Combating Grassroots Tyranny

December 2002

Combating Grassroots Tyranny:

State Chapters Seek to Vindicate Precious Civil Liberties

By Tim Keller

Grassroots tyranny is a phrase that speaks to the enormous power and propensity of state and local governments to violate the personal liberties guaranteed by both the Bill of Rights and the numerous state constitutional provisions intended to be the primary safeguards of individual rights.

IJ’s state chapters will leverage IJ’s past successes to reinvigorate state constitutional protections for individual liberty. This new approach reflects the belief that liberty can best be protected at the most immediate level available. To build on the success of IJ’s first state chapter in Arizona, we will channel our momentum by opening new state chapters next year in North Carolina and Washington. As IJ prepares to expand, it is worth citing several examples of the type of grassroots tyranny our state chapters are designed to confront.

Chilling Commercial Speech

Mesa, Arizona, recently enacted an ordinance purporting to regulate the size of signs in its downtown area by requiring that no more than 30 percent of any window sill or casement area be covered by a sign. Mesa is serious about enforcing the ordinance; its Code Compliance Division employs 27 people and recently wielded an 80-page file, complete with 24 digital pictures, to force a Winchell’s doughnut franchise to remove all of the professionally produced signs advertising the month’s specials.

Edward Salib, the franchisee, depends on his window signs to communicate with customers, and his right to do so is protected under the First Amendment. Mesa argues that limiting the size of signs allows the police to see inside the business, thus protecting public safety.

Salib’s doughnut shop has a total of nine separate window casements across the front and side of the store. Because the ordinance applies to each individual window, Salib cannot hang a single sign. Yet a neighboring business with the same amount of total window space, but fewer casements or sill areas, could hang the same signs without violating the sign ordinance. How is that rational? It is not, and Salib’s commercial speech rights deserve to be vindicated.

Victory in Yuma?

Since going to print, the Institute for Justice Arizona Chapter filed a lawsuit in Yuma County Superior Court challenging the constitutionality of Yuma’s rental inspection ordinance. The same morning the suit was filed, the Institute received notice from the City’s attorneys that it had suspended indefinitely the warrantless inspections and would amend the ordinance to require search warrants for city inspectors to enter tenants’ homes. The City’s letter is a victory for the Institute’s advocacy in the court of public opinion.

The City immediately requested that the Institute dismiss its lawsuit, with leave to re-file should we decide that the amendment ultimately adopted by the City does not protect our clients’ rights. Given the over three months the City has had since IJ’s first demand letter, the Arizona Chapter and our clients Amber Leach and Robert Paul Jennings declined to dismiss the suit.

As it currently stands, those who rent rather than own their homes in Yuma are denied an essential property right. Any amendments should make it clear that if the City wants to search people’s bathrooms and bedrooms it first has to ask for consent, and if consent is denied the City must then obtain a search warrant based on a reasonable belief that some law is being violated. If the City ultimately reneges on its promise to amend the law to comport with the Fourth Amendment, IJ AZ will press for victory in the court of law.

Paternalism Run Amuck

In southwestern Arizona, the City of Yuma recently enacted a rental inspection ordinance, ostensibly in the interest of public health and safety. The ordinance makes no provision for obtaining a search warrant, nor does it require consent from tenants before a property owner allows city officials to inspect the property—two clear violations of the Fourth Amendment.

Patricia Stanphill, the feisty owner of A Shady Tree RV Park and Apartments, home to dozens of working-class families, recently had a run-in with city inspectors after Patty informed two of her tenants that inspections had been scheduled. Outraged that the City never contacted them, Patty’s niece, Amber Leach, and a disabled veteran named Robert Paul Jennings refused to allow inspectors into their homes.

IJ’s Arizona Chapter threatened to file suit on the tenants’ behalf if the ordinance was not repealed or amended. Yuma’s city attorney responded by indicating the City will consider an amendment, but justified the ordinance based on community support for a rental inspection program, illustrating the all-too-common notion that if consensus is strong enough, individual liberty can be trampled.

That notion is not true, declares Jennings, his voice barely a rasp as a result of his disability. “Government has to respect the bounds of the Constitution,” Jennings insists. A decorated Purple Heart veteran of the Korean War, Jennings says, “I fought to protect the very liberty I am now exercising. If necessary, I will fight again, this time in the court of law.”

A Target-Rich Environment

Opportunities abound to challenge grassroots tyranny at the state and local level. For instance, Washington foists enormous costs on small businesses in the form of the nation’s most stringent “ergonomics” regulations and extensive legal mandates for medical insurance that force businesses to choose between offering no health insurance or absorbing excessive costs. In North Carolina, North Carolina State University refuses to make press passes available at football games to online media, with the exception of NC State’s official newspaper, providing IJ a possible avenue to vindicate free speech rights by challenging the differential treatment of traditional media outlets and the Internet. What’s more, property owners in North Carolina have been hit with new regulations prohibiting development along some of the state’s riverbeds, which, in some instances, has left property undevelopable.

From cutting-edge constitutional theories involving the Internet to traditional IJ challenges to occupational licensing laws, state constitutions are waiting to be mined for pro-liberty protections. Simply stated, there is no shortage of grassroots tyranny, and no shortage of lawsuits to file at the state chapter level. Our state chapter initiative will dramatically enhance our ability to combat excesses of state and local governments. It is time to get to work.

Tim Keller is an attorney with the IJ Arizona Chapter.