Tag Archives: Rule of law

Power of Kansas cities to take property may be expanded

A bill working its way through the Kansas Legislature will give cities additional means to seize property.

The bill is SB 338, titled “Rehabilitation of abandoned property by cities.” This bill has passed the Senate by a vote of 32 to eight. It has had a hearing in the House of Representatives.

Wichitan John Todd is opposed to this bill and provided oral and written testimony this week to a House committee. In his testimony, Todd made these points, among others:

  • Senate Bill 338 appears to provide local governmental units with additional tools that they don’t need to “take” properties in a manner that circumvents the eminent domain statutes that private property rights advocates fought so hard to achieve in 2006.
  • The total lack of compensation to the property owner for the deprivation or taking of his or her property is missing in the bill.
  • Allowing a city or their third party take possession of vacant property they do not own and have not obtained legal title to is wrong.
  • Please take a look at a comparison between a free-market private sector solution as contrasted to a government mandated program to achieving affordable housing and the impact highly subsidized government housing solutions are having on adjacent home owners.

Instead of being a problem, houses like these can present economic opportunity, says John Todd.
Instead of being a problem, houses like these can present economic opportunity, says John Todd.
In closing his testimony, Todd remarked: “In summary, cities in Kansas clearly have all the powers they need to deal with property issues through current law. By enhancing the power of cities and their appointed non-profit community redevelopment organizations to ‘take’ privately owned properties without compensation in an involuntary manner violates the individual private property rights that are essential for the rule of law and liberty to prevail.”

Click here to view Todd’s written testimony and visual exhibits.

Empty lots in northeast Wichita. Click for larger version.
Empty lots in northeast Wichita. Click for larger version.
Separately, Todd supplied a map of a portion of northeast Wichita. He remarked:

I am told that there are over 100 vacant lots in this neighborhood represented by green color. It also shows “Poor” and “Very Poor to Unsound” properties in tan and yellow. SB 338 was touted to provide a tool to deal with blight. The point of this map is to demonstrate how the City of Wichita has been using existing law to deal with blighted properties, and how this law has facilitated the destruction of huge numbers of houses. Many had economic value, but there was no compensation to the property owners. My conclusion was that given the existing law, coupled with tax foreclosure sales, there was no need to give cities additional tools.

What we have under existing law is actually a regulatory taking of private property with no compensation to property owners. Passage of SB 338 would expand those tools to allow cities or their chosen non-profit entities to seize vacant properties they do not have legal title to. The result for a property owner is a “regulatory taking,” ordered by the Kansas Courts with no compensation, allowing the city or the non-profit time to seek title through a mandated court order and judicial deed. Both are methods of forced government transfer and are wrong.

Rebuilding liberty without permission

A forthcoming book by Charles Murray holds an intriguing idea as to how Americans can reassert liberty: Civil disobedience. Make the federal government an “insurable hazard.”

I think it’s a great idea. For an easy introduction to this concept, listen to the Cato Institute’s seven-minute podcast of Murray speaking about these ideas.

From the publisher:

American freedom is being gutted. Whether we are trying to run a business, practice a vocation, raise our families, cooperate with our neighbors, or follow our religious beliefs, we run afoul of the government—not because we are doing anything wrong but because the government has decided it knows better. When we object, that government can and does tell us, “Try to fight this, and we’ll ruin you.”

In this provocative book, acclaimed social scientist and bestselling author Charles Murray shows us why we can no longer hope to roll back the power of the federal government through the normal political process. The Constitution is broken in ways that cannot be fixed even by a sympathetic Supreme Court. Our legal system is increasingly lawless, unmoored from traditional ideas of “the rule of law.” The legislative process has become systemically corrupt no matter which party is in control.

But there’s good news beyond the Beltway. Technology is siphoning power from sclerotic government agencies and putting it in the hands of individuals and communities. The rediversification of American culture is making local freedom attractive to liberals as well as conservatives. People across the political spectrum are increasingly alienated from a regulatory state that nakedly serves its own interests rather than those of ordinary Americans.

