Judge Dimond continues Tinker's Flower Power case

Fayette, Missouri, USA
November 5, 2002

by schema-root.org staff

Arriving early to the courtroom at City Hall in Fayette, Missouri, John Tinker sat down in the front row of benches, and studied materials he had brought with him, writing a few notes with a borrowed pen. Other people, who, like Tinker, had been issued summons by the Fayette Police, drifted into the small modest courtroom and took places along the benches that provided seating.

Tinker's mother, Dr. Lorena Jeanne Tinker, and his sister, Dr. Hope Tinker, arrived to show familiy solidarity, the elder Dr. Tinker taking a seat beside her son on the bench.

Before long the courtroom filled up, and an officer said "All Rise."

All rose.

words from the wise
14th District Municipal Judge Larry Dimond began to speak. Tinker listened intently. Apparently the judge had a few thoughts on his mind that he felt everyone would benefit to hear.

"You may think I'm an old grey-haired fogey that doesn't know anything, but after 22 years on the bench, I can pretty much tell who shoots straight arrows," said Judge Diamond.

Judge Dimond explained, "Your freedom to swing your fist ends at the end of my nose. People in a community have to respect the rights of the rest of the community. When you violate those rights, it is customary to remedy the situation by the payment of a fine. We don't accept credit cards. We expect you to come here prepared to pay fine. If you are indigent or unable to pay the fine, we will work something out with you."

"We do take checks," he offered. "But just a word of warning. It is not a good idea to try to pass a bad check to a court. If you try to steal a few hundred dollars like that, you will go to jail. In this country if you want to steal money and avoid jail, you have to steal a lot of money."

He went on to explain basic courtroom rules. He informed us that he can put people in jail for contempt. He really can, and he told a story of one who skoffed at that. The offender spend two weeks in jail thinking about it. Then when he appeared again at court, in "bracelets" and shackles, he admitted in fact that the judge did have that power. Then the handcuffs and shackles were removed, and this man became a "pretty much" good citizen again. There were to be no disparaging remarks made to any officer of the court.

Judge Dimond explained a few things about the responsibilities of a citizen in a community, and about the meaning of the fines that are assessed against violators. He even suggested that the fines should be paid willingly, as a way to make amends for having violated the regulations of the community.

He discussed his own youthful transgressions (in the abstract) and implied that to have run afoul of a municipal law is not the end of the world. It is not a failure without remedy. Fines are paid, behavior is corrected, and the citizen may return to a state of relative harmony within the community.

During this homily, Judge Dimond had the floor. He was not brief in his remarks. Patiently he took the time to introduce his ideas about the meaning of justice, to any newcomers in his courtroom.

And he didn't spare those who had may have already been initiated to his courtroom, from hearing another a reminder.

dispensing justice
After his good-natured but seriously intended lecture, instead of passing a collection plate as might occur in a church, Judge Dimond announced that those choosing to plead guilty should line up along the wall.

Then they would come forward one at a time, and each would be dealt with expeditiously.

Generally they would have to pay a fine. A number got up, and he and Prosecutor Mason Gebhardt started dealing with them one at a time.

Most of the summons were for traffic violations. One person had been given his summons for having a loud muffler. Judge Dimond told him he had a choice. He could pay the $200 fine, go back out on the street with his existing loud mufflers and risk receiving another ticket for the same thing, or he could use that same $200 to buy some quiet mufflers by December 3rd, come back to court on that date with evidence that the mufflers had been installed, and the charge would be dropped.

The fellow asked how quiet they had to be. Judge Dimond responded, "Quiet mufflers. That's all. They don't have to be as quiet as on my old-guy car, but they have to not wake us old guys up when you drive by, either. Then he made a comment about his own car having Glaspacs. Tinker's mother leaned over to ask Tinker what that had meant. Tinker explained that, "Glaspacs are loud mufflers. It was a joke."

The next case, an older woman who ran a stop sign, and it was discovered that her license had expired. She was asked whether she had obtained a new license. She had, and was let off with no fine. She explained to no one in particular that she had just let her drivers license expire only by one day.

Tinker's summons was for an alledged violation of the City's "weed" ordinance. Tinker doesn't consider his garden filled with weeds, but rather with wildflowers. Mostly sunflowers, actually, many of them over 8 feet tall.

Too many of them, said the City of Fayette. None of them should be over 12 inches tall. That's the law, according to the City Council. Tinker had been issued a summons October 30 for just such a violation.

true life courtroom drama
Tinker's mother, who had been quietly laughing along with the judge's more humorous lines, leaned over to her son, sitting next to her, and quietly asked whether he had voted yet, it being election day.

