Mayor Gardner recently expressed
disappointment that no one but the principals came out to the
city's street performer workshop they finally got around to
holding. A dozen city commissioners have promised street performer
workshops since 1991 but this is the first one ever held.
It was the same old gripe session from
before only this time it was former Mayor Len Weeks leading the
mayhem instead of sitting in judgment and pretending he's not one
of the principals.
It was primarily the commercial property
owners beating their chests. The few artist and performers, timid
and beaten, were mostly upbeat while the shrill arguments offered
by Weeks' faction haven't changed a bit.
A 2nd Circuit Federal Appeals Court
listing every single argument offered by Weeks and his Bagel
Breakfast Bubba Bunch (BBBB) ruled, "These arguments must fail."
The city's insistence they are regulating commerce, not protected
expression just won't float, but it's the only argument the BBBB
has so they keep repeating it.
After the street performer workshop, the
Record reports that Mayor Gardner wondered where the general
community was, and why they didn't show up to speak. The general
community thinks you already know what they want Mr. Mayor; they
elected you with a landslide.
Thousands of residents clearly wanted a
big change in the city's direction and all three of the new
commissioners they elected offered to be open minded in looking
for a way to bring street performers back to the street with
reasonable regulation.
George Gardner, a personable, truly
decent man defeated the old mayor both for his seat on the
commission and his mayor's post, despite having never run for
office before. A contemptuous slap in the face for the old guard
and Mayor Alexander in particular, it was delivered by the voters
as a mandate to the new majority that they elected.
The new majority's election was a strong
demonstration of the voter's lack of interest in using taxpayer
money to solve the downtown landlord's problem with street
performers.
Mr. Mayor, when they elected you, a
virtual unknown over a prominent man from a well-known family who
had held office nearly a decade they spoke very loudly. They
didn't think they had to show up, they thought you already got the
message.
Week's downtown business clique is
adamant, however. They will not give up the public territory they
believe they won fair and square. As their private mall they now
control St. George Street thanks to the performer ordinance and a
very cozy relationship with the secretive director of the city
police, City Manager Bill Harriss.
Today, police still give a great deal of
quiet TLC to the St. George Street landlords. If an artist even
shows up now that it's legal to paint or draw on that street,
several different calls are made, likely to City Hall instead of
the recorded 911, and police literally circle the artist to see if
he's just painting or selling. They come back several times if he
stays. Walking down the street with a painting is all it takes to
draw a cop on a bike. But this draw yields intimidations, not a
pretty expression.
The residents may not have a street
performer problem, but clearly the downtown chamber group does.
Their obsession with street performers is fed by their
historically proven ability to use the city law enforcement
apparatus to run protesters, performers, artists and the homeless
out of town or at least away from their mall.
I urge everyone countywide who reads this
to e-mail, call and write all five of the city commissioners
demanding an end to the Chamber's Dirty Little War. They're a
little slow, and they didn't get your message the first time you
spoke when you cleaned house and elected them in the first place.
They want your input at cosa@aug.com.
The mayor wants you to come on down and
tell 'em in person what you want them to do, so I promoted a
voter's rally just before the last regular City Commission meeting
Monday.
Though it was not intended as a street
performer rally, that is who showed up.
I wanted you to go to City Hall afterward
to tell Mayor Gardner why we voted for him in the first place. The
rally was also to thank the 1,783 residents who voted for me in
2000, and then for Mayor Gardner and a new majority in 2002.
Believe me, I'm grateful you picked him, though I am deeply
touched that so many of you were willing to invest your vote in
me. That responsibility and the debt I feel to each of you will
remain with me for the rest of my life.
Residents seek a middle ground for
compromise, and the rally was not to be a new battleground for the
principals. One candidate advertised his desire to "protect St.
Augustine" but only the voters can do that by their vigilance and
love for our city. I want to thank each of you for your vote and
your active involvement in writing the future of St. Augustine.
Don't give up. I haven't.
Jolley is a three time former candidate
for St. Augustine City Commission,1996, 2000 and 2002.
In the Circuit Court,
Seventh Judicial Circuit,
In and for St. johns County,
Florida
CASE NO. CA02-754
LT CASE NO.: MM01-2333/
MM01-3124
DIVISION 55
Roger G. Jolley,
Appellant,
v.
State of Florida
Appellee.
