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HomeMy WebLinkAboutA001 - cover memo for amended ordinance OFFICE MEMORANDUM TO Mayor Stuart N. Smith and Members of the City CouncibATE September 8, 1970 FROM James F. Bishop, City Attorney SUBJECT Attached proposed ordinance amending Chapter #24 , Municipal Code I am in the process of attempting to draft proposed ordinances which will enable the City of Ames to prohibit some of the activity we experienced last spring. The most disruptive action I saw and heard was the parading in front of City Hall in which the group chanted, "Free Roby or Ames will Burn--Ashes are Beautiful--Ames will Burn. " I found an ordinance prohibiting attempts to influence a judicial proceeding. This ordinance was upheld by the Supreme Court of the United States against the attack upon it made by the American Civil Liberties Union. Accordingly, I have prepared and do hereby recommend adoption of the proposed ordinance amending Chapter #24 of the Code to include Section 24-1041.1, a copy of which is attached hereto. Respectfully submitted, 44 James F. "Bishop City Attorney JFB:sac 9-22-70 The purpose of the proposed ordinance, Section 24-1U41.1, is to further insure the right of an accused person who is on trial to have fair and impartial consideration of the evidence both for and against his case. Anyone who has ever served on a jury will know that there is a definite degree of tension during a trial even when no outside pressure is being exerted to influence the outcoeae. The same tension applies to both prosecuting and defense attorney and to the judge. The presence of people demonstrating either for or against the defendant when they enter the court room or hearing the sounds of such demonstrators while the trial is in progress would add to the tension of the jurors and might well have an influence in their decision in addition to the r;erits of the evidence presented. We already have an ordinance relating to disturbing the peace which might cover part of the problems caused by demonstrating during, a trial. We also have an Iowa statute with regard to influencing any civil or criminal action. This carries a much more severe penalty than a city ordinance would. There enay well be a place for an ordinance r.ore specific than the state statute but covering much of the same ground to protect the rights of a defendant against undue tnfluence from outside the court room. This is the question the Council has to decide. This ordinance would in no way interfere with the right of citizens to assemble at City hall and petition for redress of grievances in the area of Legislative or Executive portions of the city government of Ames. Sec . 2401041 . 1 Interfering with the administration of justice. Anyone who, with the intent of interfering with, obstructing, or impeding the administration of justice , or with the intent of influencing any judge, juror , witness , or court officer , in the discharge of his duty , assembles , pickets , or parades within sight or hearing of a building housing a court of the City of rties is guilty of a misdemeanor. IOWA STATUTE : a "If any person attempt in any manner to improperly influence, intimidate, impede, or obstruct any petit juror, grand juror, or other officer in any civil or criminal action or proceeding, or any one drawn, summoned, appointed, or sworn as such juror or officer, or any arbitrator or referee, or any witness or any officer in, or of, any court or tribunal in relation to any cause or matter or proceeding pending in, or that may be brought before, such court or tribunal, for which such juror or other officer has been drawn, appointed or in which said witness has been, or may be, called to testify, or in regard to which such officer is , or may be , required to act in his official capacity , or, if any person shall intentionally , or by threat or force , or by any threatening letter or threatening communication, or by any public speech or in any other manner improperly influence, obstruct , or impede , or endeavor or attempt to improperly influence, obstruct, or impede the due administration of justice or the actions or conduct of any such jurors , witnesses , arbitrator, referee, or other officer, he shall be punished by a fine not exceeding one thou- sand dollars or by imprisonment in the penitentiary not more than one year, or by both such fine and imprisonment. " LOUISIANA STATUTE: "Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influ- encing any judge, juror , witness , or court officer, in the discharge of his duty pickets or parades in or near a building housing a court of the State of Louisiana, or in or near a building or residence occupied or used by such judge, juror, witness , or court office, or with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence, shall be fined not more than five thousand dollars or imprisoned not more than one year or both. PROPOSED ORDINANCE : Sec . 