in fact the right to instruct was taken out of the original draft of the First Amendment.
The California right to assemble “freely” is more robust than the federal right to “peaceably” assemble; and was in fact designed by the original framers of the California Constitution to protect the right of the people to conduct demonstrations on government land and in government buildings. Several of the framers of the California Constitution had been jailed and banished because they freely assembled before coming to California.
Readers will note that the rights to instruct, petition, and assemble are coupled in Article I, Section 3 (a) with the right of the people to have access to meetings of public bodies in Section 3 (b). And any ordinance limiting those rights must be strictly limited in effect by a court even if it were found to have some legal effect.
The proposed ordinance on Tuesday’s Board of Supervisor’s agenda, making it a misdemeanor in Section 2.11.062 to enter county vacant land and facilities, disturb someone’s use and enjoyment of county facilities, gather, meet, confer, rally or assemble (a word right in both Constitutions) at any county facility or land, display signs, or use any amplifier all violate Article I, Section 2 and 3 of the California Constitution. The ban on camping or staying overnight during such a demonstration or rally, or providing food for demonstrators also infringes these rights.
How the Supervisors would decide to combine these constitutional infringements of the rights of the people with provisions permitting dogs on a leash under six feet in length into the county government center or Board of Supervisors’ chambers begs a very big question. When did it become fashionable for the county to give more respect to a dog walking into the supervisor’s chambers than to citizens gathering to instruct, petition and speak to the county supervisors or other officials?
Stew Jenkins is a San Luis Obispo based attorney know for his civil rights cases.