Appeal from the County Court
Seventh Judicial Circuit
St. Johns County,
Honorable Charles Tinlin, Trial
Judge
first brief of Appellant, Roger Graham
Jolley,
82 Kingsferry Way,
St. Augustine, Florida 32084
(904) 808-7093
TABLE OF CONTENTS
Table of Contents and CitationsÖ pg.
2-3
Argument pg. 4
Procedural, due process flaws in police
enforcement by the City and prosecution by the State. Pg.
5
Errors in the Trial Courtss ruling on the
constitutionality of the ordinance. Pg. 8
Legal Allegations as to all claims pg.
10
Conclusion of Argument pg. 11
The remedy can only be to reverse the
entire acts of the lower court because the state had no
jurisdiction or authority in the first place, and to grant the
appellant in this cause, Roger Graham Jolley the requested
injunctive relief.
TABLE OF CITATIONS
Horton v. City of St. Augustine 2001 WL
1433477 (11th. Cir. (Fla.) (Nov. 15, 2001) -pg. 1
Celli v. City of St. Augustine
(98-253-CV-J-21B) (M. D. Fla. May 15, 1998) -pg. 4, 9
Horton v. City of St. Augustine
(3:00-CV-671-J-25A) (M. D. Fla. Oct. 14, 2000) ñpg. 4,
9
Larry Horton v. State Attorney John
Tanner et al, (3:01-CV-604-T-25-B) (M. D. Fla. May 24, 2001)
ñpg. 6
State v. Thomas 614 So. 2d 468 (Fla.
1993)ópg. 6
State v. Larry Horton MM98- (St.
Johnís Co. Court), May 1998- - pg. 9
IN THE COUNTY COURT, SEVENTH
JUDICIAL CIRCUIT, IN AND FOR
ST. JOHNS COUNTY, FLORIDA
CASE NO. CA02-754
LT CASE NO.: MM01-2333/
MM01-3124
DIVISION 55
ROGER G. JOLLEY, APPELLENT
Vs.
STATE OF FLORIDA, APPELLEE
________________________/
ARGUMENT
Summary:
The lower court erred by allowing
procedural flaws in prosecution and law enforcement
methods.
The lower court erred when it designated
the ordinance as content neutral, and thus failed to find the
ordinance unconstitutional on its face.
The lower court erred when it failed to
address critical failures within the law enforcement methods,
which renders this ordinance unconstitutional as
applied.
The lower court erred when it ignored
proven pattern and practices of deliberate civil rights violation
by the city as found by a Jury in Celli v. City of St. Augustine
(98-253-CV-J-21B) (M. D. Fla. May 15, 1998) just prior to creating
the ordinance in question. The jury directions and verdict show a
proven intent by the city to violate civil rights. The lower court
was very familiar with the city's pattern and practices and erred
when it took at face value the testimony of police officers
representing a department with proven, deliberate violation of
civil rights violation. Indeed, the city's decision to enact these
tainted ordinances after the Federal Court ruling should have
alerted the lower court.
The trial court also ignored the
unbridled discretion warned against by the Federal trial court's
temporary injunction (Horton v. City of St. Augustine
(3:00-CV-671-J-25A) (M. D. Fla. Oct. 14, 2000) later vacated by a
Federal Appeals Panel (Horton v. City of St. Augustine 2001 WL
1433477 (11th. Cir. (Fla.) (Nov. 15, 2001)) in which the trial
court wrote "may authorize and even encourage arbitrary and
discriminatory enforcement."
Finally, the trial court ignored the city
commission's pattern and practice of creating a string of
ordinances which they acknowledged as flawed, with the stated
intent to continue to create more flawed ordinances until those
who object were run out of town. In the records presented to the
trial court, city commissioners stated their belief in the
ordinance, but then indicated that they would try "again and
again" when it was overturned as unconstitutional.
By treating this case as isolated from
previous misconduct by the city, the trial court erred, even
though the same lower court found the city had applied several
previous ordinances in an unconstitutional manner. Several of the
cases referenced by the trial court in its order answering
appellant's motion to dismiss were ruled "unconstitutional as
applied" some by the same court. The lower court was well aware of
the city's pattern and practices both itís legislative
history and police enforcement.
Indeed, the city's commission has an
established pattern and practice of simply rewriting struck
ordinances and trying again and again to accomplish a goal that is
basically unconstitutional on first amendment grounds. The city's
stated purpose in establishing a class which would be excluded
from enjoying public accommodations is de facto an improper
purpose thus ordinance 2000-41 which appellant was convicted in
the lower court was improperly enacted and is subsequently
unenforceable.