24-1041. 1 Interfering with the administration of justice. "Anyone who, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge , juror, witness , or court officer, in the discharge of his duty, assembles , pickets , or parades within sight or hearing of a building housing a court of the City of Ames is guilty of a misdemeanor. 117TTZ S 13 I,cd 2d a, terfering with. obsiructinsc, or fin- passed simil:u• statutes. Mass Ann pedin}; the adbuinislralion of justice, Laws, e. 268, § 13A; Purdon's Pa -or -,ith the intent of influencing any Stat Ann Tit. 18, § 4:1.27. The - jud;�e, juror, witness, or court olli- federal statute resulted from the cer, in the discharge of his duty picketing of federal courthouses n... pickets or parades in or near abuild- by partisans of the defendants (lur- ing housing a court of the State of ing trials involving leaders of the j Louisiana shall be fined not Communist Party. This picketing I '. more than five thousand dollars or prompted an adverse reaction from i imprisoned not more than one year, both the bar and the general pub- or both." La Rev Stat § 14:401 lic. A number of groups urged v (Cum Supp 1962). legislation to prohibit it. At a special meeting held in March 1949, This charge was based upon the the Judicial Conference of the • same set of facts as the "disturbing United States passed the following _ the peace" and "obstructing a public resolution: "Resolved, That we con- passage" charges involved and set demn the•practice of picketing the forth in No. 24, 379 US 536, 13 L ed courts, and believe that effective v 2d 471, 85 S Ct 453, and was tried means should be taken to prevent it r along with those offenses. Appel- Report of the Judicial Conference of lint was convicted on this charge the United States, 203 (1949). A `? v also and was sentenced to the maxi- Special Committee on Proposed Leg- one year in 'ail and a 5 000 fine, illation to Prohibit Picketing of the which penalty was cumulative with Courts was appointed to make rec- , Q those in No. 24. These convictions ommendations to the Conference on t. �• were affirmed by the Louisiana Su- this subject. Ibid. In its Report i` N. preme Court, 245 La 303, 158 So 2d to the Judicial Conference, dated eq 172. Appellant appealed to this September 23, 1949, at p. 3, the ;. Court contending that the statute Special Committee stated: "The t; was unconstitutional on its face and sentiment of bar associations and in- a, fy C 4` as applied to him. We noted prob- dividual lawyers has been and is w� yable jurisdiction, 377 US 921, 12 practically unanimdus in favor of L ed 2d 214, 84 S Ct 1222. legislation to prohibit picketing of f courts." Upon the recommendation of this Special Committee, the Judi- I cial Conference urged the prompt " We shall first consider appellant's enactment of the then-pending bill. v contention that this statute must Report of the Judicial Conference s r be declared invalid on its face as of the United States, 17-18 (1949). an unjustified restriction upon free- Similar recommendations were made dams guaranteed by the First and by the American Bar Association, Fourteenth Amendments to the numerous state and local bar as- United States Constitution. sociations, and individual lawyers and judges. See Joint Hearings be- [379 US 5611 j - *This statute was passed by Lou- fore the Subcommittees of the Com- :. isiana in 1950 and was modeled after mittees on the Judiciary on S 1681 a bill pertaining to the federal j udi- and HR 3766, 81st Cong, 1st Sess; ciary, which Congress enacted later HR Rep No. 1281, 81st Cong, 1st in 1950, 64 Stat 1018, 18 USC § 1507 Sess; S Rep No. 732, 81st Cong, 1st (1958 ed). Since that time, Massa- *[379 US 5621 r i' chusetta and Pennsylvania have Sess; Bills Condemning *Picketing AL, s ` COX v LOUISIANA 491 379 US 559, 13 L ed 2d 487, 85 S Ct 476 of Court, Before Congress, 33 J Am �riate to asSUre that the administra- .� AN Jul Soc 53 09.19)• lion or �u,ti:e at ii11%tas;e4 is free - om outwi�lc confroT alit mf}uenee. This statute, unlike the two previ- A n;irrowly drawn g�atuLe such as p- _ - ot; i; cowddered, is a precise, liar- -the one under review IS ot�viously,a - ro«•1}• drawn regulatory statute safeguard both necessary and,..ap- ch pro,crihes certain specific be- popriate to vindicate the State's 11.1vior. Cf. Edwards v South Caro- interest in assuring iustice 236, 9 L ed 2d , lin;i, 372 LIS 229, Paw. 697, 702, 83 S Ct 680. It prohibits a *[379 US 5631 ti 3 particular type of conduct, namely, i picketing and parading, in a few 15-81 *Nor does such a statute in- i - fringe upon the constitutionally pro- specified 1ifed locations in or near court rights of free speech and free houses. ' 'fig, t