ST. GEORGE — As a lawsuit filed nearly four years ago against the city of St. George contending that code enforcement officers performed illegal searches of properties remains unresolved, code enforcement remains a source of debate among city officials and citizens, as witnessed by a recent controversy surrounding a flagpole. While the litigation lingers in court, city officials have undertaken plans to revamp city code.
The lawsuit was originally filed in October 2013 and is being heard in federal court. It was filed by attorney Aaron J. Prisbrey on behalf of brothers Jake and John Rowley and Tara Dunn against the city, among the suit’s current defendants that also include former Mayor Daniel McArthur, current Mayor Jon Pike and code enforcement officers Malcolm Turner and Jeff Cottam.
The litigation alleges that the plaintiffs’ Fourth Amendment rights were violated when code enforcement officers entered their property without a warrant to take photos of alleged code violations. The Rowley brothers were accused of running commercial operations out of their home when the officers saw evidence of car repair services taking place on the property, violating the city’s residential zoning ordinance.
The case also alleges that Jake Rowley’s 14th Amendment right to due process was violated, alleging bias in the administrative code enforcement court’s hearing, in which the judge reported to the deputy city attorney and cases were prosecuted selectively without defined rules.
Dee Benson, the presiding judge, ruled in November 2014 that the city’s administrative code enforcement court was not in violation of the Constitution. Benson’s judgment was appealed to the U.S. Court of Appeals for the 10th Circuit.
The code enforcement court is currently inactive after two previous judges resigned in 2014, and cases are now being heard in county justice court.
The case also sought class action certification. The plaintiffs claimed that 3,200 residents in St. George were alleged to have been subjected to illegal searches of their property. The relief sought a return of fines paid. However, certification of the class was later denied and the class action component was dismissed, leaving the case to be pursued only on behalf of the three original plaintiffs.
Per an April 25 docket review, the lawsuit was in discovery, and each side has been busy collecting evidence and testimony from defendants and plaintiffs. The court has allowed 70 hours of deposition.
“It’s our position that the code enforcement court was just another extension of the prosecutor’s office,” Prisbrey said in a recent interview with St. George News, “and I think we’re going to unequivocally show that, based on the deposition testimony we have at this point.”
Prisbrey said he has collected testimony of the previous judge of the code enforcement court indicating that the judge answered to Deputy City Attorney Paula Houston as his boss.
“It’s like nothing I’ve ever experienced in the 23 years of the practice of law where you have no distinction between the prosecutor and the adjudicator,” Prisbrey said.
Such an arrangement, Prisbrey said, leaves little hope for fair hearings.
There were several other problems with the way the court was running at the time the lawsuit was filed, Prisbrey said, including a lack of resources for defendants wishing to challenge notices of violation.
“People were being defaulted into that code enforcement court because they told them if you want to have a hearing, you need to request a hearing with the code enforcement administrator,” he said. “There was never a code enforcement administrator. Nobody ever had that job. That title didn’t exist. And so, if people were defaulted they didn’t have any way to challenge the action.”
Prisbrey also said previous code enforcement court judge Brian Filter refused to promulgate court rules.
“He said he kept the rules in his head,” Prisbrey said. “How can a rule in your head possibly do anything other than violate due process? Nobody knows what the rules are. That’s like going to a baseball game and the umpire tells you the rules are on a need-to-know basis. Clear violation of the law.”
This is central to the suit’s contention that the plaintiffs’ due process rights were violated, contending that Filter could rule impartially based on personal bias and at the behest of the city’s legal office.
Filter previously said that he employed this method to keep formalities to a minimum because most defendants do not have representation, allowing a greater degree of comfort to those lacking legal expertise.
St. George News reached out to St. George City Attorney Shawn Guzman and Mayor Jon Pike in early June for comment on the case specifically, but they declined, citing the ongoing nature of the litigation.
Code enforcement court remains on the books
While the city’s code enforcement court is currently inactive and cases are instead being heard in justice court, city officials still have the ability to reinstate it.
“We still have that on our books,” Guzman said of the code enforcement court in an interview with St. George News. “It’s always said that we have the option to either prosecute it at justice court, you know, criminally, or we could go through the ACE (administrative code enforcement) hearing process. So, it’d simply be appointing a hearing officer or judge for that.”
However, Prisbrey said he believes the court was closed as a reaction to the lawsuit.
“What I found out in the deposition is the City Council, in apparently some closed-door session, decided to close down the code enforcement court,” Prisbrey said. “They didn’t do it in open meetings.”
Acknowledging that he and the City Council were responsible for putting the ACE court on hold, Pike said that it was done as a matter of fiscal prudence.
“There’s additional expense and process required, so we decided to just go through justice court,” Pike said in an interview with St. George News. “We could go back to the other way if we wanted to, but it’s not easy to staff those judge positions – they’re very part-time in nature – so that was a decision City Council made to refer all those to justice court.”
