Alderman Greg Helding has agreed to a debate. Here goes:
Denis:
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.
Greg responds:
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.
Denis responds:
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?
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29 comments:
Why would Helding ignore the obvious?
Is he living in such an alternate world?
I can’t just opt out of the legal considerations of this issue. The government I help lead operates within a framework and a system that cannot be ignored..
Racine’s system is not identical to the Milwaukee system, however the crux of the issue – fee vs. fine – is the same in both. As such, I believe that Racine is operating within the law and the constitution.
Whether the case was correctly decided is not something we can consider – it was decided and because of that, the current state of the law says this system is within bounds. That may change, but until then we are on solid legal ground. There are times when the current state of the law allows things that are immoral or objectively wrong – slavery, segregation, etc. – but I don’t think this is in that category.
The U.S. Supreme Court does not have to weigh in on this for it to be considered constitutional. In fact, the Supremes take only a small fraction of the cases brought to them.
Why does a dog lick itself? Because it can.
I am reminded of this old joke because your argument essentially is "because we can." Sorry, but while you offer a more sophisticated version than my dog, you are still offering the same uncompelling argument. The more important consideration isn't "can we?" but "should we?"
I was hoping we could move beyond the Milwaukee case for the reasons I had previously provided. You do realize I hope that any legislation you pass in office can be similarly defended. Basically, you can pass any law you want until it is overturned by the courts. But this is not an argument for passing a particular legislation.
You say you can't "opt out of the legal considerations of this issue." Very well, but neither the state or any other authority has compelled you to change the law in the manner that you did. You had a law that unquestionably protected the rights of Racine citizens - by allowing for a court challenge. Then you changed it from a fine to a fee - thereby eliminating the court option. Nobody made you do it. So why the change from a clearly constitutional law to one that deprives Racine residents of their day in court? I know the answer is money, that the city doesn't have to pay a percentage to the state. But while perhaps you can do this, I don't think you should have done it and I hope that you will consider undoing it as well.
Greg, the dog joke was meant to illustrate my point in a humorous way - not meant as an insult. Just wanted to make that clear.
I gotta agree with Denis on this one Greg. I mean what have you folks done as a common council, that REALLY matters, to improve the quality of life for the hard working, tax paying citizens of Racine...C'mon fella, do something REALLY meaningful, change Racine, leave your mark would ya?!
The overriding result of changing to a fee is that a bureaucrat holds all the cards. This ordinance places the citizen in the role of supplicant to the official. The bureaucrat has no reason to work with them, they can just command and control. Certain Aldermen are known to favor this sort of approach in all issues. While the folks that issue the fees are (IMHO) currently quite reasonable, that might not be the case in the future. Their activities could easily become politicized.
And I agree with Denis, Greg. If democracy disappears at the local level it is nowhere to be found. It really is the jobs of alderpeople to reflect their constituency. As I learned once again during the Chun Lakeside Pantry matter, petitions of actual residents do not matter to our august alderpeople because you know better.
Citizens Advisory Committees are kept out of the loop and told what options they have and don't think about any other options.
The city charges huge to shovel a sidewalk. Many in this town are totally swamped by finances while nothing changes inside the hallowed halls of GM/City Hall.
Let's all get real here. Dennis is arguing via a philosophical stance. Greg a practical one. 98%of property owners will never get a fine. Of those who do, the vast majority deserve it. This was done to stop those property owners who were contesting an order to repair their properties just to avoid spending money on the repair. What about the rights of the neighbors who have to live next to a run-down property? The UNIT staff are very tolerant and only give out fines to blantant violators. I have gotten two fines in 6 years for weeds and paid both because I deserved them. I now make sure my properties are always maintained.
Katie -
My constituency calls me all the time about properties in need of repair (broken windows, roofs blowing into their yards, gutters hanging loose, animals in a vacant home, etc). My vote to strengthen the system is a response to their concerns.
Regarding the Lakeside Liquor situation, they applied for an exception to our license quota. The ordinance specifies some benchmarks that have to be met in order for the city to exceed the quota. None of the petitioners addressed the benchmarks. None of the speakers addressed them. Many people spoke of the need for a grocery store, but no one spoke to the need for a liquor license. The building owner, who is an attorney, did not address the benchmarks (which are clearly spelled out in the ordinance) or make any arguments for why the quota should be exceeded. The applicant themselves did not present any reasoning why their application to exceed the quota should be granted.
If you had a "no returns' policy for your concrete statues, and someone came in to plead for an exception, I am sure you would listen - as we did. However, if the person did not argue any points other than "please let me return this" - would you take back the item?
I know some people believe we shouldn't have a quota or that we are not allowed to have one. The facts are that we are allowed and we do have one.
