Legal q: when is a permit process considered onerous?

[paperbackwriter]

All standard disclaimers apply, this is purely theoretical.

When is a required permitting process considered so onerous by the courts so as to be a process designed to exclude?

Hypothetical exampple: I am the mayor of East Podunk. I want to spend as much time as possible playing computer Solitaire and as little time as possible actually doing business, so I get the town council to pass an ordinance saying only East Podunk residents can enter Town Hall. A developer from West Podunk just purchased the old O’Malley farm and comes to the Town Hall to start the permitting process for his proposed Podunk Meadows Estates development, but gets turned away by the door guards. By the end of the day, he files a lawsuit and a preliminary injunction and the courts quickly agree that I can’t restrict access this way.

So I get the Council to amend the ordinance, and establish a permit process: to prove you have legit business with the town, you are required to submit an application stating your reason for access, file a $400 bond, and submit fingerprints for a criminal background check. If your receive the permit, you have the same access as a town resident, but you can only apply in person at the Town Hall between the hours of 10:00am-11:00am Tuesday, 3:00pm-4:30pm Thursday, or 6:45am-8:45am Sunday. In the first 8 months this process is in place, no permits were granted due to “required processing time” and other excuses.

This is a process that is obviously designed to maintain the lack of access previously struck down, but it theoretically does grant access. So would a court strike it down? Where is the dividing line for something like this? More realistic examples might be public beach access permits or even a jurisdiction that routinely rejects or delays all gun permit applications.

[Gfactor]

@paperbackwriter

This is a process that is obviously designed to maintain the lack of access previously struck down, but it theoretically does grant access. So would a court strike it down? Where is the dividing line for something like this? More realistic examples might be public beach access permits or even a jurisdiction that routinely rejects or delays all gun permit applications.

Are you asking about a federal Constitutional standard? I realize you’re just putting them out there, but I’m not familiar with any single Constitutional rule that would apply to the two examples given here and the hypothetical. There’s a standard for permits for speech in a public forum. http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/tradforum.htm
http://www.oaklandcityattorney.org/PDFS/Opinions/Film%20permit%20opinion%20(F)%201%209%2009.pdf

That standard certainly wouldn’t apply to gun permits or beach access, in most cases.

[Saint_Cad]

IANAL but I know the Marijuana Tax permit was considered onerous since since required you to commit an illegal act i.e. own marijuana without a permit before you could get the permit.

[paperbackwriter]

@Gfactor

Are you asking about a federal Constitutional standard? I realize you’re just putting them out there, but I’m not familiar with any single Constitutional rule that would apply to the two examples given here and the hypothetical. There’s a standard for permits for speech in a public forum. http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/tradforum.htm
http://www.oaklandcityattorney.org/PDFS/Opinions/Film%20permit%20opinion%20(F)%201%209%2009.pdf

That standard certainly wouldn’t apply to gun permits or beach access, in most cases.

I guess what I’m asking is how restrictive can a jurisdiction be with allowing exercise of a protected freedom? The First Amendment protects the right to petition the government for redress, but the government doesn’t allow anyone to present their petitions (hypothetical), that runs afoul of the First. The same applies to the other rights in the Bill of Rights. The government can impose reasonable restrictions on rights, but can it impose a restriction that theoretically allows one to exercise the right but in practice makes exercise all but impossible? I think the answer is no, but I don’t know how far they can go.

[Gfactor]

@paperbackwriter

I guess what I’m asking is how restrictive can a jurisdiction be with allowing exercise of a protected freedom?

So the beach example is right out. Swimming isn’t a protected freedom. In some jurisdictions the public trust doctrine protects beach access, but it’s usually a matter of state real property law, sometimes supplemented by state constitutional law.

The First Amendment protects the right to petition the government for redress, but the government doesn’t allow anyone to present their petitions (hypothetical), that runs afoul of the First

I don’t think I’ve seen a case that says the right to petition means the right to petition in person. And I’ve seen several that say it doesn’t. See, e.g., Cronin v. Town of Amesbury, 895 F.Supp. 375 (D.Mass.1995) , *affirmed *81 F.3d 257 (1st Cir. 1996):

The “right to petition government afforded by the First Amendment does not include the absolute right to speak in person to officials. Where written communications are considered by government officials, denial of a hearing does not infringe upon the right to petition. The right to petition government does not create in the government a corresponding duty to act.”

(quoting Stengel v. City of Columbus, 737 F.Supp. 1457 (S.D.Ohio 1988).

And see, *Welch v. Board of Ed. *, 477 F.Supp. 959 (D. Md. 1979) (same).