The even better news is that federal government has a fatal weakness: It can get away with its thousands of laws and regulations only if the overwhelming majority of Americans voluntarily comply with them. Murray describes how civil disobedience backstopped by legal defense funds can make large portions of the 180,000-page Federal Code of Regulations unenforceable, through a targeted program that identifies regulations that arbitrarily and capriciously tell us what to do. Americans have it within their power to make the federal government an insurable hazard like hurricanes and floods, leaving us once again free to live our lives as we see fit.

By the People’s hopeful message is that rebuilding our traditional freedoms does not require electing a right-thinking Congress or president, nor does it require five right-thinking justices on the Supreme Court. It can be done by we the people, using America’s unique civil society to put government back in its proper box.

For Wichita’s Longwell, flipping in the face of an election

Campaign season provides an opportunity to see just how malleable candidates’ positions can be, leaving us to wonder if some have any firm and guiding principles.

When Wichita City Council Member Jeff Longwell was asked about citizens exercising their constitutional right to challenge an ordinance passed by the council, Jeff Longwell said it was “disappointing,” and a “stunt.” He said that using this fundamental aspect of democracy causes citizens to “lose credibility.” (Wichita Eagle, September 14, 2011)

Now that Wichitans are voting on controversial matter that was placed on the ballot using a similar procedure, Longwell told the same newspaper “I believe the voters should be allowed to decide this issue and I supported placing the issue on the ballot.”

What caused the evolution from “disappointing” to “supported”? Why was one a “stunt” and another a simple exercise in democracy?

It’s easy to see. The present issue — reducing the penalty for possession of marijuana — doesn’t involve money, at least to any appreciable extent. And even if it passes, it’s likely the state will try to block it from taking effect.

But the 2011 issue involved Longwell voting for a taxpayer-funded giveaway to the special interests that fund his campaigns. His cronies, in other words. That is what really counts for Longwell, and it shows his lack of respect for the rule of law.

Who decides? When it comes to planning, is it the people, the politicians, or the bureaucrats?

By Karl Peterjohn, Sedgwick County Commission

The Wichita Eagle editorial page is unhappy with the county commission’s decision to terminate the county’s participation in the federal government’s “sustainability planning grant.” When this controversial grant was first voted upon by the county in 2010, it was rejected by a vote of three to two. This also led the county to withdraw from the Regional Economic Area Partnership (REAP).

Karl Peterjohn
Karl Peterjohn
In 2011, a new county commission reversed this decision and decided to participate in this joint federal grant from three often controversial national agencies: Housing and Urban Development, Environmental Protection Agency, and Department of Transportation. HUD has played a key role in federal housing mandates and failed federal urban programs going back to the odious urban renewal era. The federal housing failures led to the 2008 financial crisis.

EPA is focused on creating new and complicated federal mandates. These are having a small impact on improving environmental problems but are becoming a new power center for the leftist, statist agenda out of Washington, D.C.

President Eisenhower said, “In preparing for battle, I have always found that plans are useless but planning is indispensable.” Ike also said, “A people that values its privileges above its principles soon loses both.”

The key question for a free people who cherish their liberty is the question, who decides? Why is government planning, which up until the New Deal, was largely left to the private sector and local government becoming a federal problem?

I believe that the state government is better than the federal government in trying to project what public needs might appear in the future. I believe that the local government, county or city, is better than the state government. I believe that a great deal of the current “planning,” should be left to the people and not the government.

Today, there are over-lapping, and duplicative planning efforts underway. The new 20 year Comprehensive Plan that was presented to Sedgwick County earlier this month is one case. The city of Wichita is also involved in this effort. The members of this planning effort were appointed by the city and county managers and included a couple of elected officials as well as over 20 other private citizens.

A 25 year transportation plan is being work on by the Wichita Area Metropolitan Planning Organization (WAMPO) for a region that includes all of Sedgwick County as well as Andover, Rose Hill, and Mulvane that covers western Butler and northern Sumner counties.

A third plan was this “sustainability” planning grant that would be followed with an “implementation” grant. The fact that Sedgwick County has withdrawn from this plan does not guarantee that other cities and counties in this region could not continue to proceed in this process. The sustainability grant has continued despite the opposition to it from both Butler and Sumner county commissions. I believe the sustainability implementation grant, if it proceeds, would probably supersede the other two plans.