For the most part the UNIT continues to be a petty group often addressing things that most people don't even see when it is pointed out to them. The issues raised in this exchange like broken windows and really run down property would be a good mission if that was the only mission. The reality is many citations are petty such as some weeds along a fence or in someone else's yard but the person writing the citation doesn't know where the lot line is located.
Many people are frustrated after they address an issue in the timeframe indicated but are still cited by the City.
It appears Racine is at war with its residents and looks for any way it can to get more money out of the resident's pockets.
The UNIT needs to have a few critical issues to monitor and not keep looking for the petty stuff on a slow day.
I had visitors from out of town this summer who thought Racine looked old, run down and dumpy. Making comparisons to New Orleans.
LOVED the headline in the Racine Post - I guess you're lucky it wasn't "Intellectual Elite Person Helding, Teabagger Navratil . . ."
Greg,
Michael Choi expressed wonderment regarding this ordinance at that last sad meeting before the Licensing Committee. He pointed out the problems spilling over onto the downtown has nothing to do with the Chuns or groceries. He pointed that people want to stop once, not twice and that convenience stores want to make money too because it is business. Michael Choi also stated some very obvious things: 1) there is no grocery store downtown. 2) that he would never suggest a use for a building he owns on Sixth Street that would be a detriment to the other businesses he has nurtured on the street. All of us who worked with the Chuns in the end came out of it with an appreciation for their reserve and their persistence. I cannot say I am aware that anyone at City Hall attempted to encourage the Chuns or help them which is really strange for a city with so many vacancies in their downtown that it is scary at times. A family enterprise like the Chuns were suggesting is a perfect fit - just as the laundromat idea was. But no. And the real question here is why not.
I don't go to bars but I would love to be able to buy something at a convenience store to serve in my home above my storefront without getting in my car...when I get the bread or the newspaper or the the milk. Michael Choi pointed out Chicago isn't penalizing convenience stores because of problems that bars create. He knows because he has business in Chicago. Racine's latest alcohol ordinance is anti business. Downtown needs a grocery outlet. As Denis I believe pointed out, Braun's, Uncorkt, the Historic Century Market sold packaged goods without swat team coverage. What is the problem here?
I heard a different point of view coming out loud and clear at that meeting. I can read too. This did not go over well in this community because it suggests such deep seated control and sorry to say prejudice which unless address will continue to turn people off bigtime.
Denis -
Your original point was that the change from fines to fees was unconstitutional. In essence, you are saying, “You can’t do that.” My response to that was, “Yes, we can – and here is why.” Now you are asking why we made the change – while still questioning the constitutionality of the law.
You are correct that no other authority compelled us to change from fines to inspection fees. We chose to do so. Let me give you a couple of reasons why.
One reason is that our Chief Building Inspector, Rick Heller, felt it would improve compliance. He based this on results achieved by Milwaukee’s Department of Neighborhood Services when they made the change. I spoke with Mr. Heller about this recently and he has indeed seen an improvement in both response and compliance. Perhaps it is psychological, but people seem to dislike an invoice more than a citation.
Another reason is that any municipal forfeitures (fines) collected have to be shared with state government (roughly 26%), for some reason. However, if we charge a fee for a service provided, then the city collects and keeps the entire amount. Also, keep in mind that the inspection fees are often less than the fines that could be levied. Someone who ends up paying the fee for a second inspection would pay less than he had paid in the past when a ticket would have been issued.
As for the constitutionality of this system, courts have held that the fees bear a reasonable relationship to the service provided, are regulatory in nature, and are a valid exercise of the city’s powers. Your remaining constitutional concern in essence argues that we are not affording people their right to due process. While the US Constitution guarantees our rights to “due process of law”, how much process is due has been a source of debate for over 200 years. While mandated by the Constitution for criminal prosecutions, a trial by jury cannot be provided in all cases. The law holds that different situations require different levels of due process, depending on the interests at stake.
In this case, the building maintenance ordinance provides a process for appealing “any notice or order issued”. During the time given for correction, any person affected can request an informal review by the Chief Building Inspector. This request must be granted. If the person is not satisfied with the results of the review, they can request a hearing before the Health and Sanitation Appeal Board, in writing to the Chief Building Inspector within ten days of the outcome of the informal review.
If a property owner receives orders he feels are incorrect (there is no garbage on his property, the porch is not falling apart, the address is wrong, etc), he can appeal the orders to the Chief Building Inspector – as you have done in the past. Beyond that, he can request a hearing of his appeal with the Health and Sanitation Review Board.
My job as a legislator is to work for the common good. In making policy and law for the city, we are always weighing individual rights against the rights of others. The property rights of an owner to do as he wishes with his property begin to infringe on the rights of others when the property deteriorates and negatively affects the quality of life and home values for the other neighbors on the block. How much damage is done and how far we can go to protect the neighbors’ rights is up for discussion and debate. In this case, we established property maintenance codes to benefit neighborhoods and the city as a whole, at the expense of the right of the property owner to do as he wishes with his property.
