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Posted
by Reasonmclucus
October 20, 2011 at 11:44 p.m.
Kansas Unconstitutional Municipal Courts
The Kansas Constitution doesn't authorize cities to set up their own independent court systems with the power to order people to jail. Even if it did, the lack of separation between the different functions within city governments violates the due process clause of the 14th Amendment. Some enterprising attorney might benefit from filing a class action lawsuit on behalf of those the courts have illegally jailed. Such lawsuits might be profitable in the larger cities like Wichita or Kansas City.
Many city leaders seem to think their cities are like the imperial cities of old which could do anything they wanted. They ignore the fact that under our system of government, government can only do what it is authorized to do.
Federal and state constitutions define the circumstances under which government may punish individuals. The U.S. Constitution recognizes only two levels of government, the federal government and state governments. Local governments only exist as agencies of state governments. Local governments have no independent authority to regulate human behavior except for the authority they receive from the state.
The Kansas Constitution vests the judicial power of the State of Kansas "exclusively in one court of justice, which shall be divided into one supreme court, district courts, and such other courts as are provided by law" with the Supreme Court having "general administrative authority over all courts in this state."
The Kansas Constitution does not authorize local units of government to set up their own separate court systems or authorize local officials to contract with attorneys to serve as "judges" for those courts. Local judges often have a contract to operate the local court, which is inconsistent with a judge being a government official holding an appointed or elective office.
The U.S. Constitution places a major emphasis on limiting the ability of government to punish individuals. The Bill of Rights are based on the premise that it is better to risk allowing some criminals to escape punishment then to allow government to ignore the rights of its citizens.
For example, the Constitution prohibits arbitrary searches of private property to keep government from searching homes until it gets lucky and finds the evidence it's looking for. The courts have repeatedly allowed guilty individuals to go free in cases where the police failed to follow the law when searching them or their property.
The Constitution makes the judiciary an independent branch to limit the ability of law enforcement to control the conviction process. The guarantee of a jury trial was placed in the Constitution to cover situations in which a supposedly independent judge might be prejudiced in favor of the prosecution.
The City of Wichita has only one branch of government. The City Council controls selection of law enforcement officials and judges which creates an incestuous relationship in which individuals cannot expect the judge to be independent of those who decide whether he or she might be replaced.
The integrity of our system of government requires that government strictly obey the law. Adherence to the law is particularly important for the court system. Courts must be properly authorized by the federal or state constitutions and judges chosen in a manner that keeps them separate from law enforcement.
Someone needs to challenge the unconstitutional municipal courts in Kansas. I suspect an enterprising attorney might be able to make some money filing a class action suit charging the judges and city with false imprisonment which is what kidnapping by government is called.
Incidentally, the 14th Amendment requires states to guarantee "equal protection of the laws". That would seem to require laws to be uniform throughout the state. If an individual city provides some type of "protection" that isn't available in other cities then the state is not providing its citizens with "equal protection of the laws". Thus, local ordinances that differ from the state law could potentially be challenged.
The current situation in Topeka demonstrates how local ordinances could put the state in violation of the 14th Amendment. Topeka recently rescinded its domestic violence ordinance. Fortunately, the state prohibits domestic violence, but what if it didn't. What if Lawrence prohibited domestic violence and Topeka did not? Residents of Lawrence would have greater protection from violence then would residents of Topeka and the state of Kansas wouldn't be providing victims of domestic violence with "equal protection of the laws."
The only way Kansas can provide equal protection of the laws is if the state has a uniform system of laws overseen by a single court system.
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Comments
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autie (anonymous) says…
Go back to law school.
Liberty275 (anonymous) says…
12-4104: Municipal court; jurisdiction; search warrants proscribed. (a) The municipal court of each city shall have jurisdiction to hear and determine cases involving violations of the ordinances of the city, including concurrent jurisdiction to hear and determine a violation of an ordinance when the elements of such ordinance violation are the same as the elements of a violation of one of the following state statutes and would constitute, and be punished as, a felony if charged in district court:
(1) K.S.A. 8-1567, and amendments thereto, driving under the influence;
(2) K.S.A. 21-3412a, and amendments thereto, domestic battery;
(3) K.S.A. 21-3701, and amendments thereto, theft;
(4) K.S.A. 21-3707, and amendments thereto, giving a worthless check; or
(5) K.S.A. 2009 Supp. 21-36a06, and amendments thereto, possession of marijuana.
