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Yes, You Can Challenge Your Government Officials

Residents and businesses can and often do change the minds of local officials. Here’s a look at one man’s civil complaint against the city of Minneapolis.

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:

Yard Waste must be in compostable bags. Brush must be 3 inches or less in diameter, tied in bundles with twine or rope and weigh 40 pounds or less. Solid Waste Collection Point (SWCP) must not be used as a storage area. Please cleanup the area within 20 feet of your alley or curb SWCP. If this is not done by 6 a.m. 11/16/2015, City crews will do so and a fee will be added to your Minneapolis utility bill in accordance with city ordinance #225.690. No matter what the origin of the debris, you are responsible to clean the area.

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 city included the $100 fine on Ellis' utility bill, which directed him to call a specified phone number "for an explanation of the charges shown on [his] bill" and "notify the Utility Billing Office in writing" if he wished "to dispute any charge(s)." Ellis neither called for an explanation nor On 11/09/15, you were notified that garbage and rubbish were in the area around the Solid Waste Collection Point (SWCP) along your alley or curb line . . ., and that you were given until 6:00 a.m. on 11/16/15 to clean this area. Since you did not clean the area, the clean-up was done by city crews. This is in accordance with the city of Minneapolis Ordinance 225.690. The charge for this clean-up service is $100.00. This amount will be added to the City of Minneapolis utility (water) bill . . . . You are responsible for keeping the area within 20 feet of your alley or curb line clean and containing all rubbish and garbage in the 90-gallon garbage cart. Uncontained rubbish and garbage outside your cart is a nuisance condition that threatens public health and safety, and detracts from the livability of the neighborhood. If you have any questions concerning this matter, please do not hesitate to call us at [phone number]. contested the charges in writing.

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.

The warning letter was addressed to Ellis, and it informed him of ‘a problem with either the contents of the cart(s) or at the Solid Waste Collection Point’ near the ‘alley or curb line’ [and] . . . that ‘garbage and rubbish were in the area around the Solid Waste Collection Point . . . along your alley or curb line,’ ” the opinion stated.  “[T]he utility bill included the fine and announced precisely how Ellis could administratively challenge it. *  *  *  That the warning letter was off by one digit for one of the duplex addresses (and correct for the other one) did not cause the notice to fail to reach Ellis. He received it and promptly took responsive action, sending his property manager to investigate.”

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.

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