This pattern and practice by both the
legislative authority of the city commission, the executive, law
enforcement authority of the city and by the State's unlawful
prosecution was as familiar to the trial court as it was to the
appellant who had several previous cases dismissed by the same
lower court over the last few years.
I. Procedural Flaws:
Section ß 27.02, Fla. Sta. (2000)
entitled "Duties Before the Court" provides: "The State Attorney
shall appear in the circuit and county courts within his or her
judicial circuit and prosecute and defend on behalf of the State
all suits, applications, or motions civil or criminal in which the
State is a party."
Section ß 162.22, Fla. Sta. (2000)
entitled "Designation of Enforcement Methods and Penalties for
violation of Municipal Ordinances" provides: ìThe governing
body on municipality may designate the enforcement methods and
penalties to be imposed for violation of Ordinances adopted by the
municipality. These enforcement methods may include, but are not
limited to, the issuance of the citation, summons, or notice to
appear in county court or arrest for violation of ordinances as
provided in Chapter 901.î
Chapter 901 is entitled
"Arrest".
Section ß 901.02, Fla. Sta. (2000)
entitled "When Warrant of Arrest to be Issued", provides (1) "a
warrant may be issued for the arrest of the person complained
against if the magistrate, from an examination of the complainant
and other witnesses, reasonably believes that the person
complained against has committed an offense within the magistrates
jurisdictionî, the warrant is issued at that time and signed
by the magistrate. (2) The court may issue a warrant for the
defendantís arrest when one of the following circumstances
applies: (a) a Complaint has been filed charging the commission of
a misdemeanor only, (b) the Summons issued to Defendant has been
returned unserved; and (c) the conditions of subsection (1) are
met."
The Record on Appeal shows no citation or
summons was filed or served, and thus was never returned unserved.
Section ß 901.16, Fla. Sta. (2000)
entitled "Method of Arrest by Officers by a Warrantî,
provides that: ìa police officer making an arrest by
warrant shall inform the person to be arrested of the cause of the
arrest and that a warrant has been issued, except when the person
flees or forcibly resists before the officer has an opportunity to
inform the person, or when giving the information will imperil the
arrest. They also need not have the warrant in his or her
possession at the time of arrest, but on the request of the person
arrested, shall show it to the person as soon as
practicable."
Section ß 901.15, Fla. Sta. (2000)
entitled ìWhen Arrest by an Officer Without a Warrant is
Lawfulî provides: (1) that a law enforcement officer may
arrest the person without a warrant when the person has committed
a felony or misdemeanor or violated a municipal or county
ordinance in the presence of the Officer and (2) an arrest for the
commission of a misdemeanor or a violation of a municipal or
county ordinance shall be made immediately or in fresh
pursuit.î
Section ß 775.08, Fla. Sta. (2000)
entitled ìClasses and Definitions of Offensesî
defines the following terms when used in the laws of this State:
ì(2) ìmisdemeanorî (a) shall mean any criminal
offense that is punishable under the laws of this State or that
would be punishable if committed in this State by a term of
imprisonment in a county correctional facility, except an extended
term not in excess of a one-year period. (b)
ìmisdemeanorî shall not mean a conviction for any
non-criminal traffic violation of any provision of Chapter 316 or
any municipal or county ordinance. (c) ìNon-criminalî
shall mean any offense that is punishable under the laws of this
State, or that would be punishable if committed in this State by
no other than a fine, forfeiture, or other civil penalty. A
non-criminal violation does not constitute a crime, and conviction
for a non-criminal violation shall not give rise to any legal
disability based on a criminal offense; ìNon-criminal
violationî shall not mean any conviction for any violation
of any municipal or county ordinance. Nothing contained in this
Code shall repeal or change the penalty for violation of a
municipal or county ordinance; (d) ìCrimeî shall mean
a felony or a misdemeanor.î Thus, under Florida Law the
violation of a municipal ordinance is not a ìcrimeî,
nor is it a ìmisdemeanorî and the warrants issued
pursuant to Section 901.02 is invalid since said procedure may
only be invoked for a complaint filed charging the commission of a
ëmisdemeanorî.
Section 1-8 (c) of the City of St.
