Municipalities to Be Constrained by Due Process?

Monday, December 14, 2015

George Will tells of an interesting case that the Institute for Justice has taken up. A town in Missouri, stopped from using traffic tickets as an easy way to steal from passing motorists, has taken to issuing tickets for ridiculous offenses instead.

Pagedale residents are subject to fines if they walk on the left side of a crosswalk; if they have a hedge more than three feet high, a weed more than seven inches high, or any dead vegetation on their property; or if they park a car at night more than 500 feet from a street lamp or other source of illumination; or if windows facing a street do not have drapes or blinds that are "neatly hung, in a presentable appearance, properly maintained and in a state of good repair"; or if their houses have unpainted foundations or chipped or aging layers of paint (even on gutters); or if there are cracks in their driveways; or if on a national holiday -- the only time a barbeque may be conducted in a front yard -- more than two people are gathered at the grill or there are alcoholic beverages visible within 150 feet of the grill.
With so many normal or innocuous things subject to ticketing, should an official happen by and look, it is plain that such laws are impossible to enforce uniformly or predictably. Thus the Institute for Justice is suing on the principle of substantive due process.
... The entire nation should hope that this small city's pettiness will be stopped by a court that says this: The Due Process Clause, properly construed, prohibits arbitrary government action, particularly that which unjustifiably restricts individuals' liberties.

That is, the Due Process Clause is not purely about process. As Timothy Sandefur of the Pacific Legal Foundation writes, what distinguishes due process is an outcome that is not arbitrary. Granted, the Constitution's text does not explicitly infuse the concept of due process with substance. But there are implicit limits on government power, limits inherent in the idea of law. As Sandefur says, a legislative act that fails the tests of generality, regularity, fairness and rationality (being a cost-efficient means to a legitimate end) is not a law, so enforcing it cannot be due process of law. [bold added]
Although this lawsuit does not address whether a city has any business telling people how to maintain their lawns or care for their property, it at least would severely curtail many governments from acting capriciously. As Ayn Rand once put it:
All laws must be objective (and objectively justifiable): men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it.
I gather that a favorable ruling would at least cause municipalities like Pagedale to have fewer and more sensible bad laws, rather than too many to know about or be able to follow (at least while living a normal life). So there might still be improper law, but at least one could manage, without much difficulty, not to be harassed by law enforcement. A favorable ruling would thus definitely be a step in the right direction.

-- CAV

P.S. Let me note in passing that this effort represents a step towards the kind of municipal government reform the federal investigation of the police department in nearby Ferguson revealed is needed.


Anonymous said...

Hi Gus,

Part of the problem with gov't overreach is that, as a friend of mine put it, "If they win, they win, and if they lose, then it's a draw."

As part of gov't reform, there should be real civil and criminal penalties to be faced for malfeasance in office. Even for pettifogging malfeasance being demonstrated by Pagedale.

I am in favor of the idea of triple damages. If a gov't actor fines or assesses someone in a fashion that is found wanting by some later legal procedure, the official in question pays the citizen 3 times the amount he was victimized by, with legal and time lost compensations on top of it all. And he pays it in his own person, without assistance from the taxpayers. Gov't funds should only be tapped when the assets of the gov't malefactor are not sufficient to make the victimized citizen whole. And he remains on the hook, unable to discharge such debt in bankruptcy, until the taxpayers are reimbursed.

With the prospect of actually being held personally accountable for their bad actions against the citizenry, one would see more circumspect behavior on the part of official gov't actors. And I would include elected officials' malfeasance in this as well.

'Rex Non Potest Peccare' delenda est! (Yeah, my Latin needs a lot of work...)

c. andrew

Gus Van Horn said...


That's an interesting idea, but I see a couple of problems with it: (1) as silly as Pagedale's laws are, the people who elected the officials who enacted them/enforce them surely own some of the blame, and (2) although the laws are maleficent, one could and should draw a distinction between merely enforcing them and carving out one's own additional turf, such as by accepting bribes to look the other way or using the laws as a means of threatening enforcement unless a bribe is given.

But overall, I agree that "Rex non potest peccare," ought to be thrown out.