Similarly, courts have held that the First Amendment doesn’t give a person the right to say whatever he wants, wherever he want. E.g., Knight v. Anderson, 480 F.2d 8
(9th Cir. 1973) (“Not every parcel of publicly owned property is a suitable or available place for the exercise of the constitutional rights of citizens to petition their government or express grievances.”)

In fact, I’d say that if the right the guy is asserting is the right to apply for a permit, that’s not petitioning for redress of a grievance in the first place.

First Amendment right to petition the government for a redress of grievances protects a person’s right to complain to the government that the government has wronged him, but it does not require that a government official respond to the grievance.

Jones v. Brown, 300 F.Supp.2d 674
(N.D. Ind. 2003).

And the fact that he was able to file a lawsuit about it shows that he does have the right to petition for redress of grievances–by going to court and complaining about them. Finally, the petitions clause doesn’t even require the government to respond to the petition. Jones; and see

In cases involving petitions to state agencies, the Supreme Court has held that the Petition Clause does not provide a right to a response or official consideration. In Smith v. Arkansas State Highway Employees, for example, state highway commission employees argued that a state agency violated the First Amendment by not responding to or considering grievances that employees submitted through their union. See 441 U.S. 463, 463-64 & n. 1, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979). In response, the Court held that “the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.” Id. at 465, 99 S.Ct. 1826.

Likewise, in Minnesota State Board for Community Colleges v. Knight, the Supreme Court evaluated a state law that required public employers to discuss certain employee matters exclusively with a union representative; this prevented nonunion employees from discussing those matters with their employers. 465 U.S. 271, 273, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984). Holding that the state statutory scheme had not “unconstitutionally denied an opportunity to participate in their public employer’s making of policy,” the Court reiterated: “Nothing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals’ communications on public issues.” Id. at 285, 292, 104 S.Ct. 1058. Therefore, the Court concluded that individuals “have no constitutional right as members of the public to a government audience for their policy views.” Id. at 286, 104 S.Ct. 1058.

Plaintiffs contend that Smith and Knight do not govern their claims in this case because those cases addressed petitions to state officials regarding public policy, not claims that the Federal Government has violated the Constitution. Plaintiffs’ attempted distinction is at best strained. In both cases, the Supreme Court flatly stated that the First Amendment which has been incorporated against the States by the Fourteenth Amendment, does not provide a right to a response to or official consideration of a petition. Knight, 465 U.S. at 285, 104 S.Ct. 1058; Smith, 441 U.S. at 465, 99 S.Ct. 1826. Nothing in the two Supreme Court opinions hints at a limitation on their holdings to certain kinds of petitions or certain levels of Government. In short, the Supreme Court precedents in Smith and Knight govern this case.

We the People Foundation, Inc. v. U.S., 485 F.3d 140, (D.C. Cir. 2007).

The same applies to the other rights in the Bill of Rights. The government can impose reasonable restrictions on rights, but can it impose a restriction that theoretically allows one to exercise the right but in practice makes exercise all but impossible? I think the answer is no, but I don’t know how far they can go.

As I’ve indicated, it varies, depending on the right and the sort of infringement involved.

[Elendil_s_Heir]

@Gfactor

…As I’ve indicated, it varies, depending on the right and the sort of infringement involved.

That’s it in a nutshell. A court would have to decide if the conditions placed upon the citizenry, as outlined in the OP, were too onerous. If I were deciding the case, I have little doubt that I would so hold. But there are no applicable and precise constitutional standards of which I’m aware; it would be a question for the court to decide.

Ultimately, however, I suspect the remedy would be found in the political process. A mayor so lazy and out of touch will probably not long survive at the East Podunk polls. A few years ago there was a suburban Cleveland mayor who was (for no particular reason) more than a bit paranoid. He set up security cameras, a reception area with bulletproof glass, an armed police officer on duty, etc., in City Hall. It rankled a lot of people and when he eventually lost a reelection race, turning City Hall into a fortress was definitely an issue.

[Gfactor]

@Elendil_s_Heir

That’s it in a nutshell. A court would have to decide if the conditions placed upon the citizenry, as outlined in the OP, were too onerous. If I were deciding the case, I have little doubt that I would so hold. But there are no applicable and precise constitutional standards of which I’m aware; it would be a question for the court to decide.

And probabably as a matter of state statutory or administrative law. All well and good, and I’d expect such a ruling, really, unless there was a good excuse. For example, if the budget had to be radically cut and most of the staff laid off, a rule requiring applicaitons to be submitted by mail or deposited in a box outside the building might be more defensible.