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City Hall beats back Eighth Amendment "Excessive Fines" roadblock

The Blighted Vacant Building Ordinance was approved by the City Council in April 2015 on a 5-2 vote. Steve Brandau and Sal Quintero voted no. The law was City Hall’s first big push in a much-publicized war on bad landlords whose decaying properties harm a neighborhood’s quality of life.

Many of those properties are found in older parts of town, the areas that Fresno mayors have been trying to revitalize for 60 years.

“We have to find a way to take care of our existing neighborhoods,” then-Mayor Ashley Swearengin said after the Blight Ordinance was passed.

Big fines on hardheaded (and hardhearted) landlords are one of those ways.

It took awhile for operational side of the Blight Ordinance hit its stride. When that happened, several effects of the law emerged.

First, the formula used for computing fines could lead to a property owner getting hit with a $7,500 levy for something like peeling paint on a windowsill or weeds that were too high. A property could get fines for four or five separate code violations — $30,000 or $37,500 total.

Second, property owners hit with five-figure fines weren’t shy about filing an appeal. The nature of such appeals varied according to the property owner’s inclination. Some, but not all, of the appellants raised the Eighth Amendment issue.

Third, a lot of the property owners hit with the big Blight Ordinance fines weren’t the huge landlord conglomerates that local media love to portray as the bad guys in this issue. Many of the property owners were regular folks who happened to own more than one piece of property. Their modest economic stature didn’t excuse their failure to follow the law. It did underscore the fact that they didn’t have the deep pockets of a corporation.

When these appeals first trickled in, Johnson was the only administrative hearing officer on the city’s payroll. From the get-go, Johnson had concerns about the constitutionality of the big fines. Were they excessive in light of the nature of the violations? Were they confiscatory?

If you’ve been paying attention to Washington, D.C. politics these days, you know that government policies leading to asset forfeiture are an increasingly big deal.

Make no mistake – Johnson’s views on this issue did not please the Swearengin Administration.

Flores in his decision does a superb job of explaining the complex backstory to his decision.

In a nutshell, Johnson in September 2016 was in charge of two days of assessment hearings.

Keep in mind that the property owners had already had one crack at an appeal. This first appeal is where the property owner can make just about any argument he wants.

If that appeal fails, the property owners can appeal again at the assessment hearings. But the scope of the appeal at the assessment hearing stage is held in some circles to be quite narrow. In essence, the appellant is limited to saying the city screwed up its math when computing the fine or cost of abatement, or both. The appellant can’t say: This fine violates the Eighth Amendment.

As Flores wrote in his decision, if a property owner doesn’t make the Eighth Amendment argument in the first hearing, he has waived his right to do so at the assessment hearing.

Johnson in September 2016 took it upon himself to remove 24 properties from the assessment list. He said he would hold separate hearings on each of the properties at a later date. He wanted to dig into whether the part of the assessment dealing with a fine (as opposed to the cost of abatement) violated the Eighth Amendment.

(I noted at the start of our story that we’re dealing with about 20 properties. In the course of this case, the total number of properties affected by Flores’ decision got pruned in a manner too complicated to deal with here. The exact number isn’t that important. Bottom line: We’re dealing with a fair number of properties.)

Now keep in mind, it was Johnson who pulled these properties off the assessment list for a hearing on Constitutional issues, not the property owners.

By this time, Flores was on board as a hearing officer. He is a former Fresno deputy city attorney. Twenty or so hearings on a Constitutional issue are a lot of hearings. Johnson and Flores agreed divvy them up.

The hearings were to begin in October 2016.

Johnson received a memo dated Oct. 3 from Deputy City Attorney Ken Jorgensen. Jorgensen said Johnson was overstepping his authority. Assessment hearings have strict rules. Using assessment hearings as a springboard to hold a Supreme Court-type trial on the Constitutionality of Blight Ordinance fines doesn’t fit within those rules.

I remember talking to Johnson last fall about this issue. Johnson was not going to be deterred by the Jorgensen memo.

A week after the Jorgensen memo, Johnson got a memo from Assistant City Manager Renena Smith. Smith said the city would use means other than the assessment hearings to get its money from the 24 property owners in question. The properties were taken off the assessment list. Johnson couldn’t hold the Constitutional hearings because he had no appellants.

Then City Hall got rid Johnson. City officials never liked him, and made no bones about it. Johnson’s three-year contract was up on Oct. 31. The Swearengin Administration didn’t give him a new contract.

Guess what? The city didn’t try to collect its money from the 24 property owners through other means. The city waited until the next round assessment hearings, held on Feb. 13-14. Those 24 properties were on the new assessment list.

Everything was back to square one. Well, almost everything. Johnson was long gone.

There’s a lot more to Flores’ compelling decision. I encourage anyone interested in code enforcement in Fresno to get a copy and read it. You will find that Flores went above and beyond the call of duty to give the property owners in question (whether 20 or 24) and their lawyers an opportunity to argue the Eighth Amendment issue. If they wanted to argue something other than the Eighth Amendment, they could do that.

Flores in his decision also cites other legal cases – in particular Jenner v. City Council of the City of Covina – that support his essential point: The property owners, if they were going to make an Eighth Amendment argument, were required to do so at the first appeal hearing; to attempt to do so when the process got to the assessment hearings stage was too late.

Flores is tactful in his decision, but the 25 pages point to one overriding charge: Johnson made a legal mistake when he yanked those 20-plus properties from the assessment list in September 2016 so each could get a hearing on Eighth Amendment grounds.

And that’s where my confusion – the confusion of a layman, to be sure – comes in.

While reading Flores’ decision, I couldn’t help feeling that the property owners were fighting with one hand tied behind their back. The property owners had to overcome Jenner, to which Flores clearly gave great weight. But it wasn’t the property owners who started the Eighth Amendment fight at the stage of the assessment hearings. It was Johnson who started the fight at that stage.

Seems to me the fair thing to do once Johnson was no longer a hearing officer would be to hold an initial hearing in which Johnson is in one corner and the City Attorney’s Office is in the other corner, with Flores as judge and jury. Johnson could make the case that he touched on in September 2016: That the Blight Ordinance fines in these 20-plus examples are so outrageous and the Blight Ordinance is so important to the city’s future that, regardless of the Jenner precedent, the Eighth Amendment question must be answered sooner rather than later. The public’s faith in the integrity of the Blight Ordinance and in City Hall’s vision for the regulation of private property is at stake.

The City Attorney’s Office could make its equally powerful argument – all this sounds nice, but it’s outside the hearing officer’s authority.

If Flores in such a hearing came down on Johnson’s side, then the property owners in the subsequent hearing would be arguing the Eighth Amendment issue without the Jenner case hanging over their heads. The property owners would have standing. It would be a fair fight.

If Flores in such a hearing came down on the City Attorney’s side, then he would write a half-page decision – Ed, nice try but you don’t know squat – and the second hearing with the property owners never would have occurred.

I’ve met Ed Johnson. He would have been a formidable foe.

George Hostetter
George Hostetter is The Sun’s Fresno Civic contributor – covering the City of Fresno, County of Fresno, and Fresno Council of Governments.

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