Note: this post essentially replaces this post, with a humorous story of a little more government overreaching thrown in.
Tweaking the press
Is journalism solicitation? We've always thought of ourselves as a Constitutional initiative, with no pay-to-play options available (apologies to our kids, who'll be funding their own college educations.) So, we were a bit nonplussed when the Dangerous Structures Determination Board called us out during its Monday meeting, by name, to warn us that soliciting business in council chambers is “unlawful.” “This is a first warning,” they said. We'd been talking to two individuals with a case before the DSDB while the board was in executive session, and we gave them our business card, both as credentials and as an easy way for them to exercise their First Amendment rights by speaking to the press.
The City's Ethics Code, which notes that “â??Solicitation' of subsequent employment or business opportunities includes all forms of proposals and negotiations relating thereto,” didn't seem to apply. Nor did the City ordinance on “aggressive solicitation” (we're not especially physically intimidating despite our spinach regimen). What gives? City Attorney Michael Bernard, who was not at the meeting, says he isn't sure what happened, but he assured us that the rule is intended to deter, e.g., foundation-repair people from hitting up desperate homeowners, not to prevent journos from doing their job. Phew.
The QueQue was attending the DSDB hearing for our followup to last week's story, “Kangaroo court,” which looked at the City's increasing use of the DSDB to address drugs and other crime â?? but without the protections afforded defendants by the criminal-justice system. As we noted, a local lawsuit mentioned in that story, Slavin v. City of San Antonio, is not the only legal challenge to dangerous-structures law in the state. In City of Dallas v. Heather Stewart, attorney Julius Staev argues that citizens have the right to bring a separate takings claim against the government, even when a reviewing court has affirmed the ruling of a dangerous-structures board. His opponents in the Big D insist that when the legislature amended the state's dangerous-structures statute in 1993 to allow only limited review of the boards' decisions, they meant to make that avenue of appeal final. San Antonio and Houston agree, and have submitted an amicus brief to the court.
But Staev says that conclusion is logically repugnant.
“Whatever legislative intent was thrown around, nothing says anything about getting rid of Constitutional protections,” he says. “If `lawmakers` inadvertently or indirectly amended the `Texas` Constitution,' it would have to be voted on as a Constitutional amendment.”
In the Fifth District Court of Appeals opinion that Dallas is challenging, Justice Joseph Morris wrote that the city's nuisance process didn't bar Stewart's takings claim in part because the Constitutional exception that lets government take private property without compensation requires that her structure was “a nuisance on the day it was demolished.” `Emphasis the court's.` Dallas and its likeminded friends say that if the ruling stands, aggrieved property owners could drag out dangerous-structures demolitions interminably, and municipalities would have to reexamine properties already declared nuisances once any appeals were finished, a burden too hard and expensive to bear.
Another way to read it might be that the only guaranteed Constitutional way to abate a nuisance is if it poses imminent harm, but in their amicus brief, San Antonio and Houston argue that “The threat of money damages for lawful demolitions of public nuisances would serve as too strong a deterrent for most cities in these troubled economic times to continue abating dangerous structures.”
Slavin attorney Eddie Bravenec suggests that it would in fact encourage our DSDB to act with appropriate caution. “The City would only do it if it was really an emergency,” he said. “If the City gets to demolish `private property` without facing punitive damages, well, they're going to demolish a whole bunch of other properties â?? and that's what they've been doing.”