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Hermann v. City of Tuscaloosa

Alabama Court of Criminal Appeals

July 12, 2019

Ellen Haver Hermann
v.
City of Tuscaloosa

          Appeal from Tuscaloosa Circuit Court (CC-17-2909)

          MCCOOL, JUDGE

         Ellen Haver Hermann appeals her conviction for a violation of § 17-18 of the Municipal Code of Tuscaloosa ("the Code") and her resulting fine of $250. For the reasons set forth herein, we reverse and render a judgment for Hermann.

         Facts and Procedural History

         On May 1, 2017, Jared Crowder, a police officer with the Tuscaloosa Police Department, responded to a call alleging that Hermann was "stopping traffic" at the entrance to an office complex in which an abortion clinic is located. (R. 13.) The office complex is located in Tuscaloosa just off Jack Warner Parkway, a four-lane divided roadway, and is accessible from Jack Warner Parkway by a two-lane, private drive that connects to Jack Warner Parkway at a traffic signal. Upon arriving at the office complex, Crowder observed a vehicle stopped on the private drive, waiting at the traffic signal to access Jack Warner Parkway, and observed Hermann "standing at the passenger window" (R. 10) and "handing [a pamphlet] in the window in the car." (R. 13.) According to Crowder, Hermann was "[m]aybe ... 10 yards" from Jack Warner Parkway as she distributed the pamphlet. (R. 21.) It was undisputed that Hermann was not soliciting funds from the occupants of vehicles on the private drive but, instead, was merely providing pamphlets "just to inform people about the abortion office and ... just to let them know that there's help available and that kind of thing." (R. 41.) Specifically, Hermann, who had distributed pamphlets at this location on other occasions, testified that she "stand[s] on the public right-of-way" (R. 54) and that,

"[b]asically, I just, you know, might have a little sign sitting on the ground next to me and just wave and say, good morning. I have a pamphlet in my hand. And people will stop and say, you know, why are you out here, what are you doing, or different things like that."

(R. 46-47.) If the occupant of a vehicle on the private drive questions Hermann about her objective, Hermann engages in a "very brief" conversation with the occupant and provides the occupant with a pamphlet. (R. 48.) However, Hermann testified that her distribution of pamphlets has never prevented vehicles on the private drive from exiting the office complex or otherwise impeded traffic on the private drive. (R. 48-49.) Consistent with Hermann's testimony, Crowder testified that Hermann's conduct on May 1, 2017, had no effect on traffic exiting Jack Warner Parkway onto the private drive (R. 18-19), that Hermann was not prohibiting the vehicles with which she engaged from exiting the private drive "[o]ther than her arm being in the window" of the vehicle as she distributed a pamphlet (R. 18), and that he did not observe the vehicles with which Hermann engaged blocking other vehicles from exiting the private drive. (R. 23.) Nevertheless, it was undisputed that Hermann did not have a permit authorizing her to distribute pamphlets to the occupants of vehicles on the private drive. Thus, Crowder issued Hermann a citation for violating § 17-18 of the Code, which provides:

"No person shall stand on a highway or roadway or occupy space immediately adjacent to a highway or roadway for the purpose of soliciting employment, business, or contributions from the occupant of any vehicle nor for the purpose of distributing any article, unless otherwise authorized by official permit of the City of Tuscaloosa."

         On August 8, 2017, Hermann was convicted in the Tuscaloosa Municipal Court of violating § 17-18. Hermann appealed to the Tuscaloosa Circuit Court ("the trial court") for a trial de novo and, before trial, filed a motion to dismiss in which she argued that § 17-18 is unconstitutional. The trial court entered an order indicating that it would take Hermann's motion under advisement on the date set for trial, but, on the day of trial, the trial judge stated that he "want[ed] to hear evidence" before ruling on the motion to dismiss. (R. 93.) Thus, the case proceeded to trial, where the evidence established the facts set forth above. Following the admission of evidence, the trial court heard the arguments of counsel, during which Hermann's counsel argued that § 17-18 is unconstitutional and argued that, regardless, § 21-27 of the Code authorized Hermann to distribute pamphlets, without a permit, to the occupants of vehicles on the private drive. On July 19, 2018, the trial court entered an order denying Hermann's motion to dismiss and a judgment finding Hermann guilty of violating § 17-18 and ordering her to pay a $250 fine and court costs. Hermann filed a timely notice of appeal.

         Standard of Review

         "The ore tenus standard of review generally applies to judgments entered following a bench trial." R & G LLC v. RCH IV-WB, LLC, 122 So.3d 1253, 1256 (Ala. 2013). However, "'"'[w]here the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and [this Court] will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to those facts.'"'" Williams v. State, 3 So.3d 285, 289 (Ala.Crim.App.2008) (quoting Ex parte Jackson, 886 So.2d 155, 159 (Ala. 2004), quoting in turn State v. Hill, 690 So.2d 1201, 1203 (Ala. 1996), quoting in turn Stiles v. Brown, 380 So.2d 792, 794 (Ala. 1980)). In this case, the facts giving rise to Hermann's conviction are undisputed. Thus, we review the evidence de novo and afford no presumption of correctness to the trial court's application of the law to those facts.

         Discussion

         On appeal, Hermann argues (1) that § 17-18 is unconstitutional and (2) that, even if § 17-18 is not constitutionally deficient, her distribution of pamphlets on May 1, 2017, to the occupants of vehicles on the private drive was authorized by § 21-27. Because we find Hermann's second ...


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