Mountains & Extortion

Written by: 
Aubrey Freedman

A $5,600 bill from the government for having an illegal chicken coop in the backyard?  A $31,000 fine for doing a minor expansion to your home without a permit?  A $4,200 bill for a Halloween decoration stretched across a road?  Sound too incredible to be true?  Think again.  In the world of government enforcement of “public nuisance” ordinances, nothing is impossible.  The cases cited above all occurred in California in the inland empire cities of Indio and Coachella.

Talk about making mountains—that is mountains of profit for someone—out of molehills, just look at how some cities treated the “problem” of public nuisances.  Ramona Morales, a 79-year old retired housekeeper and Avon makeup rep who had managed to save enough money over the years to purchase some small properties, became a housing provider.  In 2015 she received two warnings, one criminal citation, and an arrest warrant because one of her tenants kept “illegal” chickens in the backyard.  Ramona made sure the tenants “deported” the chickens, pleaded guilty in court, and explained to the judge that the problem was fixed.  She paid her $225 fine and associated costs.  However, a year later, she received a bill from Silver & Wright LLP, an Orange County legal firm, for $3,000 for the criminal prosecution costs of her case.  The bill came with a letter explaining that the city was entitled—by force of law—to recoup all costs, which happened to include the hourly rates billed by Silver & Wright—and please send a cashier’s check.  Fortunately Ramona did not comply and appealed the bill.  Unfortunately she lost the case, and incredibly Silver & Wright billed her an additional almost $3,000 for the cost of her appeal. 

Then there was the case of Cesar Garcia, a homeowner in Coachella criminally charged with a minor home expansion without a permit.  He pleaded guilty, brought his home up to government code, and paid the $900 fine.  More than a year later Silver & Wright sent him a bill for $26,000 for their legal costs.  When he protested this outrage, they responded by raising it to $31,000!
        
A few other outrageous cases round out the story of these two cities contracting out the enforcement part of their public nuisance laws.  Isabel Sanchez, another Coachella resident was criminally prosecuted for her messy yard and presented with a $26,000 bill by Silver & Wright.  She did not pay the bill, Silver & Wright filed a lien on her property, and in the ultimate example of what government force means in action when you get into a scrapple with the government, the city is preparing to seize her home.  In the case of Lew Blackwell, the owner of Investment Development Group, he was prosecuted for overgrown vegetation and garbage on an empty two-acre lot in Indio and billed $7,700 by Silver & Wright for the eyesore.  Peter Nolopp, a retired steelworker was prosecuted for renting land used as a scrapyard—again without a government-sanctioned permit.  He agreed to pay the $1,000 fine and pleaded guilty to the misdemeanor.  Three years later, Silver & Wright sent him a present:  a bill for $24,000. 

Finally one of our favorite liberty-leaning fighters, the Institute for Justice, got involved and filed a class action lawsuit against this kind of government-sanctioned extortion racket.  Originally only Ramona was part of the lawsuit, but when some of the other cases of abuse came to light, three of the other victims also joined the class action lawsuit against the two cities.  The lawsuit seeks the invalidation of all the convictions, which would result in the refund of all the fines and associated prosecution fees.

Needless to say, the whole series of events has been a major embarrassment for the two cities and especially Silver & Wright.  Caught with its hand in the cookie jar, Silver & Wright filed a motion to dismiss the lawsuit by referring to the plaintiffs as “pawns” of an “out-of-state special interest group” that is attacking the “clear right of cities under California law to enforce their own municipal codes and utilize legal counsel to do so.”  Gregor Hensude, the outside attorney representing Silver & Wright, claimed the firm’s fees are only used to reimburse the cities they represent.  He proclaimed, “Contrary to recent publicity, code enforcement is not arbitrarily imposed or used to profit.  It is intended to protect communities (my emphasis), neighbors, and occupants forced to live with someone else’s refusal to follow the law, and to put the cost of doing so on the violators.”  Silver & Wright defended their process as legal because they do not keep the prosecution fees that they collect from the defendants.  They returned the money to City Hall as reimbursement for different payments the city pays to Silver & Wright.  To us, this sounds like doubletalk—we smell a rat here.  Somebody was raking in a lot of money and sticking it to the victims—all with the blessings of local officials.  When Libertarians talk about privatizing services that government has taken over throughout the years, this isn’t exactly what we had in mind.  Silver & Wright’s cozy arrangement with the two cities is clearly an example of crony capitalism at its worst. 

Fortunately, for a change, it looks like this story is going to end on a happy note.  Assemblymembers Chad Hayes and Eduardo Garcia teamed up to sponsor AB 2495, which would prohibit a city, county, or city and county, including an attorney acting on behalf of a city, county, or city and county, from charging a criminal defendant for the costs of investigation, prosecution, or appeal in a criminal case, including but not limited to a criminal violation of a local ordinance.  The bill will prevent local cities and counties from passing the legal costs of minor “crimes” off on the same people they prosecute.  It would also prevent a law firm from selling the services of local ordinance drafting and nuisance abatement prosecution as a package designed to generate exorbitant fees for the most minor of legal violations.  The bill passed on the Assembly floor with not a single politician voting against it, so it bodes well for the rest of the legislative process, and we would expect Governor Brown to sign the bill before the end of this legislative session.  Even the City of Indio has had a change of heart.  Previously the City Manager defended the city’s practice but now is also supporting AB 2495 to “bring uniformity to local code enforcement and further clarify the circumstances under which costs may or may not be recovered for criminal violations of local law.”  The only opposition to the bill is a variety of law enforcement organizations like the Association of Deputy District Attorneys and the California Association of Code Enforcement Officers, and the City of Glendora.  In its argument against the bill, Glendora argued that “by prohibiting a city to recoup its costs expended for criminal code enforcement and nuisance abatement, AB 2495 would indirectly impose these costs onto residents, the great majority of whom approve of and abide by these ordinances that were meant to deter such unlawful activity.”

Our last word on this miscarriage of justice that apparently will be rectified is on the topic of nuisance laws themselves.  Are they necessary?  It seems like no matter where one lives—even in nice, upscale neighborhoods—there’s always one antisocial neighbor who refuses to keep up their property and poses an eyesore to the neighborhood.  (Of course, if one lives in a tract where specific appearance rules are spelled out in CC&R’s, that’s a different matter because one voluntarily agreed to these rules before buying the house.)  But let’s assume it’s a typical neighborhood where no agreement was signed.  In my last home in Southern California, I lived in Laguna Beach (the poorer section), and sure enough right across the street from my house was a disgraceful eyesore of a property.  The owner let her grandson and his friends live there, and you could always count on a discarded toilet or car battery sitting on the driveway—often for months on end.  We all disliked him and his friends and even complained to the grandmother (when she was around), all to no avail.  You know what we did to alleviate the problem?  Nothing—we just lived with it, and it didn’t kill us either.  Looking back, I’m not sure if the city had a law against such “nuisances,” but we did not run to City Hall and turn our neighbor in.  When you profess to “Live and Let Live,” you have to be consistent in its application and not just pick and choose when you want to “Live and Let Live”—and when you want to call the government for “help.”  Because the flip side of such “help” is just what happened in Indio and Coachella.  Granted, they went overboard into the absurd, but the same system that spawned such abuse could be turned against any property owner when you have laws with no real victim.  Keeping the government out of the fray does not always produce perfectly satisfactory results, but it’s a small price to pay for freedom and true property rights.

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