Prisbrey said he also takes issue with the civil violations being prosecuted criminally at the county justice court.
“They’re dragging people down for code enforcement violations because they have a dead spot on their lawn,” Prisbrey said, “and they’re pursuing misdemeanor charges punishable by 90 to 100 days in a county jail and all sorts of fines. These ordinances were never designed as crimes.”
Causative action was brought against Jake Rowley in the justice court after the ACE court was closed.
Prisbrey said Jake Rowley is the only defendant in St. George to have been prosecuted in both courts, adding that he believes it was done in retaliation for the lawsuit.
“I think they know without doubt that what they were doing was unconstitutional,” Prisbrey said of the city, “and now they’re going to keep the citizens who have the audacity to try to hold them accountable for the illegality – they’re going to make them go through all the trials, the difficulty, the cost and the expense to prove this thing in federal court.”
A response by St. George city officials was not offered due to the pending litigation.
At the time the lawsuit was filed, Prisbrey helped establish a Facebook page called the CAITS institute, short for “Citizens Against Incumbent Tyrannical Servants,” with a stated mission of eliminating government oppression at the local level in Southern Utah.
Prisbrey has used the page to provide updates on the lawsuit and cases of a similar nature, such as the recent suit brought against Dixie State University on behalf of former professor Varlo Davenport alleging multiple civil rights violations and breach of contract.
Prisbrey said he could spend the rest of his career defending citizens on code enforcement violations alone, receiving several calls per week that he is unable to respond to due to the sheer volume.
“I’m getting a lot more phone calls from people who are way upset that they’re getting prosecuted criminally over this,” he said.
The ordinance pertaining to violations, Prisbrey said, is set up in a way that inherently targets disadvantaged people.
“I think what it all boils down to is the little guy is getting screwed because the people that tend to be the target of justice court are those in society that for whatever reason are having a rough go,” he said.
“The laws in this country disproportionately protect those who are rich. It’s the elite amongst us who wrote this stuff.”
In the years since the lawsuit was filed, several of the original city officials are no longer in power, and some of the more recently elected officials ran on a platform promising reform in regards to code enforcement.
In a possible sign that the city is not eager to court new controversy, the City Council granted a variance for a large flagpole within a matter of weeks to Nielson RV after the business was served with a notice of violation relating to the flagpole’s size.
At the time of the controversy, the business’s owner, Scott Nielson, said such regulations should be clear and concise, adding that the city is over-regulating and practicing unrighteous dominion.
“No citizen should have to pay to be heard among the City Council to determine whether or not he or she can fly the American flag,” Nielson said in a previous interview with St. George News.
City officials responded, stating that the ordinance related to safety and had nothing to do with a citizen’s right to fly the flag.
City officials act
As code enforcement controversy continues to swirl, city officials are actively working to revamp Title 10 of the St. George City Code, which covers the zoning ordinance for residential and commercial properties.
“I think code enforcement, generally speaking, is a great example of an issue that requires a very good balance,” Pike said. “There are people who would say, ‘hey, I want you to protect my property values by making sure that my neighbor doesn’t do this, or doesn’t do that, or does do this with their property.’ And then you have other people who say, ‘hey, give me as much flexibility and freedom as possible, and leave me alone. Leave my property alone. Let me do my thing as long as isn’t hurting someone else.’
“I think the responsibility that the City Council and I have is to try to find the right balance and direct our code enforcement staff accordingly.”
The city has hired a consultant with expertise in land use ordinances to work with its legal department to revamp the zoning ordinance.
“Anytime you have a large document, you’ve got to make sure you’re consistent from page to page, from chapter to chapter where you have different references to the same issues,” Pike said, referring to the extensive, 25-chapter ordinance.
The consultant, who has worked with the city for the fiscal year ending June 30, is recommending language changes in order to root out any possible inconsistencies in the ordinance.
“They’re also looking to make sure we’re consistent in all cases with state law, and we’ve kind of suggested some areas where we might like to revisit,” Pike said. “We may want to strengthen some things, and we may want to loosen some restrictions on some things. There are so many things that come under that, from carports to additions to homes, to RVs parked in the front setback to vehicles that are unregistered parked in the front setback or driveway.”
Pike said he estimates that within the next six months, the City Council will begin considering changes to the ordinances based on the recommendations of the consultant and legal department in open City Council meetings.
“It’s a huge ordinance and a big project,” the mayor said, “probably will go into next year, as well, because it won’t be all doable in this year.”
The issue has been a priority for him and the City Council, Pike said, noting that he’d like to see city code reflect the opinions of current elected officials, rather than deferring entirely to past mayors and councils.
“This has been an ongoing discussion for the last couple of years,” he said.
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