ST. GEORGE – The battle over the legality of the city’s court enforcement practices continues as opposing court filings duel for the favor of a federal judge.
In February, a motion to certify an ongoing lawsuit against the City of St. George as a class action was filed by the office of attorney Aaron Prisbrey. Prisbrey represents clients who claim the city’s code enforcement system violates their constitutional rights.
According to the motion, up to 16,000 St. George residents were given notices claiming they were in violation of city code. Of that number, 3,200 are alleged to have been subjected to illegal searches of their property. Prisbrey said that number is based on information from the city as well as testimony given by Jeff Cottam, one of the city’s code enforcement officers.
The plaintiffs, brothers Jake and John Rowley and former City Council candidate Tara Dunn, through the lawsuit, are hoping to be seen as representative of thousands of city residents they claim had their constitutional rights violated by the code enforcement program since its inception in 2003.
A second amended complaint was also issued alongside the motion for class action certification. Prisbrey said the revised complaint contains new information his office received concerning accusations of corruption within the city as it relates to the code enforcement program.
The second amended complaint and motion for class action certification came in the wake of U.S. District Judge Dee Benson’s November 2014 ruling that dismissed five out of the seven points of the original lawsuit arguing that the city’s code enforcement program was unconstitutional on its face.
Ruling the code enforcement program and its associated “code court” unconstitutional on its face would mean, Prisbrey said, “it’s just so outrageous that it shocks the conscience,” and is clearly recognized as a constitutional violation.
However, some points were dismissed without prejudice, allowing the plaintiffs to refile their case with new information related to those points – which they did in February in the form of the second amended complaint.
Attorneys for the City of St. George responded to the plaintiffs’ motion to certify the lawsuit as a class action. In a memorandum sent to Benson on March 13, the attorneys claim the lawsuit doesn’t meet the burden of proof needed to qualify for a class action certification. They also argue it is built on elements already thrown out by the court.
“These claims are barred by the court’s order, and plaintiffs’ proposed amendment to add these claims would be futile,” the attorneys wrote, adding the plaintiffs are either choosing to ignore the previous court order or do not understand it. “For the reason set forth above, the (City of St. George) respectfully requests this court’s order denying the plaintiffs’ motion to certify proceeding as a class action.”
Prisbrey said his office is currently drafting a response to the latest filing. Should the class action certification be denied, he said, the lawsuit can still move forward on due process violations and unlawful searches not dismissed by the court.
The drawback of this is that the lawsuit becomes limited to the three plaintiffs, and would not encompass the thousands of city residents they claim have been adversely affected by the code enforcement system.
While the court may have ruled the city’s code enforcement program isn’t unconstitutional on its face, Prisbrey said, the lawsuit is looking at how the system itself is applied. Everyone who has ever dealt with the code program has been sent a “courtesy notice” from the city, no matter what the particular violation may have been.
Prisbrey has argued the courtesy notices are vague and do not supply meaningful and adequate information to accused code violators, therefore creating a lack of due process.
The vagueness of the notices, as well as others issues related to how the code enforcement program is applied, create a “custom and practice” that violates the Fourth and 14th Amendments, Prisbrey said.
The lawsuit against the city was originally filed in 2013 and alleges the city’s code enforcement program has been selectively enforced and possibly used as a method of retaliation.
The Rowley brothers and Dunn claim they were unfairly targeted by the city for alleged code violations on one hand while, on the other, city officials bent the rules in order to benefit others or themselves.
In the second amended complaint, City Council members Gil Almquist and Jimmie Hughes, as well as former St. George Mayor Daniel McArthur are alleged to have benefited form selective enforcement of city code.
McArthur and Almquist, along with City Manager Gary Esplin, Mayor Jon Pike, and city code enforcement officers Malcolm Turner and Jeff Cottam are listed as defendants in the lawsuit.
As the litigation is ongoing, city officials said they were not at liberty to comment on elements related to the case.
“Every city in the nation has code enforcement and the citizens expect it,” Almquist said and declined to comment further.
Currently the city’s code enforcement team is comprised of two enforcement officers who, according the city’s website, play “an important role in providing a safe and healthy environment for our community.”
For the time being, the city isn’t processing contested code violations in its administrative code court, City Attorney Shawn Guzman said. The court itself is currently without an administrative law judge.
“We aren’t processing any of these cases that would go to hearing,” Guzman said. “We are working with people as we normally do for compliance.”
Brian Filter, who served as the code court’s judge on a part-time basis, resigned last year and moved out of the state. Formerly a deputy county attorney with the Washington County Attorney’s Office, Filter took a similar position in Nevada. Brad Young, Filter’s interim replacement to the code court, resigned shortly after his appointment by the City Council.
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