Don’t Believe Extrajudicial Nonsense In Fighting Code Enforcement: “Constitutionalist” Extremism

By Michael Reiter, Attorney at Law

I represent individuals and corporations in code enforcement disputes with local cities and counties.  Longtime readers of this site and my friends and colleagues know that I was a municipal (code enforcement) prosecutor for more than nine years from February 2001 to June 2010.  In that time, I not only prosecuted, criminally and administratively, code enforcement violators, I also defended the City of San Bernardino (it never came up in the City of Redlands) against people who didn’t think the law applied to them, either corporations (or much worse) individuals.  These individuals believed what they read in newsletters, and later, on the internet.  Broadly, they can be labeled as “constitutionalists,” a term I have long heard, but ill-defined.

“Constitutionalism” is related to a variety of movements in the far reaches of today’s political spectrum.  One of them is sovereign citizen movement, which the FBI defines as “a loose network of individuals living in the United States who call themselves “sovereign citizens” and believe that federal, state, and local governments operate illegally. Some of their actions, although quirky, are not crimes. The offenses they do commit seem minor: They do not pay their taxes and regularly create false license plates, driver’s licenses, and even currency.”  “Sovereign Citizens A Growing Domestic Threat to Law Enforcement, Federal Bureau of Investigation FBI’s Counterterrorism Analysis Section, FBI Law Enforcement Bulletin, September 2011, found online on April 19, 2012 at http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/september-2011/sovereign-citizens .

There are ways of dealing with code enforcement departments that are not following the rules: you may be able to defeat the charges in a criminal or administrative case (or an appeal of an administrative case to Superior Court), you may be able to convince Code Enforcement that they are not following the rules; you can comply with the request even if it is not technically correct.  Sometimes, you can sue for a violation of your civil rights, and possibly for inverse condemnation in the right circumstances.  “Constitutionalism” is always the wrong answer.

As a case example, in 2005, I defeated (in U.S. District Court, plaintiff attempted to appeal to the Ninth Circuit but failed to follow procedure after I became the Assistant City Attorney in Redlands) what may or may not have been a Complaint in United States District Court.  Here are some issues that I dealt with, in pertinent part from that Complaint:

Plaintiff claims the City is a corporation or political division of the State of California.  Complaint, Pg. 2, Para. 4.  Plaintiff claims the individual defendants lacked “standing to be officers, agents or employees of the City”  Id. at Para. 24.

Plaintiff claims his property is outside the regulatory authority of the City of San Bernardino.  Complaint, Pg. 9, Para. 13.  However, plaintiff does not claim that it is outside the corporate limits of the City of San Bernardino.

Plaintiff claims that the individual defendants have failed to prove that they had jurisdiction over his property.  Complaint, Pg. 9, Para. 15.  Plaintiff objected to the City’s enforcement of its laws by giving the City an “Abundant Due Process Notice.”  Plaintiff claims that the defendants did not respond to plaintiff’s “Notice.”  Complaint, Pg. 17, Para. 28.

Plaintiff alleges that code enforcement is void under California law.  Complaint, Pgs. 10-11, Para.18.  Plaintiff also claims that the defendants have failed to swear an oath.  Plaintiff states that the defendants “lack . . . competent jurisdiction to regulate the subject private land.”  Complaint, Pg. 17, Para. 30.

Though plaintiff alleges no facts regarding what the City did (or did not do) that caused him to serve the “Abundant Due Process Notice,” plaintiff states that “on or about March 1, 2005, the City again threatened an Administrative Law action against the subject private land.”  Complaint, Pg. 17, Para.29.  Much later, plaintiff alleges that “on March 5, 2005, the City of San Bernardino again attempted to have him bring the use of his private land into compliance of the San Bernardino City Municipal Code.”  Complaint, Pg. 20, Para. 37.

Plaintiff alleges seven causes of action (there is no sixth cause of action), including six Fifth Amendment Due Process causes of action, and one combination First Amendment “Right to Seek Redress of Grievance” and Fifth Amendment Due Process cause of action.

