The Ottumwa Courier

September 8, 2006

Motions denied in flag desecration case

Judge files orders, sets trial date

BY CINDY TOOPES COURIER STAFF WRITER

OTTUMWA — The judge has denied two motions to dismiss filed by an Ottumwan accused of flag desecration.

Monroe County Magistrate Judge Kevin Maughan also set trial for 10 a.m. Friday, Sept. 22, in an order filed Sept. 6 at Wapello County Magistrate Court.

Scott Wayne Roe, 40, of Ottumwa is accused of desecrating the United States flag June 4 when he displayed the flag upside down at his residence and wrote “Corruption of Blood,” a phrase from the U.S. Constitution, on the flag.

In his complaint filed with magistrate court, Ottumwa Police Officer Mark Milligan said Roe “did admit to displaying for exhibition and had present in the front yard of his residence for public viewing, an American flag flown upside down.”

Milligan charged Roe under Section 718A.1 of the 2005 Iowa Criminal Code. The offense is a simple misdemeanor.

Representing Roe is Randall C. Wilson of Des Moines, an attorney with the American Civil Liberties Union of Iowa Foundation.

On July 5, Wilson filed two motions:

• A motion to dismiss based on unconstitutionality of certain sections in both the U.S. Constitution and the Iowa Constitution.

• An alternative motion to dismiss that claimed magistrate court should defer the prosecution — in the interest of judicial economy — by dismissing the charge without prejudice, which would allow the prosecution to refile at a later date.

In denying the motion to dismiss, Maughan said “statutes are cloaked with a presumption of constitutionality.” That means “the challenger bears a heavy burden” in proving the unconstitutionality and in refuting “all reasonable bases” that make the statute constitutional.

The magistrate also noted the Iowa Supreme Court has previously held the Iowa flag desecration statute is “not unconstitutionally vague.”

Maughan cited case law in saying a statute is “overbroad in violation of the 14th Amendment to the U.S. Constitution if it seeks to control or prevent activities ... in a manner that is unnecessarily broad, thereby invading protected freedoms.”

Maughan also said an overbreadth challenge at this stage in the proceedings would be premature because the “record has not been adequately developed” and “no evidentiary hearing has taken place.”

“To rule at this time would require the court to make assumptions and conclusions” which might not be supported by evidence, the judge wrote.

Maughan deferred ruling on the overbreadth challenge, stating such a ruling will be “made if necessary at the time of ruling on the case in chief.”

Wilson’s last argument stated Section 718A.1 can’t be constitutionally applied because such displays are exempt from prosecution and conviction under the free speech provisions of both constitutions.

Maughan said he found “no such ‘exemption’” in case law or in any other current ruling cited to the court.

Concerning the alternative motion to dismiss, Wilson argued Roe’s pending civil suit in U.S. District Court for the Southern District of Iowa seeks a declaration that Iowa Code Section 718A.1 is facially overly broad and unconstitutional and that in the interest of judicial economy the court should defer the prosecution by dismissing the charge without prejudice.

Maughan said Wilson admitted during the hearing that the alternative motion to dismiss “was more of an offer to the county attorney” and that there’s no statutory authority for magistrate court to grant the alternative motion.

The judge also said Iowa Rule of Criminal Procedure 2.33 (1) provides that dismissal of a simple misdemeanor is a bar to another prosecution for the same offense.

“Because the court does not have the statutory authority to dismiss the charge without prejudice, the motion should be denied,” Maughan concluded.

Cindy Toopes can be reached at (641) 683-5376 or via e-mail at cindy@ottumwacourier.com.