(b) Search warrants shall not issue out of a municipal court.
bearded_gnome (anonymous) replies…
"and such other courts as are provided by law"
---apparently Reason has serious trouble with reading comprehension.
"equal protection under the laws" I think the correct phrase should be: "equal protection under law" or "equal protection under the law."
it's always sad when you see that one member of the herd lagging behind, and you know that he or she's about to get eaten by the predators.
Boston_Corbett (anonymous) says…
What a maroon.
Gandalf (anonymous) says…
How about city mandated slavery? ( IE snow shoveling) The city (or State) has zero constitutional authority to order forced labor without due process and a finding of guilty by a court. In fact both state and federal constitutions expressly forbid it.
parrothead8 (anonymous) replies…
You're talking about an ordinance that says people should make sure their sidewalks are clear of snow and ice within a few days of a storm's end. It's ludicrous to equate that with slavery.
Gandalf (anonymous) replies…
Please cite where they get the authority. The fact that you think forced labor is ok does not make it constitutional.
jafs (anonymous) replies…
That would mean that ordinances about keeping your lawn mowed are unconstitutional.
As are ones about keeping one's property up to a certain standard - ie. landlord/tenant codes.
Or fixing one's driveway.
Etc.
If these are really unconstitutional, then why are they so common in many cities? Any court cases that people have won with that argument?
Gandalf (anonymous) replies…
There is a major difference between snow shoveling and mowing. If you fail to mow your yard the city will have it done and send you the bill. By the way the city did lose an arguement over mowing many years back and have to compensate a property owner.
Landlords are a business and are subject to regulation's. Fixing your driveway is a stretch but you are doing work to benefit yourself, not others.
As far as court cases, I don't think it has ever been challenged. My opinion is it would be ruled unconstitutional. As far as being common so was slavery in it's day.
Once again please cite any authority the city has to override the constitutuion on forced labor without a court finding of guilt.
No matter how you want to slice it. The only way the city can order someone to labor on behalf of another, would be to take them to court first. Then the court could order the snow removed with fine or jail time for non compliance.
jafs (anonymous) replies…
I think that's the same thing they'll do with the snow shoveling - have it done and charge you/fine you.
I thought it was "forced labor" you were opposing - forcing a landlord to do something is as much that as forcing a homeowner to do it.
Fixing your driveway, if you are required by the city, is also "forced labor".
My guess is that you are incorrect in your interpretation - otherwise there would be numerous court cases, and many people would have won them against cities.
Gandalf (anonymous) replies…
It takes money to file a federal lawsuit! The ones that could afford it really don't have to worry about it.
There is a difference is with landlord or drive way issues. The city can order them. But can only take them to court for non compliance, not just fine them out of hand.
jafs (anonymous) replies…
If it's also in the state constitution, you wouldn't have to file a federal lawsuit, would you?
I'm not sure that's true - can't the city simply cite landlords for code violations, and fine them?
Gandalf (anonymous) replies…
Not sure, But I'm sure it would be challenged in court.
It would probably have to wind up in the supreme court for a definitive answer.
Gandalf (anonymous) replies…
PS
I'm still waiting for anyone to cite the city authority.
chirp....chirp...chirp
skootermonkey (anonymous) replies…
You're confusing civil law with criminal law. You won't get thrown in the slammer if you neglect to shovel your sidewalk.
Gandalf (anonymous) replies…
And if you refuse to pay the fine what happens? Contempt of court and jail time? Besides civil or criminal is irrelevant. Neither can be unconstitutional.
jafs (anonymous) replies…
I'm waiting for the evidence that this is unconstitutional.
The fact that you say it is isn't evidence - it's just an assertion.
Gandalf (anonymous) replies…
And I'm still waiting for any evidence that it is legal. The fact that you and the city says it is is just an assertion.
Surely the city employee's could provide the authority, Couldn't they?
Gandalf (anonymous) replies…
Amendment 13 - Slavery Abolished. Ratified 12/6/1865. History
1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Sure sounds like prima facie evedince to me. :)
Gandalf (anonymous) replies…
Slavery; the condition of an individual who works for another individual against his or her will as a result of force, coercion, or imprisonment, regardless of whether the individual is paid for the labor.
