County asks judge to toss ‘panhandling’ lawsuit

Jan. 14—MORGANTOWN — An attorney representing the three Monongalia County Commissioners as well as the county’s former sheriff has asked a judge to throw out the lawsuit challenging the legality of the county’s Pedestrian and Vehicle Safety Ordinance.

Tiffany Durst, with Pullin, Fowler, Flanagan, Brown & Poe, filed the response Monday before Chief Judge Thomas Kleeh of the U.S. District Court for the Northern District of West Virginia.

“Defendants demand that the complaint filed against them be dismissed, ” the filing concludes, requesting the court also award the defendants any expenses incurred in defense of the civil action.

This is the county’s answer to a Dec. 4 class action lawsuit filed by attorneys with legal advocacy group Mountain State Justice on behalf of Chris Peterson, Becky Rodd and all others similarly situated.

The lawsuit explains Peterson is “a poor person who regularly solicits donations from stopped motorists ” in and near public roads, highway medians and intersections in Monongalia County, and Rodd is “a person who frequently gives donations from her vehicle to pedestrians in those areas …”

Attorneys Lesley Nash and Gary Smith claim the Pedestrian and Vehicle Safety Ordinance passed unanimously by commissioners Tom Bloom, Sean Sikora and Jeff Arnett on Oct. 25, 2023, is a violation of the 1st and 14th Amendments.

They state that while the word “panhandling ” was scrubbed from the law, its intent was stated outright numerous times in the lead up to its passage.

“Despite Defendants’ pretextual claims, the Ordinance was intended and has been implemented to eliminate a particular disfavored form of free speech. It is not a content neutral law, ” the suit states.

Further, the lawsuit says the county commission lacked the legal authority “to regulate the activities or movements of motor vehicle occupants or pedestrians on or near roads, highways, or medians under the exclusive jurisdiction of the West Virginia Department of Highways, and /or prohibit or limit acts by pedestrians or vehicle operators which state traffic laws do not bar.”

The county denies the validity of both claims and, “therefore, demand strict proof thereof.”

While the defendants concede the word “panhandling, ” was used in discussions prior to the law’s passage, the law itself doesn’t outlaw panhandling or curtail speech, but prohibits anyone from doing anything while standing in the road.

“Defendants assert that the Ordinance is a reasonable time, place, and manner restriction in compliance with the First Amendment, and applicable jurisprudence. Specifically, Defendants assert that the Ordinance is content neutral, is narrowly tailored, and serves a significant governmental interest.”

The defense also denies the plaintiffs can establish the requirements for a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure.

It was just last year in the city of Morgantown that everyone saw how important the concept of content neutrality is to defending such laws.

Mountain State Justice sued the city of Morgantown last May, claiming a 2005 ordinance outlawing the solicitation of money or property from people traveling in vehicles on public rights of way was unconstitutional.

The city immediately repealed the law. City Attorney Ryan Simonton explained why.

“The ordinance specifically addresses solicitation for money or goods. Solicitation for money is speech protected by the 1st Amendment to the U.S. Constitution, ” Simonton said at the time, adding, “In brief, the protection against vehicle, pedestrian conflicts and interference with traffic movement should not be legislated by laws addressing particular speech.”

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