MORGANTOWN – The chief judge for the Northern District of West Virginia has denied the joint motion seeking approval of a class action settlement between Anthony Rowand and the city of Morgantown regarding a since-repealed municipal panhandling ordinance.
In a ruling issued Wednesday, Judge Thomas Kleeh said the motion of the parties “glosses over” the critical first step of the court’s required analysis – whether class certification is appropriate in this particular case.
The judge’s order notes that among the issues the district court must consider is whether the class is so numerous that the joinder of all class members as named plaintiffs is impracticable.
“At hearing, counsel agreed that the total class population was less than 20 – likely 15 total persons. The parties confirmed this number at the Court’s request.”
He goes on to explain that the number of potential class members in this case “falls well short of the typical bright line threshold” used by the courts to determine what constitutes “impracticable,” particularly as the identity of every person ticketed under the ordinance is known to the parties.
In their joint motion, the city and legal advocacy nonprofit Mountain State Justice asserted that the “difficulties of identifying each class member of the class because of the unpredictable and transient nature of the activities that qualified them for the class membership” should be also considered.
Kleeh said the court was not provided any evidence upon which a decision could be reached on that factor.
“The court cannot fill in evidentiary gaps solely because the parties jointly move the court to do so. They, therefore, have failed to meet their burden.”
Mountain State Justice filed the class action suit on behalf of Rowand and a similarly situated class on April 22, 2024, claiming Rowand was ticketed and assessed fines nine times between June 2, 2023 and Feb. 12, 2024 based on an unconstitutional panhandling ordinance.
The law in question – City Code Section 371.10 – first went on the books in July 2005. It prohibited asking for money or other objects of value by any means with the intention of the money or objects being transferred from a vehicle within a public roadway. It also outlawed standing in any portion of a public right-of-way to solicit business, goods or money.
Mountain State Justice argued it violated the First and Fourteenth Amendments to the United States Constitution because the ordinance was content-based, meaning it only applied to individuals exercising a specific kind of speech — the solicitation of money, property or business – and not, for example, those touting a political candidate or passing out religious literature.
About a month after the suit was filed, Morgantown City Council initiated the process of repealing the law.
Fast forward to February, court records indicated the two sides had agreed to the terms of a settlement through which the city would vacate any convictions of persons charged under the law and pay $35,100 – with $10,100 going to Rowand and $25,000 going to Mountain State Justice.
“In brief, while the goal of protecting pedestrians and maintaining traffic safety is valid, such protections should not be legislated through laws that restrict constitutionally protected speech. The city of Morgantown is committed to following appropriate legal processes to ensure fair and lawful outcomes for all parties. After careful consideration, a settlement was determined to be the most effective and responsible course of action,” Morgantown Communications Director Brad Riffee explained when asked why the city agreed to settle the case.
Having found that the proposed settlement failed to meet the threshold of class certification, Kleeh’s ruling did not address whether the settlement is fair, reasonable and adequate.
The two parties have until Jan. 14 to confer and submit a proposed schedule to govern the case going forward, if necessary.
“We are reviewing Judge Kleeh’s order and will have to discuss next steps with our client and confer with the city, as required by the court,” Mountain State Justice attorney Lesley Nash said.
