Second in a series of Reform ideas for the new San Diego city council. Larry Stirling represented the 7th council district from 1977 to 1980, before spending a decade as a state legislator and 14 years as Superior Court Judge. Today he offers a way to reduce costs, and increase service in abating neighborhood eyesores.
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My next suggestion is for the city council to direct the city attorney to enforce the municipal code first and foremost via the civil process instead of the criminal.
This will very substantially reduce his costs per case and equally substantially improve the effectiveness of code enforcement.
While the Council does not have direct authority to order the CA to do this, they could amend the muni ordinance to make civil enforcement the only or primary method of enforcement or they could make it happen through the budgetary process.
The “quality” of city attorney work is reserved exclusively to the elected city attorney. However, the “quantity” of city attorney work belongs to the city council as part of the checks and balances.
…………..San Diego City Council’s “Oversight” Function
The city council can insist as part of its budgetary oversight that the CA use the most efficient means to accomplish city goals. Civil enforcement of the muni code is certainly superior in every way than criminal enforcement.
The City Attorney constitutes a very large law firm. It has at least four major duties: (1) Prosecute misdemeanors in the city (2) Enforce the municipal code in court. (3) Defend the city in civil actions. (4) Advise the city council and staff on legal issues.
Having sat as a judge on hundreds, indeed thousands of cases brought by and against the City of San Diego, I am very familiar with its policies and postures.
In regards to enforcing the municipal code, unless Mr. Goldsmith has radically changed CA policy in this regard, the CA usually enforces the Muni Code by bringing criminal charges. (Thus the characterization “When the only tool they have is a hammer, every problem looks like a nail.”)
…………..Why Civil Law is More effective In These Cases
Criminal charges are the wrong way to enforce the muni code for these reasons: Take for example “abatement.” Abatement is called for when a property owner is doing something on their property (or not doing it in the case of maintenance) which constitutes a nuisance and a health or safety hazard to the community.
By filing criminal charges against the property owner (or any muni code violator), the City Attorney is choosing the wrong path. Thereby the CA seeks to abate a nuisance by convicting the property owner of a crime and then seeking imposition in the terms and conditions of probation to the clean up of the property.
If the defendant does not clean up the property, then the only remedy that the city has is to recommend the revocation of probation and the jailing of the defendant. Jailing does not clean up the property. And putting the defendant in jail costs all of us money.
And it makes it less likely that the property will get cleaned up because the guy’s in jail, could lose his job, and has to worry about his freedom first before cleaning up his property. Criminal conviction is a serious blot on someone’s record. Losing a civil case is not. Filing a criminal charge is known in law as an “in personam” action.
……………….. Send in the ‘Free’ Defense Lawyers!
By filing criminal charges, the city triggers a rigorous constitutional due-process chain of events. The city must proceed timely, prove its case potentially to a jury beyond a reasonable doubt, (a very high standard), and if necessary the government must provide a free defense attorney.
Then wait for sentencing, then wait to see if the defendant cleans up the property. The City Attorney does not even get these cases until the city code-enforcement staff has tried for long periods to cajole the owner into cleaning up via administrative threats. Most cases I saw had dragged on for many years.
Meanwhile, the neighbors who filed the complaint only after years of such nuisance, continue to wait and endure the health and safety risks of abandoned buildings. crack houses, fire hazards, rat nuisances, abandoned vehicles , and gang hideouts.
………………..How Civil Law Can Speed Solutions
If instead, the CA filed a civil action against the property itself, (known as an “in rem” action) the real concerns of the neighbors get addressed directly and in a timely manner. Instead of the neighbors waiting for years for something to happen, citizens could be directed to notify the nearest fire station of a problem parcel.
The local fire station could inspect, take pictures, post a notice to clean up on the property and file the pictures and notice with the CA. After the requisite number of days warning, the SDFD could reinspect and if the lot was not cleaned up, the CA could immediately file the “in rem” civil action and bring the matter to court within a few weeks.
If the CA is backed up, the matter could be contracted to any of hundreds of local attorneys who would welcome the work. They would be paid out of the judgment against the property in the civil suit as a condition of settlement. No cost to the city.
Conceivably the hundreds of backed up cases could all be resolved within a few months. If the defendant defaults and does not appear, a judgment is entered against the property. The city hires a contractor, cleans up the property, sends a bill to the property owner and backs it up with a lien on the property.
If the bill is not paid, the lien is enforced, the property sold at tax sale, the city reimbursed for all its related costs including the firefighters and contract attorneys, plus a new and caring owner is installed. If the owner does appear and agrees to clean up, the CA can settle the case accordingly.
Neat, fast, and simple.
No one need go to jail. No defense attorneys required. And civil cases only require proof as a “preponderance” of evidence, much easier. There are hundreds of these cases pending throughout the city.
Past city staff has claimed they lacked the staff and resources to get to them. That is because they are not maximizing their efforts (contracting out as the mayor would say) by using private resources to pursue the problem. First the firemen are sitting in those fire stations most of the time. No need for separate visits by code enforcement staff. In their fire-marshal roles, they should already be routinely identifying problem real estate in their areas.
It is a simple matter for the fire department personnel to inspect, post a notice of abatement on the property, follow up in two weeks and then notify the city attorney. All the city attorney has to do is assign the case to any of a string of private attorneys and monitor the results.
Concluding Thoughts
The rest of the muni code, such as zoning violations, pinball sticker violations, and building code violations are also economic crimes and do not warrant sending people to jail, just corrections and fines. That way the city makes money instead of spending it on ineffective jail sentences and probation monitoring.
In the rare and really egregious case, the defendant could be jailed through contempt proceedings, but that would be the last option, not the first sanction as it is now.”
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Jim Sills is a San Diego political consultant. If you have questions about your future in San Diego and California elections, you can contact Jim at this e-mail address: YourElectionVictory@hotmail.com
He has aided the campaigns of Rep. Darrell Issa, Assemblywoman Shirley Horton, Senators Joel Anderson and Tony Strickland, Rep. Devin Nunes, and Assessor/Recorder Greg Smith, among others.