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Smoking bans and judicial tyranny
By John William Kurowski
The Arizona Republic
Jul. 23, 2003
TEMPE - A U.S. District Court judge dismissed a lawsuit claiming Tempe's smoking
ban was unconstitutional ..Judge Roslyn O. Silver said in Tuesday's ruling that
the ban "easily passes constitutional muster." She stated that a city does not
need proof that smoking is a hazard, but can base regulation on the belief that
is so. She also stated the ban is not an illegal. See
Suit vs. smoking ban dismissed
I am amazed a federal Judge [Roslyn O. Silver] would suggest that folks in
government are free to impose regulatory legislation upon privately owned
property, restricting a use of that property, based upon a mere belief.
A principle of law allowing folks in government to be free to legislate as they
please based upon a “belief” may have some truth if said legislation did
not directly affect unalienable and constitutionally protected rights of our
citizens. But in the instant case, [Clicks Billiards Inc.] constitutionally
protected rights are at issue, e.g., rights associated with property ownership
and individual liberty, and such a theory allowing folks in government to
encroach upon an individual’s rights associated with property ownership or their
liberty based upon a mere “belief” is immediately contradicted when considering
the spirit and intent of our written constitutions. For instance, our
federal constitution declares: “no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation…”…probable cause is not a mere belief
and requires much more than a “belief” before a warrant shall be issued!
Likewise, our 14th Amendment guarantees that no State shall deprive any person
life, liberty, or property, without due process of law. Due process of
law intentionally forbids actions by folks in government which is “unfair“,
“arbitrary” and/or “capricious“, and regulatory legislation based upon
“belief” and not upon factual evidence, when it affects constitutionally
protected rights, is forbidden by the legislative intent for which “due process
of law” has been adopted by the people of America as the law of their land.
Principle of law as stated by the
U.S. Supreme Court:
“A finding without evidence is arbitrary and baseless. And if
the government's contention is correct, it would mean that the Commission had a
power possessed by no other officer, administrative body, or tribunal under our
government. It would mean that, where rights depended upon facts, the
Commission could disregard all rules of evidence, and capriciously make findings
by administrative fiat. Such authority, however beneficently exercised in one
case, could be injuriously exerted in another, is inconsistent with rational
justice, and comes under the Constitution's condemnation of all arbitrary
exercise of power. See:INTERSTATE
COMMERCE COMMISSION v LOUISVILLE & N.R.CO. 227 U.S. 88
Same principle, again stated by the Court:
“It must, of course, be conceded that there is a limit to the valid exercise
of the police power by the state. There is no dispute concerning this general
proposition. Otherwise the 14th Amendment would have no efficacy and the
legislatures of the states would have unbounded power, and it would be enough to
say that any piece of legislation was enacted to conserve the morals, the
health, or the safety of the people; such legislation would be valid, no
matter how absolutely without foundation the claim might be. The claim of
the police power would be a mere pretext,- become another and delusive name for
the supreme sovereignty of the state to be exercised free from constitutional
restraint. This is not contended for. In every case that comes before this
court, therefore, where legislation of this character is concerned, and where
the protection of the Federal Constitution is sought, the question necessarily
arises: Is this a fair, reasonable, and appropriate exercise of the police power
of the state, or is it an unreasonable, unnecessary, and arbitrary interference
with the right of the individual to his personal liberty….” See:
Lochner v. New York 198 U.S. 45 (1905)
Same principle:
Legal Opinion 99-0-17
Lorain City Council
200 West Erie Avenue, 7th Floor
Lorain, Ohio 44052
Legal requirements to be met for government regulation to be within
constitutional limits:
“…it must first have evidence of a particular problem affecting the
health, safety, morals, or general welfare.”…
“that can be demonstrated by some factual evidence, and not just from
opinions held by certain members of the community”
“Council must obtain some evidence to support these assertions, and may not
rely upon mere conclusions or opinion evidence or hearsay.”
