Yes, You Can Challenge Your Government Officials

Yes, you can fight city hall. Sometimes, it’s simply a matter of following directions.

The belief that one cannot challenge local officials is part of a widely held view that government institutions, at all levels, have their own agendas and, thus, are indifferent and unresponsive. However, residents and businesses, working through established channels, can and often do get city and county departments to change their minds.

The city of Minneapolis fined Andrew Ellis $100 for violating an ordinance regulating yard waste disposal and prohibiting debris storage in an area designated for garbage removal. He immediately filed a civil complaint in Hennepin County District Court seeking damages for tort, constitutional and ordinance violations.

According to the complaint, Ellis owns a rental duplex at 2102 and 2104 16th Avenue South. It alleged that the city's director of solid waste and recycling sent Ellis a letter addressed to "2102-2106" not 2102-2104. The letter stated that "there was a problem with either the contents of the cart(s) or [a problem] at the Solid Waste Collection Point (SWCP) along [his] alley or curb line. This could include items such as: Uncontained Household Garbage, Building Material, Litter, Carpet, Yard Waste, Hazardous Waste, Large Items, Tires and Auto Parts." The letter continued with instructions:

Ellis alleged that the person responsible for the debris was his next-door neighbor and that Ellis directed his property manager to gather the debris and place it onto the neighbor's property. The property manager did so, but later, two city employees moved the debris back onto Ellis' property near the garbage bins and photographed the bags.

Thereafter, the city sent Ellis another letter, stating:

The district court granted the city’s motion to dismiss Ellis' complaint because he failed to challenge the utility bill using the procedures mentioned in the follow-up letter. As a general rule, courts decline to consider claims that can be remedied, but have not been presented, in an administrative process. 

Ellis appealed, arguing that he was not required to contest the fine using the city’s procedures before filing his complaint for two reasons: first, the city never did anything to trigger his duty to exhaust the administrative remedies, and second, he could bypass the administrative process because his complaint raised declaratory, monetary and constitutional claims that the city's administrative process could not resolve. The Minnesota Court of Appeals rejected both arguments, finding that the city provided sufficient notice and that Ellis was obliged to exploit the city-provided remedies before going to court.

Under the city code, Ellis had an opportunity to resolve his dispute administratively, as directed, by engaging informally with the city's billing office. If he were not satisfied, he could have submitted a complaint, which would have resulted in a formal decision by the staff. Thereafter, he could have appealed the decision to an impartial hearing officer who would have taken evidence, heard testimony, made fact findings and notified Ellis of the final decision. Such a decision would have completed the administrative process, making Ellis’ claims eligible for judicial review.

Ellis unsuccessfully argued that he is exempt from the in-house review process because he included constitutional and other claims that the city's administrative process could not resolve. “Vague assertions of constitutional deprivations, like Ellis's generalized complaint that he was deprived of his constitutional rights because the $100 fine was a taking, and his complaint that his due process rights were infringed when city employees moved the debris, do not escape the administrative-exhaustion requirement,” said the appellate panel. “After the administrative process has run its course, . . . constitutional violations may be raised at the time of judicial review."

As a last resort, Ellis claimed that an in-house challenge would have been futile. True enough, when a party cannot obtain any relief in administrative proceedings, the party need not exhaust such a remedy before filing a civil suit. However, Ellis' complaint principally challenged the $100 fine. “[R]elieving him of some or all of the fine fits squarely among the administrative remedies that were available to him,” noted the court.

Ellis v. Herberholz, et al., No. A18-0258, Minn. Ct. App., Sept. 10, 2018

Barry Shanoff is a Bethesda, Md., attorney and general counsel of the Solid Waste Association of North America.