The first cause of action alleges that plaintiff has a right to “peaceful ownership, enjoyment and use of the subject private land.”  Complaint, Pg. 19, Para. 35.  The individual defendants have a duty to place “into the record such contractual information or documentation which they allege brought the private land and chattels under such City of San Bernardino Administrative Law.”  Id., Pg. 19, Para. 36.  The individual defendants conspired to “perpetrate their custom, policy and practice of dealing with [Plaintiff] under the mere ‘color of state law’” in violation of 42 U.S.C. sections 1983 and 1985.  Id., Pg. 20, Para. 39.

The second cause of action states that plaintiff had a “primary right” to rely on a repealed Penal Code section.  Complaint, Pg. 21, Para. 42.  Plaintiff states that defendants had a duty to know that there was no authority to obtain demolition orders, but maliciously commenced several legal actions against private land.  Id. at Para. 43.  The individual defendants conspired in the same manner as in the previous cause of action.  Id. at Para. 45.

The third cause of action states that plaintiff had a right to challenge jurisdiction which would require the government to prove jurisdiction before any further action could be taken.  Plaintiff claims he made the challenge and no “proof of jurisdiction [was] placed into the record.”  Complaint, Pg. 22, Para. 48.  The defendants “again met and gathered together and conspired to ignore the plaintiff’s written challenges to their competent regulatory jurisdiction and again attempted their regulatory actions.”  Id. at Para. 49.

Plaintiff alleges in the fourth cause of action that he had a right to be free of government action.  Complaint, Pgs. 23-24, Para. 53.  Defendants had a duty to refrain from “private Administrative Law actions against the subject private land.”  Id., Pg. 24. Para. 55.  Defendants then conspired in the same way alleged in the first cause of action.

In the fifth cause of action, plaintiff alleges that on March 1, 2005, plaintiff served his “Abundant Due Process – Notice” to the defendants that his land was not subject to the City’s regulatory control because it was sovereign allodial title.  The defendants never made a response, thus defaulting on the jurisdictional challenge.  Complaint, Pg. 25, Para. 60.

Plaintiff alleges in the next cause of action, denominated the seventh cause of action, that he had a right to justifiably rely on the presentation on the City’s seal that the City was founded in 1810.  Complaint, Pgs. 25-6, Para.62.  The City had a duty to know the actual founding date and change the claimed founding date to 1905.  Id., Pg. 26, Para. 64.  Plaintiff again claims that the individual defendants conspired.  Id. at Para. 65.

The eighth cause of action states that none of the “named defendants” have sworn nor subscribed to the oath of office, and that the oath of office is a requirement to occupy any official office.  Complaint, Pg. 27, Para. 68.  Plaintiff had a due process right “to expect that all officers, agents and employees of the City” swore to an oath before they had any official standing to take action against private land.”  Id. at Para. 69.  The individual defendants had a duty to swear to the oath before they took actions.  Id. at Para. 70.  The individual defendants then conspired in the same way alleged in the first cause of action.  Id. at Para. 72.

Plaintiff claims that the defendants were “private persons merely claiming to be governmental officers, agents or employees.”  Complaint, Pg. 30, Para. 80.

So, as you can see, I was dealing with a variety of issues, including the legendary founding of San Bernardino in 1810, even though the 1905 date is not correct, either (the 1905 Charter was not the incorporation of the City; the City incorporated in 1854; it disbanded in 1863; it reformed as a Town in 1869, and reincorporated as a City in 1886.

My discussion of the alleged Complaint from the Motion to Dismiss:

There is nothing unique about this case that would justify a sixty-seven (67) page complaint with ninety-two (92) paragraphs, an “Affidavit of Historic Background Research,” a “Memorandum of Law and Authorities,” a document titled “Fourteen Good-Faith Discovery Negative Averments And Demand For Answers” (in violation of Rule 26(d)), and a “Declaration.”

