A fight for liberty in Leavenworth, WA

We The People – Wenatchee;

Today, December 10, 2010, I filed a Notice of Appeal of Judge Bridges’ rulings from the June 29, 2006, August 10, 2006, and November 12, 2010 hearings on my Chelan County Superior Court Case #05-2 00587 9. This is my case against the City of Leavenworth on their 2005 flag code which was enacted in response to me wanting to erect an 80’ H flagpole to display a large American flag (their 2005 flag code actually required a building permit to display any new flag of any size and to erect any new flagpole of any height).

I have also upped the ante and filed a new lawsuit today, again against the City of Leavenworth (Chelan County Superior Court Case #10-2 01364 9), on other code sections of their Flag Code, primarily centered on (excessive) civil fines and criminal penalties for violations of their flag code.

Since the City’s 2009 Flag Code revision, flags no longer directly require a permit (thankfully), and neither (now) do flagpoles under 15’ H any longer require a permit (I count such concessions by the City as partial victory in my 5-year legal battle). Flags, however, are nevertheless still subjected to Leavenworth’s Municipal Code regulations, including LMC 14.17.110, which states that flags of government should be displayed in an approved manner pursuant to the U.S. Flag Code (Title 4 of the United States Code, Chapter 1).

At first glance, this requirement may perhaps even seem laudatory (to show proper respect for an American flag), but, coupled with Leavenworth’s compliance statute (see LMC 14.17.170), exposes even patriotic Americans with every intention of properly honoring the American flag to excessive fines, criminal punishments, liens, and even foreclosure. It should be noted that the U.S. Flag Code has no enforcement provisions, so Americans (at least outside of Leavenworth), are free to ignore its recommendations (within their First Amendment Free Speech rights).

Leavenworth’s civil fine statute (LMC 21.13.090) allows for civil penalties of $250 per day per violation, with each separate day, event, action or occurrence constituting a separate violation. Since each new day is a new violation, and each violation adds $250 per day, on day two there would be $750 fine, day seven $7,000, day fifteen, $30,000 and day thirty, $116,250.00.

Worse, because of Leavenworth’s unique “interpretation” of U.S. Flag Code (4 U.S.C. 8(i)) and its direction that the American flag “should never be used for advertising purposes in any manner whatsoever”, and because the City has already stated for the record that they thought I intended to display the American flag (objectively, otherwise in full conformance with the U.S. Flag Code) as a “locational device” to advertise my Foundation For Liberty organization, the City can still powerfully and improperly deny free speech.

In other words, even though the First Amendment acknowledges that Americans have the inherent right to speak freely (an objective and observable action, mind you), the City argues, in essence, that they have the power to question even my subjective motives to “speak” (in this case, through the displaying of a flag).

Never mind for the moment that the City confuses the means I intended to use (a flag, and the Foundation) for the end itself (as if the Foundation For Liberty was to exist for its own end, rather than itself and the flag being but vehicles to encourage others to reflect on liberty and limited government under the Constitution), the City behaves as if they have the power to examine someone’s reasons for wanting to speak even before the person spoke! If an official deemed the reason to speak insufficient, then the person would be denied the opportunity! Such power has never been allowed in any government of these United States of America, and scarcely any thuggish government on earth (evidently the idea of a “thought police” has found a way out of the sci-fi novels and into the Bavarian-themed village of Leavenworth, Washington.

The City’s sign code (at LMC 14.10.070(C)) also reflects the “approved manner” of display for government flags (exempting only those flags flown “in an approved manner” from the sign code regulations), so I also am now attacking Leavenworth’s sign code for its restrictions on Free Speech as well. In attacking one part of the sign code, I figured I may as well attack other speech-related aspects of the sign code also.

The interesting thing about Leavenworth’s sign code (Chapter 14.10) is that it is written quite plainly for the express purposes of supporting Leavenworth’s Old World Bavarian Design Theme (with very little thought of protecting free speech).

