IMPORTANT - Misdemeanor, infraction, or administrative citation

[admin]

IMPORTANT DEFENSE

Actually to be correct this should state: Misdemeanor, infraction, or civil penalty / civil fine?

The citation itself is just a charging document with whatever the charges are.

Misdemeanor, infraction, or administrative citation?

What you are cited for and how you are cited or charged MATTERS in a big way.

Whether you are cited as a misdemeanor, infraction, or administrative citation control the rules of the game. Cities seem to think they eliminate your rights using the method they charge you. Cities seem to believe they can charge a penal misdemeanor, penal infraction, or administrative citation. Here is the problem. Charged as a misdemeanor you get a jury, your fine is limited to $1000, you get discovery, you get depositions. Same issue charged with administrative citation you get no jury, no deposition, no discovery, and your fine could be $15,000 or more! The Supreme Court now seems to rule that administrative agencies cannot forum shop depriving you of your rights.

IMPORTANT CASE LAW

Apparently, city ordinances, although the law states otherwise, are not a misdemeanors by default. (Airlines for America v. City and County of SF, 598 F. Supp. 3d 748 - Dist. Court, ND California 2022. P. 756-758) This case states Sections 25132(a) and 36900(a) are implicated only when a local ordinance expressly calls for criminal enforcement. Government Code sections 25132 and 36900 makes the violation of a city or county ordinance either a misdemeanor or an infraction only when the violation is declared to be a misdemeanor or infraction by express ordinance language.

Cities often don't follow the law

As an example here is a new decision by the Court of Appeal - Temple of 1001 Buddhas v. City of Fremont. The city did not follow the law in a building code case. So, if you have a building code case this may be part of your defense. https://casetext.com/case/temple-of-100 ... fremont-6

58 Court systems in California seem to all think differently

There are 58 counties in California and 58 court systems. Since no one knows what this law means (GC. 53069.4), cities, city attorneys, and courts all interpret this law differently. This fact has become a huge issue for the citizen. Because of this, courts have little case law to go on. Courts often rely on the cities ordinance and usually the lying city attorney who mis-states the law and the facts to attempt to chalk up another win for the city.

Like many cases we mention, the ordinances are violations of the constitution. Until a strong judge questions the validity of the city's law. Cities are using very underhanded tactics to take your money.

Public nuisances are misdemeanors

The entire historical purpose of a public nuisance claim is to eliminate the nuisance, not leave the nuisance and TAX the land owner.

Public nuisances are misdemeanors by law in California. People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 929 P.2d 596, 60 Cal. Rptr. 2d 277 (1997). A city may choose three forms of adjudication. Criminal, civil or abatement. Flahive v. City of Dana Point, 85 Cal. Rptr. 2d 51, 72 Cal. App. 4th 241, 72 C.A.4th 241 (Ct. App. 1999). When the city chooses administrative (not mentioned in the law), it seems your constitutional rights vanish. That is the primary subject of this post.

Trial De Novo

A so called 'appeal' to superior court is really a brand new trial "DE NOVO." Actually it is your first trial. It is as if the administrative hearing never existed. Collier & Wallis, Ltd., v. Astor, 9 Cal. 2d 202, 70 P.2d 171 (1937). This is an important case to a defendants benefit. https://scholar.google.com/scholar_case ... s_sdt=2006

When an offense is prosecuted as a misdemeanor you are entitled to a jury trial. When an administrative agency chooses the forum of adjudication by giving you an administrative citation it may violate your constitutional rights. That seems to be the holding in new federal caselaw.

Many cities subvert this issue and now and fine you for a "so called" public nuisance with no abatement. That is not the law. The problem is that these issues never make it to the higher courts. When a city "chooses" the forum for adjudication it can also strip you of your constitutional rights. A public nuisance in common law was a suit in equity. Cities are treating nuisances as a suit for debt - money damages.... which seems to call for a jury trial.

"With regard to petitioners' constitutional claim, it is firmly established that California's constitutional jury trial provision preserves the right to jury trial in civil actions comparable to those legal causes of action in which the right to jury trial existed at the time of the first Constitution's adoption in 1850 and does not apply to causes of action that are equitable in nature. At early common law, "legal" causes of action (or "actions at law") typically involved lawsuits in which the plaintiff sought to recover money damages to compensate for an injury caused..." (Nationwide Biweekly Administration, Inc. v. Superior Court, 462 P.3d 461, 9 Cal. 5th 279, 261 Cal. Rptr. 3d 713 (2020).)