Can you say with a straight face that being forced to shovel a sidewalk against my will so others can walk on it does not meet the definition of slavery?
http://legal-dictionary.thefreedictio...
boltzmann (anonymous) replies…
Yes, it is part of the responsibility that goes with owning property in a community. If you don't want to do it you could either a) not own property, or b) don't own property that includes a sidewalk. This makes it a voluntary choice that comes with the voluntary decision to own a property with a sidewalk and not slavery. If you go by your definition then someone in the military is also a slave because once they sign up they cannot change their mind and leave without penalty.
Personally, I think that the law is not completely fair because it treats homeowners with sidewalks differently than those who don't. However, the alternative would be to increase taxes so that the city would do it for us and I am not entirely up with that either, so the current system is a compromise. There are legitimate arguments for or against this law and it is a proper target for debate; however, calling it slavery is simply nonsensical.
Gandalf (anonymous) replies…
And who makes the decision to have a side walk on their property? Does that mean I can remove mine?
If it meets the definition of slavey how is it nonsensical?
Last I knew the the constiturton was not a compromising document. I don't think anyone (other than a few rightwingers) would try to change it to allow slavery by city ordinace.
As far as treating people equally, the city can't even meet its own guideline, for streets or sidewalks.
I did find it interesting that city could not fix the water line on Kentucky street because it was too cold for workers. But can demand citizen's shovel the snow with no regard to temerature,
jafs (anonymous) replies…
No.
But you could have easily chosen not to buy that house, and bought another one without a sidewalk, if you didn't want to have to maintain it.
Gandalf (anonymous) replies…
And if the sidewalk was installed after purchase?
jafs (anonymous) replies…
That a bit different.
Gandalf (anonymous) replies…
In what way? It' s still there and has to be shoveled.
jafs (anonymous) replies…
In that you didn't choose to buy a house with a sidewalk when you bought your house.
Gandalf (anonymous) replies…
This ordinance wasn't in place then either.
jafs (anonymous) replies…
Yes.
Maintaining a sidewalk on your property which is in public use is not slavery, by that definition.
I think any court case on that basis would lose.
Gandalf (anonymous) replies…
Point one it does meet the definition. Point 2 it's not on my property it's on city property.
jafs (anonymous) replies…
I don't agree.
And, I bet you if somebody brought a case into court with that argument, they'd lose.
Also, the way sidewalks work generally, as I understand it, is that they're on your property, but they're available for public use.
It's certainly a bit of a funny situation, and perhaps we should have the city maintain them - but then, of course, we'd have to collect some more tax revenue to do that.
Think of it as protecting yourself from a possible lawsuit, if somebody walks on your sidewalk and injures themselves because you didn't clear away some snow and ice.
vertigo (Jesse Crittenden) replies…
Well then, jafs, if it is on his property wouldn't the city 1- have to get permission from him to install and 2- wouldn't he have the right to get rid of it since it is on his property without his permission?
If the sidewalk is in the easement then that means its on the city's property and they should have to maintain it. You wouldn't ask a homeowner to fix a busted water main that burst in the easement on their property, would you?
jafs (anonymous) replies…
I'm not up on all of the details - I'd have to look up exactly what's happening with sidewalks.
I know that there are "right of way" things, and also easements.
Some of them mean it's on your property, but the city has the right to use it.
I'm ok with the city maintaining them, but we'd have to pay more in taxes, and put up with whatever quality of work and timing they come up with.
Most people who demand the city do this would be very opposed to any tax hikes to pay for it.
Gandalf (anonymous) replies…
Maybe the city could use the money they are stealing from the water and trash fund?
jafs (anonymous) replies…
According to a quick internet search, an easement is a right to use somebody else's property without owning it.
So, a public easement for sidewalks means that the public is allowed to walk on your property, even though they don't own it.
That's kind of what I thought.
I wonder if there are any court cases wherein a private property owner sought to deny that sort of easement, and how they turned out.
Katara (anonymous) replies…
Some easements are already outlined in the deeds and plats.
I would think that it would be difficult to win a case if the easements were stated in your deed or have been in use without contest for a number of years.
