HomeMy WebLinkAboutA012 - legal opinion to Council as to possible litigation City of ANTES, Iowa
L.� 50010
JOHN R. KLAUS (515) 232-6210
City Attorney
SANDRA M. ZENK
Assistant City Attorney
March 18, 1980
Father Paul Goodland, Mayor
and Members of the City Council
of the City of Ames, Iowa
Re: Dope Paraphernalia Ordinance, the Risk of Liability for
the City and the Individual Members of the Governing
Body.
Dear Father Goodland and Council Members:
As the council deliberates on the issue of whether to enact
the so-called dope paraphernalia ordinance I wish to remind
the council of my letter of January 22 on this same subject.
By that letter, and the materials enclosed with it, I hoped
to make it clear that the (constitutionality of the measure
being proposed is very much an open question)
If litigation results (as it almost surely will ) a wide
range of constitutional issues, from freedom of speech to
impairment of contracts, are likely to be raised. For my
part,. I perceive four constitutional theories as most viable
for a challenge to the ordinance:
(1) "Void for Vagueness", i.e. , must people of
common intelligence guess at its meaning and
differ as to its application?
(2 ) "Equal Protection" , i .e. , does the classifi-
cation and proscription of these items called
"paraphernalia" have a rational relationship to
the legitimate legislative goal of suppressing
drug abuse?
(3 ) "overbreadth" , i .e. , does the ordinance draw
into proscription articles whose major uses are
overwhelmingly lawful?
A Combining t u4th Hospitality
Mayor and Council Members - 2 - March 18, 1980
(4) "Right of Privacy" , which is an emerging and
amorphous concept being developed by judicial in-
terpretation and expansion of various aspects of
the first, third, fourth, fifth, ninth and four-
teenth amendments to the Constitution of the
United States .
This is not to say that the ordinance proposed is neces-
sarily unconstitutional on its face. The opinion of the
U. S. District Court in the Novi, Michigan case (June 21,
1979 and March 12, 1980) and the Kansas District Court in
the Overland Park case (December 3, 1979) in which similar
ordinances were upheld, are persuasive. A reading of the
Newark, N. J. case, in which the ordinance was declared un-
constitutional because of "overbreadth" gives the impression
that the ordinance might have passed the test if it had not
included "cigarette papers" . The ordinance you are consid-
ering does not prohibit "cigarette papers" . However, I
believe it is important that the city council realize that
the enactment of the ordinance now before you carries a risk
of financial loss not only for those persons engaged in the
practices it prohibits, but also for the city and the indi-
vidual members of the city council.
The Federal Civil Rights Statute, specifically 42 USC Sec-
tion 1983, gives a right of action against every person who,
under color of state law, ordinance, regulation, custom, or
usage, subjects another to the deprivation of any rights,
privileges or communities secured by the United States
Constitution.
Local governments, school boards and municipal corporations
of every kind are "persons" subject to liability under 42
USC Section 1983 . A city, its mayor, its department of
social services, the departments commissioner in his offi-
cial capacity, the city' s board- of education and the boards
chancellor in his official capacity were all held to be
subject to liability under 42 USCS Section 1983 in the case
�lPw of Monell vs. Department of Social Services 436 US 658, 98 S
°Y Ct 2018, 56 L.Ed. 2d 611 (1978) . In the words of Justice
Brennan:
"Local governing bodies, therefore, can be sued
directly under Section 1983 for monetary, declara-
tory, or injunctive relief where, as here, the
action that is alleged to be unconstitutional im-
plements or executes a policy statement, ordi-
nance, regulation or decision officially adopted
and promulgated by that body. "
. '. M
Mayor and Council Members - 3 - March 18, 1980
There is a question under Monell whether the council member
can be held liable for enactment of the unconstitutional
ordinance or only those administrative or executive offi-
cials or employees who act pursuant to the ordinance. The
language of 42USC 1983 is:
"Any person who, under color of any law, statute,
ordinance, regulation, custom or usage of any
State, shall subject, or cause to be subjected,
any person . . . to the deprivation of any rights,
privileges, or immunities secured by the Consti-
tution of the United States, shall, any such law,
statute, ordinance, regulation, custom, or usage
of the State to the contrary notwithstanding, be
liable to the party injured in any action at law.
(emphasis supplied)
There is not, to my knowledge, any reported case of a coun-
cil member being held individually liable by reason of
having voted for passage of an unconstitutional ordinance.
However, if persons are subjected to losses by reason of the
enforcement of an ordinance alleged to be unconstitutional
on its face it is foreseeable that the individual member of
the council could be named as defendants to claims for
monetary damage on the theory that the council member' s act
of voting for passage of the ordinance "caused" the claimant
to be subjected to a deprivation of rights secured by the
U. S. Constitution.
There are good arguments that can be made in defense of the
constitutionality of the ordinance under consideration by
the council. It has been upheld in the same form by the
U. S. District Court for the Eastern District of Michigan.
I can not and do not give an opinion that the ordinance is
unconstitutional, only that its constitutionality is an open
question. If the ordinance is enacted the council will
bring on a course of events that entails a risk of monetary
loss both to the city and yourselves.
Respectfully submitted,
7
John R. Klaus
City Attorney
JRK/mlp