Whether you were cited for so called 'public nuisance' or violation of a statute, or ordinance, these administrative citation issues fall under GC. 53069.4. https://leginfo.legislature.ca.gov/face ... awCode=GOV This vague and ambiguous code was authored by the City of San Jose who sponsored the bill. You can bet its purposely vague. This is the statute that gives cities permission to issue and adjudicate these citations.

Its statute's intent is well documented by Joan Gallo https://administrativecitation.com/down ... citations/ and was clearly not meant to morph into what has occurred. Trash cans, barking dogs, cars on lawns etc.... not every item in city becomes a public nuisance as in Desert Hot Springs and other cities who follow this practice. Cities, realizing they can now tax you to death by issuing these gross citations, have gone hog wild imposing fines on their own citizens. Fines for $5,000, $10,000, $100,000... we have even heard of a fine $370,000! https://scholar.google.com/scholar_case ... s_sdt=2006 They have lost their minds.

Apparently, cities (and other administrative agencies) believe they have full control over your constitutional rights. And they have for a very long time. But courts are finally acting on these issues because administrative agencies have been feeding at the taxpayer feed barn far too long bypassing the constitution. At the old saying goes... "pigs get fat, hogs get slaughtered!"

New Supreme court decisions seem to state that your constitutional rights cannot be taken away just because a city "chooses" to use administrative proceeding or issue you a citation, and not proceed the case as a misdemeanor, or infraction. By law public nuisances are defined by the state and are criminal. This would seem to invalidate the state holding in Mohilef v. Janovici, 51 Cal. App. 4th 267, 58 Cal. Rptr. 2d 721 (Ct. App. 1996).

If you have received a substantial fine by administrative citation - greater than $1,000 this may be a good defense.

A second example is that - if you were sued by a neighbor for a private nuisance (a public nuisance that the neighbor believes affects him) you would be entitled to a jury trial. But if you are cited by a city for the same public nuisance you are not entitled to a jury trial? As a state case maybe - see Mohilef v. Janovici, 51 Cal. App. 4th 267, 58 Cal. Rptr. 2d 721 (Ct. App. 1996). But federally your rights may have been taken. Always remember state rights and federal rights are different and only occasionally are on the same page. https://scholar.google.com/scholar_case ... s_sdt=2006

This seems to be spot on for SEC v. Jarkesy Opinion. If the neighbor sued you because of the emu farm you would be entitled to all the procedure by law - discovery, evidence, jury etc. When the city issues the administrative citation all that goes out the window... does not seem fair does it?

Public nuisance, also known as common nuisance, is a common law and statutory tort that involves an unreasonable interference with a right that is shared by the general public. In the 16th century a crime of public nuisance gave rise to a private tort if the plaintiff could show he sustained injuries that were different in kind from those suffered by the general public. This special injury requirement carried over into modern public nuisance jurisprudence. Over time nuisance law subsumed elements of criminal law, tort law, and property law. Modern American public nuisance law developed with the American Law Institutes Restatement (Second) of Torts, in 1979. The ALI Restatement (Third) has considerably limited the modern concept of public nuisance law.

The oral argument in Supreme Court found that to be an issue. You might listen to the 2 hour oral argument on a road trip - it is fascinating stuff. Mostly the Justices talk in easy to understand simple text and simple logic. You can download the mp3 or listen on a podcast.

https://www.supremecourt.gov/oral_argum ... 023/22-859

You choose your defense and how to react to the citation

As stated in this blog... rather than going through the worthless procedure of (1) paying fine > losing at administrative hearing > filing (DE NOVO) appeal to superior court > filing appeal to appellate division --- where you will most likely lose on every level. File a 1983 action in federal court for a violation of your constitutional rights or consult a lawyer if needed.

Constitutional rights

Cities seem to think they can choose any route they want to prosecute you and when they choose administrative citations all your constitutional rights disappear? No court, no discovery, no depositions, no jury. if they prosecute you criminally a $1000 fine can be imposed by law. If they issue a citation a $15,000 fine can be imposed? City of Desert Hot Springs does not even try to abate the nuisance... they just want the money. The whole 1000 year historical law of public nuisance is to eliminate the nuisance, not tax the homeowner.

