Constitution Party wins constitutional fight
Steve Korris Jun. 4, 2009, 7:45am
ELKINS – In a constitutional triumph for the Constitution Party, U.S. District Judge John Bailey ruled that citizens can circulate petitions on West Virginia public lands.
On June 3, he held that West Virginia legislators violated First Amendment rights when they banned soliciting in state parks and other recreational areas.
He did not disturb a ban on hawking, peddling or carrying on business in parks.
His ruling will allow the Constitution Party of West Virginia to circulate petitions at National Hunting and Fishing Days in Stonewall Jackson Lake State Park.
Park rangers chased party leaders away from the event in 2007.
The party sued Division of Natural Resources chief Frank Jezioro, who responded that they should have applied for a permit like other exhibitors at the event.
Bailey disagreed, ruling that no one needs a permit to solicit in any park on any day.
He found that the ban acted as prior restraint on expression in a public forum.
"Any prior restraint on expression in a public forum is subject to strict scrutiny," he wrote.
He wrote that the ban "fails this strict scrutiny test as it is not narrowly tailored to serve a significant government interest."
He wrote that a DNR regulation under the law vested the director with unlimited discretion to grant or deny a permit.
"The regulation thus burdens a large quantity of speech and subjects all potential speakers to the whim of the director of the DNR," he wrote.
He wrote that an absence of standards for review of a denial is enough alone to find the regulation overly broad.
Joseph Wallace and John Wallace of Elkins represented the Constitution Party in association with the Rutherford Institute of Charlottesville, Virginia.
Keith Gamble of Pullin, Fowler, Flanagan, Brown and Poe in Morgantown, represented Jezioro