Entries Tagged 'US Constitution' ↓

City attorney David Fiddle-Faddle proposing some interesting changes to the ethics board procedures

I found some of his proposals to be very interesting, especially in this section;

FIRST PARAGRAPH: What confidentiality rules? A private citizen is protected by the US Constitution and the 1st Amendment. They don’t have to keep ANYTHING confidential. If I file a complaint against an elected official for a certain reason, I can tell anyone I want to about the complaint. City charter and ordinance does not trump the US Constitution. Sorry Fiddle-Faddle, you are not fooling anyone with this proposal.

SECOND PARAGRAPH: The word frivolous means all kinds of things to all kinds of people, as defined in the dictionary;

1. characterized by lack of seriousness or sense: frivolousconduct.

2. self-indulgently carefree; unconcerned about or lacking anyserious purpose.

3. (of a person) given to trifling or undue levity: a frivolous,empty-headed person.

4. of little or no weight, worth, or importance; not worthy of serious notice: a frivolous suggestion.

What may be important to you, may not be important to me. This proposal is just an out for the ethics board to throw out complaints they don’t want to deal with. I can see why Fiddle-Faddle was unemployed when he came crawling to the city for a job.
ENTIRE PROPOSED CHANGES; ethicchanges

Dan Daily case files

I have spoken with many people about Dan’s case after he testified to the city council last week, many are curious just what the city did to him. If you have time I encourage you to read these three files

Original filed case, 2008: Daily vs City lawsuit 5-29-08

Caldwell’s opinion: caldwell

SD Supreme Court’s opinion: scruling

Thank You Dan Daily!

I suggested on Facebook over on Stormland TV News‘ site that instead of Daily seeking damages from the city, we should all just send him a thank you card and a dead president for sticking up for our constitutional rights. Dan risked life and limb defending our country in Vietnam, and he spent a lot of his own treasure defending our constitutional rights – right here in Sioux Falls;

Dan Daily, 4916 E. Maywood Drive, SF, SD 57110

Justice served! Will former city attorney Shawn Tornow be held accountable?

It is no surprise to me that the South Dakota Supreme Court has upheld a judge’s ruling that Sioux Falls’ administrative appeals process is unconstitutional. It doesn’t even take a lawyer to figure that out;

Dan Daily sued the city in 2008 after receiving four citations in two years for violating city code with a driveway extension up to a fire hydrant. He lost his appeal to the city but decided to pursue the matter in the courts rather than pay the $200 fine.

The high court on Thursday affirmed a trial court opinion that the city’s enforcement violated Daily’s constitutional rights to due process and equal application of the law.  The justices say the city took a position that the issuance of a city code enforcement citation assumed non-compliance, and Daily incorrectly bore the burden of proving that the city incorrectly issued it.

The opinion, which is linked above, is 18 pages. Here are some finer points;

After a four-day trial, the trial court concluded that the City’s administrative appeals process, both as written and as applied, as well as the enforcement of its zoning ordinances, violated Daily’s constitutional rights to procedural due process and equal protection. We affirm.

(former) city attorney Shawn Tornow at his finest unconstitutional self;

The parties dispute whether the October hearing on citations 1313 and 1379 took place. At the court trial in the declaratory judgment action, Daily offered his personal calendar and detailed testimony about the hearing. He testified that after Daily questioned Hartmann regarding the citations, Tornow stopped the hearing and asked him to step out of the room. When Daily entered the room several minutes later, Tornow told him that he would receive additional citations if he did not remove the concrete extension to his driveway. Daily did not receive a decision regarding his appeals of the citations. In contrast, the City, through the testimony of Hartmann, a paralegal for the city attorney’s office, and a City director  who served on the decision panel, contended that Daily did not appear for the hearing. The City ordinarily records its administrative hearings, but no audio recording for this hearing has been found. The outside cover of the City’s official file for the citations states, “No Show, No Tape,” but it is not clear whether this note refers to the October hearing or the September hearing for which the hearing examiner was not available.

The City did not contact Daily again regarding the concrete extension to his driveway until April of 2008, when he received citations 2545 and 2546 in the mail. Citation 2545 cites the same zoning ordinances as citation 1313, and citation 2546 cites the same municipal code section as citation 1379. Daily appealed citations 2545 and 2546, alleging selective enforcement and double jeopardy. After receiving a notice scheduling a hearing on both citations, Daily retained an attorney.