A court filing by the City of Cathedral City confirms this. http://administrativecitation.com/wp-co ... tanaro.pdf Shows that cities believe they choose whatever path is best for them, shoving your face in the mud, stealing your wallet, all while avoiding the constitution, imposing massive fines, no discovery and no jury.

So, if the city chooses to prosecute you as a criminal for a public nuisance and you are convicted you get a max $1,000 fine. But if they issue you a "administrative citation" you get a $15,000 fine? Humm... something wrong with that picture!

"California Penal Code (PC) 372 and 373a are public nuisance laws that make it a crime to create, maintain, or allow a public nuisance to exist after receiving written notice to fix the problem. The nuisance must negatively impact an entire community, neighborhood, or a considerable number of people. For example, loud music, a barking dog, or a rundown home that attracts rodents could be considered a public nuisance."

https://leginfo.legislature.ca.gov/face ... awCode=PEN

https://leginfo.legislature.ca.gov/face ... awCode=PEN

If you go to court you get a jury trial, discovery etc. If you are given a citation you get nothing but a hearing by a dataticket.com (the city's pimp) hearing officer who rules for the city 100% of the time.

THIS IS THE PROBLEM. A city cannot take away your constitutional rights because they 'prefer' a citation vs. a criminal enforcement. That is what the Supreme Court ruling seems to say.

A RECENT DECISION THAT AFFECTS YOUR RIGHTS

Read the SEC v. Jarkesy Opinion

http://administrativecitation.com/wp-co ... 9_1924.pdf

Some code banks (most cities use these code banks who now offer code the city can adopt) seem to convince cities that they can make every issue on god's green earth a public nuisance. Gallo v. Acuna clearly states what a nuisance is, and its not a garbage can on a side walk or a bicycle left in the street.

Also important is Tull v. United States, 481 U.S. 412, 107 S. Ct. 1831, 95 L. Ed. 2d 365 (1987). When a city charges you a fine for a public nuisance action Tull v. United States seems to come into play. https://scholar.google.com/scholar_case ... s_sdt=2006 The issue in Desert Hot Springs and other cities is that NO ABATEMENT takes place. A citation is issued for a large fine, once, twice, three times. This fact distinguishes the matter and conforms more to Tull than an equitable case. See Nationwide Biweekly Administration, Inc. v. Superior Court, 462 P.3d 461, 9 Cal. 5th 279, 261 Cal. Rptr. 3d 713 (2020). P. 293. The case is more like debt collection (fine) than abatement (removal) and that seems to follow Tull.

Public Nuisance - what is a public nuisance?

Some cities just make everything in the world a public nuisance. X is a public nuisance.

https://scholar.google.com/scholar_case ... as_sdt=4,5 *Note - same Joan Gallo who sponsored administrative citation bill!

The broke City of Desert Hot Springs, who's city counsel makes countless bad decisions, for example has basically made everything in the city a public nuisance. Take a look - its fascinating because the code so broad basically covers your entire life ...

https://ecode360.com/43984773?

Just because a city states X is a public nuisance does not mean it is.

Leppo v. City of Petaluma, 20 Cal. App. 3d 711, 97 Cal. Rptr. 840 (Ct. App. 1971).

https://scholar.google.com/scholar_case ... as_sdt=4,5

A city has 3 choices to deal with a public nuisance and a citation is not listed in this court holding

Flahive v. City of Dana Point, 85 Cal. Rptr. 2d 51, 72 Cal. App. 4th 241, 72 C.A.4th 241 (Ct. App. 1999).

https://scholar.google.com/scholar_case ... s_sdt=2006

Whether your fine results from a public nuisance violation or just an ordinance violation the fact an administrative citation was issue eliminating your constitutional rights may be great defensive position.

History of public nuisances

H. G. Wood in his treatise on nuisances effectively stated a public nuisance is some thing that harms mankind. A very serious issue.
https://www.google.com/books/edition/A_ ... frontcover

Cities, perhaps not all, are part of the administrative state. Some cities feel they can tax the crap out of you for leaving your garbage can at the curb. Some believe you deserve a whopping $5,000 fine just for placing a single ad for your home, as a rental, perhaps while you are not using it. The City of Palm Springs has raked in more than $1,000,000 because some people who own homes want to rent them one week per year for Stagecoach or some other event. Some cities are criminals today.

Before 1995 this never happened! Taking a case to court was not worth it. Only when Cities became legislature, judge, jury, executioner and debt collector did this occur. Now that cities see they can make millions of dollars from these fines it is full steam ahead.