324 A.2d 748 (Me. 1974), State v. Rush

Citation324 A.2d 748
Opinion JudgeDELAHANTY,
Party NameSTATE of Maine v. Robert W. RUSH.
AttorneyPeter G. Ballou, Asst. County Atty., Elizabeth L. Boynton (Law Student), Hugh Calkins, (amicus curiae, City of Portland), Cumberland Legal Aid Clinic (amicus curiae), Portland, for plaintiff. Robert W. Rush, pro se.
Case DateAugust 27, 1974
CourtSupreme Judicial Court of Maine

Page 748

324 A.2d 748 (Me. 1974)

STATE of Maine


Robert W. RUSH.

Supreme Judicial Court of Maine.

August 27, 1974

Page 749

[Copyrighted Material Omitted]

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Peter G. Ballou, Asst. County Atty., Elizabeth L. Boynton (Law Student), Hugh Calkins, (amicus curiae, City of Portland), Cumberland Legal Aid Clinic (amicus curiae), Portland, for plaintiff.

Robert W. Rush, pro se.



The Defendant admittedly violated an ordinance of the City of Portland by leaving his automobile parked on a public way in excess of the time limit, between the hours of 2:00 a. m. and 6:00 a. m. 1 The vehicle was 'ticketed'. Eschewing a waiver provision contained on the ticket by which he could have avoided court action by payment of a waiver fee, the Defendant, appearing pro se, was heard before the Superior Court without a jury, on appeal from District Court. From a guilty finding, the Defendant appeals. We deny the appeal.

The Appellant's argument, both at trial and on appeal, is directed at the constitutionality of the parking ordinance. The Defendant contends that the ordinance involves an unreasonable exercise of the police power, and that by reason of other actions of the City of Portland, the ordinance in question discriminates against low-income people living in high-density areas within the City of Portland in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

In support of this contention, the Defendant offered, without objection, testimony and documentary evidence consisting essentially of statistical data. The trial Justice treated the arguments as constituting a motion for judgment of acquittal under the provisions of M.R.Crim.P., Rule 29.


Factual Findings of the Trial Court

The trial Court made ten separate but specific findings of fact. The factual findings numbered one through eight were proper evidentiary deductions within the fact-finding discretion of the trial Court. In factual finding number nine, the trial Justice took judicial notice of the 'necessity for people to own and operate automobiles in order to provide transportation for themselves and their families.' Since due process and equal protection claims require a weighted balancing of public interest and individual burdens, we examine closely the trial Justice's elevation of the use of automobiles to that of a necessity. To be a proper subject of judicial notice, a fact must be a matter of common knowledge, which is generally accepted without qualification or contention. Public Utilities Commission v. Cole's Express, 153 Me. 487, 493-494, 138 A.2d 466, 469-470 (1959). The modern trend has enlarged the concept to include matters which are of such verifiable certainty that they may be confirmed by reference to sources of indisputable accuracy. State ex rel. Kornmman v. Larson, 81 S.D. 540, 138 N.W.2d 1 (1965); Rogstad v. Rogstad, 74 Wash.2d 736, 446 P.2d 340 (1968); McCormick, Evidence § 325. Although economic

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and financial conditions may be proper subjects of judicial notice, 2 such notice is still restricted by the requirements of uncontested common knowledge or verifiable certainty.

Contemplating the variety of evidentiary factors involved and the absence of evidentiary material as to the particular needs in this case, the trial Court's notice that ownership and operation of automobiles is necessary for personal and family transportation is not supportable under the above-cited standard.

The tenth factual finding includes the conclusion that the 'City of Portland has by its policy with regard to off-street parking made it impossible for large numbers of its residents to comply with § 711.13' (the overnight parking ordinance). The policy to which the Justice referred consists of the combined effect of the municipal zoning ordinance establishing off-street parking requirements and the occasional granting of variances for cause by the Zoning Board of Appeals. In the Defendant's R-5 Residential Zone, the required parking space is determined by the size of the developed lot and not by the number of dwelling units upon the lot. The Westside area, (within R-5 Residential Zone) in which the Defendant lives, has fewer off-street parking spaces than dwelling units.