Tinker, responded that he had been very busy preparing for the case all day, and hadn't taken the time. His mother then expressed a note of concern, and asked Tinker when he might vote? When would there be time?

Tinker apparently had not understood the numbers of cases that come before the Municipal District Court on its one evening of operation each month.

But now it seemed possible that, since there were so many, that by the time they were all processed, there might be little if any time left to vote after his particular case might be heard, and before the polls closed.

He apparently decided that by the same token, there would probably be enough time for him quickly to run over to the County Courthouse and vote, and still be able to return in time to present his case to Judge Dimond.

He quietly explained his plan to his mother. She nodded her agreement that it would be a good idea. He quietly got up and left the courtroom.

In the hallway was uniformed Officer Angie, appearing to be a security presence. She looked at Tinker questioningly.

He explained that he was going to vote, and would be back soon, then hurried down the stairs.

However, on the way out the door of the City Hall, Tinker remembered reading that this year, for the first time, picture identification of some sort would be required at the polls.

Since Tinker had been too shortsighted, or optimistic, of the outcome of his case even to take his wallet to the hearing, he now needed to make a detour to his home at the Old Daly School, in order to retrieve the wallet, which contained his Missouri driver's license, with a photo.

He fairly sped home, unlocked the door to the Old Daly School, dashed inside of the building, grabbed the wallet, then dashed back outside to the car.

Then he drove as quickly as possible without incurring another summons, the few blocks to the Court House at the town square, where the polling place is located.

He waited in cue several minutes. Then in his turn, he signed the voter book. He was instructed to sign just beside the normal space, as the normal space where he would have signed had already been signed upon by someone else, by mistake, Tinker was told.

While he continued to wait in line, Tinker read the list of Constitutional Amendments and Propositions, from a sheet on the table there, to remind himself of the issues. Some of the issues he learned about from scratch, right there at the poll, while at the same time being preoccupied with getting back to the courtroom before his case came up.

When a voting booth became free, Tinker entered, read the ballot, marked it, exited the booth and fed the ballot into the mechanical device that is designed for the safe keeping of ballots.

Then he peeled an "I Voted" sticker from the supply provided at the poll, and stuck it on his jacket.

Next he sprinted to the car, thence back back to the City Hall, conveniently locating a parking place just in front of the front door.

It may have occured to Tinker that this parking place possibly been recently vacated by a self-acknowledge guilty citizen, whose business with the court had thereby been expedited. Perhaps even by a guilty party newly reconciled to society by virtue of the payment of a fine.

Tinker dashed up the long steep flight of stairs. Officer Angie stood at the top of the stairway, keeping an eye on the crowd in the courtroom through the open courtroom door.

To Tinker she said, "They're asking for you. You're on. Curtain call."

just in time
"How late am I?" Tinker asked Officer Angie. "They just asked for you now" she replied.

Tinker thanked her and quickly entered the courtroom. He picked several folders of documentation from the bench beside his mother, and spread them out on the ledge before Judge Dimond's desk. He was out of breath for having ran up the stairway.

First to speak was Prosecutor Gebhardt, who asked Tinker if in fact the City had delivered to him a formal complaint, as such delivery was requisite, and he had no copy of it in his file.

Tinker answered in the affirmative, taking his copy of the City's letter from one of his folders, that the Judge and prosecutor might see it.

"How do you plead?" asked Judge Dimond.

"Not guilty," said Citizen Tinker.

Tinker then stated that he wished to preserve from this hearing his rights to raise, upon possible appeal, several points. He itemized them: The vegetation ordinance is so vague as to be unenforceable; There is no rational basis for the vegetation law; It violates his Constitutional right to freedom of speech (expression); It violates his Constitutional right of freedom of religion; The ordinance is selectively enforced; If the Old Daly School lawn is being selected for special attention due to it's historic appearance, it is a violation of Equal Protection, as the property is now privately owned; Further, if Tinker is being asked to maintain his lawn differently than other citizens are asked to maintain their lawns, due the traditional lawn at the school, that would represent an unlawful seisure without compensation, for the loss of other legitimate uses to which his property might be put.

Judge Dimond listened carefully. Then he explained to Tinker that the Municipal District Court was not a Court of Record, and that it cannot consider Constitutional Issues.

another attempt at dismissal
Tinker, who is not a lawyer, apparently thought there still might be some possibility of achieving a quick dismissal. He stressed the vagueness issue. The charge in the City's letter to Tinker stated: "There is overgrown vegetation that is more than 12 inches in height on your property."

