Jim Dey | Panhandlers broke, but boom time for their lawyers

Jim Dey | Panhandlers broke, but boom time for their lawyers

Panhandlers Don Norton and Karen Otterson had modest expectations when they sought handouts from pedestrians in Springfield's Downtown Historic District — 50 cents, maybe a $1 at a time, sums adding up to $30 — or more — in a day.

Their lawyers had more munificent* rewards in mind, and they were right to dream big.

In the end, the lawyers were the beneficiaries of a court order requiring the City of Springfield to pay them $333,800 in fees for their successful constitutional challenge of a city ordinance banning panhandling.

The fight over Springfield's ordinance is long over, the result of a 2015 decision by the 7th Circuit Court of Appeals in Chicago that struck down the Springfield ordinance.

But the fight over the fees rages on. City lawyers first challenged the amount of the requested fees, winning a roughly 20 percent reduction. Now, they're trying to pay the debt off in installments rather than in one fell swoop.

U.S. Judge Richard Mills recently ordered the city to pay what it owes to Chicago lawyers Mark Weinberg and Adela Nicholas. But the city has filed a long-shot appeal of Mills' order, a move that could add an estimated $20,000 to $25,000 to the city's bill if the city loses.

No wonder lawyer Weinberg wasn't the least disheartened when informed city lawyers are appealing Mills' order.

"God bless them," he told a reporter for the Springfield Journal-Register.

That's big news in Springfield. But the bigger news is that homeless advocates at the Washington, D.C.-based National Law Center on Homelessness & Poverty has asked roughly 240 cities in more than a dozen states to repeal their anti-panhandling prohibitions.

Among the Illinois cities included are Champaign, Urbana, Decatur, Danville and Peoria. Others include Chicago, Joliet, and Rockford.

Behind the defense of panhandling as an exercise of free speech and the request for repeal is the threat of more legal challenges and high costs.

The law center pointedly notes that "25 of 25 anti-panhandling ordinances challenged in court have been found unconstitutional" since 2015. That's when a U.S. Supreme Court decision — Reed vs. Gilbert — changed the legal landscape for municipalities seeking to control messaging that included prohibiting panhandlers from soliciting money from strangers.

Champaign City Attorney Fred Stavins said he is unaware of the threatened litigation. "No one has sent a piece of paper to me, something in writing," he said.

If and when the city does receive notice, Stavins said it will consider the issue. He said the city has received notices of ordinance issues in the past.

"We've changed our ordinances before when we get notices. Sometimes they're right, and sometimes they aren't right," he said.

Compared to the sum their lawyers billed the city, defendants Norton and Otterson collected chump change — $2,500 each — as compensation for the violation of their First Amendment rights.

The lawsuit challenging Springfield's 2007 ordinance was filed in 2013. The city initially prevailed, first in the trial court and then on appeal before the 7th Circuit.

Then, in 2015, the U.S. Supreme Court ruled 9-0 that a sign ordinance in Gilbert, Ariz., was unconstitutional because its "provisions. ... impose more stringent restrictions on signs directing the public to the meeting of a nonprofit group than on signs conveying other messages." The court, in an opinion written by Justice Clarence Thomas, said the different restrictions are "content-based regulations" of speech that violate the First Amendment.

Writing for SCOTUSblog, a legal website, analyst Lyle Denniston asserted the "public sign case was based upon a brand-new theory that, whenever a law addresses different forms of public expression, and treats them differently, it is a form of regulation of the message in each mode, which amounts to discrimination in violation of the First Amendment. Moreover, the theory requires that such differing treatment be judged by 'strict scrutiny' — the most demanding constitutional test."

The case involved an ordinance that imposed stricter limitations on signs advertising religious services than signs that displayed political or ideological messages.

In its pre-Reed decision, the 7th circuit upheld Springfield's anti-panhandling ordinance because it "does not draw lines based on the content of anyone's speech" and does not violate prohibitions on "viewpoint discrimination."

"We classified the ordinance as one regulating by subject matter rather than on content or viewpoint," wrote appellate Justice Frank Easterbrook. "Reed understands content discrimination differently. It wrote that 'regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.' Springfield's ordinance regulates 'because of the topic discussed.'"

Cities have sought to comply with the ruling while discouraging panhandling by banning "aggressive" panhandling that limits the locations where panhandlers can congregate, like ATM machines, and the proximity within which panhandlers confront their targets.

Springfield requires panhandlers to stay at least 5 feet away from those they are soliciting.

Lawyers Weinberg and Nicholas, representing a third Springfield panhandler, are challenging that ordinance requirement in federal court.

* Word of the day — munificent, very generous, lavish.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-351-5369.

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