Augustine Code provides: "except as otherwise provided, a person
convicted of a violation of this Code shall be punished by a fine
not exceeding $500.00 or by imprisonment for a term not to exceed
sixty (60) days or any combination thereof."
Section ß 901.15 Fla. Sta. (2000)
provides for an arrest for the commission of a misdemeanor or
violation of a municipal or county ordinance in the presence of
the officer. However, the term "arrest" as utilized in said
section has been interpreted by the Florida Supreme Court to mean
detention for the limited period of time in which to issue a
citation for conduct that is essentially decriminalized. See State
v. Thomas 614 So. 2d 468 (Fla. 1993)..
Over the last several years, numerous
individuals residing in the City of St. Augustine, including
Appellant as treated in the reference lower court cases, have been
subjected to full custodial arrests for violation of a municipal
ordinance and prosecuted by the State Attorney for violating a
municipal ordinance in which the State is not a party.
The above nine (9) items above were taken
nearly verbatim from a "Complaint for Declaratory and Injunctive
Relief and Civil Rights Damages and Demand for Jury Trial", a
Class Action lawsuit filed in the District Court, Middle District
of Florida, Jacksonville Division on behalf of Larry Horton.
Horton v. Florida State Attorney John Tanner, et al (Case No.
3:01-CV-604-T-25-B) (M. D. Fla. May 24, 2001). This document,
never served on defandants was tendered to the lower court and is
mentioned on page 14 of the transcript of the oral arguments on
Appellantís motion to dismiss/suppress information (page92
of RECORD on Appeal). The RECORD indicates that the copy of Mr.
Horton's federal complaint was received and was included in the
case Record for the above listed sections (1-9). That document was
not included in the Record on Appeal and indeed, upon inquiry of
the Clerk of the Court, the lower court admits it was taken from
the Clerk of the Court's folder and held by the lower court. The
reason for altering this public record was not given.
As indicated in several motions and
letters to this court, the Record on Appeal has also been found to
be incomplete due to the removal of information presumably filed
by an Asst. State Attorney requesting the invalid warrants issued
in the lower court case. Though the elected Clerk of the Court
indicated to appellant in a return phone call that a substitution
of a Charging Affidavit for "information" presented to a
magistrate for issuance of a warrant is within normal guidelines,
the name of the Asst. State Attorney requesting the warrant and
designating the case as a misdemeanor with a MM code was absent as
a result of the altered procedure. The returns of service warrants
included in the Record on Appeal by this courtís own motion
and subsequent order was blank in the original package appellant
received from the Clerk and was blank in it's inclusion into the
Record. The information listed on the form but left blank did not
include the name of the Asst. State Attorney requesting and
processing the warrant.
The Asst. State Attorney handling the
lower court case was Amy Oysteryoung. All of the appellant's lower
court filings were served to her directly.
According to public information, the
State Attorney's contract with the City of St. Augustine to
prosecute city cases had lapsed and was no longer valid when the
State Attorney prosecuted the appellant in the lower court on
behalf of the State of Florida.
Within 30 days of the trial courts'
acceptance of a previously undisclosed class action lawsuit (ref.
item 10 above), the State Attorney sent a letter to the city
advising them that due to budgetary constraints, his office could
no longer prosecute the city's cases. He continues on to say he
would swear in a city paid prosecutor as an Asst. State Attorney
to assist the city's prosecution of ordinance
violations.
If it's a criminal or civil trial and the
state is involved as plaintiff or defense, the State Attorney is
directed by statute to appear for the State. The city need not pay
the State Attorney for his services if it's a state criminal
offense. What was the city paying for when the State
Attorneyís office prosecuted clearly marked ordinance
(civil) infractions as criminal misdemeanors?.
The State's prosecutor in this Appeal is
the same one appointed and paid by the city but sworn as an
Assistant State Attorney. This appointment allows the practice of
using state criminal procedures for non-criminal ordinance
violations to continue. If Mr. Whitehouse were to prosecute in the
name of the city as statute provides, he would not need to be
sworn in as an Assistant State Attorney. As an Assistant State
Attorney he can continue the city and state policies to prosecute
civil infractions as state crimes. His handling of this appeal
clearly indicates the cityís interest in this case, but
fails to convince that the state has a stake in city ordinance
prosecution. The State is not a party to these proceedings,
neither in the lower court nor before this court. For this reason
alone, this court should reverse the lower court and dismiss the
case.