REAP has been closely tied to this controversial “sustainability” grant. I want to repeat my reasons for voting against participating in this grant and REAP. I have voted against participating in this grant every time it has appeared on the county agendas in 2010, 2011, and again this year. I also opposed the doubling of the county’s dues for REAP membership. REAP’s legislative agenda has been cited as a reason for supporting this organization. I believe that each local government should have their own agenda. I oppose seeing REAP’s taxpayer funds from being used for statehouse lobbying.

I firmly believe that local government’s role is to provide a firm rule of law where there is a level playing field in it with clear rules for everyone to build their future for themselves and their families. This is the very limited role of government for a free people in a liberty loving society.

Blubaugh, Mayor vote for licenses for undocumented workers to drive to their illegal jobs

The Wichita city council voted to recommend that the Kansas Legislature create drivers permits for undocumented workers so they could drive to their jobs.

In December the Wichita City Council voted to include drivers permits for undocumented workers in its legislative agenda. The item as presented to council members read: “RECOMMEND: The Wichita City Council supports legislation that provides a driver’s permit to undocumented workers for the sole purpose of obtaining vehicle insurance for work-related transportation.”

In his remarks, as presented in the meeting minutes, Wichita Mayor Carl Brewer stated “he has given this a lot of thought and he is the one who has asked for it because he believes it is the right thing to do.”

Wichita City Council Member Jeff Blubaugh
Wichita City Council Member Jeff Blubaugh
The measure passed four to three, with Council Member Jeff Blubaugh (district 4, south and southwest Wichita) voting along with the council’s progressive members.

No matter what one believes about our immigration laws, it is illegal for undocumented workers to hold their jobs. Yet, the city wants to make it legal for them to drive to their illegal jobs.

This also illustrates the problem with resolving our nation’s issues with immigration. We’ve shown that we’re not willing to enforce the laws we have. Here, the Wichita City Council takes steps to help illegal immigrants break our laws. Why do we expect people to respect and obey them?

The Overcriminalization of America

The Overcriminalization of America

How to reduce poverty and improve race relations by rethinking our justice system

By Charles G. Koch and Mark V. Holden

As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned. But the reality is often different. It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws. This proliferation is sometimes referred to as “overcriminalization,” which affects us all but most profoundly harms our disadvantaged citizens.

Overcriminalization has led to the mass incarceration of those ensnared by our criminal justice system, even though such imprisonment does not always enhance public safety. Indeed, more than half of federal inmates are nonviolent drug offenders. Enforcing so many victimless crimes inevitably leads to conflict between our citizens and law enforcement. As we have seen all too often, it can place our police officers in harm’s way, leading to tragic consequences for all involved.

Continue reading at Politico.

Hate crimes should not be enhanced in Kansas

A bill in Kansas proposes to toughen penalties for hate crimes, thereby judging people on their thoughts and beliefs rather on their actions.

When a person commits a crime against another, the crime itself ought to be enough to earn the criminal a trip to prison. What the criminal was thinking, or even saying, at the moment ought not to be relevant in determining the severity of punishment or whether a crime was committed. That’s because in America we have the right to free speech, even hateful speech. We do not have, of course, the right to harm others, but speech shouldn’t count in reckoning harm.

Kansas has hate crime laws that allow the motivation of the criminal to be considered as an aggravating factor in determining sentences. But proposed legislation, Senate Bill 1, seeks to mandatorily double sentences if hateful motives are suspected. The relevant part of the bill follows:

(w) If the trier of fact makes a finding that an offender’s crime was motivated entirely or in part by the race, color, religion, ethnicity, national origin or sexual orientation of the victim or the crime was motivated by the offender’s belief or perception, entirely or in part, of the race, color, religion, ethnicity, national origin or sexual orientation of the victim, whether or not the offender’s belief or perception was correct, the sentence for such offender shall be as follows:
(1) If the underlying crime of conviction carries a presumptive term of imprisonment, the sentence shall be double the maximum duration of the presumptive imprisonment term;

If this bill becomes law, courts and juries will be asked to look into the heart of criminals, and if persuaded that even a sliver of motivation was due to something mentioned in the law, the criminal could face a sentence of double length.

