Monday, August 31, 2015

Aurora's Habitual Drunkard List is Unconstitutional

On August 25, 2015, the Aurora City Council amended the City's liquor ordinance to prevent any holder of a liquor license from selling or giving alcoholic liquor to "known habitual drunkards." The new section of the liquor ordinance is linked HERE.

The ordinance defines a known habitual drunkard as a person who, within the past 180 days:
  • Has been convicted of six or more civil or criminal offenses in which the police officer who made the arrest determined, based upon the training and experience of the officer, that the person was under the influence of alcohol;
  • Has been transported and hospitalized six or more times under conditions where the person appeared to be incapacitated by alcohol and in need of emergency treatment; or
  • Has been subject to six or more convictions or hospitalizations in any combination as described above.
The police chief maintains the list and shall "in his judgment" determine the contents of the list. Whenever the chief determines that a person meets the definition of a known habitual drunkard, the chief shall cause that person's name and photograph to be placed on the list.

Unfortunately for the City Council, the Illinois and United States Constitutions prohibit the government from depriving people of life, liberty, or property without due process of law. The due process requirement acts as a safeguard against the arbitrary denial of a person's legal rights by the government. Due process generally requires notice and the opportunity to be heard (defend yourself) before being deprived of your legal rights.

The United States Supreme Court has held that "where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and the opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433 (1971)

The Constantineau case involved a Wisconsin law that allowed police chiefs to "post notices in retail liquor outlets naming persons to whom the sale of liquor is forbidden because of their prior excessive drinking." The Wisconsin law did not provide for any notice to the individual before their names and pictures were posted in bars and liquor stores. 

The Supreme Court declared the law unconstitutional because any public labeling or characterization of an individual that will expose him to public embarrassment and ridicule requires that the individual involved must be given notice and an opportunity to defend himself. The Supreme Court noted that "the right to be heard before being condemned to suffer grievous loss of any kind is a principle basic to our society" and that being publicly named a drunkard by the government is just such a "grievous loss."

Admittedly, the Aurora ordinance does provide for notice to affected persons. The police chief has to provide the person with a written notice that their name will be placed on the list. The burden is then on that person to appeal the determination within five days of receiving the notice.

However, the notice provisions are insufficient and the Aurora ordinance violates the principles of due process, as well as Supreme Court precedent, for several reasons.

First, the ordinance on its face requires the chief to place people on the list without due process. See Sec. 3 ("Whenever the chief determines that a person meets the definition of a known habitually intoxicated person ... the chief or designee shall cause the name of that person to be placed on said list.").

Second, the notice provision of the Aurora ordinance is confusing and illusory. It offers no protection to the people of Aurora at all. According to the Supreme Court, the individual must be given notice and the opportunity to present his side of the story BEFORE being publicly ridiculed by the government.

Section 4 of the Aurora ordinance appears to comply with the law by saying that the police chief shall provide the person with a written notice that their name "will be placed" on the list of habitual drunkards. This section, standing alone, implies that the person will have the chance to defend himself before being placed on the list. However, the person's name is already on the list pursuant to Section 3. 

Furthermore, the person's only remedy after receiving the notice is to appeal under Section 5. An appeal is defined as "a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority." Appeal, Black's Law Dictionary (10th Ed. 2014). By labeling this section as an appeal, the City is admitting that the determination of habitual drunkenness has already been made and that the person's only remedy is to seek reconsideration. 

Also, Section 5(v) provides that if the person is successful with his appeal, the chief shall "remove" the person's name from the list. Don't try to fool us Aurora, the person's name is already on the list long before you send him any notice, meaning that the Government has publicly ridiculed someone without due process. 

Third, the definition of a habitual drunkard is vague and subjective. Nothing in the entire ordinance requires anyone to actually be drunk. If a person "appears" to be drunk six times in six months they are labeled a habitual drunkard without any other evidence. A quick search of Web MD reveals no less than 10 other conditions than can cause slurred speech besides alcohol consumption, including stroke, brain aneurysm, hypoglycemia, etc. It's not a very high burden that the City has to meet.

In conclusion, it appears that Aurora's new habitual drunkard list violates the due process requirements of the State and Federal Constitutions.

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