I’m not saying the city of Portland has the worst lawyers in existence.
Portland’s corporation counsel and her staff aren’t nearly as incompetent as the Texas defense attorney who was accused last year of forgetting his client’s name during jury selection, dozing during his trial and failing to call a single witness in his defense. He also neglected to inform anyone that the defendant wanted to accept a plea deal that would have saved him years in prison.
Then there’s Orly Taitz, the California lawyer responsible for numerous lawsuits over President Obama’s birth certificate and other conspiracies, mostly imaginary. Taitz has been fined for violating the law in a manner a Georgia judge ruled was “willful and not merely negligent.” You can’t say that willful part about the legal team that works for Portland.
Readers of Franz Kafka’s novel “The Trial” will agree that they’d rather have the city’s jurists on their side than Herr Huld, the lawyer helping to railroad poor Josef K in a nameless court for unspecified crimes. K eventually concludes, “[I]t is an essential part of the justice dispensed here that you should be condemned not only in innocence but also in ignorance.”
Portland city councilors are hardly innocent. They’ve ignored the Constitution’s First Amendment, ignored the city’s comprehensive plan for development and ignored the rights of citizens to vote to overturn unpopular decisions. But the councilors do seem to be wallowing in legal ignorance. Portland has lost a series of significant cases in recent months, most of which wouldn’t have ended up in court if the city had gotten good advice from its attorneys – and paid attention to it.
Take, for instance, the issue of panhandling in median strips. There’s ample precedent from other states indicating that banning people from standing on traffic islands with signs asking for money is difficult to do because it restricts free speech. Several courts have indicated that such bans can’t single out panhandlers, because that would be restricting a particular kind of speech, something the Constitution doesn’t usually allow.
You don’t need a law degree to understand this stuff. Governments can’t outlaw people begging for handouts on public property, while allowing political protests or campaign signs in the same spots. But Portland’s ordinance, passed by the City Council last year without a dissenting vote, ignores this clear warning. It applies to homeless bums, but not political ones.
Earlier this month U.S. District Court Judge George Singal overturned the panhandling ban for reasons that should have been obvious. “The ordinance favors one category of speech, campaign signs, over all others and permits only those messages in the traditional public forum,” the judge wrote. “A law may no more favor one type of message because of agreement with it than it may disfavor a message because of disapproval.”
I’m pretty sure they teach that stuff in the first year of law school.
Then there’s the question of which City Council decisions are subject to repeal by citizen referendum, something state law seems to indicate is nearly all of them. After councilors voted last year to sell a portion of Congress Square Park to a developer, opponents of that decision organized a petition drive to halt the sale and institute tougher restrictions on the disposal of public property. Portland’s legal team twisted law and logic to conclude that the council vote couldn’t be overturned by referendum because it was an “administrative” matter. The petitioners sued, and a Superior Court justice decided the city attorneys’ alleged restriction on popular votes was so much lawyer manure. After unseemly delay, the matter of the sale will now be decided at the polls.
According to Portland’s legal experts, the councilors’ decision to allow commercial offices in an historic church in a residential area of the city’s West End was fully in accordance with municipal zoning laws. Unfortunately, a state judge ruled just the opposite, a decision that may have implications for another major project. A group that fought against a high-rise development in the Bayside neighborhood – a proposal that got the it’s-all-cool-with-us nod from Portland’s law team – is going to court attempting to reverse the planning board’s approval. The opposition argument is based in part on the West End case.
Meanwhile on Congress Street, anti-abortion protesters are awaiting a U.S. Supreme Court decision on whether buffer zones around Planned Parenthood offices in Massachusetts are constitutional. Portland could have delayed passing a similar law until after the justices ruled, but with the immense legal expertise the city commands, why not yield to political pressure and act prematurely.
Many wits have noted that the law is an ass. If so, its stable – badly in need of mucking out – is the office of Portland’s corporation counsel.
Court is adjourned. The parties may email additional evidence to aldiamon@herniahill.net.
Well said. And how much are they being paid for this?
Portland should just require anyone standing in the median to wear flourescent pink reflective traffic vests. No free speech violated and they can still claim it is for safety reasons.
If common sense were still common, we wouldn’t need attorneys to write laws (that only attorneys can decipher) to save us from ourselves.
Elmer, the people begging on the medians in Portland are homeless. Most are mentally ill and/or addicted. All are indigent. They can’t hang on to their mittens, never mind florescent vests. It’s a bad situation – it makes us all uncomfortable to see them, shivering, with their cardboard signs, as we drive by in our warm cars to our hot suppers. Give a buck or don’t give a buck – that’s every individual’s choice, and I’ve never been berated for not giving. I give a dollar a day. That is affordable for me, and maybe helps a little. It certainly helps my conscience. Or I could maybe take a stand that they’re lazy bums, and then I’d be off the hook, and I could keep my dollars. Sorry to rant, but it’s a big issue in Portland.
It’s an issue in most cities, not just Portland and not just Maine. Hopefully the city councils and their legal advisors are more adroit.
Sounds like the blind leading the blind to me. So Portland like.
Al, it must be easy to criticize from the crowd rather than stepping into the arena. Having worked with the City’s Corporation Counsel I can say firsthand she has an astute legal mind that benefits Portland on a regular basis. Expecting the impossible–perfection–betrays an ignorance of the law in particular but also more broadly of the complexities of municipal government. It’s easy to conclude after a case is lost that there was flawed reasoning involved, however curiously absent from the insulting piece you’ve written above is any actual reference to why that reasoning was flawed. In other words, you’ve concluded something (that the City’s chief attorney is incompetent) without the level of analysis one would normally expect from a rational person. But who wants rational when you can incite the masses with half-truths and infotainment? You could have noted how the Williston-West superior court case appears to change the law rather than reaffirm existing precedent–something even the brightest legal mind couldn’t predict without being clairvoyant. Maybe with your abundance of legal insight you could have also explained to the readership how consistency with a comprehensive plan as a land use standard is likely illegal for want of clarity and the violation of due process (surely you understand that, as a Constitutional scholar) it would result in. Maybe you could explain how the midtown appeal arises from a distinct factual pattern from the west end re-zoning case. But no, that would make too much sense and require too much effort on your part. Instead, you’ve chosen without any merit to drag someone’s professional reputation through the mud due to your arrogant perspective and need to attract readers. Personally, I find the above article pathetic. Thank you.
Why wouldn’t Portland ignore Federal Laws regarding free speech? They have ignored Federal Laws by allowing marijuana for recreational use. Last I knew that was against Federal Law but nobody is too up in arms about that. All goes back to the argument that as long as the “free speech fits your needs argument”, than it is fine”