Posted on 05/23/2017 8:59:43 AM PDT by SteveH
what is due process in administrative law?
in particular, what is due process for a violation of a violation of a weeds ordinance? is it generally ok for a city to charge a violation fee first and then let the property owner fight it on appeal? can the arbitrator of the appeal be recused?
thanks
You need a lawyer.
Not a law violation, but an ordinance or regulation violation.
My understanding is there is no due process as we know it in criminal violations.
I ran into this dealing with the FAA, they can impose huge fines without ever having to go to court.
I think it would be helpful if you would provide the background, as to what is the ordinance, what was done/allegedly done to violate, what communication there has been, etc. The way the problem has been stated is a little cryptic, IMHO.
Usually rare they issue fines on first notice.
All an administrative “court” is concerned with is did the administrator dot the i’s and cross the t’s. They did? You’re screwed. And whether they did or didn’t, “they did”.
this is the sense i am getting— due process is the exception rather than the rule in administrative law. the exceptions are for things like getting fired from a job.
the allegation is that weeds grew more than 8” high.
the alleged weeds were cut down within a 2-3 weeks.
then a notice of continued violation was received.
basically the city seems to want to use a 12 year old weed ordinance to force property owners to replace lawns with some sort of drought resistant landscaping, at a cost of $2k+. the city offers up to $1k in compensation.
city can levy fines up to $100/day.
objections to the bureacrat mgr were all dismissed. threats of fines continue.
The Incorporated area I live in issues a warning to EVERYBODY about EVERYTHING in the Spring. Then, they can just go straight to the fines whenever they feel like it.
The year we got into our house we got warnings for trash, weeds, and about 20 other violations. I found out later that they don't even come out and look, they just automatically warn.
It's a BS tactic.
I knew which state as soon as I read that.
My hometown of Nampa, ID wanted to fine my dad for weeds growing in the ditch at the edge of his property. The city said he was responsible for removing the weeds. I looked up the ordinance they cited. It was for ditches narrow enough that could be stepped across, and didn't include drainage or reclamation ditches. This was a reclamation ditch approximately 25' across that formed the southern border of his property.
When I found this, he called the city back, and told them to pound sand, and said it was their responsibility under the ordinance. Two weeks later, the city was out with a backhoe clearing the ditch.
You will need an lawyer to fight them. They know the fine is cheaper than a lawyer, so they got you.
If you can go in with several neighbors and pool resources, you might can do something.
But it gets back to “fighting City Hall” if you go it alone.
There is NO due process in admin law. It’s entirely undefined “externally” as in, via the Constitution or Bill of Rights. It is only defined “internally”, meaning, it has to be defined within the language of the admin law being invoked. Eg; lawn ordinance 231.97 says ________ and the remedy is ooops, left that part out. It is also fortified by the so-called “police power” tacitly granted to the state/county government, as in zoning.
Think about trying to get the zoning changed on a piece of property you own; to build a nice little 2500 sq ft concrete block factory on your residential street. Never happen.
That is why it is so loved by those of a totalitarian mindset. If you wish to fight admin law on Constitutional grounds, you first have to make the argument that the Constitution applies and that is not only very hard to do, it will probably cost you well into 5 figures.
The question is “What process is due?”. There will be an administrative appeal process spelled out in whatever ordinance covers this “offense”.
The “friend of the court” system is almost entirely administrative “judges” and bureaucrats.
All of these “administrative” judges and court employees need to be stripped of all authority.
Administrative judges, referees, and courts, are nothing more than a state and county level extortion racket.
Minimal due process in a non-emergency administrative context consists primarily of proper notice of the charge or claim, a meaningful hearing and opportunity to present evidence and argument in your behalf, a neutral and fair decision-maker, and an opportunity to appeal. Statutes and ordinances commonly give specific form to these rights and add additional ones. In most administrative hearings, a well-informed and carefully prepared layman can do a good job of representing himself or a family member, but pitfalls are many and not always obvious.
Yup, California
:-(
I was thinking of using publicity. I get the impression that the neighbors are cowering before the bureaucrats.
in this case, the due process seems to be (according to the ordinance) a hearing after the violation is fixed. the appeal is not defined further than an appeal.
so i wonder for example if i get a subpoena duces tecum power.
i do imagine that without standard tools such as motion to recuse and subpoena duces tecum, i am hosed at the admin appeal level.
so i anticipate failure at the admin appeal level.
[the next level presumably is civil court. so that is either small claims court or unlimited. i wonder if i go with unlimited, these asshats could come at me with compensation for legal fees and court costs if i make a misstep. i’ve seen bureacrats make missteps and the court helps them out so they don’t lose the case. i don’t think pro se’s get the same treatment.]
yeah, the right answer might be a class action suit against the city, so maybe publicity at some stage is the answer. before or after the “appeal,” i dunno.
the guy appointed as the appeals administrator is allegedly the same guy that helpt the city write the ordinance 12 years ago. if so that seems like a huge conflict of interest to me.
By applying to be licensed by them you cede to them the right to do so, don't you?
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