We ought not to punish people for their thoughts and opinions. Punish them for actual criminal violence. That should be enough.

Even though hate crime laws seem to be of noble intent, the serve to perpetuate unequal protection before the law, and make bigotry an institution. In 1992 Jacob Sullum explained in Reason Magazine:

But the promise of a liberal democracy is that members of minority groups will be protected from aggression, just like everyone else. If someone wrongs a Jew, or a black, he will be punished just as severely as if he had wronged a Christian or a white-and his motivation, whether bigotry, greed, or simple viciousness, won’t matter in either case. You correct unequal protection by making it equal, not by reversing it.

By punishing opinions, hate-crime laws institutionalize the very bigotry they seek to prevent: They treat some individuals as second-class citizens simply because of the ideas they hold. And they treat some targets, such as Catholic churches, as more important than others, such as abortion clinics (leading, of course, to the charge that vandalizing an abortion clinic is a hate crime against women). Like affirmative action, hate-crime laws enforce a double standard in the name of treating individuals equally.

The odd ethics of Wichita Mayor Carl Brewer

The Wichita city council should repeal a law that the council doesn’t follow.

As he has done previously, Wichita Mayor Carl Brewer decided not to vote on a matter involving Spirit Aerosystems at the November 4, 2014 meeting of the Wichita City Council.

The mayor didn’t give a specific reason for recusing himself, but it’s probably because he was formerly an employee at Spirit. So it’s good that he did this. But if we’re going to observe ethics protocols like this — and we should — let’s go all the way. The mayor should have announced at the start of this agenda item that he had to recuse himself, and then he should have left the bench and probably also the council chambers. Instead, Brewer presided over the presentation and discussion of the item, and then stated he wouldn’t be voting. It’s a small matter, but we might as well do things right.

What is much more important — and equally difficult to understand — is this: Brewer feels he can’t vote on an item involving a company where he was an employee long ago, but he has no qualms about voting on matters that send taxpayer money to his fishing buddy, even through overpriced no-bid contracts.

Even more curious: Brewer thought it was ethical to vote to send taxpayer money to the movie theater owner who also sells his barbeque sauce.

Add this to the confusing mix of ethical judgments: The mayor feels he can’t shop for his personal automobile in Wichita because he doesn’t want to be accused of getting a “special deal,” in his words.

If someone can explain this line of reasoning by the mayor and/or the city, I’d appreciate being enlightened.

It’s good to know that Mayor Carl Brewer is concerned about ethical behavior when shopping for a car or voting on matters concerning his former employer. But I’m surprised, as this concern for virtue doesn’t match the behavior of the mayor and many members of the Wichita City Council. Shall we run down the list?

Exhibit 1: In August 2011 the Wichita City Council voted to award Key Construction a no-bid contract to build the parking garage that is part of the Ambassador Hotel project, now known as Block One. The no-bid cost of the garage was to be $6 million, according to a letter of intent. Later the city decided to place the contract for competitive bid. Key Construction won the bidding, but for a price $1.3 million less.

Wichita mayor Carl Brewer with major campaign donor Dave Wells of Key Construction.

The no-bid contract for the garage was just one of many subsidies and grants given to Key Construction and Dave Burk as part of the Ambassador Hotel project. Both of these parties are heavy campaign contributors to nearly all city council members. Brewer and the head of Key Construction are apparently friends, embarking on fishing expeditions.

What citizens need to know is that Brewer and the Wichita City Council were willing to spend an extra $1.3 million of taxpayer money to reward a politically-connected construction firm that makes heavy campaign contributions to council members. Only one council member, Michael O’Donnell, voted against this no-bid contract. At the time, no city bureaucrats expressed concern about this waste of taxpayer money.

Exhibit 2: In July 2012 Brewer participated in a decision to award the large contract for the construction of the new Wichita airport to Key Construction, despite the fact that Key was not the low bidder. The council was tasked to act in a quasi-judicial manner, to make decisions whether discretion was abused or whether laws were improperly applied. Brewer’s judgment was in favor of Key Construction, even though its bid had the same defect as the lower bid. This decision cost taxpayers and airport users an extra $2 million, to the benefit of a major campaign donor and fishing buddy.

