ST. GEORGE – A motion to dismiss a City of St. George code enforcement case over a question of due process Monday night was denied by the judge, who said dismissing the case on the premise put before him was beyond the scope of his authority.
Attorney Aaron Prisbrey stood before Administrate Law Judge Brian Filter arguing at length that the code enforcement court’s lack of written procedures allows the judge to arbitrarily make the rules as he goes.
Can I get that in writing?
“I never thought I would be in a hearing where the rule of law was not in writing,” Prisbrey said. “There is no question there has been no rule promulgated by the court.”
Prisbrey represents St. George resident John Rowley who was cited by the City of St. George last year for code violations after a neighbor complained he was fixing cars at his home for profit. Filter has previously ruled that code enforcement officers violated the Fourth Amendment of the Constitution when they searched Rowley’s backyard for violations without a warrant. Filter ordered pictures taken of the alleged violation could not be used as evidence in the enforcement proceeding. Rowley subsequently filed a lawsuit against the city over the matter. He is being represented by Prisbrey in that case as well.
As for the code enforcement hearing, Prisbrey said it violates due process as it is currently run. He argued that Filter, as the administrative judge, was commissioned by the City of St. George to promulgate, or establish in writing, rules and procedures so hearings comply with due process requirements. So far Filter had failed to do so, Prisbrey said.
Prisbrey argued due process is being denied by the court due to vagaries of the process as a result of its unwritten procedures. Further, no rules exist to provide meaningful and adequate notice to accused code violators, or to provide for the recusal and replacement of the judge should he have a bias or conflict of interest, Prisbrey said. Filter has a bias in favor of the city, Prisbrey said, noting that Filter and Deputy City Attorney Paula Huston share the same secretary.
The city has argued that the rule of law doesn’t need to be in writing, Prisbrey said. Taken to its logical conclusion, he said, having no written laws could lead to anarchy, as there is no uniform consistency of standard. Prisbrey said such a thing allows tyranny to start rather easily when the rules are made up along the way.
Because the code court currently violates the 14th Amendment of the Constitution, which guarantees due process, Prisbrey said, the judge should dismiss Rowley’s case.
The City: The rules are in the code
Huston, representing the City of St. George, said the city had a difference of opinion as far as the rule of law was concerned; there is no clear definition of what “the rule of law” is, she said.
There must be a unity of law in many cases, Huston said, which is why they are written. However, day-to-day operations and procedures of an administrative court do not necessarily need to be written down. As for other particulars involving how the code violation notices and hearings are to be handled, she said the city code is very detailed on the matter.
The answers to procedure, and thereby the promise of due process, are in the code, Huston said. Day-to-day procedural matters are established by the judge and left unwritten to allow for flexibility as needed, she said.
“Our position is that the (administrative law judge) has promulgated rules even if they are not in writing,” Huston said. “We submit we have complied with due process in Rowley’s case.”
Beyond the scope of the hearing
“The procedures are clearly set forth in the code, are they not?” Filter asked Prisbrey. “What rules would you have me promulgate?”
Filter said he had gone through both state and city code and had come to the conclusion he did not have the authority to dismiss the case on the grounds Prisbrey had put forth. If it were a matter of evidence, he would be able to make a ruling, he said, but the matter Prisbrey was pressing was beyond the scope of a code violation hearing. Where it belongs is in a real court with a real judge, Filter said.
Filter noted that, while he has the title of “administrative law judge,” he is officially acting as a hearing officer who has been granted limited authority by the St. George City Council in matters of code enforcement.
“I have a limited scope of authority here,” Filter said, adding that the case is both a civil and political matter, one that could be better applied in a court of law and before the City Council. The council itself has only given him authority to act in matters of code violations, not to pass judgment on the constitutionality of the system itself.
“You’re asking me to rule on constitutional due process issues that are beyond the scope of the hearing, or to invade the realm of the city council,” Filter said, reiterating multiple times he believed he did not have the authority to do what Prisbrey was seeking.
Instead, Filter denied the dismissal and moved the case forward towards an evidentiary hearing. Filter said Rowley could appeal the case to a higher court once a final judgment was handed down in the code enforcement court.
“None of this was unexpected,” Prisbrey said following the hearing. “They’re saying the rule of law doesn’t need to be in writing. They cannot tell you a damn rule that exists. So if they’re passing the rule of law, what are they doing? What are the rules that apply? What rule has (Filter) promulgated?”
For the time being, Prisbey said he and his client have two courses they can take: they can return to a court that has promulgated no rules relating to due process, or they can file what he called a “petition for extraordinary writ.” Generally speaking, it’s a fancy term for an appeal to a higher court to intervene in the proceedings of the administrative hearing in some fashion, whether by directing the dismissal, establishing due process, or otherwise.
The next hearing will he held on Feb. 24, at 5 p.m., in the council chambers of the St. George City Hall.
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