VFW argues validity of liquor law

The meaning of two words may make a world of difference in the Newton VFW Lodge’s appeal of the revocation of its city liquor license.

In a motion hearing in Harvey County District Court Friday, Judge Carl Anderson considered three motions — two filed by the city of Newton and one filed by the VFW — in the matter of the revocation of its liquor license for failing to allow police officers immediate entry in a February incident.

The central argument for the two city motions — to deny the VFW’s request for a jury trial and to set aside the stay order delaying the license revocation — may come down to the meaning of the term “original jurisdiction.”

City ordinance allows those faced with a license suspension or revocation to appeal to District Court and, according to the ordinance, “the District Court shall proceed to hear such appeal as though such court had original jurisdiction in the matter.”

Attorney Orlin Wagner, representing the VFW, said such wording gives the VFW the right to a new jury trial. City attorney Bob Myers countered that original jurisdiction means only that district court is the first court with authority to hear the case but any appeal is subject to other state provisions, which stipulate such an appeal is not a new trial but rather a review of whether the city acted fraudulently, arbitrarily or capriciously in rendering its verdict, whether its decision was supported by evidence and whether its actions were within its authority.

However, Anderson questioned whether original jurisdiction would in fact mean a new jury trial. If so, Anderson said it would appear to violate state law, rendering at least that portion of the ordinance void. And if that portion of the ordinance was void, Anderson asked what effect that would have on the remainder of the ordinance.

Anderson asked the two attorneys to prepare briefs on the legal position of the wording of original jurisdiction, as well as if original jurisdiction means new jury trial in conflict with state law and what consequences that has on the rest of the ordinance. The briefs are to be filed in the next two weeks, with the attorneys to be given an additional week to respond to the opposing side’s briefs.

On the issue of the third motion, Anderson denied the VFW’s motion for summary judgment and dismissal. Wagner argued the failure of the city to issue a citation at the time of the incident and another by mail violated provisions of the Liquor Control Act, rendering the entire process void.

However, Myers argued the citation restrictions would apply only to the state enforcing the Liquor Control Act, and even then, only to criminal proceedings, not civil ones. The judge agreed and denied the motion for dismissal.