It is no surprise to me that the South Dakota Supreme Court has upheld a judge’s ruling that Sioux Falls’ administrative appeals process is unconstitutional. It doesn’t even take a lawyer to figure that out;
Dan Daily sued the city in 2008 after receiving four citations in two years for violating city code with a driveway extension up to a fire hydrant. He lost his appeal to the city but decided to pursue the matter in the courts rather than pay the $200 fine.
The high court on Thursday affirmed a trial court opinion that the city’s enforcement violated Daily’s constitutional rights to due process and equal application of the law. The justices say the city took a position that the issuance of a city code enforcement citation assumed non-compliance, and Daily incorrectly bore the burden of proving that the city incorrectly issued it.
The opinion, which is linked above, is 18 pages. Here are some finer points;
After a four-day trial, the trial court concluded that the City’s administrative appeals process, both as written and as applied, as well as the enforcement of its zoning ordinances, violated Daily’s constitutional rights to procedural due process and equal protection. We affirm.
(former) city attorney Shawn Tornow at his finest unconstitutional self;
The parties dispute whether the October hearing on citations 1313 and 1379 took place. At the court trial in the declaratory judgment action, Daily offered his personal calendar and detailed testimony about the hearing. He testified that after Daily questioned Hartmann regarding the citations, Tornow stopped the hearing and asked him to step out of the room. When Daily entered the room several minutes later, Tornow told him that he would receive additional citations if he did not remove the concrete extension to his driveway. Daily did not receive a decision regarding his appeals of the citations. In contrast, the City, through the testimony of Hartmann, a paralegal for the city attorney’s office, and a City director  who served on the decision panel, contended that Daily did not appear for the hearing. The City ordinarily records its administrative hearings, but no audio recording for this hearing has been found. The outside cover of the City’s official file for the citations states, “No Show, No Tape,†but it is not clear whether this note refers to the October hearing or the September hearing for which the hearing examiner was not available.
The City did not contact Daily again regarding the concrete extension to his driveway until April of 2008, when he received citations 2545 and 2546 in the mail. Citation 2545 cites the same zoning ordinances as citation 1313, and citation 2546 cites the same municipal code section as citation 1379. Daily appealed citations 2545 and 2546, alleging selective enforcement and double jeopardy. After receiving a notice scheduling a hearing on both citations, Daily retained an attorney.
A hearing on citations 2545 and 2546 took place on April 29, 2008. The City Attorney’s office hired James Robbennolt, a Sioux Falls attorney, to serve as the hearing examiner.5 Before the hearing, Robbennolt informed Daily that he bore the burden of proving that the City incorrectly issued the citations. Tornow informed Daily’s attorney that the City’s administrative appeals ordinance provides that the technical rules of evidence do not apply but that irrelevant or immaterial evidence may be excluded. During the hearing, Tornow repeatedly objected to the introduction of evidence on grounds other than relevance, and Robbennolt sustained several of his objections.
The first trial, which was delayed several months said ultimately what the SDSC said;
In May of 2008, Daily initiated this declaratory judgment action against the City. A four-day trial was held over a period of several months. After the trial, the parties submitted proposed findings of fact and conclusions of law. The trial court ultimately concluded that the City’s administrative appeals process, both as written and as applied, as well as the enforcement of its zoning ordinances violated Daily’s constitutional rights to procedural due process and equal protection.
This is also an important factor in the courts decision;
The City operates under a home rule charter. The South Dakota Constitution describes “home rule†municipalities:
A chartered governmental unit may exercise any legislative power or perform any function not denied by its charter, the Constitution, or the general laws of the state. The charter may provide for any form of executive, legislative and administrative structure which shall be of superior authority to statute,
Which brings us to this;
Daily challenged the City’s administrative appeals process under the Fourteenth Amendment to the United States Constitution and article VI, section 2 of the South Dakota Constitution. Both provide that no person shall be deprived of “life, liberty, or property without due process of law.â€
Which brings us to why his rights were violated;
The heart of the matter is whether the City’s administrative appeals process deprived Daily of a protected property interest without due process of law. The trial court concluded that the City’s administrative appeals process violated Daily’s procedural due process rights for five reasons: (1) Daily bore the burden of proving that the City incorrectly issued the citations; (2) Daily was not afforded an opportunity to subpoena witnesses or documents or to otherwise investigate the basis of the citations; (3) the City issued Daily multiple citations for a single violation of its zoning ordinances and municipal code; (4) the hearing examiner did not apply the applicable rules of evidence in a fair and even-handed manner; and (5) the failure to keep a complete and accurate record of Daily’s administrative appeal hampered the trial court’s ability to conduct meaningful review of the proceedings. The City challenges the trial court’s conclusions.
There is a whole lot more, and I encourage you to read the opinion. But my probing question is, will Tornow be disbarred for not upholding the US Constitution, and even furthermore removed from the state legislature? This man belongs no where near law books.
The other amazing part is this all took place under a former judge’s supervision. Munson’s head city attorney was a former judge, and should have known better. Or was Tornow hiding it from him?
It also makes you wonder how many other people were incorrectly fined and just complied because of fear? I think the city should sue Shawn Tornow for the wages they paid him while working for the city during this time period.