The conditions under which the State had
previously prosecuted on behalf of the City of St. Augustine never
required that the State prosecute city ordinances, but that the
State Attorney would prosecute for the City, in addition to his or
her responsibilities under Section ß 27.02, Fla. Sta.
(2000).
The Charging Affidavitís were
clearly marked and checked by the charging Officers as Ord., or
Ordinance (ROA). The Clerk of the Court's form "Charging
Affidavit" is clearly marked as a "Criminal Form" but the hand
written designation "cord" for city ordinance is a non-criminal,
non-misdemeanor offense. Nonetheless, the magistrates Charles
Tinlin and John Alexander overlooked that marking in favor of the
State's designation of criminal charges under the misdemeanor
procedures.
The lower court compounded error within
the oral arguments for the motion to dismiss. On page 90 of the
Record on Appeal (page 12 of the transcript), the trial court
states, "But the ordinance says that a violation of this
particular statute constitutes a misdemeanor of the second degree
punishable by up to 160 days in jail."
The municipal ordinance is not a state
statute, nor does the municipality have the authority to usurp the
State Legislative authority and designate a violation of its
municipal ordinances as a State criminal offense. The
cityís use of the misdemeanor punishment within itís
ordinance, coupled with the Stateís unlawful prosecution
and the Clerkís designation of the civil ordinance
violation with a misdemeanor code misled the trial court and
magistrates, and explains how judicial error was introduced into
these proceedings.
The lower court erred by failing to
dismiss the charges and suppress the information on the basis that
the warrant was falsely obtained, invalid, and contrary to
procedure, an obvious violation of appellants rights to due
process of law and equal protection/enforcement of law as provided
by the United States Constitution, Amendment XIV, section 1, which
states, ì No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States; nor deny to any person the equal protection of the
laws.î
Appellant provided evidence during the
oral argument that material information was kept from the
magistrate issuing the warrants that might have dissuaded said
magistrate from signing those warrants. Explicitly, appellant was
engaged in political speech with his music, protesting criminal
misconduct by the same SAPD Officers bringing the charges. The
officers knew of the political nature of the alleged infraction
but kept that information from the magistrate prior to the
issuance of the warrants, and that dismissing or suppressing the
information supplied by the State was reasonable for their lie by
omission.
Further, since the trial court hearing
the case participated inadvertently in the use of the color of
state law which violated Appellantís rights for Due Process
of law by issuing one of the invalid warrants, the Trial court
should have recused itself and turned the case over to another
court or jurisdiction.
II. Errors in ruling on the
constitutionality of the ordinance.
The trial court further erred in its
order qualifying the designated city ordinance as ëcontent
neutral.í Testimony given by the two arresting officers
showed that Jugglers, costumed ghost tour operators and indeed,
some musicians were allowed to operate and perform without police
intervention, that the enforcement of the ordinance was
selectively done on the basis of content and prior political
offense taken for protest activity.
In addition, though the appellant was
charged with violating the ëstreet performerí
ordinance, that ordinance defined an artist creating and selling
his wares as a "performer." The ordinance states that any
performer may perform anywhere in the city other than the
designated four blocks, or fifty feet away from the prohibited
area.
The city commission, in an attempt to use
clever law enforcement strategies to avoid judicial censor and
constitutional constraints, wrote a second ordinance and passed it
the same day they passed the street performer ordinance. The
vendor ordinance defines an artist creating and selling his wares
as a ìvendorî and prohibits said vending anywhere in
the Historic District except for the plaza, requiring an expensive
permit and regulations subject to arbitrary changes at the
discretion of the city manager. In one legislative session, the
same artist selling his art prints became both a "performer" and a
"Vender," at the discretion of a police officer already burdened
with interpreting confusing language on exactly who and what a
"performer" is.
According to testimony during the trial
by SAPD Officer Barry Fox, an artist performer could not "perform"
fifty feet from the prohibited area because of the conjoined
enforcement of the vendor ordinance. He testified that his
discretion allows him to arrest an offender artist in an area
allowed to a musical performer, because of this second
ordinance.
Thus, according to the RECORD ON APPEAL
the city is regulating content, allowing Jugglers and costumed,
theatrical ghost tours to perform; allowing costumed city
employees to pose for pictures and perform within the prohibited
area; and finally allowing one class of performer (musicians) to
perform fifty feet away from the prohibited area, but not allowing
an artist creating and selling his wares (performer as defined by
the same street performer ordinance) to perform in the same place
as other performers as defined by ordinance.
