Alderman Greg Helding has agreed to a debate. Here goes:
To the best of my knowledge, within the last few years, the city council approved a change involving UNIT. Previously, UNIT had sent out notices of violations regarding the upkeep of property. If violators fixed the problem, the issue went away. If not, violators were assessed a fine that they could contest in court. The recent council approved changes did away with fines and relabeled them "inspection fees." This change deprives citizens of the constitutional right to defend themselves in court and with a different branch of government and is therefore unconstitutional.
Denis, When this system was instituted, our attorneys told us this was legal. I ask more questions than most, but in the end, I am not a lawyer and I have to trust that our legal counsel is giving sound advice. When the recent complaints about constitutionality arose, I asked about this and was told that Milwaukee has a similar "fee vs. fine" system in place and it withstood a court challenge in 2007. That was good enough for me. Since you posed this challenge, I took the time to find and read the case for myself.
In a published opinion (Case # 2005AP2630), the Wisconsin Court of Appeals affirmed a trial court ruling that "held that the City has the legal authority to enact the ordinance and that the unpaid re-inspection fees could be assessed against the inspected properties as special charges under WIS. STAT. § 66.0627” and "that because the primary purpose of the ordinance was regulatory, the re-inspection fees do not constitute an unlawful tax".
The appellate court also said "The ordinance creates an economic incentive to induce compliance with the law, which is a proper ordinance creates an economic incentive to induce compliance with the law, which is a proper exercise of police power. The escalating fees bear a reasonable relationship to the purpose of the ordinance, which is encouraging compliance."
You claim that it is unconstitutional because it “deprives citizens of the constitutional right to defend themselves in court”. The fact that the Milwaukee ordinance was challenged is proof enough that this is not true. No ordinance could ever relieve you of our access to the courts. Citizens have the right to take the city to court and challenge the fee – either on the basis that it should not have been charge or on the larger issue that the ordinance is illegal or unconstitutional.
Regardless, the nature of this ordinance is regulatory and not punitive. The court held that these fees are legal and that “There is ample evidence to find that there is a reasonable relationship between the re-inspection fee and the service provided”. Since these are fees, not fines, one does not have the option to either pay or go to trial. This is similar to any other fee charged by the City.
Both the trial court and the appellate court found that the City of Milwaukee inspection and re-inspection fee system is lawful and a proper exercise of a city’s police powers. Until a court tells us otherwise, I believe that, in instituting a similar system here, the City of Racine is operating within the bounds of the US and Wisconsin Constitutions as well as Wisconsin Law. I am confident that our ordinance is similar enough to the Milwaukee ordinance that it would withstand a similar court challenge.
You make a strong argument Greg. But of course I have to quibble about a few things. On meeting the technichal requirements of the law, we have to assume a few things, that Racine's law is identical to Milwaukee's on the relevant question before us, that the Milwaukee case was correctly decided and that the US Supreme Court would concur. I am certain that those requirements have not all been met. In any case, I am not a lawyer so I am probably not the one to offer specific arguments about the differences between Milwaukee's ordinance and ours as they relate to Supreme Court precedent etc... instead I invite you to consider the issue not so much from a technically legalistic point of view but rather while considering the spirit of our constitution. I will make a few assumptions that I think we non-lawyers can agree on:
1) When our government accuses us of something, we have a right to defend ourselves in court.
2) We are presumed innocent and the government bears the burden of proving our guilt.
If you agree with points one and two, we can move on. So, in Racine, we had an ordinance that fined people who violated Racine's ordinance concerning the upkeep of their property. Those whom were fined, I believe, were issued the fine as well as an invitation to contest the charges in court. Then, a year or so ago, there was a new ordinance, replacing the old, wherein the same violations were addressed in a different manner. Gone were the fines and the court date, replaced by an inspection fee.
My issue Greg is that the city (you and your fellow lawmakers) is simply tampering with the English language such that it can dispense with costly court expenses. The question really rests on whether the city is fining violators or charging a fee for its services. Now, in practice, we know very well what the city is up to. The "fee" (hereafter in quotes because I don't think it is really a fee) only applies to those people who have not complied with the ordinance. I have been "feed" at least three times. In each instance I was able to prove my innocence and was not required to pay the "fee." Yet my property has been inspected now at least six times and I have not had to pay the "fee." Only those who don't comply ultimately have to pay the "fee." This raises the issue of equal protection insofar as some have to pay the "fee" while others don't. If it walks like a duck, quacks like a duck, then its a fine.
The same behavior that a few years ago resulted in a fine now generates a "fee." What has changed other than the city's relabelling a fine as a "fee?" Why not just keep calling it fine?