Smoking ban and Judicial Tyranny

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.

“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

“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)

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.

“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

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.]

Liberal Classic wrote:

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.

Feelings and beliefs now trump the constitution.

ANSWER

“[E]asily passes constitutional muster”? Is that so Judge Roslyn O. Silver?

The truth is, in addition to Judge Roslyn O. Silver’s denying due process to Clicks Billiards as documented at the beginning of this thread, which requires factual evidence and not mere beliefs to justify health and safety regulation of privately owned property, the smoking ban imposed upon Clicks Billiards, which is privately owned property, is the result of a majority vote of those who voted to control the property of others for their own personal comfort and enjoyment, to the exclusion of an identifiable group, those who smoke, and demands the owners of privately owned property to discriminate, even against their will, and against their former smoking guests.

Does this voter action, agreed to by a majority of those who voted, conform with what the U. S. Supreme Court has repeatedly stated when a majority vote affects fundamental rights of American Citizens___ such rights being specifically enumerated in their state and federal constitutions?

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” See: WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE, 319 U.S. 624

And, the Court, in LUCAS v. COLORADO GEN. ASSEMBLY, 377 U.S. 713 (1964) continued from the above paragraph by adding:

“A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be…”

Likewise, and only a few years ago, the Court, in ROMER v. EVANS, affirmed that a constitutionally protected and fundamental right could not be voted away by a statewide referendum saying that:

“It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . ." Civil Rights Cases, 109 U.S., at 24.”

Also see the following two U.S. Supreme Court Cases.

TRUAX v. RAICH, 239 U.S. 33 (1915)

ADAMS v. TANNER , 244 U.S. 590 (1917)

The truth of this matter is, these decisions are in harmony with the legislative intent for which Article 4, Section 4 of the U.S. Constitution was adopted___ the legislative intent being, to preclude direct democracy being used to deny individual security and rights associated with property ownership, and is fully documented in Federalist Paper No. 10 , which addresses “democracy”. Madison begins by talking about “the violence of faction” and the importance to provide “a proper cure for it.” and also emphatically states: “ that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

But, for a full documented discussion concerning “democracy”, with regard to the Founding Fathers and our Constitutions legislative intent, see: Fighting Florida’s mob-rule democracy

Current law, as written, specifically declares it is a criminal offense to deny individual rights under color of law, see:USC Title 18 Sec. 242-Deprivation of rights under color of law

I submit that Judge Roslyn O. Silver's actions constitute a depravation of rights under color of law and she ought to be prosecuted for her criminal conduct!

As a public servant she has taken an oath to uphold “this” constitution and not enforce the whims and fancies of a factious majority wishing to deprive others their fundamental rights. But it seems crystal clear that Judge Roslyn O. Silver, hired as a public servant, has evolved into believing she is now the master of those who have hired her, and they are henceforth confined to being her obedient servants by the rule of her arbitrary law.

John William Kurowski, Founder

American Constitutional Research Service

Seminole, FL

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