The constitutionality of the overnight ban is not dependent on the zoning ordinance requiring off-street parking spaces. The City is under no constitutional obligation to zone sufficient space for the parking of automobiles which are prohibited from parking on the streets overnight. While the propriety of a particular exercise of the police power will be considered in view of existing circumstances, the municipality bears no affirmative obligation to require remedial action to lessen the individual burdens imposed by a proper exercise of the police power. The fact that the Portland zoning ordinance did not require parking spaces sufficient to provide for all residents' automobiles or that variances had occasionally been granted 3 did not of itself make 'it impossible for large numbers of residents to comply with § 711.13. . . .' To establish as true that compliance was impossible (proof of which was not attempted by any means other than by the number of violations), consideration must be given to the available and applied resources of the private sector of the economy and the legitimate need for private transportation in this district. This finding is unsupported by the facts and presupposes a legal obligation on the part of the City to order by law, parking spaces to replace those formerly used on public streets.

Defendant does not dispute the authority of the city to exercise its police power in zoning for off-street parking, 4 but rather asserts that the public protection gained

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thereby is not equally available to all resident tenants in the City.

The present action is not a proper challenge to the constitutionality of the zoning ordinance, but instead is an appeal from a conviction for a parking violation on the grounds that the ordinance under which the Defendant was convicted is unconstitutional. The parking ordinance is either valid or invalid. That determination is independent of whether a separate ordinance which ameliorates the burden of the parking prohibition does so in a manner which is equally protective to all persons similarly situated. If a prohibition on overnight parking is a proper exercise of the municipal police power, it may be ordered without any coordinate zoning ordinance requiring off-street parking spaces.

An otherwise valid parking ordinance can not be made invalid by the existence of a supplementary companion ordinance which, though arguably arbitrary in nature, has the incidental effect of lessening, for some persons, the burden of finding alternative overnight parking locations.


Due Process

Pursuant to legislative authorization, 5 the City of Portland enacted Municipal Ordinance § 711.13. It is clear from the words of the enabling legislation that the City had, within its delegated authority, the power to establish parking regulations. Our only concern is whether the specific regulation in question was a constitutionally proper exercise of its police power.

Although variously expressed, it is established that the requirements of due process exact that the law shall not be unreasonable, arbitrary, or capricious and that the state's police power can be properly exercised only when there is a reasonable relationship to the public health, safety, morals, or welfare. West Coast Hotel v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937); Nebbia v. People, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934).

The requirements of due process in the exercise of the police power may be

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analytically separated into three component elements:

  1. The object of the exercise must be to provide for the public welfare.

  2. The legislative means employed must be appropriate to the achievement of the ends sought.

  3. The manner of exercising the power must not be unduly arbitrary or capricious.

    Together these elements constitute a standard for determining the reasonableness of the scope and exercise of the state police power.

    We examine the subject ordinance under this due process standard, bearing in mind that there is a presumption favoring the constitutionality of state laws; and in determining the validity of municipal ordinances, their reasonableness will be presumed. Donahue v. City of Portland, 137 Me. 83, 85, 15 A.2d 287, 288 (1940).

    The burden is on the party challenging the ordinance to establish the complete absence of any state of facts which would support the need for the laws enacted by the muncipality. It is not necessary for the State to demonstrate to us that the actual evils persist. Olsen v. Nebraska ex rel. Western Ref. Bond Ass'n, 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305 (1940). The courts must restrict their inquiry to the issue of whether any state of facts either known or which reasonably could be assumed affords support for the legislative judgment. See United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938).

    In its amicus curiae brief to this Court, the City of Portland suggests several legitimate purposes of the subject ordinance. These purposes include:

  4. Facilitating street repairs and cleaning;

  5. Increasing access for fire companies to property abutting streets;

  6. Improving visibility for nighttime police observation of property abutting streets so as to detect unlawful entries;

  7. Removing hiding places for persons who have violated the law;

  8. Lessening likelihood of automobile larcenies;

  9. Facilitating snow removal from public streets.

    Similar municipal purposes have been found to be a proper subject for the exercise of the police power in other...

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