Exhibit 3: In a Wichita Eagle story that reported on “city-financed downtown parking garages that spiraled well over budget” we learned this: “The most recent, the 2008 WaterWalk Place garage built by Key Construction, an original partner in the WaterWalk project, came in $1.5 million over budget at almost $8.5 million. That’s the biggest parking garage miss, according to figures from the city’s office of urban development, although the 2004 Old Town Cinema garage built by Key Construction came in almost $1 million over budget at $5.225 million.”

Despite this personal experience, Brewer wrote a letter recommending Key Construction (and only Key), observing “Key is known for their consistent quality construction, budget control and on schedule delivery.”

Exhibit 4: In 2008 the Wichita City Council approved a no- and low-interest loan to movie theater owner Bill Warren and his partners. Reported the Wichita Eagle: “Wichita taxpayers will give up as much as $1.2 million if the City Council approves a $6 million loan to bail out the troubled Old Town Warren Theatre this week. That’s because that $6 million, which would pay off the theater’s debt and make it the only fully digital movie theater in Kansas, would otherwise be invested and draw about 3 percent interest a year.”

Warren Theater Brewer's Best 2013-07-18

Warren’s theaters and other business ventures have received other financial benefits from the city under Brewer’s leadership, too. Then — and I swear I am not making this up — when Brewer started manufacturing and selling barbeque sauce, it was sold at Warren’s theaters.

Exhibit 5: Given all this, Mayor Brewer saw it fit to praise Wells and Burk at the city council meeting on December 16, 3014. Effusively praise the two, that is. Also, Bill Warren –the owner of the movie theater that sells the mayor’s barbeque sauce — is a partner in this apartment project.

Really. All this happened.

What can we say about a mayor who is concerned about the appearance of impropriety when voting on economic development incentives for his former employer, but is not able to understand the problems with his own behavior in office?

How can a person decide he must shop for a car outside the city, but votes for overpriced no-bid contracts for campaign contributors and friends?

Why would an elected official decline to vote on a tax break to his former employer, but votes to give millions to a campaign contributor, and then sells his barbeque sauce in that person’s business?

How can someone justify participating in a quasi-judicial hearing involving his campaign contributors and friend involving a large city contract?

It’s difficult to understand or reconcile these decisions.

We have a law, maybe

Presentation by city attorney to Wichita city council, November 2013.
Presentation by city attorney to Wichita city council, November 2013.
There is a law in Wichita. There is a city code that reads “[Council members] shall refrain from making decisions involving business associates, customers, clients, friends and competitors.” Mayor Brewer voted for that law in 2008. But the former city attorney felt that council members did not need to follow that law.

When someone called attention to this law at a city council meeting when the mayor was about to award incentives to his fishing buddy, he threatened to sue the speaker. See Wichita Mayor Carl Brewer on public trust in government.

If the former city attorney’s interpretation of this law is correct and city council members do no need to follow this law, the city needs to do something. The council needs to repeal this section of the city code. There’s no need to have such a law if council members don’t have to obey. Also, someone who reads this — perhaps a business owner considering Wichita for expansion — might conclude that our city has a code of ethics that is observed by the mayor and council members and enforced by its attorneys. But giving that impression would be false.

Wichita seeks to correct an oversight, finally

A request to modify an agreement with the City of Wichita raises the question of why, finally, is the city dealing with an apparent oversight?

As I reported earlier this year:

Last year the Wichita City Council selected a development team to build apartments on the West Bank of the Arkansas River, between Douglas Avenue and Second Street. But city leaders may have overlooked a Wichita City Charter Ordinance that sets aside this land to be “open space, committed to use for the purpose of public recreation and enjoyment.”

Proposed apartments, west bank Arkansas River, Wichita
Proposed apartments, west bank Arkansas River, Wichita
This week the developers of the apartments seek city council approval of revisions to their plans. As part of the revision, city staff recommends that council approve a resolution that eliminates the restrictions on land use contained in Charter Ordinance No. 144. That ordinance provides that by a two-thirds vote of the council the restrictions may be reduced or eliminated.