assembly. The conduct which is the , [1-41 There can be no question subject of this statute-picketing j that•a State has a legitimate inter- and parading-is subject to regula- ! cGt in protecting its judici I system tion even though intertwined with 4 from the'pressures which picketing expression.and association. The ex- t Pear a courthouse might create. amples are many of the application : Since we are committed to a govern- by this Court of the principle that ment of lags and not of men, it is of certain forms of conduct mixed with tl;e utmost importance that the ad- speech may be regulated or pro- 3 ministration of justice be absolutely hibited. The most classic of these 1 '. - I r .4 fair and orderly. rhis Court hats was pointed out long ago by Mr. rccol;nized that the unhindered and Justice Holmes: "The most strin- € i untrammeled functioning of our gent protection of free speech would , v courts is part of the very foundation not protect a man in falsely shouting 1 ._ of our constitutional democracy. fire in a theatre and causing a panic." a See Wood v Georgia, 370 US 375, Schenck v United States, 249 US 47, - 383, 8 L ed 2d 569, 576, 82 S Ct 52, 63 L ed 470, 473, 39 S Ct 247. E + 1364. The constitutional safeguards A man may be punished for encour- relating to the integrity of the trim- aging the commission of a crime, inal process attend every stage of a Fox v Washington, 236 US 273, 59 j criminal proceeding, starting with L ed 573, 35 S Ct 383, or for uttering arrest and culminating with a trial "fighting words," Chaplinsky v New 4;' "in a courtroom presided over by a Hampshire, 315 US.568, 86 L ed '. ! judge." Rideau v Louisiana, 373 1031, 62 S Ct 766. This principle US 723, 727, 10 L ed 2d 663, 665, has been applied to picketing and 83 S Ct 1417. There can be no doubt parading in labor disputes. See f that they embrace the fundamental Hughes v Superior Court, 339 US conception of a fair trial, and that 460, 94 L ed 985, 70 S Ct 718; they exclude influence or domination Giboney v Empire Storage & Ice Co., by either a hostile or friendly mob. 336 US 490, 93 L ed 834, 69 S Ct . There is no_room at. any_sta-ge of 684; Building Service Employees v u judicial proceedings for such inter- Gazzam, 339 US 532, 94 L ed 1045, vention; mob law is the very antith- 70 S Ct 784. But cf. Thornhill v esis of due process.. See Frank v Alabama, 310 US 88, 84 L ed 1093, ` ti. Mangum, 237 US 309, 347, 59 L ed 60 S Ct 736. These authorities make 969, 988, 35 S Ct 582 (Holmes, J., it clear,as the Court said in Giboney, dissenting). _A_state_ _may adopt that "it has never been deemed an safeguards necessary and appro- abridgment of freedom of speech or P . ► IT. S. SU1►I:1?IIF; C0[11"T 1t1:P0fas 13I,ed 2d press to make a course of conduct: 192, 203, 62 S Ct 190, 159 ALR illogai merely because the conduct 13.16]. Slates cannot consislentl,y was in part initiated, evidenced, or will) our Constitution abridve carried out by means of language, those freedorns to obviate slight eittu>r spoken, written, or printed." inconveniences or aruuoyancc.'i. Giboney v Empire Storage & lee Schneider v State, 308 U5 147, 162 Co., supra, 336 US at 502, 93 L ed [84 L ed 155, 165, 60 S Ct 146]. But at 843. placards used as an essential and s inseparable part of a grave offense [91 Bridges v California, 314 US against an important public law can- � 252, 86 L ed 192, 62 S Ct 190, 159 not immunize that unlawful conduct . ALR 1346,and Pennekamp v Florida, from state control." 336 US, at }" 323 US :331, 90 L ed 1295, 66 S Ct 501-502, 93 L ed at 843. 1029, do not hold to the contrary. Both these cases dealt with the [1Ol We hold that this statute on power of a judge to sentence for con- its face is a valid law dealing with c. tempt persons who published or conduct subject to regulation so as to caused to be published writings com- vindicate important interests of 4 menting on judicial proceedings. society and that the fact that free They involved iewspaper editorials, speech is intermingled with such ' an editorial cartoon, and a telegram conduct does not wring with it con- sent by a labor leader to the Secre- stitutional protection. tary of Labor. Here we deal not with x z; [379 US 5641 II the contempt power—*a power which is "based on a common law We now deal with the Louisiana sf concept of the most general and un- statute as applied to the conduct defined nature." Bridges v Califor_ in this case. The group of 2,000, led nia, supra, 314 US at 260, 86 L ed at by appellant, paraded and dem- 202, 159 ALR 1346. Rather, we are onstrated before the courthouse. �> reviewing a statute narrow y yawn Judges and court officers were in ,. re- to punish specific con uc at in- attendance to discharge their ¢ rrnges a substantial state in Brest spective functions. It is undisputed �n rotec ing e ju