When the City was working on their drafts of the Flag Code in April of 2005, I wrote the City a nine-page letter outlining some of my problems with their glaring favoritism to Bavarian “festival flags” in relation to much harsher treatment of American flags. This presented the City with their first opportunity to make their new flag code appear less biased against all non-Bavarian flags, by cleaning up the language of their proposed flag code before it was ever enacted (their 2009 flag code revisions were their next opportunity, both of which made it more difficult for me to win my 2005 flag case at the lower court level).

The City’s Sign Code, however, has not been “properly cleaned up” to make it appear less biased against non-Bavarian signs, and it is overtly pro-Bavarian throughout. I should thus have an easier time winning my 2010 flag/sign case at the lower court level (or again, at least Leavenworth will hopefully clean up their old sign code, so it doesn’t at least appear so unconstitutional on its face [and in doing so, Leavenworth citizens will undoubtedly regain at least some of their lost speech]).

Of course, my 2005 flag case, the appeal of my 2005 flag case, and my new 2010 flag/sign case information are all available on the Foundation’s website at www.FoundationForLiberty.org (click on the “Lawsuits” tab and follow the Leavenworth case to the appropriate information) for anyone wanting more information.

I have also requested from the City a formal “Code Interpretation” November 24, 2010 regarding LMC 14.17.130—their “grandfather clause”—I expect to hear back from them by Christmas. Though LMC 14.17.130 specifically allows normal “maintenance and repair” of existing non-conforming structures (of structures which were legally erected prior to the 2005 flag, flagpole and tower code which began regulating such structures, even though such structures do not conform to the new regulations in some fashion), LMC 14.17.130 specifically provides that “no modification, alteration or replacement shall be made to a non-conforming structures unless the structure thereafter conforms to the provisions of this chapter”.

This regulation now puts the City in an interesting position of having to defend the City’s flag, flagpole and tower regulations, while yet protecting their 95’ H Bavarian Maypole, which was, prior to the spring of 2010, a legally-vested, non-conforming structure, but is no longer.

During the spring of 2010, after I pointed out to the City in an Interrogatory that their Maypole leaned off-center (some 4 degrees), the City (or someone at their direction) loosened the bolts which held the Maypole, and “repaired” the Maypole from its 4 degree list off-plumb and re-tightened the bolts after the Maypole was brought back to plumb. This perhaps routine procedure (due to expansion and contraction of wood fibers with the seasonal changes in humidity) was allowed by their grandfather clause.

Then, however, to keep the Maypole from again slipping off-plumb, the Maypole was modified and altered and new lateral support jaws were made and installed, which now likely prevent the Maypole from slipping off-plumb in the future, but nevertheless voided the structure’s legal vesting due to the express prohibition within the City’s grandfather clause from any alteration or modification without conformance.

I maintain that the City now has three choices, since the Maypole has been altered and modified (and thus is no longer is an allowed, non-conforming structure): 1) the City can remove the Maypole; 2) they can cut the Maypole in half so it doesn’t exceed their height limitations, while yet obtaining full engineering studies and obtaining a tower/tower structure permit as required by LMC 14.17; or 3) they can get full engineering studies and a tower/tower structure permit and seek a variance from their height limitation, again as required and allowed by LMC 14.17 (and if their variance is approved, keep it over-height).

Of course, as the City stated in my flag case at the November 12, 2010 hearing, a variance application would have to show “specific undue hardship to (them) or specific unique circumstances that would kind of separate (them) from the general public in terms of getting what (they) want”, to show why their Maypole structure should be allowed to twice the allowed height of neighboring structures, even though it would violate the Bavarian “scale and proportionality” which they stated in my case was so important to their Old World Bavarian Design Theme. It should be an interesting exercise for the city, in that four emergency ordinances were enacted when I sought to display a large American flag atop an 80’H flagpole.

Though I never went looking for a battle with the City of Leavenworth, one came to me nonetheless, and I intend to see this battle to be able to freely display an American flag through to the end. It is perhaps less important that I win, than that I fight for liberty, at least to the best of my ability within my limited means.

God Bless America!

In liberty,

Matt Erickson
Foundation For Liberty
1227 N. Western Ave., Apt. 103
Wenatchee, WA 98801
(509) 387-6235
President@FoundationForLiberty.org
www.FoundationForLiberty.org

(Hat tip: Charles & Jean Nelson)