City of Fargo v. Rakowski

• Citation: 877 N.W.2d 814
• Decision Date: 12 April 2016
• Docket Number: No. 20150349.,20150349.
• Parties: CITY OF FARGO, Plaintiff and Appellee v. William RAKOWSKI, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

877 N.W.2d 814

CITY OF FARGO, Plaintiff and Appellee

v.William RAKOWSKI, Defendant and Appellant.

No. 20150349.

Supreme Court of North Dakota.

April 12, 2016.

Casey W. Moen, (argued) and Ian McLean (appeared), City of Fargo Prosecutor's Office, Fargo, ND, for plaintiff and appellee.

Jonathan T. Garaas, DeMores Office Park, Fargo, ND, for defendant and appellant.

CROTHERS

, Justice.

[¶ 1] William Rakowski appeals after a district court granted summary judgment in favor of the City of Fargo. Rakowski argues the district court erred because Fargo did not have authority to assess a re-inspection fee, Fargo was required to have a search warrant before re-inspecting the house, the re-inspection fee constituted an illegal bill of attainder, Fargo's claim was barred by double jeopardy and res judicata and he was entitled to relief under 42 U.S.C. § 1983

. We affirm.

I

[¶ 2] Rakowski owns rental houses in Fargo. In November 2011 Fargo inspected one of the houses owned by Rakowski and found the garage was deteriorating, the siding on the house was deteriorating, two egress window wells were collapsing and one window was broken. Fargo notified Rakowski of the need for repairs and re-inspection. The house was re-inspected on December 12, 2011, December 29, 2011, January 23, 2012 and February 27, 2012. Fargo charged Rakowski a single $100 fee for the January 23, 2012 re-inspection, which Rakowski did not pay. Fargo brought a small claims action to collect the fee, Rakowski removed the claim to district court and both parties moved for summary judgment. The district court granted summary judgment in favor of Fargo and Rakowski appeals.

II

[¶ 3] Rakowski argues the district court erred granting summary judgment because Fargo did not have authority to charge a re-inspection fee. Our review of summary judgment is well established:

"Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record."

Hamilton v. Woll, 2012 ND 238, ¶ 9, 823 N.W.2d 754

(quoting Wenco v. EOG Res., Inc., 2012 ND 219, ¶ 8, 822 N.W.2d 701 ).

[¶ 4] Inspection of rental properties is permitted by state law and Fargo ordinance. Section 40–05–01(1), N.D.C.C

., provides in relevant part:

"The governing body of a municipality shall have the power:

1. Ordinances. To enact or adopt all such ordinances, resolutions, and regulations, not repugnant to the constitution and laws of this state, as may be proper and necessary to carry into effect the powers granted to such municipality or as the general welfare of the municipality may require.... The governing body of a municipality may adopt by ordinance the conditions, provisions, and terms of a building code, a fire prevention code, a plumbing code, an electrical code, a sanitary code, vehicle traffic code, or any other standard code.... Fines, penalties, and forfeitures for the violation thereof may be provided within the limits specified in this chapter notwithstanding that such offense may be punishable also as a public offense under the laws of this state."

[¶ 5] Fargo's city inspector John Mrozla found Rakowski in violation of the International Property Maintenance Code ("IPMC"). The IPMC compiles minimum requirements and standards for an existing structure's light, ventilation, space, heating, sanitation, protection from hazards and safe and sanitary maintenance. IPMC § 101.2 (Int'l Code Council, Inc., 2012). Chapter 31 of the Fargo Code of Ordinances adopted the 2012 edition of the IPMC by reference. Fargo Municipal Code § 31–0101. The IPMC provides for a code official who is given authorization to inspect existing premises and issue notices and orders to enforce the code's provisions. IPMC § 104.1–5 (2012). The code also provides for fees for services necessary to carry out such responsibilities. IPMC § 103.5 (2012). Jurisdictions adopting the IPMC are left to insert an appropriate fee schedule. Id.

