1 + 1 = 0

No Court of Appeals opinions in our area today, but via the Star Tribune we learn of a Third Circuit decision striking down a Pittsburgh clinic-protest ordinance.  What makes this opinion stand out is that Pittsburgh really wasn’t breaking new ground, just combining two restrictions (a 15-foot entrance buffer and a 100-foot area with an 8-foot ”bubble” zone around people entering a facility) both previously upheld by the U.S. Supreme Court.  The Third Circuit re-affirms the constitutionality of each restriction, standing alone.    The Court found the combination to be too much, though.

How?  First, the Court decided that either zone would do on its own, which seems like a failure of persuasion on the City’s part.  Key to making any speech restriction is defining exactly why the restriciton is necessary.   Saying that two “approved” restrictions are complementary apparently isn’t enough – the whole scheme must be justified.  The other issue with the combination is just how complementary the zones are.  The Court found that, despite being content-neutral and individually valid, the combination left certain kinds of speech – leafletting in particular - almost impossible to practice.  Good choice by the challenging groups in picking a leafletter as their representative plaintiff.  The existence of other “channels” of speech is often the saving grace of any speech or protest regulation.  It just so happens in this area that the Supreme Court has positioned these particular ”channels” opposite each other in past opinions: the ability to pass out literature by a clinic door saved the “bubble” regulations in Colorado; both ”buffer” restriction precedents (arising from court injunctions, not legislation) had “bubble” provisions that were struck down.  Maybe the thought here was that deference to legislation might allow the combination; at this point the answer is no, at least not with a lot more work put into justifying the combination.  

As the story notes, the City heads back to district court, where it can still avoid an injunction by picking one of the zones and scrapping the other.  Even so, the plaintiff has probably secured a place as a “prevailing party,” which is sure to keep the lawyers happy.

How do you budget for a blood feud?

This morning’s Star Tribune brings word that the League of Minnesota Cities is debating whether to keep insuring the City of Greenfield.  Greenfield is mired in what can only be called a feud, along what is sadly becoming a familiar pattern: existing leadership does something uncouth (throws weight around, supports unpopular project, approves major capital project, gets city sued, all of above); opposition gels around idea that incumbent mayor/council not just wrong, but evil; opposition candidate wins, makes “cleaning house” overriding priority; city staff quits/is fired, meetings descend into chaos, nothing gets done, city gets sued some more.   There is no method for recalling local officials under state stautes, and episodes like this emphasize why that is great policy (and also explain why statutory cities headed for the ninth circle like Greenfield often develop charter commissions).

Sometimes these things settle down on their own.  Other times, they don’t, which is when the League begins to lean on a city by threatening to pull insurance coverage.  Most of the time, this gambit works – no matter how bitter the conflict, almost everyone grasps the significance of having to cover $200,000 or $500,000 in legal expenses to settle scores.  The deductible applies to the costs of defense as well as any final outcome, so even “successful” cases (like the one linked above) end up blowing a hole in the city’s budget.    

Greenfield is getting interesting because it seems that it may be the first place where losing insurance doesn’t knock some sense into people.  As with all truly great feuds, nobody seems ready to take responsibility for anything (having comments shut down on a regular news story is another leading indicator of a great feud).  Maybe talk of deductibles and insurance coverage is too abstract.  Right now, municipal liability caps are $500,000 per claimant, and $1.5 million per incident.  Judgments against cities must be paid quickly out of existing funds or new taxes – not subject to levy limits – must be levied to pay the judgment.  If the city won’t do it, the County Auditor is required to levy the tax.  Passing a charter has no effect on these laws.  This is bad enough in any city, but one with about 1,0o0 households and around a $1 million annual levy?   At some point, any valid claim - car accident on a snowy city street, injury to a public works employee, storm sewer failure, etc. - could require Greenfield to double its property taxes.  It’s not hard to see why most cities get the hint.

Supreme Court 10.29.09

In August, I wrote about the same-day release of Pigs R Us v. Compton Township and Pawn America v. St. Louis Park.  Both cases involved the local government taking evasive action in the face of an unwanted project – a pig farm in the township, a pawnshop in the suburb.  Compton Township chose the ”hastily rewrite the zoning code” maneuver; St. Louis Park enacted a moratorium.  Compton Township lost its case in district court and didn’t do any better on appeal.  St. Louis Park won its district court case and prevailed on appeal.  At the time, I thought the Court of Appeals might be mocking the Township by releasing the St. Louis Park opinion on the same day.  Paired together, there was a definite “right way, wrong way” feel to the decisions.

Well, the Supreme Court is taking the St. Louis Park case for review.  If you believe that “the Court grants cert to reverse,” perhaps there won’t be a “right way” to block an otherwise-permitted use when this case is resolved next year.  Compton Township, on the other hand, is headed back to District Court for a damages trial now that the Supreme Court denied its petition for review.

Court of Appeals 10.27.09

The Court releases an unpublished opinion affirming the City of Birchwood’s handling of docks on their public park with shoreline on White Bear Lake.  The primary issue is who holds the riparian rights to the shore – the City by ownership of the park parcels or landowners holding access easements dating to the original subdivision of land.  Like many real-estate focused decisions, this opinion isn’t a groundbreaker but is handy to keep around as a nutshell guide to the topic at hand.  On top of the riparian-right issue, the Court also re-affirms that local government regulation of docks will usually trump any claim of property right to install a dock. 