As to the issue that the City lacked jurisdiction over him and his property:

The California Constitution provides that “[a] city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”  California Constitution Art. XI, § 7.  Complaint, Pg. 10, Para. 18.  State law specifically does not preempt the City’s nuisance laws.  Health and Safety Codesection 17951 provides in pertinent part as follows: “The governing body of any city . . . may enact ordinances or regulations imposing restrictions equal to or greater than those imposed by this part . . . .”The City of San Bernardino’s Charter and Municipal Code gives the City authority to define and abate nuisances.  The City’s ordinances have been codified, pursuant to Government Code section 50022.1 et seq.

There is no such thing as allodial title in California.  All Mexican government lands became United States government lands upon the signing of the Treaty of Guadalupe Hidalgo on February 2, 1848.  Lux v. Haggin (1886) 69 Cal. 255, 335.  “But existing private titles were recognized, and so were the rights of pueblos (Spanish and Mexican towns).”  Witkin, Summary of California Law (9 ed.) Real Property § 4.  Therefore, the premise of plaintiff’s complaint, that his land is somehow above the law, is false.

Here are some hallmarks of Constitutionalism, from my experience with it (not all cases show all the hallmarks):

  • An American flag (in a courtroom) with yellow fringe is an admiralty flag, and thus the court lacks jurisdiction to hear cases against them.
  • The oaths taken by officer holders are invalid for some reason.
  • For some reason, their land was owned before California was admitted into the Union, therefore, all laws don’t apply.
  • The 14th Amendment is invalid, therefore, the law doesn’t apply to them.  (See also, the 16th Amendment is invalid, therefore they don’t have to pay taxes).
  • Misuse of the Uniform Commercial Code.
  • The use of legal terms from other states or jurisdictions that make no sense in California (or United States District Court).
  • A misconception about the term “common law.”
  • The Gold Standard, the Federal Reserve, Corporations, and capitalization,  and punctuation are all involved.

Looking at the San Bernardino Superior Court records, I also criminally prosecuted the plaintiff before he filed the complaint, for an inoperable vehicle, which he was convicted.  There is no online record that he ever paid.  Part of the suit was against the Code Enforcement Officer in that case, the Director of Code Enforcement, and Deputy City Attorneys.

The moral of the story is that magical thinking does not divest a City of its police powers.  Cities have an enormous responsibility not to abuse their inherent powers, which are restrained by the U.S. Constitution to some degree.  However, what some people think the Constitution says is not relevant to what the Constitution actually says and actually protects.  Don’t fall victim to anyone who tells you your problems will go away by removing your license plates, recording fake deeds or liens, or not swearing to an admiralty flag.  The internet lacks enough electrons to prove these tactics incorrect, illegal and immoral, but they are each a combination of these.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708

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Inspection Warrant and Abatement Warrant Requirements for Inspecting Private Property in San Bernardino County, California

By Michael Reiter, Attorney at Law

Do code enforcement officers need a warrant to inspect private property in San Bernardino County (including incorporated cities and towns in San Bernardino)?  The best practice is to obtain an administrative warrant if the owner/occupant refuses consent to inspect.  Generally, an administrative warrant is not needed if the conditions can be observed from the public right-of-way, or an adjoining property (with permission), and no physical entry onto the property occurs.

When I was a Deputy City Attorney for the City of San Bernardino, California and the Assistant City Attorney for the City of Redlands, California, a good deal of my time was spent on code enforcement.  Both cities emphasized the need for a warrant to inspect and/or abate private property when permission to inspect was denied.  As a private attorney representing private citizens and business entities, some other Inland Empire cities are not as respectful of citizen’s constitutional rights.

Generally, if consent from the property owner and the occupant cannot be obtained before entering private property that is not open to the public, code enforcement officers should obtain an administrative inspection/abatement warrant from the San Bernardino County Superior Court.  Because the United States Constitution’s Fourth Amendment gives property owners and other occupants an expectation of privacy, an inspection warrant is needed.

The Ninth Circuit Court of Appeals, in Connor v. Santa Ana, held that police officers could not legally enter fenced, private property to abate a nuisance without a warrant, even though the property owner had been provided with extensive administrative hearings.  In the absence of a property owner’s and occupant’s consent, barring exigent (emergency) circumstances, government officials engaged in the inspection of private property or abatement of a public nuisance must have a warrant to enter that private property where such entry would invade a constitutionally protected privacy interest.