Generally, if the easement has existed without anyone contesting it within a certain time frame (I don't know what KS is. It is 20 years in MO), then it is too bad for the property owner.
Katara (anonymous) replies…
Also property owners benefit financially from having a maintained sidewalk. Generally, it increases the property value and purchase price of a home.
It falls under curbside appeal.
Gandalf (anonymous) replies…
Not many house on the market in winter! Probably even fewer being looked at during snow storms!
Katara (anonymous) replies…
I am sorry that you don't understand what "maintained" means. And it is the aftermath of winter that you need to be concerned about.
Keeping your sidewalk clear of snow & ice is part of the maintenance of your property. Not doing so causes sidewalks to crack and buckle which in turn causes your property to lose curb appeal and lowers the amount you may get from the sale of your property. It also opens you up to lawsuits when someone trips and hurts themselves on your poorly maintained sidewalk.
It is no different than keeping your house painted to help avoid the wood rot.
Gandalf (anonymous) replies…
See my comment below. Maybe to be PC I should have included women. :)
Cai (anonymous) replies…
Article 2, section 21 of the KS state constitution states:
The legislature may confer powers of local legislation and administration upon political subdivisions.
This gives the power to make and create city ordinances to a city government (such as Lawrence). Furthermore, Article 12, Section 5(b) states:
Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions except when and as the levying of any tax, excise, fee, charge or other exaction is limited or prohibited.
The city has the right to make laws that apply only to the city.
Kansas legislature has this to say on Municipal Ordinances (Chapter12, Article 30, Section 11.) All such incorporating ordinances shall include a penal section or sections within the limits authorized by law to be provided for the violation of the ordinances of the city.
The city does have the right to penalize residents for not following ordinances, mostly via fines.
Naturally, the City of Lawrence has the following ordinance (#8324), requiring property owners to somehow remove snow or ice within 48 hours of the end of accumulation or face a $20/day fee.
To enforce the city ordinances, Article 3 Section 1 states:
The judicial power of this state shall be vested exclusively in one court of justice, which shall be divided into one supreme court, district courts, and such other courts as are provided by law; and all courts of record shall have a seal. The supreme court shall have general administrative authority over all courts in this state.
The state constitution specifically allows for municipal courts, provided that they recognize the authority of the Supreme Court.
The Kansas Judicial site (at kscourts.org) confirms that Lawrence Municipal Court, is in fact, in possession of such a seal.
Finally, Kansas Legislature Chapter 22, Article 34, Section 25 states that:
(1) When a defendant is adjudged to pay a fine and costs, the court may order him to be committed to the county jail until such fine and costs are paid or may make an order providing for the payment of such fines and costs in installments.
(2) Any person confined in the county jail for failure to pay a fine or costs may be released by the court which imposed sentence […] A release under this section shall not discharge a person from his liability to pay the fine and costs adjudged against him, but they may thereafter be collected by execution as on judgments in civil cases.
If you don’t pay the fine, you get thrown in jail. Unless you’re incapable of paying the fine due to financial hardship, in which case, you still have to pay the fine later.
Did you ever find something that said otherwise?
That said, after court costs, the ticket costs about $75. If you have a problem doing it, I'll come shovel your walk for $30 (does not include driveway). It's a savings of $45!
It's long, but it's the proof you wanted.
ModerateOne (anonymous) says…
Municipal Courts are constitutional because anyone who loses in municipal court has the right to appeal to the district (state) court and get a brand new trial with a jury. In essence, this gives the accused two bites at the apple. If someone is charged with a crime and wins in municipal court, the city loses and cannot appeal. If the accused loses, s/he gets to appeal to a jury in state court.
pace (anonymous) says…
I think the reasoning on this wrong. I think municipal courts are legal. I also hate shoveling sidewalks but it is part of living in town.
Wadde (Darin Wade) says…
Especiallly the domestic violence facists who watch violent films such as CSI
who learn aquired plots give ideals to the audience...I can't see the mirror image
of those who support the law.
Gandalf (anonymous) says…
Looks like I have to repeat myself.
Amendment 13 - Slavery Abolished. Ratified 12/6/1865. History
1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction
from the Kansas Bill of Rights
6. Slavery prohibited. There shall be no slavery in this state; and no involuntary servitude, except for the punishment of crime, whereof the party shall have been duly convicted.
