What does the 14th Amendment to the U.S. Constitution have to do with a city sign ordinance?
Due Process.
“We hold that due process does not allow the same person to serve as an accuser, advocate, and final decisionmaker in an agency adjudication.” Az Supreme Court, Horne v. Polk
Cities incorporate enforcement action into their sign ordinances. Frequently, those enforcement actions provide for the confiscation of the sign and fines as decided by Administrative Action. Essentially, the city will confiscate the offending sign, assess a fine and/or destroy the sign within a few days of the event. Some cities will issue notices of violations, some do not. If a sign owner decides to appeal the violation, the city administrator will decide if the sign owner is in violation based on a hearing.
The point being, the city makes the rules, decides if someone has violated the rules, takes the property (sign), fines the sign owner and then adjudicates the sign owner’s appeals.
“Blackstone observed that a judge must not rule in a cause in which he is a party, “because it is unreasonable that any man should determine his own quarrel.” Az Supreme Court, Horne v. Polk
The principle of due process is not only embedded in our State and Federal Constitutions, it is one of the Founding Principles of our Country: The person acting as accuser, should not be acting as the prosecutor and judge.
“No person shall be deprived of life, liberty, or property without due process of law.” Arizona State Constitution, Article 2, Section 4
“…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.” United States Constitution, 14th Amendment, Section 1
WeMAR has made comments concerning the lack of due process contained in city sign ordinances to several cities. Up to now, we haven’t seen much regard given to our position. But, that may begin to change.
In May 2017, the Arizona Supreme Court dealt directly with Due Process (or lack thereof) in the Administrative Appeals process. The case was Horne v Polk and it will result in state and local agencies reviewing their administrative appeals process.
REALTORS®, property owners, business owners and residents all have a stake in how our cities construct their administrative code and conduct administrative actions and appeals. If you are a member of WeMAR and would like to participate in addressing the due process provision of your city’s sign ordinance, please contact me at lrechia@wemar.org or call 623-931-9294. We are forming city specific workgroups. Each workgroup will be pursuing this and other sign ordinance issues in 2018.
In the meantime, please let me know of issues you, other agents you know or your clients may be experiencing in the cities you live or do business in.