Currently, under a change in the
performance ordinance passed recently by the city commission, an
artist is prevented from painting a portrait or characiture, but
is allowed to paint street-scapes and such. Clearly, the city
commission is regulating content and the cityís police
through itís enforcement is regulating content.
All visual artists are currently
prevented from selling/distributing their art or prints anywhere
without a restrictive licensing scheme. The city treats them as
simple retailers ignoring their right to distribute their
protected expression free of unwarranted governmental
interference.
The city enforces both the vender
ordinance (artist selling as vender) passed at the same time as
the street performer ordinance (artist selling as performer) in
combination. The cityís intention as the Record on Appeal
(ROA) shows in the officers testimony is to prevent the lawful
distribution (sale) of the individual artists protected expression
not just on those four blocks but indeed within the entire
Historic District, for one class of ìperformerî and
prevent all street art sales by artists ruled lawful previously by
the same trial court (State v. Larry Horton (Fla. Co. Court), May
1998) and under Celli v. City of St. Augustine, (98-253-CV-J-21B)
(M. D. Fla. May 15, 1998) and under (Horton v. City of St.
Augustine (3:00-CV-671-J-25A) (M. D. Fla. Oct. 14,
2000)).
It seems to Appellant that the trial
court might have found the cityís enforcement of the vender
ordinance 2000-09 unconstitutional as applied, as the city applied
two conflicting definitions of an artistís activity at the
same time to suppress the distribution of their protected work,
confuse the courts administration of justice, circumvent
constitutional constraints and regulate content.
Since the city is regulating content in
the above manner, both with the ordinances themselves and with
their enforcement, the lower court erred in its finding the street
performer ordinance (2000-41) content neutral and should have
ruled both the performer and vender ordinances
(2000-09)unconstitutional on their face, and as applied.
III. Legal Allegations as to all claims
and arguments contained in this brief.
All actions referenced above and taken by
City and State were under the color of state law.
Both the artistic and political
expression engaged in by Appellant Jolley is constitutionally
protected by the First and Fourteenth Amendments to the United
States Constitution.
The action of the city as argued by
appellant in enacting and the city and stateís enforcing
ordinance 2000-41 have intentionally caused or permitted the
appellant, a citizen of the United States, to be deprived of his
rights, privileges and immunities secured by the First and
Fourteenth Amendments to the United States Constitution as
protected by Congress under 42 U.S.C.ß1983.
Ordinance No. 2000-41 on it's face and/or
as applied violates the First and Fourteenth Amendments to the
United States Constitution, in that: it is unconstitutionally
vague in that it allows unbridled discretion in every
instance;
It is not content neutral, it is a
content-based prohibition on constitutionally protected speech and
expression, which contains no appropriate constitutional
safeguards to guide its enforcement thereby allowing a complete
though selectively enforced prohibition on protected speech and
activities;
It is a content-based prohibition on
constitutionally protected speech and expression, which contains
inadequate standards for the exercise of discretion in its
enforcement and allows the complete prohibition of protected
activity for one class of performer while allowing another class
of performer free reign in the same ëprohibitedí
area;
It is unconstitutionally overbroad in
that it encompasses within its scope activity such as political
expression which is clearly protected by the guarantees of free
speech and assembly and freedom of religion protected by the First
and Fourteenth Amendments to the Constitution of the United
states;
It is constitutionally vague in that it
fails to establish any ascertainable standard of guilt;
It is unconstitutionally overbroad in
violation of the First and Fourteenth Amendments to the United
States Constitution in that it is susceptible of sweeping and
improper application and it is not narrowly tailored to support
any substantial governmental interest;
To the extent that it incorporates
statutes or ordinances that are unconstitutional it is pro tonto
unconstitutional;
Ordinance 2000-41 was adopted with a
predominately censorial purpose making it an unconstitutional
restraint on protected activity. The ordinance was enforced and
prosecuted against musician/politician appellant without a
legitimate constitutional purpose in an attempt to chase street
performers away from the St. George Street Historical
Area.