“if Council does in fact identify a legitimate problem from the evidence
that is actually presented to it, Council must then determine how to remedy the
problem. For example, does the problem, which Council identifies, really
require the complete ban …”
“Police powers may not be applied in such a manner as to be arbitrary or
capricious… is there a rational basis?”
“The constitutional considerations involved in adopting regulations are both Due
Process and Equal Protection requirements of the Constitution. In a case dealing
with recreational vehicles, the Eighth District Court of Appeals in, Euclid v.
Fitzthum, (1976), 48 Oh.App.2d 297, at 300-301, stated, "The vice of the
present ordinance is that the record will support neither an application of the
ordinance which bears a substantial, and therefore reasonable, relationship to
the public health, safety, morals or welfare nor the imposition of a taxonomic
scheme based upon any state of facts that may reasonably justify it. Part of the
lack of the reasonableness is exposed by evidence of an uneven regulatory
application that contravenes the imperatives of the Yick Wo case."4
4 Yick Wo v. Hopkins, (1886), 118 U.S. 356, which involved the unequal
application of regulations of laundries in San Fransisco, California. The
regulations resulted in discrimination against Chinese laundry owners, and
therefore lacked any legitimate purpose while having a detrimental effect upon
persons of Chinese ancestry.
Also see what Florida’s
Attorney General has stated :
AGO 77-139
“It is undisputed that an individual has an inherent right to engage in a
lawful business or trade. It is also axiomatic, however, that a municipal
corporation (as an arm of the state) may impose reasonable restrictions upon the
conduct of such activities in the interest of the public peace, health, morals,
or general welfare, so long as such regulation is exercised reasonably,
within constitutional limitations, not arbitrarily, and not in such a manner as
to restrain trade or to unfairly discriminate.”
I have not been able to find and read the written opinion of the Judge in the
above mentioned case [Clicks Billiards Inc.] , nor the lawyer’s brief, so what
follows is based upon what appears in the above mentioned news article.
If indeed U. S. District Court Judge Roslyn O. Silver has stated in her opinion
that a city may restrict the use of privately owned property based upon a
“belief” that a public hazard exists upon that particular property, I would
say that Judge needs to be immediately charged with
Sec. 242 - Deprivation of rights under color of law and removed from the
bench for willfully violating her oath of office to uphold “this” constitution,
which guarantees, among other rights, the right to due process of law, and was
intentionally adopted to protect individual rights associated with property
ownership!
But if you want to study some of the reasoning which justifies regulation of
privately owned property under the banner of public health and constitutional
considerations, I suggest you study
City of New York v New St. Mark's Baths, 130 Misc. 2d 911, 497 N.Y.S.2d 979
(1986) scroll down to “CONSTITUTIONAL CONSIDERATIONS” and study the
evidence produced to justify the ban. Also see:
"Where such a compelling State interest is demonstrated even the constitutional
rights of privacy and free association must give way provided, as here, it is
also shown that the remedy adopted is the least intrusive reasonably available."
"As nightfall does not come at once, neither does oppression. In both
instances there is a twilight where everything remains seemingly unchanged. And
it is in such twilight that we all must be aware of change in the air - however
slight - lest we become unwitting victims of darkness."___Supreme Court
Justice William Douglas
From
smoke free,to
fat free,to
obese free, and now,
Fragrance free is a civil rights issue!
John William Kurowski, Founder
American Constitutional Research Service
"As nightfall does not come at once,
neither does oppression. In both instances there is a twilight where everything
remains seemingly unchanged. And it is in such twilight that we all must be
aware of change in the air - however slight - lest we become unwitting victims
of darkness."___Supreme Court
Justice William Douglas
Please note:
the author of the above is a non-smoker, believes smoking is more than likely a
danger to the health of those who smoke, and may be a danger under specific and
unusual conditions to those in near proximity of a smoker. However, there is a
much bigger picture involved…the unalienable rights of individuals to make their
own choices, and, constitutionally protected rights associated with property
ownership. For this larger reason the article was produced.
[Permission is hereby given to reprint this
article if credit to its author and the ACRS appears in such reprint. No
copyright is claimed for quotes within the article which are public domain
materials.]
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