A few questions come to mind.

Shall be hereafterFirst, Charter Ordinance No. 144, which the council may override, says that the property being used for the apartments “shall be hereafter restricted to and maintained as open space, committed to use for the purpose of public recreation and enjoyment.” Now that the council has turned over the property for private use, we may want to ask: Is this good public policy? The council will have to explicitly decide this issue. When the city conveyed the property without dealing with this ordinance, the issue was not discussed.

Second: Why only now is Charter Ordinance No. 144 and its restrictions being recognized? Why was this ordinance not recognized in August 2013 when the apartment project was approved by the city council? Part of the answer may be that the Wichita city attorney at that time has retired.

Third: If not for the request to modify the agreement would the conflict with Charter Ordinance No. 144 have been recognized? Would it have simply been ignored as an inconvenient rule that doesn’t really need to be followed, as it has been ignored for over one year?

Questions for the next Wichita city attorney: Number 4

Wichita’s city attorney is retiring, and the city will select a replacement. There are a few questions that we ought to ask of candidates, such as: Can the city disregard charter ordinances when they inconvenience the council’s cronies?

In awarding a contract for an apartment development, city leaders seem to have overlooked a Wichita City Charter Ordinance that sets aside the development area to be “open space, committed to use for the purpose of public recreation and enjoyment.” But the land was desired by a group of campaign contributors, friends, and business partners of Wichita Mayor Carl Brewer. Many of the partners had also received taxpayer subsidy from the city under the mayor’s leadership. In other words, it appears that the city legal staff disregarded a charter ordinance because it was not convenient for the mayor’s cronies.

The city creates laws, but sometimes has trouble following them.
The city creates many laws, but sometimes has trouble following them.
This begs a few questions, such as: Did the city attorney advise the mayor and council of this charter ordinance? We’ll probably never know due to attorney-client confidentiality.

But there is this really important question: Who does the Wichita city attorney represent? Whose interest does the city legal staff protect? The answer is the city attorney works for the city manager, who in turn works for the mayor and city council. These are the city attorney’s clients.

Which leads to this question, which the most important: Who represents the citizens of Wichita?

Some cities have an ombudsman, whose duty is to look out for the interests of citizens. You might think this is the raison dêtre of the mayor and council members — “the most important reason or purpose for someone or something’s existence.” We’ve learned, however, that this is not the case in Wichita.

Background: In 2013 the Wichita City Council selected a development team to build apartments on the West Bank of the Arkansas River, between Douglas Avenue and Second Street. But city leaders may have overlooked a Wichita City Charter Ordinance that sets aside this land to be “open space, committed to use for the purpose of public recreation and enjoyment.”

Click for larger version.
Click for larger version.

The building of apartments on this land would seem to be contrary to the language of this ordinance.

Section 10, paragraph (b) of Charter Ordinance No. 144 defines two tracts of land and specifies restrictions on their future use. The proposed apartment development, as can be seen in the nearby illustration, lies in the second tract. The ordinance says this land “shall be hereafter restricted to and maintained as open space.”

Following is the relevant portion of Charter Ordinance No. 144. Emphasis is added.

SECTION 1. Charter Ordinance No. 125 of the City of Wichita is hereby amended to add the following section:

“Section 10. (a) All real property subject to this Section and owned by the City of Wichita or the Board of Park Commissioners shall be subject to the restrictions on use established by this Section. Such restrictions shall apply to such property owned on the date of this ordinance and shall continue to apply to the property whether owned by the City, Board of Park Commissioners, or some other person or entity. These restrictions may hereafter be reduced to a less restrictive use or removed from any or all of the property by action of two-thirds of the members elect of the governing body. Any such action to reduce or remove restrictions shall be by resolution of the governing body.

“(b) This Section shall apply to that property located between McLean Boulevard and the Arkansas River and between Central Avenue and Douglas Avenue. The street boundaries shall continue to apply in the event of the relocation of any street.

That portion of the property North of Second Street shall be hereafter restricted to public use, meaning that such property shall be publicly owned and accessible to the public.

That portion of the property South of Second Street shall be hereafter restricted to and maintained as open space, committed to use for the purpose of public recreation and enjoyment.