A Douglas County judge has reversed an earlier decision by a municipal court judge that found part of the city’s sidewalk ordinance was vague and therefore unconstitutional.
The city had filed an appeal after acting Municipal Court Judge Randy McGrath in February acquitted Robert Gilmore, 54, of Lawrence, of three counts of obstructing people from being able to pass on the sidewalk downtown. The three incidents occurred in 2011 in the 900 block of Massachusetts Street.
According to a decision filed in Gilmore’s case, District Judge Paula Martin last week wrote the sidewalk ordinance “is not so vague as to be facially violating of any constitutional provision nor is it subject on its face to arbitrary or discriminatory enforcement.”
The judge cited similar city ordinances in other states that the U.S. Supreme Court upheld.
Elizabeth Hafoka, a city prosecutor, had argued the city ordinance — drafted in 2005 along with a law on aggressive panhandling — was written clearly with plain language and that a reasonable person could easily understand its definition of “to obstruct traffic.”
Prosecutors appealed the case to Martin only on the legal question, asking her to declare the ordinance constitutional. They are not asking her to overrule Gilmore’s acquittal in the case.
Gilmore, who goes by the nickname “Simon,” can often be seen downtown wearing a robe or bed sheet. His mother has told the Journal-World he received a diagnosis of paranoid schizophrenia as a child.
McGrath had found one subsection of the ordinance that makes it illegal to “continue to obstruct traffic” and the definition about people having to walk around someone was vague and violated the First Amendment. Gilmore’s attorney Shelley Hickman Clark, an associate clinical specialist with Douglas County Legal Aid, said Monday she planned to appeal Martin’s decision to the Kansas Court of Appeals based on that part of the ordinance.
“That’s really the heart of it because I really believe that’s too vague,” she said. “In an urban setting people are just stepping around each other all day long. Who is to say that one person committed a violation of a city ordinance and another person didn’t when all people are doing is walking around each other. It’s so vague.”
Gilmore was convicted in municipal court in a separate case under the city’s illegal camping ordinance, and Hickman Clark has appealed those decisions to Martin. A bench trial in that case is scheduled for next week, she said.