The Fourth Amendment provides a high degree of privacy protection to the “curtilage” of a residence, the land immediately surrounding and associated with the residence.  However, the United States Constitution allows authorities to inspect open fields at will.  The “open fields” exception only applies to completely unfenced, unimproved property.

Therefore, code enforcement officers may visually inspect private property from the public right-of-way, or from areas that are open to the public such as parking lots, or from private property upon which the officers have obtained consent from the property owner and/or the occupant, depending on the factual circumstances.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.
A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

Dealing With Code Enforcement Agencies in San Bernardino County and Riverside County

By Michael Reiter, Attorney at Law

What should you do if you are faced with a code enforcement notice, an administrative citation or a criminal citation?

A lot of the response depends on the conditions of the property and the city or county involved.  I worked in two very different code enforcement environments.  When I was a Deputy City Attorney in the City of San Bernardino, almost fifty percent of my time was spent on code enforcement, (the rest was municipal law and civil litigation)  as was at least fifty percent of the time of another Deputy.  Additionally,  another Deputy had primary responsibility for Animal Control, and land use was generally separate, though for a period of time I reviewed every inspection notice involving mobile home inspections.  Code Enforcement is a priority for the City of San Bernardino.  Later, when I was Assistant City Attorney for the City of Redlands, code enforcement had been shuffled between three departments.

The official mantra of code enforcement is that cities and counties are looking for compliance, not fines.  Your results may vary in the wild.

What to do if you have a code enforcement notice (such as a “10 day Notice”)?

Do not ignore the notice, it will not go away.  Always try to comply with the notice, if possible.  A notice is much better than a citation.  Open a dialogue with the code enforcement officer.  Typically, the notice has a phone number.  If it doesn’t search for the main code enforcement number on Google, and then ask for the noticing officer.  If you complete the work within the time frame established on the notice, ask for a reinspection.  If you need more time, most reasonable code enforcement officers will give you more time if you are making progress.  They do not have to, but they typically will.

However, do not give the officer free reign to inspect your entire property.  You have a right to refuse a code enforcement officer’s request to enter your property.   Typically, they should be able to view the conditions on your property from the public right-of-way, or from adjoining property (if they have permission from the property owner).   If the code enforcement agency has an administrative warrant, you need to comply.

What should you do if you have an administrative citation?

Read the citation.  It should tell you how to contest the citation.  It may tell you that you need to correct a violation.  Generally, you should correct the violation before you meet with the hearing officer.  In the City of Riverside, you must pay to contest.  Additionally, the City of Riverside as of the writing of this post contracts out their code enforcement processing to an Orange County firm.  In the City of San Bernardino,  you can pay or contest.  San Bernardino Municipal Code section 9.92.070(A) and (B).  Either way, it probably makes sense to contest the citation.   You have an opportunity to ask the hearing officer for a reduction, particularly if you have corrected the situation.

What should you do if you have a criminal citation?

If you have an infraction or misdemeanor citation, you need to attend court at the arraignment.  You can plead guilty to the judge at the arraignment or if the agency sends an attorney, you can enter into a plea bargain agreement.  Or you can plead not guilty, and either a trial or a pretrial can be set.  Some cities will give you time to allow compliance, and then either dismiss the case, or have you plead guilty and pay a lesser fine at the end, or enter into a civil compromise.  You also have the option to contest the charges by having a trial set.  If it is an infraction, you do not have a right to a public defender or a jury trial.  If it is a misdemeanor, you do have the right to a public defender if you are sufficiently indigent, and a jury trial.

When should you hire a code enforcement attorney?  When the stakes are sufficiently high, or if you are being pushed around by a city or county.  For example, if you face multiple misdemeanors, you may face jail time.  If you are facing thousands of dollars in fines, or if the city or county is prosecuting you for the wrong reasons, hire an attorney skilled in code enforcement matters.