I would pay mad mad cash (upwards of FIVE HOLE DOLLARS) to be a fly on the wall in the room when Dan asks for his legal fees to be reimbursed by the city…
er…that should be whole…no hole….must stop drinking this early in the day
Not sure if he will.
I3wis: Generally, you and I have our differences of opinion but on your latest comment, I have to agree wholeheartedly. You know, Harry Truman (I believe) said at one time, “The buck stops here”. In this case, was not the City Attorney a former Supreme Justice? Did he not give approval? Are you saying he was not aware? Are you saying Mr. Tornow acted without approval? Is not the Mayor the “main man” and gives final approval? Would it have been better for Mr. Tornow to not pursue the ordinance and be charged with insubordination? I think this is a case of “If you
don’t like the message, kill the messenger”. It is also a case of misplaced anger and frustration, but then again this is not the first time.
I have often felt that Munson wasn’t in the know, and let his directors do whatever. As for Tornow’s boss, I heard he was just keeping a seat warm until the new mayor took office.
I’d bet that not only with Tornow not be disbarred, and that he won’t be forced out of his seat in the legislature (insert fat joke here about how they can’t get him out without a crowbar and 2-ton jack), but that he won’t even receive a slap on the wrist.
The city probably would prefer to have nothing more to do with him at this point and they aren’t about to go after him either. I do think they have an obligation to reimburse Daily for his expenses and fees, but unless he asks I doubt they will offer.
What are the chances we will see a lawsuit seeking compensation and damages?
He doesn’t say anything about it in this interview, and he has hinted to me, he probably won’t ask for damages;
http://www.keloland.com/NewsDetail6162.cfm?Id=120011
I find it interesting that the current city attorney claims changes have already been made. He is right on one level, some changes have been made, but code enforcement is still a cluster fuck, and they can still take you to small claims.
Pudgy, pasty and paltry are the only ways I can think to describe this sad sack. It’s called Karma Shawn! And she’s a bitch!
I think this says just how much the city has changed it’s ways;
‘The changes enacted this summer, however, do not fix what Dorothy sees as the root of the problem: the adversarial nature of the appeals process.
“It’s business as usual, just in a little different form,” Dorothy said.
The city ought to use neutral, professional mediators to resolve zoning disputes instead of tweaking the administrative hearings procedure, he said.
In a mediation process, homeowners who dispute a code violation would be able to hear the reasoning behind the ordinance from the city’s lawyers and explain their situation to the mediator. Then all sides would work toward an agreement about how to deal with the violation.
If there is no agreement, the argument can go to court.
Such dispute resolution works well in Minnesota, Dorothy said. He plans to send letters to Mayor Mike Huether, the city attorney’s office and City Council members to propose that Sioux Falls consider adopting a mediation ordinance.
Dorothy made such a proposal last year before the city appealed Caldwell’s decision to the Supreme Court, and the suggestion went unheeded.
He hopes now, because he is writing as a citizen and not a lawyer representing a client, that officials will take a closer look.
“To use an adversarial process to further what are usually zoning disputes between neighbors is unnecessary,” he said.’
I think Costner is right, doubt Tornow will feel any pain from this decision, he has already been canned for the deeds that led up to this. It is unfortunate that it took a new administration to say the words, “Your fired!”
hopefully, the voters will fire him next time as well.
It is unfortunate that it took a new administration to say the words, “Your fired!â€
I have no idea how it actually went down, but I’m hopeful if it was written that they actually used the proper form of “you’re”.
🙂
L3wis:
“I have often felt that Munson wasn’t in the know, and let his directors do whatever. ”
I agree with this, I also think that like any executive..your decisions are only as good as who’s bringing you the information to base it on. I don’t think Munson was negligent or ignoring facts..I think Tornow effed this from the get go and tried to manipulate the situation in hopes of it going away. When DD pushed back, he felt incorrectly he had no choice but to paint him as crazy and unreasonable.
Congrats on the win, Mr. Daily and thank you for your selfless and courageous act.
AL poll today shows 85% agree with the ruling.
What a stupid poll. Why not just ask people if they are American or Un-American? The Justices job is to uphold the US Constitution. They did just that.
The City Attorney’s office hired James Robbennolt, a Sioux Falls attorney, to serve as hearing examiner. Before the hearing, Robbennolt informed Daily that he bore the burden of proving that the City incorrectly issued the citations.
The trial court concluded that the City’s administrative appeals process violated Daily’s procedural due process rights for five reasons:
#4) the hearing examiner did not apply the applicable rules of evidence in a fair and even-handed manner
*************
There obviously is no defense for Shawn Tornow’s actions, but why is no criticism being leveled against James Robbenolt….
Both of them were representing all of us as taxpayers…………..unbelievable!!!
I think that it would be a mistake if Daily does not pursue reimbursement from the taxpayers (City) for his legal fees!!!!!
CR – As Paladin points out, what about Munson and the City Attorney (a former SC Justice) or Hartmann who kept giving Daily fines? There is oodles and oodles of people that fucked this up. The scary part about this whole mess is the ends they all seem to go thru to cover it up. Makes you wonder what other shit is going on? Think about it, this was pretty cut and dry, a concrete slab. I have often thought money or favors are being exchanged for some these actions. But that would probably take another $40,000 to prove.
They all did it for the love of Home Rule.
So soft, moist and delicious.