He pointed out that to comply with the letter of that law, he would have to cut all of his trees down to 12 inches, in addition to the sunflowers that he knew the Chief of Police was really referring to, as trees are a form of vegetation.

Tinker said that enforcement was arbitrary.

Judge Dimond replied that perhaps they were going after all these problems one at a time. He said that he knew of other cases.

Tinker mentioned his difficulty tracing the original complaint. The judge said they were probably responding to a citizen complaint. Tinker replied that perhaps the citizen didn't like him for other reasons, perhaps the peace sign in his window, perhaps any other reason. But whatever the reason, this citizen was effectively being allowed to harass Tinker. But Tinker admitted that he did not know the reasons for that harassment, and that he could only speculate, as no one seemed to wish directly to accept responsibility.

documentation provided
Then Tinker showed the judge and prosecutor several photos of Fayette vegetation, photos that he had taken both of his own yard, and of other yards throughout the city. This was in support of his charge that the City Code was being selectively enforced.

He handed Judge Dimond a photo of the City Hall itself, a photo taken several paces from the front door of the City Hall, on property that the City is responsible to maintain. The main feature of this photo being dried up wildflowers, gone to seed, and standing perhaps 5 feet tall: clearly taller than the 12 inches allowed by the City Code.

beauty in eye of beholder
Judge Dimond commented upon the beauty of the photo.

Tinker thanked him and agreed that such was his very point. Wildflowers, even in seed, are beautiful. Tinker said that he did not wish to suggest cutting these plants. He was only pointing out that they exist.

Judge Dimond continued, "Then these flowers grew up, and went to seed. But surely you took this photo some time ago, and these weeds have been cut by now?"

"No Your Honor," replied Tinker, "I took the photo yesterday."

Judge Dimond smiled. There were subdued sounds of amusement from the courtroom crowd.

Tinker then also produced a photo of a tall patch of nondescript vegetation in the yard of the Chief of Police, who had ordered that the October 30 summons be served to Tinker.

(As reported in that story, the Chief also confesses to possessing a compost heap, though he mentioned it was smaller in size than the compost heap[s] in the yard at the Old Daly School.)

"I like [Chief of Police] Brian Kunze," said Tinker. I'm just pointing out that I am being subjected to selective enforcement. I don't believe it's coming from him. I believe it's coming from a citizen complaint."

prosecutor seeks compromise
Prosecutor Gebhardt politely asked Tinker if there might simply be some way to work out an arrangement whereby both the City and Tinker would be satisfied.

Tinker replied that he intended to maintain, even increase the native wildflower species populations in his yard. If the City would drop its case, he would be satisfied.

The prosecutor and the judge suggested to Tinker that he could simply appeal any District Court decision to an appellate court, and the Constitutional issues would then be taken up there.

Tinker explained to Judge Dimond, "I would rather the City just drop the case. I believe I have Constitutional issues here, but this case brought against me by the City is a bother to me. If the City will drop the case, I will be happy.

"The EPA is on my side, he said. The [first] Bush Administration has said that a homeowner with a New American Garden should "overseed the entire area with native wildflowers."

"I will be willing to go to the City Council and show them the suggested legislation that U.S Environmental Protection Agency presents on their website," said Tinker.

"I will be happy to work with the City of Fayette to come up with an ordinance that would be both Constitutional and in the best environmental interests of the community. "

judge offers suggestion
Judge Dimond took a moment to suggest that, as Tinker was making good points, perhaps it would be useful to have this issue come before an appelate court, in order that the Constitutional issues might be established in law.

(Our reporter was unable to determine with certainty whether the judge's his eyes twinkled slightly as he said this.)

Tinker asked whether there were no hope of having the case dismissed solely on the vagueness issue, as that issue seemed very clear on its face.

Judge Dimond repeated that his court was unable to rule on Constitutional issues.

prosecutor offers suggestion
Prosecutor Gebhardt recommended that Tinker may wish to seek an Administrative Hearing of the issue, to be heard by the City Council, and he showed Tinker the page of the City Code providing for that procedure.

Tinker agreed that this would seem like a good next step, and said that he would write such a request to the City Council, in order to initiate the process.

Judge Dimond told Tinker that he would continue this case indefinitely, in anticipation that the City of Fayette and Tinker might arrive together at a solution.

Tinker thanked Judge Dimond and left the courtroom in the company of his mother and his sister.

The polls had not yet closed, but since they had all already voted, they went directly to Dr. Hope Tinker's residence, where she cooked up a delicous stir-fry, which they ate while discussing the events of the evening.

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