Conclusion of Argument
The enforcement of the ordinance against
protesters, musicians and visual artists has had and will continue
to have a chilling effect on the constitutionally protected
activities of the Appellant, both as a performer and more
significantly as a protester and as a candidate for office. It is
fair to say SAPD and the local State Attorneys Office effectively
crushed the political protest effort. Nearly all the protesters
left town within days after the Appellant was arrested after
midnight five weeks after being secretly charged.
The Record on Appeal (ROA) shows the
trial courts awareness of the political nature of the activity
that drew the city's charge. The intention of the city was clear
through the testimony of it's officers, to arrest the Appellant if
he used his street performance activities on St. George Street to
raise money in his then current campaign for Mayor and City
Commission. The threat was sufficient for Appellant to get the
message.
St. John's County Clerk has many records
of those who have been jailed previous to trial in the same way
the Appellant was, improperly charged with a misdemeanor using the
same tainted procedures. The city's desire to suppress the
political protest couldn't be resisted. Charging ordinance
infractions as misdemeanors appears to be widely employed by the
city. The city paying the prosecutor doesn't make a charge a state
criminal offense.
Ordinance 2000-41 violates the First and
Fourteenth Amendments to the United States Constitution on its
face because it is not content neutral; and is not narrowly
tailored. Further, the records show it is based on falsified
findings determined by the city to justify prior restraint with
dated anecdotal "evidence," the claims not supported by public
safety records. Moreover the commissionersí and proponents'
stated and implied intent was to chill speech to reduce the number
or artists and performers from this prime commercial ally, to keep
writing new ordinances until one was found that passed the
constitutionality test, and to force artists and performers to
move where the city (and the merchants lobby) wanted them to
go.
Enforcement by the city and prosecution
by the state of Ordinance 2000-41 violates 42 U.S.C.ß1982
allowing discriminatory access to public accommodations forbidden
and criminalized in the Civil Rights Act of 1964 and codified in
42 U.S.C. The State's unwarranted prosecution violates the
Appellant's rights to the due process and procedures of law, equal
protection and equal enforcement of the law under the United
States Bill of Rights. The city and the stateís censorial
purpose and effect are clear. The street protest ended.
Therefore, Appellant request of the court
that the lower court be reversed in its findings on the
constitutionality of the ordinance, both on its face and as
applied; and that the guilty verdict be reversed and vacated for
any of several reasons. The State had no authority to charge
Appellant with a misdemeanor for a civil infraction and so the
entire act and consequence of the trial court is tainted down to
the Magistrate's level.
Appellant request a permanent injunctive
relief against the city's enforcing either itís street
performer ordinance 2000-41 or itís vender ordinance
2000-09 to interfere without cause with the distribution of a
visual or performance artists protected expressive works,
including sales or free-will offerings.
Finally, Appellant seeks permanent
injunctive relief to prevent both the State from routinely
prosecuting city or county ordinances as criminal offenses, and
the city from conducting systematic custodial arrests for city
ordinance infractions. State procedure provides adequate arrest
remedy if someone summoned for a civil infraction doesnít
appear in court.
Non-criminal infractions are cruelly
punished outside the control of the courts by pre-emptive
custodial arrest for civil infractions, and then you add in the
difficulty and financial burden to an individual that ensues
regardless of what happens in court. The Appellant received cruel
and unusual punishment by the magistrate, by the city, by SAPD and
the State Attorneyís office prior to even being told what
he was being arrested for. Two weeks after being summarily jailed
after midnight under suspicious police procedures; Appellant was
finally given a copy of the charges brought against him in the
courtroom by the trial Judge. (ROA)
The procedural flaws described amounts to
a gross failure of the due process of law for the defendant and
others and fail to serve Justice. The remedy can only be to
reverse the entire acts of the lower court because the state had
no jurisdiction or authority in the first place, and to grant the
appellant in this cause, Roger Graham Jolley the requested
injunctive relief.
ROGER JOLLEY
APPELLANT
By:
____________________________
CERTIFICATION OF SERVICE
I hereby certify that a true and correct
copy of the foregoing has been furnished to the ASSISTANT STATE
ATTORNEY JAMES WHITEHOUSE, OFFICE OF THE STATE ATTORNEY, St. Johns
County Courthouse, 4010 Lewis Speedway, St. Augustine, Florida,
32095, via hand-delivery this __________________, 2003.
ROGER JOLLEY
APPELLANT
By:
_____________________________
82 Kingsferry Way
St. Augustine, Florida 32084
(904) 808-7093 Fax- call first
rj4mayor@aol.com