iicl process. that a major purpose of the demon- ee Cantwe v Connecticut, S *[379 US 5651 296, 307-308, 84 L ed 1213, 1219— stration was to protest *what the t 1220, 60 S Ct 900, 128 ALR 1352; demonstrators considered an "il- Y; legal" arrest of 23 students the Giboney v Empire Storage & Ice Co., g r 2 supra. We are not concerned here previous day. While the students with such a pure form of expression had not been arraigned or their trial as newspaper comment or a telegram set for any day certain, they were by a citizen to a public official. We charged with violation of the law, deal in this case not with free speech and the judges responsible for try- alone, but with expression mixed ing them and passing upon the Legal- with particular conduct. In Gib- ity of their arrest were then in the oney, this Court expressly recog- building. nized this distinction when it said, [111 It is, of course, true that "In holding this, we are mindful of most judges will be influenced only ` the essential importance to our soci- by what they see and hear in court. ety of a vigilant protection of free- However, judges are human; and dom of speech and press. Bridges v the legislature has the right to rec- California,314 US 252,263, [86 Led ognize the danger that some judges, COX v LOiiISfANA 493 ;179 ITS 649, 1:1 1, ed 2d 487, 85 S Ct 476 Jurors, and ether court of r-i:ds:, will ;u;d present danj�er test., it is one A he consciously or unconsciously in- thing to conclude that the mere pub- llnem c d by demon:;tra{ions in or licai ion of a newspaper editorial or a ne;n• their courtrooms Loth prior to telegram to a Secretary of Labor, and :;t. the time of the trial. A howover critical of a court., pre,:wnt.s State may also properly protect no clear and present clanger to the t the judicial process from being mis- administration of justice and quite judged in the minds of the public. another thing to conclude that Suppose demonstrators paraded and crowds, such as this, demonstrating n picketed for weeks with signs ask- before a courthouse may not; he pro- c ing that indictments be dismissed, hibited by a legislative determina- s and that a judge, completely unin- tion base(} on experience that such fluenced by these demonstrations, conduct inherently threatens the dismissed the indictments. A State judicial process. We therefore re may protect against the possibility ject the clear and present danger wj of a conclusion by the public under argument of appellant. ; these circumstances that the { judge's action was in part a product III of intimidation and did not flow only ^' from the fair and orderly working [131 Appellant additionally ar- of the ,judicial process. See S Rep gues that his conviction violated due No. 732, 81st Cong, 1st Sess, 4, process as there was no evidence Appellant involves the clear and of intent to obstruct justice or in- fluence any judicial official as re- present danger doctrine in support quilecl by the statute. Thompson v of his argument that the statute Louisville, 362 US 199, 4 L ed 2d cannot constitutionally be applied to 654, 80 S Ct 624, 80 ALR2d 1355. +` the conduct involved here. He says, relying upon Pennekamp and We cannot agree that there was no Fridges, that "[n]o reason exists evidence within the "due process" to apply a different standard to the rule enunciated in Thompson v Louisville. We have already noted case of a criminal penalty for a that various witnesses and Cox him- ` peaceful demonstration in front of self stated that a major purpose a courthouse than the standard of rpose of -> q clear and present danger applied in the demonstration was to protest the contempt cases." (Appellant's what was considered to be an illegal Br., p. 22.) IIc defuses the standard arrest of 23 students. Thus, the to be applied to both situations to be very subject matter of the demon- whether the expression of opinion ,;was an arrest which is nor- ; mally the first step in a series of presents a clear and present danger legal proceedings. Theclemonstra- to the administration of justice. tion was held in the vicinity of the - *1379 US 5661 courthouse where the students' [1 2l *We have already pointed. trials would take place. The court- out the important differences be- house contained the judges who in tween the contempt cases and the normal course would be called upon ' present one, supra, at 492. Here we to try the students' cases just as deal not with the contempt power they tried appellant. Ronnie Moore, J but with a narrowly drafted statute the student leader of the demonstra- and not with speech in its pristine tion, a defense witness, stated, as 1, fc,rm but with conduct of a totally *[379 US 5671 different character. Even assuming we understand *his testimony, that the applicability of a general clear the demonstration was in part to