In establishing the codes, forming the UNIT, and charging inspection fees, I believe the city has taken a reasonable, legal, and constitutional approach to this problem. I also believe the system affords a proper amount of due process that balances the interests of the property owner and the people of Racine.
can someone PLEASE run against this guy in the next election & win!
For the sake of all of our sanity!
Thanks Alderman Helding for participating in this debate. I found both your and Denis' points very interesting and well researched and informed.
What I take away from this discussion is that because the precedent or option of doing something which fine, tax, or Citate, our residence then we should proceed with said tariff. What I would prefer to have been the response..is that individual freedoms and prosperity will better achieved in our City by NOT imposing the taxes merely because it can be.
Just because we can doesn't mean we should...If Racine is to return to prosperity..we need less govt. and more investment in our community. I think if a "Wig" company wanted to rent every space on 6th St. we have no regulations for or against it. Should we pass a law controlling the number of Wig shops? No we should let every wig-maker that thinks they can make a profit to open on 6th St. and let the successful ones survive and the poor ones fail. free market. Racine should be as "Free" of a market as anywhere in the country.. We do that thru lower taxes, and less punitive fees, and less Govt. micro-management.
Thanks Greg for having this discussion.....but as far as most peoples perception the city DOES look rather dumpy, run down and abandon, even with the UNIT. So hopefully we can work together and never froget that you guys represent US, the taxpayers of Racine. Do something of QUALITY, make a city resident HAPPY to live here, c'mon man you can do it! FOCUS on whats really important.
Greg, you better reconsider your opinions and your voting, because your republic base, as is Racine's tax base, is becoming smaller and smaller by the minute. Stand up for what you, at one time not long ago, believed in.
Anon 1:13
"an someone PLEASE run against this guy in the next election & win!
For the sake of all of our sanity!"
People have run against him and historically they have not done well. He puts more research and thought into the legislative process then most legislators on any level. If you like the out come or not is a different story, but it should not be enough to drive anyone insane. Unless they are already almost there.
This is/was a good debate on both sides, both make good points.
Gee, Denis. After seeing how the anonymous peanut gallery went after Helding, I can see why you don't get any other elected officials posting here.
Well researched and reasoned arguments are met with name calling and misspelled attacks.
Greg, thank you for indicating why the city made the change from a fine to a "fee." Compliance is up, you suspect, because people prefer a citation to an invoice. I would prefer a citation because it would be a more honest approach by the city. Perhaps compliance is up because people don't realize they have much of a recourse. Loan sharks have better compliance rates than collection departments. Perhaps compliance rate increases correlate with rights decreases.
At any rate, this is really about the money. It is easier for the city to collect money from their citizens if they remove the court challenge option. And they get the added bonus of preventing the state from skimming 26% off the top. This is a classic "ends justify the means" argument.
Greg, I am sure you will correct me if I am wrong, but my understanding is that UNIT salaries etc... are paid for in a different manner than other departments. UNIT generates its own income via the fines, er fees, that they charge. If so, then you will have created a financial incentive for government to fine its own citizens to ensure the livelihood of government employees. Expect abuses.
And lastly, there was another constitutional challenge unaddressed, that is the issue of equal protection. Some people have to pay for the inspection while others do not. I have had my property inspected now at least four times, including at least two reinspections. Yet I have not had to pay the "fee" while others have to pay the "fee" after two inspections. The reason of course is that I was able to prove my innocence. Even so, I did receive the unwanted "service." Everyone recieving the service should have to pay. Of course all this nonsense by the city really just proves the obvious that the city really is fining their citizens but calling it a "fee" for pragmatic and financial reasons.
But I give you credit Greg for being the most honest of our councilmen in foisting this dishonest scheme upon the public. I wish you would go back to the original, more honest, method of fining citizens for property violations. You might lose a little money, you might lose a bit on compliance, but you might gain a bit of respect for looking out for the rights of citizens.
Is the motivation improving property upkeep or bringing in revenue?
Anon 4:25 - I posted one of those snarky comments - the elite vs teabagger one - and it wasn't directed at Helding, it was directed at the Post. I agree that Helding actually shows up, reads, researches and takes the time to have discussions with people. Whether I agree or not is not relevant. However, the Post has an "A list" of people they like and can do no wrong and a "B list" of people who can do nothing right and this is more clearly defined each day.
Helding's research, thoughtfulness, etc, as an elected official should be the standard, not the exception. Helding does not get an extra pat on the back from me, this is exactly what you were elected to do.
This is what we expect our representatives to do.
The stance and attitude of "we-do-it-because-we-can" is strong arm government regime policy. Just because you can does not make it right or even sensical.
