MORGANTOWN – Currently the subject of a federal class action lawsuit, Monongalia County’s Pedestrian and Vehicle Safety Ordinance has resulted in a total of four tickets and four written warnings in the roughly two and half years since its October 2023 adoption.
That information was included in one of two recent filings by legal counsel representing defendants Jeff Arnett, Tom Bloom and Sean Sikora (the Monongalia County Commission), and Sheriff Todd Forbes.
Attorneys with nonprofit legal advocacy group Mountain State Justice filed the lawsuit in December 2024 on behalf of Chris Peterson, Becky Rodd, and others similarly situated, alleging the ordinance violates the plaintiffs’ First Amendment right to freedom of speech “because it prohibits them and others like them from asking for donations or giving donations in public areas where those protected activities were common before its passage.”
The lawsuit identifies Peterson as a “poor person who regularly solicits donations from stopped motorists in public in and near … public roads, highway medians, and intersections.” It further states Rodd is “a person who frequently gives donations from her vehicle to pedestrians in those areas.”
According to the most recent case filings, Peterson has received three of the four citations issued under the ordinance, including the most recent citation written on June 24, 2024.
In March, attorneys for the plaintiffs filed a pair of motions with the court.
The first, filed March 19, seeks the court’s certification of the class, meaning the unnamed “others similarly situated” in the class action lawsuit. The motion identified the class as, “All persons, who, on or after Oct. 23, 2023, (a) have or will stand, sit, or otherwise be or remain in the median, neutral ground, shoulder, or other part of a road or highway within an Area of Concern designated by Monongalia County under the Ordinance while soliciting donations; and/or (b) a pedestrian or vehicle occupant within an Area of Concern designated by Monongalia County under the Ordinance that have or will interact with, or donate to a pedestrian on or near a road or highway within said Area of Concern”
On March 27, a motion for partial summary judgement was filed asking the court to declare the county’s Pedestrian and Vehicle Safety Ordinance unconstitutional; bar enforcement of the ordinance including any pending or ongoing prosecutions under the law; and find the defendants liable to Peterson for violation of his First Amendment rights.
The defense has since responded to both.
On April 7, a response in opposition to the class certification claims the class, as defined, is overly broad and lacks commonality. Further, the defense states the plaintiffs have failed to establish the class is numerous enough to warrant certification.
“Plaintiffs seek to overcome the clear lack of numerosity of individuals who have been issued citations or written warnings for violations of the Ordinance by seeking to include individuals subject to what the Plaintiffs refer to as ‘informal’ enforcement of the Ordinance,” meaning individuals who were asked by law enforcement to get out of the road but not provided any written documentation.
The defense attests that deposition testimony provided by Forbes that such informal enforcement occurs “a hundred to one” over the writing of citations wasn’t specific to instances of panhandling, but common anytime deputies see someone in the roadway, and therefore not evidence of class size.
On April 10, the defense responded to the motion for summary judgement and filed a cross-motion for summary judgement in support of the defendants.
The motion maintains that the ordinance adopted by the county is not unconstitutional because it is content neutral.
“Courts have found that pedestrian safety ordinances are content-neutral when they apply even-handedly to all conduct in a given location – regardless of the speaker’s message – and when the government’s justification for the restriction is grounded in safety rather than in disagreement with any particular viewpoint … The Ordinance here regulates the physical presence and actions of individuals in roadways – not the content of their speech – to address legitimate public safety concerns.”
Monongalia County’s Pedestrian and Vehicle Safety Ordinance includes a number of prohibitions for both pedestrians within a right-of-way and vehicle passengers, making it illegal for pedestrians to stand, sit or physically remain within a roadway for any reason apart from crossing the road. It also makes it illegal for both pedestrians and vehicle passengers to interact and pass or exchange items.
The prohibition is not actually county-wide but limited to areas of concern identified by seven criteria including traffic volume, speed limits, lighting conditions, median width, weather conditions, and others.
Specific areas of concern listed include: Chaplin Hill Road south of Monongahela Boulevard; Chaplin Hill Road between I-79 and University Town Centre Drive; University Town Centre Drive at Mountaineer Drive; University Town Centre Drive south of Chaplin Hill Road; Fairmont Road northeast of Mall Road; WV 705 north of Mileground Road; Mileground Road east of 705; Stewartstown Road east of 705; Point Marion Road north of Mileground Road; Cheat Road southwest of South Pierpont Road, and Grafton Road south of Scott Avenue.
The bench trial in the U.S. District Court for the Northern District of West Virginia is scheduled to begin in August.