Nothing in the comment you posted gives the city any right to abrogate the U.S. or Kansas Constitution. Any type of forced labor can only be ordered by a court of law, after a finding of guilt. In this instance the city has usurped the courts role by require the involuntary servitude, without due process or conviction. Nice try tho. :)
pace (anonymous) replies…
You sound like an 8 year old, explaining why you shouldn't have to do your chores.
Gandalf (anonymous) replies…
Ya mean just just damn that pesky constitution? I'm neither 8 years old and the government is not my father or mother. Good point tho, the city is trying to do the same and impose unpaid and coerced chores.
Cai (anonymous) replies…
Gandalf-
First, see my comment above on the legal authority to pass and enforce the ordinance.
Second, it's not forced labor. YOU don't have to do it. It simply needs to get done. You are responsible for making sure that your sidewalk gets cleared, just like you are responsible for the work required to file your own taxes.
Additionally, the responsibility doesn't count as slavery because day to day, you HAVE the choice to abdicate. Move. Move to a house that doesn't have a sidewalk, or one not within the city. Move to an apartment building. I hear rumors that we have several vacant ones in the city.
No one is forcing you to stay, thus no one is forcing you to shovel the sidewalk. It's merely become part of the cost of owning a home within city limits that has a sidewalk on the property.
Gandalf (anonymous) replies…
Nothing in the comment you posted gives the city any right to abrogate the U.S. or Kansas Constitution. Any type of forced labor can only be ordered by a court of law, after a finding of guilt. In this instance the city has usurped the courts role by requiring the involuntary servitude, without due process or conviction. Nice try tho. :)
The work done on taxes is work you do to benefit yourself not someone else.
jafs (anonymous) replies…
I think the flaw in your argument is saying that a requirement to maintain a sidewalk that is on your property is equivalent to slavery, or involuntary servitude.
But, you, and George, who also feels this way, should take the city to court, and see how that turns out.
I bet you'd lose the case.
Gandalf (anonymous) replies…
Probably only in municipal court. :)
jafs (anonymous) replies…
:-)
Appeal, appeal, appeal.
Maybe you could get it all the way to the US SC!
Agnostick (anonymous) says…
Got an email from Governor Mark Kline Drake... says he wants to talk with you about a possible cabinet appointment.
bearded_gnome (anonymous) says…
I posted this as a reply up at the beginning. reposting here because the lousy threaded replies make that hard to notice for some:
"and such other courts as are provided by law"
---apparently Reason has serious trouble with reading comprehension.
"equal protection under the laws" I think the correct phrase should be: "equal protection under law" or "equal protection under the law."
it's always sad when you see that one member of the herd lagging behind, and you know that he or she's about to get eaten by the predators.
Gandalf (anonymous) says…
In case anyone is still reading this.
I've been doing a lot of research. It appears the USSC upheld a Florida law in 1916. That law required all able bodied men between the ages of 21-45 to work on Florida roadways and bridges for 6 days a year for 10 hours a day or pay a $3.00 fine for each day.
The decision was based on English law from the 1700's.
Does anyone think today's USSC would rule the same? Apparently this is the rational that the city used for their ordinance. Who knows , maybe next year the city will require everyone, able bodied or not, to shovel their own streets as well.
So what I recommend is that he city require all able bodied men between 18-45 be required to shovel all sidewalks as necessary. Instead of selected class of people. IE home owners, which include aged, infirm or women.
Bet that would make a lot of people hopping mad!!!
Gandalf (anonymous) replies…
http://caselaw.lp.findlaw.com/scripts...
U.S. Supreme Court
BUTLER v. perry, 240 u.s. 328 (1916)
240 u.s. 328
jake butler, Plff. in Err.,
v.
j. w. perry, as Sheriff of Columbia County, Florida.
No. 182.
Submitted January 14, 1916.
Decided February 21, 1916.
[240 U.S. 328, 329] Mr. Charles Cook Howell for plaintiff in error.
Mr. Thomas F. West, Attorney General of Florida, for defendant in error.