[¶ 6] Charging a fee for re-inspections of rental properties also is permitted by state law and Fargo ordinance. Section 40–05.1–06(2), N.D.C.C

., provides cities with the authority to levy and collect taxes, excises, fees and charges "for benefits conferred, for its public and proprietary functions, activities, operations, undertakings, and improvements...." Fargo's code provides the following fee scale for property inspections under IPMC § 103.5:

"The fees for activities and services performed by the department in carrying out its responsibilities under this code shall be as indicated in the following schedule:

A. Initial Inspection.—No charge

B. First Re-inspection.—No charge

C. Second Re-inspection.—As to the second re-inspection a fee of $100

D. Third Re-inspection.—As to the third re-inspection, a fee of $100

E. Fourth and continuing Re-inspections.—As to the fourth and any subsequent re-inspection, a fee of $100"

Fargo Municipal Code § 31.0102.

[¶ 7] Municipal ordinances like these are "presumed valid, and a court will not declare [an] ordinance invalid unless it is ‘clearly arbitrary, unreasonable and without relation to public health, safety, morals or public welfare.’ " City of Grand Forks v. Lamb, 2005 ND 103, ¶ 22, 697 N.W.2d 362

(citing A & H Services, Inc. v. City of Wahpeton, 514 N.W.2d 855, 857 (N.D.1994) ). In reviewing a similar issue, this Court held a municipal ordinance which authorized a $500 fee for building code violations was neither arbitrary nor unreasonable in City of Grand Forks v. Lamb, 2005 ND 103, ¶¶ 23–25, 697 N.W.2d 362 ("We conclude that Lamb failed to carry the burden of demonstrating the City exceeded its authority by adopting the penalty provision in G.F.C.C. § 19–0121....").

[¶ 8] Rakowski has not shown the fee scale is clearly arbitrary, unreasonable and without relation to the public health, safety, morals or public welfare. A city has discretion to decide how to implement laws that promote public safety. Fargo's re-inspection fee is a regulatory means of reimbursing municipal authorities for the time and cost of re-inspecting city properties for compliance. Fargo's use of an inspector, and its need to be reimbursed for those costs, is not arbitrary or unreasonable and is within the "range of reasonableness" that is "not to be interfered with or upset by the judiciary." Ennis v. City of Ray, 1999 ND 104, ¶ 8, 595 N.W.2d 305

.

III

[¶ 9] Rakowski argues a search warrant was required before Fargo could inspect the house. The Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, and art. I, § 8 of the North Dakota Constitution

protect North Dakotans from unreasonable searches and seizures.

"A search does not occur unless the government violates an individual's reasonable expectation of privacy. If an individual has a reasonable expectation of privacy in an area, the government must obtain a warrant prior to conducting a search unless an exception to the warrant requirement applies."

State v. Mittleider, 2011 ND 242, ¶ 14, 809 N.W.2d 303

(internal citation omitted).

[¶ 10] Rakowski points to no facts indicating whether or how a search was made. We have been provided with no meaningful record as to what prompted the rental inspection, what actions the inspector took during the inspection or any efforts Rakowski made to refuse such an inspection. "If the record on appeal does not allow a meaningful and intelligent review of the alleged error, we decline to review it." State v. Stockert, 2004 ND 146, ¶ 13, 684 N.W.2d 605

(citing Sabot v. Fargo Women's Health Organization, Inc., 500 N.W.2d 889, 892 (N.D.1993) ; Flattum–Riemers v. Flattum–Riemers, 2003 ND 70, ¶ 8, 660 N.W.2d 558 ; Wagner v. Squibb, 2003 ND 18, ¶ 5, 656 N.W.2d 674 ).

IV

[¶ 11] Rakowski argues the re-inspection fee establishes an unconstitutional bill of attainder. The United States Supreme Court explained a bill of attainder as "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Nixon v. Adm'r of General Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977)

(citing United States v. Brown, 381 U.S. 437, 445, 447, 85 S.Ct. 1707, 1713, 1714, 14 L.Ed.2d 484 (1965) ). "[L]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution." U.S. v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252 (1946).

[¶ 12] No evidence shows Rakowski either was named or singled out as an individual upon whom punishment was inflicted. Fargo's code applies to property owners as a whole and exists for the non-punitive purpose of reimbursing Fargo for expenses associated with re-inspections. Even where fees are punitive, "[l]egislatures may act to curb behavior which they regard as harmful to the public welfare, whether that conduct is found to be engaged in by many persons or by one." Communist Party of the United...