This email is revolutionary! Michael Kelley finally admits exactly what I have been saying for 6 years -- that banning bikes from trails and parks is perfectly legal, and not discriminatory!
Date: Wed, 24 May 2000 19:46:04 -0700
From: mkelley@dnai.com
Subject: Re: legal defense
In the aftermath of the MidPen decision, many folks have again brought up
litigation as a possible remedy. I agree with the responses of Stephania
Francone. Like her, I am an attorney, although in my case, I am more aptly
called a "recovering" attorney.
I am somewhat familiar with the general principals of law on this subject, and
with the GGNRA lawsuit filed by the Bicycle Trails Council of Marin (BTCM) a
few years ago.
Generally speaking, lawsuits are not a good idea, and should only be considered
in unusual circumstances. The main thing to know is that you do not generally
have a protected right to ride mountain bikes which could provide the basis for
a law suit. Protections come through written laws, interpretations of laws and
from the Constitution. There are laws protecting minorities, women, old people,
and other groups. When they want to, courts can stretch the meaning of language
to protect certain activities. But they’ve got to want to. (For example, travel
to Cuba is restricted, and the late Supreme Court Justice Douglas received a
lot of flack for finding that "privacy" was protected under the "penumbra" of
the constitution, and somehow that gave people a right to travel to Cuba. It
could be argued that freedom to travel is more important than a right to ride a
bike, and the court had difficulty in going even that far.)
In law school, we were told that you could refuse to rent a place to someone
with purple hair, but not someone with black skin. An employer cannot refuse to
hire a woman, but can impose many other requirements. (How else could a place
like "Hooters" stay in business?) Just because something is nuts or offensive
doesn’t make it illegal.
Another important thing to know is that in cases such as this, the reviewing
body will assume the lower body did the correct thing, unless there were
serious abuses. A court will assume the administrative body, the MROSD in this
case, acted properly, and it will be up to us to prove that wrong. Whether or
not mountain bikes should or should not be allowed would be irrelevant. Broadly
speaking, it is only important to know, absent a constitutional or statutory
right, whether the agency followed the rules in making its decision. Here the
court would consider things like whether the MROSD had hearings and followed
tits own procedure.
Keep in mind, even if a court found that MROSD failed to follow set procedures,
(say 3 hearings were required, and only 2 were held,) the court would send it
back to be fixed. And the MROSD could fix it by doing it again, but doing it
right.
I have seen email regarding Fort Funston dogwalkers. Check out the website.
(www. fortfunstonforum.com) Notice that the dogwalkers are not challenging the
ability of the government to close the area. Instead, they are challenging the
government’s ability to do it without properly involving the public. (Notice
also that they are seeking six figures worth of smackers to do this. It ain’t
cheap!) As well, Federal statutes are involved, and these have nothing to do
with MidPen.
So, without an overriding right, stemming from the Constitution or a statute,
cyclists would have little to gain by filing a suit.
But they might have something to lose.
Litigation offends people, and they never forget. Even today, several years
after the fact, opponents of biking throw the GGNRA lawsuit at us, saying that
we go around suing people and causing big problems. Their tactic has been
effective on occasion.
The GGNRA case dealt with procedural matters in large measure, and we lost. But
critics take that a great deal farther, and state that the case stood for the
proposition that mountain biking was bad, and should not be allowed. That is
garbage, but it is hard to convince some people of that. The judge ruled that
GGNRA had followed proper procedures. If he took the occasion to make
disparaging remarks about bicycles, those remarks were not law. They were, in
legalese, "dictum", and had no value as precedent for the position our critics
support. So we lost there, and continue to lose as critics misstate the
conclusion.
As the previous remarks indicate, litigation increases and perpetuates
hostility and mistrust. Think about it. You know how you or your organization
would feel if you were sued, particularly in these anti-lawyer days.
In the long run, we only will be successful if we act as one united trail
community. As difficult as that is to stomach, we have to aim toward that.
Ideally, we would be partnering together to achieve all of our common
interests, which in reality far out number our differences. We are going to do
much better if we are within the structure that runs things.
Of course, there are also political solutions. If we are as large and
influential a group as we state we are, then we should be able to elect people
to the positions that govern us. To be sure, we have often failed in this
regard throughout the country. The reasons for this are complex, and beyond
this note. But again, that solution would involve us becoming part of the
governing structure.
Happy trails,
Michael Kelley