Mr. Justice McReynolds delivered the opinion of the court:
Chapter 6537, Laws of Florida (Acts of 1913, pp. 469, 474, 475), provides:
'See. 10. Every able-bodied male person over the age of twenty-one years, and under the age of forty-five years, residing in said county for thirty days or more continuously next prior to the date of making of the list by the board of county commissioners, or the date of the summons or notice to work, shall be subject, liable and required to work on the roads and bridges of the several counties for six days of not less than ten hours each in each year when summoned so to do, as herein provided; that such persons so subject to road duty may perform such services by an able- bodied substitute over the age of eighteen years, or in lieu thereof may pay to the road overseer on or before the day he is called upon to render such service the sum of $3, and such overseer shall turn into the county treasury of his county any and all moneys so paid to him, the same to be placed to the [240 U.S. 328, 330] credit of the road and bridge fund and subject to the order of the board of county commissioners for road and bridge purposes; . . .
'Sec. 12. Any person or persons not exempt as aforesaid who shall fail to work on public roads of the several counties when required to do so, or to provide a substitute as herein provided, and shall neglect or refuse to make payment for the same, as hereinbefore provided, shall be guilty of a misdemeanor and upon conviction shall be fined not more than $ 50 or imprisoned in the county jail for not longer than thirty days.'
Gandalf (anonymous) says…
Mayor Cromwell and council members. Pleased be advised that if the ordinance is not changed to allow for age, health, infimity and temperature exceptions. I will file a suit in Federal Court next June. The filing fee is only $300 and may be waived.
It's helpfull that all the instuctions are online for the do-it-yourselfer.
jafs (anonymous) replies…
That's an interesting case.
Apparently the SC felt that maintaining public roadways was a "public duty", similar to jury duty or military service, and thus didn't fit the definition of slavery or involuntary servitude.
I'm not sure I agree, or that they'd rule the same way today. Do you think that we should all be able to simply decline jury duty, or military service, otherwise it's akin to slavery or is?
But, maintaining a sidewalk on your property is a little different from maintaining a publicly owned roadway.
Gandalf (anonymous) replies…
Nope to both questions at least they do get paid.
But I disagree with your sidewalk view. To me it's exactly the same. It's not a private sidewalk but a public one. Why should homeowners be singled out? Should only homeowners be required to serve on juries or military?
Heck it may even be in violation of the 14th amendment as well. :)
jafs (anonymous) replies…
So it's ok to force citizens to work against their will, or join the military, as long as they get paid?
I think even involuntary servitude involved payment of some sort - at least room and board.
It's a sidewalk on your property that has a public easement so that the public can walk on it. You're not being asked to maintain the street, just the little bit of it in front of your house.
I understand it's a little funny, as a combination of public and private elements, and I'd be fine having the city do it instead, but I bet you would oppose a tax increase to pay for it (also, you'd have to live with the speed and quality of the service that the city offers).
Personally, it's not really a problem - it's good exercise, and I like having it cleared off, so I can use it if I need to.
Gandalf (anonymous) replies…
So it's ok to force citizens to work against their will, or join the military, as long as they get paid?
As far as jury duty, I would really hate to see professional juries deciding cases! Military duty is rather iffy. It would be fun now to see if they would include women. Notice it hasn't been used since Viet Nam. But at least those issues are aimed at all citizens not just a few and serve a legitimate public interest.
Gandalf (anonymous) replies…
I reread this paragraph:
I'm not sure I agree, or that they'd rule the same way today. Do you think that we should all be able to simply decline jury duty, or military service, otherwise it's akin to slavery or is?
People can decline jury duty. Simply tell them, the sob is guilty or he wouldn't be here. You would not be selected, guaranteed! :)
For the draft issue, I recommend watching Sgt York. WW 1 & 2 could make a case for the draft. Viet Nam could not.
Gandalf (anonymous) replies…
By the way how would you feel if you were conscripted to provide free labor on the SLT?
jafs (anonymous) replies…
I wouldn't like it.
I also wouldn't like being drafted.
I liked serving on a jury once, but I'm not sure I'd be that keen to do it again.
Gandalf (anonymous) says…
Come to think of it. This law sounds like something guv brownback would be in favor of! I wonder how katara, pace, cai, boltzman or jafs would feel if they were required to work on the SLT for 60 hours for free?