Free speech and right of appeal under fire in San Luis Obispo

June 25, 2024

OPINION by RICHARD SCHMIDT

News Flash: San Luis Obispo City wants Jane Q Citizen to pay $3,500 in fees to appeal a faulty use permit the city issued for a fraternity next door to her home. That’s up from an already too high fee of $792, and appears to be a naked political maneuver to shut down appeals altogether.

That increase is what city staff are telling the city council to do Tuesday July 2. Is that fair? Is it decent? Should we allow our city council to do that to us?

The right to appeal to government is a fundamental human right under our American constitutional system. That’s because, as all who are properly educated should know, the right of appeal is explicitly spelled out in the First Amendment to the Constitution, which guarantees “the right of the people … to petition the government for a redress of grievances.”

That right, a basic human right for all of us, is stated without qualification. The First Amendment doesn’t say the right of appeal is open only to the rich, only to those who can afford whatever “fee” a city may want to charge, and is closed to the rest of us. The guaranteed appeal right is open to all, on an equal basis.

It was only by adding a “bill of individual citizens’ rights” to the draft constitution, which as originally conceived was a document describing the bureaucratic structure and purpose of the federal government, that ratification of the Constitution by the 13 states was secured. And the First Amendment was first because it encompassed hot human rights issues of that era: freedoms of speech, press, religion, assembly and appeal to government, all of which had been abused – in colonists’ eyes – by the British crown.

One may recall also that glib mishandling of citizen “petitions” by the King of England had been explicitly cited in the Declaration of Independence as justification for revolution. “A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.”

In the years since Constitutional ratification, the importance of the right of appeal has only grown, and courts have made clear that both speech and petition are integral to maintaining the democratic process.

The city of San Luis Obispo, having already truncated speech rights by cutting off video comments, now wants to truncate appeal rights as well by charging fees it knows will all but eliminate the ability of common people to appeal staff decisions.

This is a city choice, not a necessary thing. Staff’s report for the July 2 City Council consideration of jacked up appeal fees puts it this way: “Many city services are considered a general public good and are funded through general tax revenues, however, some services are funded only by the users of the service.”

The city has arbitrarily decided that the “general public good” doctrine applies to streets and bike lanes, things paid for by the city, but doesn’t apply to protecting the human rights of speech and appeal. In other words, making an appeal is like parking your car in a municipal garage and paying a parking fee – you use a city service and you pay for it.

That’s a fundamental thought error based on ignoring centuries of appeals history and the important role the right of appeal plays in keeping government honest and responsive. Appeals aren’t a city service, they’re a right.

Further, the city admits (in the staff report for July 2’s meeting) it is using high appeal fees to truncate the right of appeal in order to achieve certain political ends: “to not overly encourage” appeals, to avoid costs, and “to not discourage housing or other important City Goals.” That’s shows deliberate intent to use appeal fees as a political tool and to ignore the human rights such policy short-changes.

As for why the huge proposed fourfoldplus increase in fees, the staff report justifies this as “due to the controversial nature and complexity of appeals,” which suggests further political motive. After all, appeals would be “controversial” to staff whose decisions are being questioned by the appeal.

Having shed the arrogance of the King George, is it now up to city staff to assume an equivalent role of inflicting “repeated injury” with impunity?

It strikes me there’s a fundamental problem not only with the city’s fee proposal, but also with its thinking about the role and purpose of appeals. Fees that are so high as to be exclusionary for most of us are wrong. But isn’t charging anything for appeals equally wrong? Human rights are things that accrue to us, not things we should have to pay for.

If you have any thoughts on this issue, you can email them to the city council at emailcouncil@slocity.org.