The threat of jail time can be a bewildering predicament for an elderly or disabled homeowner who gets in trouble with a city over zoning, building code or other property issues.
But Jonathan Jaussi is providing such defendants a voice and highlighting what he describes as a system stacked in favor of the cities. Part of the Payson attorney’s private practice is to offer pro bono services to veterans, the disabled and the elderly who are pressed into court on such matters.
“I hate to see someone get rolled by a city,” Jaussi said.
“We live in this red, red political state where we love our freedom and the American way, and when we think of government intrusion, we think of the federal government or the state,” Jaussi said. “Most people don’t understand that the one with the ability to have an impact on your property rights, and in the quickest way, is the city.”
Jaussi recently obtained a favorable plea bargain for Chad Rackham, a Layton man who was hit with three misdemeanor charges in a building code fight over a backyard shed. Rackham, a 59-year-old disabled veteran, pleaded guilty to a reduced non-criminal infraction, was fined $300 and got to keep the shed.
“This is exactly the thing I’m talking about,” Jaussi said. “The city has got these people so petrified. They say unless you get this fixed, they’re going to fine you, and if it’s tied to the criminal law, they’re going to charge you with a crime. There is at least hypothetically jail time because the city disagrees with you.”
A defendant may be told, “Of course, you never go to jail,” and that there likely would be only a fine, Jaussi said. “But for a class C misdemeanor, the law says what it says. The reality is, the person is forced to defend himself against jail time. He’s lined up against the ropes hoping not to go to jail.”
A class C misdemeanor is punishable by up to 90 days in jail and a $750 fine. An infraction can carry a fine only, up to $750.
Utah’s justice courts are “revenue collection devices,” Jaussi said, contending some cities “are mostly just looking for people they can roll over and who will not put up a fight.”
Jaussi said that in Rackham’s case and similar cases, he has been able to get cities to “back off a little” and compromise.
“I think cities need to be educated that there is a different way to approach these problems,” he said. “Of course we need laws and rules about property use, but cities need to have a much more soft touch, with seniors, disabled and veterans, instead of just sending a letter. Or even worse, having a police officer show up on your house’s front step, which in itself is a horrifying experience.”
Jaussi said he has talked to legislators about considering a measure to “make criminal penalties as the last resort and instead use civil enforcements.”
A better defined process of escalation would help, Jaussi said.
“The cities already have the option to escalate, but they just don’t,” he said. “As a practical matter, they charge you with a crime, in their city court, and win every time. They think, why fool around with a longer process?”
Layton City changed its road setback ordinance affecting corner lots to address the situation raised by Rackham, Layton Assistant City Attorney Steven Garside noted.
“We did agree to take a second look, and we found there is some relief to be granted there,” he said.
“Our objective has always been compliance,” Garside said. “Most of the time we are able to get these resolved. We send out a notice, there’s an appeal process, and it’s not until as a last resort we actually do file criminal charges.”
“The overall goal and vision of the cities in general is not that we’re the bad guy enforcer as much as we are the level-headed facilitator when these things come up,” Hiatt said.
“Any time you may have a few heavy-handed folks from any part of a city doesn’t mean the issue is a problem everywhere,” he said. “You see that in all facets of government.”
Sen. Todd Weiler, R-Woods Cross, an attorney and former city council member and prosecutor, said he understands that arguments may be made about the ethical, moral or political facets of ordinance enforcement.
“But remember, a city ordinance is a law, and if you violate the law there are often criminal consequences, potentially,” Weiler said.
The typical outcome is a fine.
“An infraction, although handled in criminal court, is not very different than a civil remedy,” Weiler said. “Nobody considers an infraction to be a criminal record. What matters to the average person is that he’s not going to have a criminal record.”