A hearing on citations 2545 and 2546 took place on April 29, 2008. The City Attorney’s office hired James Robbennolt, a Sioux Falls attorney, to serve as the hearing examiner.5 Before the hearing, Robbennolt informed Daily that he bore the burden of proving that the City incorrectly issued the citations. Tornow informed Daily’s attorney that the City’s administrative appeals ordinance provides that the technical rules of evidence do not apply but that irrelevant or immaterial evidence may be excluded. During the hearing, Tornow repeatedly objected to the introduction of evidence on grounds other than relevance, and Robbennolt sustained several of his objections.

The first trial, which was delayed several months said ultimately what the SDSC said;

In May of 2008, Daily initiated this declaratory judgment action against the City. A four-day trial was held over a period of several months. After the trial, the parties submitted proposed findings of fact and conclusions of law. The trial court ultimately concluded that the City’s administrative appeals process, both as written and as applied, as well as the enforcement of its zoning ordinances violated Daily’s constitutional rights to procedural due process and equal protection.

This is also an important factor in the courts decision;

The City operates under a home rule charter. The South Dakota Constitution describes “home rule” municipalities:

A chartered governmental unit may exercise any legislative power or perform any function not denied by its charter, the Constitution, or the general laws of the state. The charter may provide for any form of executive, legislative and administrative structure which shall be of superior authority to statute,

Which brings us to this;

Daily challenged the City’s administrative appeals process under the Fourteenth Amendment to the United States Constitution and article VI, section 2 of the South Dakota Constitution. Both provide that no person shall be deprived of “life, liberty, or property without due process of law.”

Which brings us to why his rights were violated;

The heart of the matter is whether the City’s administrative appeals process deprived Daily of a protected property interest without due process of law. The trial court concluded that the City’s administrative appeals process violated Daily’s procedural due process rights for five reasons: (1) Daily bore the burden of proving that the City incorrectly issued the citations; (2) Daily was not afforded an opportunity to subpoena witnesses or documents or to otherwise investigate the basis of the citations; (3) the City issued Daily multiple citations for a single violation of its zoning ordinances and municipal code; (4) the hearing examiner did not apply the applicable rules of evidence in a fair and even-handed manner; and (5) the failure to keep a complete and accurate record of Daily’s administrative appeal hampered the trial court’s ability to conduct meaningful review of the proceedings. The City challenges the trial court’s conclusions.

There is a whole lot more, and I encourage you to read the opinion. But my probing question is, will Tornow be disbarred for not upholding the US Constitution, and even furthermore removed from the state legislature? This man belongs no where near law books.

 

 

What’s one more unconstitutional ordinance on the books?

“Our goal is to put everyone on the same playing field, except the pawn shop owners.”

Here we go again, our constitutionally inept city council with the help of the SFPD and a laundry list of consultants have decided that pawn shops, flea markets and antique dealers should be treated differently then other business owners;

The main concern is that a third-party private company will have their customer records and officials are able to view them without a warrant, she said.

Industry members proposed their own ordinance, which would require a warrant for law enforcement officials to be able to look at store records.

Twenty-one Sioux Falls businesses have signed off on the industry’s alternative proposal.

What’s one more ordinance on the books in Sioux Falls that violates the US Constitution? We gotta keep our city attorneys busy. It’s kinda boring when they only have one constitutional lawsuit going at a time. (currently they have lawsuits against them on code enforcement, red light cameras and sewer backups that occurred during the Munson administration.)

But as usual, Vernon has a great excuse;

Councilor Vernon Brown said the new ordinance is by no means extreme, especially compared with other states.

“The pawn industry is able to be regulated according to the courts for consumer protection.”

Who gives a rat’s ass what other states are doing? It’s blatantly unconstitutional. But you seem to want to roll the dice and see if the courts will rule in the ordinance’s favor. That is silly. Why put ourselves in that position? Councilor Anderson is the only one to stand up to the ordinance (ITEM #52 • FF to 1:50)

Instead of trying to find out who is selling stolen Sublime CD’s maybe you should be trying to catch casino thieves.

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City of Sioux Falls reacts to the Daily case

While I liked most of the city attorney’s testimony during the public services meeting about the changes to the city’s administrative appeals process, I was a little concerned about the city attorney’s statement in the opening (paraphrasing) “Due process is open to interpretation (in reference to code enforcement)” DAN DAILY CASE

HUH? Let’s review;

http://en.wikipedia.org/wiki/Due_process

http://www.lectlaw.com/def/d080.htm

This guy has a law degree? Innocent until proven guilty? Do you know what that means?