Copyright 2011-2 Michael Reiter, Attorney at Law

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

 

Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708

What is a San Bernardino County Code Enforcement Attorney and a Riverside County Code Enforcement Attorney?

By Michael Reiter, Attorney at Law

I have been involved in Code Enforcement for a long time now.  My first exposure was when I was working for the City of Santa Clara during law school at Santa Clara University School of Law.  Most of the code enforcement at that time was done by a Deputy City Attorney and involved drinking in public by Santa Clara University students.  Drinking in public is a common infraction or misdemeanor prohibited by cities’ municipal codes.  One of the reasons behind this is because it is not preempted by the State of California’s prohibition of being drunk in public.  Police officers can cite people with open containers of alcohol seen drinking alcohol or presumed to be drinking alcohol without proving that they were intoxicated.  However, generally, the term “Code Enforcement” means property maintenance.

My next brush with code enforcement came as an attorney for Legal Aid Society of San Bernardino.  A common defense for an unlawful detainer defendant is a lack of habitability.  Often, the tenant would complain to a code enforcement agency about the interior conditions of their house or apartment.  However, sometimes this could have disastrous results.  Either the tenant would complain about the conditions and it would have no effect on the unlawful detainer action, the tenant would get cited into court by the code enforcement agency for the problem, or in the absolute worst-case scenario, the conditions were so bad at the apartment or house that the code enforcement agency red tagged the unit, making the tenant homeless.

When I became a Deputy City Attorney for the City of San Bernardino in February 2001, my role changed from observer of code enforcement to assisting Code Enforcement.  I became a City Prosecutor, prosecuting violations of the San Bernardino Municipal Code in San Bernardino Superior Court, along with other Deputy City Attorneys.   I also co-advised the City of San Bernardino’s Code Enforcement Department (which previously was a Division, and would later become a Division again).  When I was Assistant City Attorney for the City of Redlands, I served a similar function, including prosecuting violations of the Redlands Municipal Code, advising staff at administrative hearings, and drafting code enforcement ordinances.

What does being a Code Enforcement Attorney mean in San Bernardino County and Riverside County?  In incorporated cities and towns in San Bernardino County and Riverside County, that means prosecuting violation of city or town ordinances, usually codified in the Municipal Code, or prosecuting violations of County ordinances codified in the San Bernardino County Code or the Riverside County Code.  It also means drafting new ordinances.  Some of these ordinances are new code enforcement tools, new prohibitions, or modifying existing ordinances to allow certain behavior or prohibit certain behavior.  Being a Code Enforcement Attorney also means representing staff in front of administrative hearing officers, both in post deprivation due process hearings, administrative citation hearings or administrative civil penalty hearings.  Code Enforcement Attorneys also review administrative warrant applications, review criminal citations for filing with the court, review proposed hearing orders, and other similar tasks.  Some of those tasks include training code enforcement officers about the law, including constitutional protections regarding inspections of private property.  Code Enforcement Attorneys help agencies respond to California Public Records Act requests.  Code Enforcement Attorneys also help defend cities and code enforcement officers from collateral attacks on the process, including quiet title actions to nullify code enforcement liens, requests for injunctions to stop code enforcement actions, and allegations of Federal Civil Rights violations pursuant to 42 United States Code section 1983.  Code Enforcement Attorneys also can file civil abatement actions, including nuisance actions, and receivership actions under the California Health and Safety Code.  In Redlands and San Bernardino, I was involved in all of those functions.

However, in addition to public Code Enforcement Attorneys, a Code Enforcement Attorney can protect the rights of the public.  As a private attorney, I have helped clients that are faced with demands from overly-aggressive code enforcement agencies.  When picking an attorney to help you on a code enforcement matter, it helps to find one that has experience on the other side, prosecuting violations of municipal codes.  Find someone with experience with the Public Records Act, because that’s an important tool in defending against a code enforcement action.  Find someone who is familiar with the political systems in play in the relevant entity, and who can give you realistic advice about your options.

Copyright 2011 Michael Reiter, Attorney at Law

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

 

Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708