It’s not clear that the appellants meant for the case to be decided on riparian rights alone.  Just name-dropping section 1983, due process, and equal protection isn’t enough to raise an issue, though.  The Court brushes those issues aside, but not without suggesting that the outcome could be different if the issue were plead properly (the City does grant rights on the beach to a different dock association).  This looks like a shot at both the appellants’ attoney and the city, to me.

File it away – we’ve all had those times where pushing a government staff member into a wall, chasing the person into a secured area, prying your way into same secure area, shoving that person into an office and barring the door is just another part of the day.  Especially when you want to see some government documents, and see them now, but some punk deputy department director asks you to make an appointment.  Some things just have to be done.  Just know, when it’s all done, you’re not going to be able to claim the right to make a citizen’s arrest as a defense to the trespassing and disorderly conduct charges coming your way when the dust settles.

Change coming for the 60-day rule?

The appellate courts were quiet this week in case releases.  The court of appeals resolved a street-dedication issue in favor of Collegeville Township in a case that appears to have most of its interesting arguments knocked away in district court. 

Of interest, though, is the Supreme Court’s decision to grant review of a 60-day rule case out of Cook County.  At release, the Court of Appeals decision seemed very straightforward; I didn’t comment on it other than to congratulate my law school buddy Roy Christensen on the good result.  It didn’t seem like Supreme Court material.  However, the Court is still considering a case out of Lakeland which applied the 60-day rule against the DNR, which was argued October 12.  It doesn’t seem like the issues identified in the DNR case would affect local government approval, as the supplemental briefing request in that case mainly sought answers about the DNR commissioner’s authority.  Still, when the Court has taken briefs and argument on an issue, and grants review of a seemingly non-controversial case on the same topic, you have to wonder if big changes are coming.

Court of Appeals 10.13.09

The Court hands down a decision today affirming that a bond-holder cannot get a deficiency judgment on a defaulted revenue bond.  Brainerd’s Housing and Redevelopment Authority sold a $2.1 million revenue bond in 2005 to kick-start development of Brainerd Oaks, slated to be a 96-house development.  Not surprisingly, the 10 houses built with the bond proceeds didn’t sell well, and the bond went into default with about $1.9 million due.  The bank that bought the bond brought foreclosure on the 7 lots that remained unsold, as the bond included a mortgage on the lots among its securities.  The bank also sought a deficiency judgment - typical in mortgage foreclosure, but something that clearly reached for assets outside the revenue sources identified in the bond.  The HRA opposed the deficiency judgment, and the district court agreed, granting summary judgment against the deficiency request.

The Court of Appeals affirmed the decision, finding that recovery on a revenue bond is strictly limited to the sources of revenue identified in the bond.  A bond is not the same as a promissory note.  Going through the bond terms itself and the statute, this seems painfully obvious, but what about the mortgages?  The ability to obtain a deficiency judgment in foreclosure is tied to the entitlement to recover in the underlying contract – such as the promissory note signed with a standard house mortgage.  Here, though, the mortgages are attached to a revenue bond, which identified four (thoroughly depleted) sources of revenue, and limited payment to proceeds from those assets.  The mortgage foreclosure does not allow an end run around the normal operation of revenue bonds.

Court of Appeals 10.06.09

No civil cases, but the Court issues an opinion in a criminal case which re-affirms that local personnel ordinances and employee policies cannot support criminal charges for ”misconduct of a public official.”  Only statutes define “lawful authority” and thus misconduct for purposes of the criminal statute.   This employee was also charged with theft by swindle (the jury deadlocked), so the misconduct charges were likely an add-on or lesser charge, in the prosecutors’ minds.  Still, it’s a reminder not to over-reach when handling a bad employment case.

You’re doing it wrong …

Remeber all those articles earlier this year about the benefits of public-private partnership?  This isn’t what I had in mind.

Supreme Court 10.01.09

No opinions, but two cert decisions of interest.  The Court granted review in Krummenacher v. Minnetonka, in which the Court of Appeals held that variance procedures are appropriate to consider and approve changes in a nonconforming use.  When the opinion came out, I really didn’t find it all that remarkable.  Maybe the Court is just trying to catch up in the area of zoning nonconformities, where our reported case history is surprisingly sparse.  Review almost has to be on the main question of whether variance applies to nonconformities; it’s not in the Court’s nature to “correct error” in the City’s hardship analysis or in whether the record needed to be augmented at the district court level.  If there’s any quibble with the Court of Appeals opinion, it’s that the nonconformity statute permits cities to allow expansion “by ordinance,” which to me implies the need for a separate ordinance (and presumably a focused policy discussion) on the topic of expanding nonconformities.  Applying a variance procedure that was already on the books doesn’t fit that bill, though the Court’s reasoning seemed solid when I read it in July.

The Court denies review of the City of Sleepy Eye’s decision to fire its police chief.  At most, the Court might have taken the issue of whether the City had to afford independent review to the chief, but past cases have gone by the boards with a lot less than the two full hearings (a year apart, almost) that this employee received.  That, and perhaps the Court didn’t feel like spending time on the case of a police chief fired (in part) for huffing paint in uniform.  Just a guess.

Cities sue the State (just not here)

While nobody in Minnesota chose to hit the briefs over the state budget, in Arizona they might not be so reluctant.  Their legislature (which also made comedy headlines recently by floating a proposal to sell and lease back the state capitol building) passed a freeze on local development impact fees.  Thing is, the freeze passed during a special session in which a state sales tax was the only item before the legislature.  So the cities have been handed a strong case – if they want to run the risk of having the Legislature take a hard look at shared revenue next session in return.  Sound familiar?  (Arizona Republic via Governing)