This says it best;

The idea that laws and legal proceedings must be fair. The Constitution guarantees that the government cannot take away a person’s basic rights to ‘life, liberty or property, without due process of law.’ Courts have issued numerous rulings about what this means in particular cases.

In other words, government cannot tell you how much fucking concrete you can pour on your own property. Do you understand? It is equivelant of someone telling you how much you should clean your toilet.

It’s go time: Daily vs. The City of Sioux Falls

You can listen as the SD Supreme Court weighed in on this case .

So why has there been no media about the case? Because we know the SF MSM are tools, and the city has turned that tool away from the case.

This is what I know so far;

• The City filed a 7 page brief citing 4 obscure cases.

• Daily’s attorney submitted a 38 page brief citing 35 state court cases, 13 US Supreme Court Cases, 2 other cases, 6 constitutional provisions, 8 SD statutes, and 3 city ordinances.

I’m no lawyer, but I think we know how this will turn out. Then maybe the media will pull their heads out and consider this a REAL story.

Whose rights were violated? LMFAO!

I want your due process rights in my belly!

OMG! I’m sure Dan Daily’s head probably exploded after reading this article;

A fired city attorney and current state legislator who once defended the constitutionality of Sioux Falls’ grievance procedures is suing the city for violating his due process rights.

The irony of this is so thick, I’m not sure what to say. I’ll let you battle it out in the comments section. Keep it clean, Dan.

City attorney Shawn Tornow fired? About f’ing time!

As we all know, Tornow has been the kingpin of worthless legal defense against the city as a city attorney, losing case after case because of constitutionality. Rumor on the street is that he is no longer working for the city, but the details of that ‘release’ are not known. I guess the mayor will not comment. I will keep you posted.

Will Mayor Huether’s code enforcement rampage backfire on him?

It now is no secret that Mayor Huether is ramping up code violations, not only on complaint basis but it seems proactively. He has pronounced it himself in the media and city employees and private citizens said they have seen the effects already. But won’t this all backfire on him and the city financially if they don’t fix the code enforcement mess?

I wrote a negative red-light camera letter to the Argus Leader almost four years ago. Former Sioux Falls Mayor Dave Munson sent a tough-guy code enforcer on a vendetta against me. It took four citations, four city hearings, four years of litigation, four circuit court dates and $40,000 in legal expenses to exonerate myself. In the process, I showed home rule charter is not democracy.

Mr. Daily sent me the original – unedited version of the letter . . . oh the Gargoyle Leader and their editing pen.

Traffic Camera Case

I wrote a negative traffic camera letter to the Argus some 4 years ago.  Munson sent out the tough guy code enforcer vendetta.  It took 4 citations, 4 city hearings, 4 years of litigation, 4 circuit court dates, and $40,000 in legal expense to exonerate myself.  In the process, I showed Home Rule Charter is not democracy.  Present city procedure ignores the South Dakota Civil Procedures Act and 2 amendments to the U.S. Constitution.

For the camera case, Circuit Court interpreted and applied the law.  The class should be compensated for illegal citations and litigation.  There should be punitive damages.  My situation (above) was 4′s and I suggest a $4 million judgment.   The city plans 10 more cameras.  This case should first go into state court to answer constitutional questions and evaluate city civil procedures.  The assistant city attorney has violated citizen’s rights in city hearings and obstructed justice in circuit court cases.  He represented an unfounded and improperly noticed ethics complaint against a city councilor in order to influence an election. There should be a state Supreme Court ethics hearing and reprimand. The city turned off the camera and, after ignoring 3 prior court orders, finally complied with one.

If the mayor will not repeal home rule or if state court doesn’t revoke it, I suggest a new mayor and term expired council members in 2014 who advocate:

‘REPEAL HOME RULE, RETURN TO CONSTITUTIONAL DEMOCRACY’.

Munson oligarchy became tyranny then a full blown dictatorship.  The mayor makes all decisions such as policy, budget, tax increases, and non-competitive bidding.  The city council has become puppets meant to mimic democracy.  At one time, during Munson, Home Rule Charter could have been amended into a viable concept.  Considering misapplications and citizen torment, it should now be abandoned.  Then, city administration can be welcomed back.  If they apply and can answer a few constitutional questions, they can be reinstated as U.S. citizens.

Daniel R. Daily, Citizen and Constitutional Plaintiff