I’m not an expert on psychology, so I can’t say for sure why more people respond to this system than in the past. All I know is that they do. There are some judgment calls, like whether or not a pile of trash merits an emergency cleanup for health or safety reasons, but for the most part, exterior maintenance and building code violations are binary. A railing is either installed on the porch or it is not. Your paint is peeling or it is not. The trash was out early or it was not. I don’t want to sound too harsh, but, to be frank, people do not have much recourse when it comes to correcting the violation. However, I have found our building inspectors to be reasonable people. Time extensions are regularly granted for any number of reasons. If someone believes the orders are in error, then they do have recourse through an appeals process I outlined above.
This is not about money. When I said compliance was up, I meant that we have better luck getting people to address the violations, not that we were taking in more revenue. Building department revenues have actually fallen over the past few years and the amount collected from inspection fees is lower than the estimates. If this were merely about money, one would expect to see more revenue, not less.
People are not automatically entitled to a court challenge in all cases. The amount of process due to a person in a given situation depends on the personal interests at stake, the risk of error (and the likelihood that further process reduces the risk of error), and the importance of the government’s interest in taking the action (including the administrative and financial burden required to use a more extensive process). As I stated earlier, the city feels the amount of process provided (the ability to work out extensions with the inspector, the informal review, and the appeal hearing) is sufficient. I do not believe this system deprives anyone of his or her due process rights under the law.
On your point about the UNIT salaries, you are both right and wrong. A portion of the building department revenues comes from the fees, and therefore could be construed to pay the UNIT inspectors’ salaries. However, they are not alone in this regard. Parks, Public Works, and the Fire Dept. all bring in revenues from fees and the Police Department brings in revenues from fines and forfeitures. I have seen the pictures taken when orders are written and I pass by houses all the time that have obvious violations. I myself received a weed order once because some weeds along the alley side of my garage had escaped the spray from my weed killer. My point is that the violations exist – regardless of any financial incentive that may or may not be at work. The only way I could see an abuse is through the writing of false orders for problems that do not exist. The UNIT inspectors have all they can do to keep up with the actual orders. Contrary to your fears, the primary complaint I receive at neighborhood meetings regarding the UNIT is that they are not aggressive enough.
My guess is that, if faced with an equal protection claim, a court would apply what is known as the “rational relationship test” to determine if the system is in compliance. The court would ask two questions. Is this legislation directed at a legitimate government objective? Is it rationally related to achieving that objective? If the answer to both is yes, then we are in compliance with equal protection.
It is settled law that building and maintenance codes are a legitimate government objective.
The Court of Appeals found that in the Milwaukee system, which included fee waivers identical to Racine’s, “fees bear a reasonable relationship to the purpose of the ordinance, which is encouraging compliance.”
We are dealing with a legitimate government objective and a government action that is rationally related to achieving it.
Denis, whether you suggest a correlation between the increase in collections and a decrease in rights, or that the ends justify the means, the implication is the same. You are saying the fee system is wrong or worse than the fine system and we choose to overlook the wrongness because we like the improved outcomes. I answered the debate challenge because I believe, rather than tolerating a wrong or improper system to achieve better results, we instituted a better system that achieved better results. We are not knowingly instituting a morally wrong, legally incorrect, or dishonest system simply because we like the outcomes. We are addressing a problem in a way that we believe works best for all concerned.
I presented the situation that city government found to be a problem - poor exterior property maintenance has a negative effect on surrounding neighbors and the city as a whole- and set out to explain the city’s approach to dealing with this problem while defending our approach as legal, reasonable, and constitutional. I believe I have shown that it is.
You may disagree with my conclusions, but I hope you will see that I came to them through research and thoughtful deliberation. This was fun; let’s do it again some time. I only ask that we take a little break so I can to all the things I was supposed to be doing while I was composing these responses.
Fair enough Greg. I could go on but I will give you a break. Thanks for taking this on. Next up - de facto racial discrimination and liquor licensing?
"Anonymous said...
Helding's research, thoughtfulness, etc, as an elected official should be the standard, not the exception. Helding does not get an extra pat on the back from me, this is exactly what you were elected to do.
This is what we expect our representatives to do.
The stance and attitude of "we-do-it-because-we-can" is strong arm government regime policy. Just because you can does not make it right or even sensical"
Yes, Helding's research, and thoughtfulness should be the standard, but it is not. This is all the more reason not to advocate voting him out, but to advocate keeping him in to be the standard bearer.
If you read his arguments I don't think you can conclude that his stance is "we do it b/c we can." He was merely pointing out that the city can in fact legally have this operated the UNIT this way to refute Denis' claim that the city legally could not.
It is like some off you people don't even read this stuff before you write you own reply. Anyway good reading for the most part.
can in fact legally operate the UNIT this way
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