Councilman Goldstein issues formal dissent, calls crime reduction ordinance unconstitutional
by Hilary Butschek
July 10, 2014 01:21 AM | 6003 views | 3 3 comments | 7 7 recommendations | email to a friend | print
Philip Goldstein
Philip Goldstein
MARIETTA — Councilman Philip Goldstein attacked an ordinance meant to reduce crime in apartment complexes once again, saying it was unconstitutional in a formal dissent he filed at Wednesday’s City Council meeting.

Mayor Steve Tumlin immediately vetoed Goldstein’s dissent of the ordinance, which was proposed by Marietta police and asks apartment complex owners to enroll in a crime reduction program if the crime rate on their property is higher than the city average.

The ordinance passed with a 6-1 vote in June, with Goldstein opposed.

Tumlin said his veto Wednesday was the only way he could get his opinion in opposition of Goldstein’s dissent on the public record.

Goldstein said his actions were a “legislative” matter allowing him to put his opposition of the ordinance, which is now part of the city’s code, on the record. Tumlin’s response, Goldstein said after the meeting, “was not unexpected.”

The dissent filed by Goldstein and the veto filed by the mayor do nothing but make their opinions a part of the public record, Tumlin said.

Tumlin sourced city attorney Doug Haynie’s argument against Goldstein for his veto.

Goldstein said the ordinance was unconstitutional because it does not allow due process for apartment complexes and it made their cooperation with the police mandatory.

“My justification for filing the dissent is because I have serious concerns about the ordinance, based on the Constitution and federal statutes,” Goldstein said.

Goldstein said the police have no right to tell apartment complexes how to run their businesses, which are the same complaints he made when the ordinance was being discussed with the City Council last month.

The proposal is new to Cobb County, and is already used in Arizona, California and Texas.

The ordinance was denounced by Goldstein when it was first proposed because the first draft of the ordinance required apartment complexes to take part in the program to reduce crime. It was then made a voluntary program, and Haynie said it is legally sound.

Goldstein acknowledged some changes were made to the ordinance before it passed, at his request, but he said some problems remained in the document.

Haynie argued the ordinance was constitutional because police had the power to regulate crime in apartment buildings.

“I know you’re never going to agree that the city has that power, but I want this to be part of the record that the city does have that power,” Haynie said.

Tumlin agreed with Haynie’s argument the issues Goldstein had with the ordinance were the same ones he had shared before.

But, because the rest of the council voted for the ordinance and the city attorney found it legally sound, Tumlin said Goldstein had no basis to dissent.

“(Goldstein’s dissent) was meant to be a bad thing to do to discredit our police,” Tumlin said.

Tumlin said dissents are common among the council, and Goldstein has opposed city ordinances based on constitutionality in the past. Tumlin said this discredited his argument because Goldstein had been found to be wrong in the past.

Goldstein filed a dissent in opposition of the city’s adult entertainment ordinance in 1995 because he said it was unconstitutional. Haynie said he was disproven by the Georgia Supreme Court in 1996, when the court said the ordinance was legal.

Marietta Police Chief Dan Flynn said he did not want to comment on the issue because it was strictly a discussion between the council and the city attorney.

The council took another vote on Wednesday night, and it reaffirmed the validity of the ordinance with a 7-0 vote, including Goldstein, which included his dissent on the public record. No changes were made to the ordinance, and it still stands as a part of the city’s code.

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July 10, 2014
If there were a matter of a nuisance then by statute the remedy is through the courts of equity (court made law), in which statutory standards must be met as well as due process. Now if they are indeed nuisances then they can only be resolved through a court of equity. If they fall short of a court of equity, the county has decided that the ability to make law is for the police department. That is, for things which do even rise to statutory burden of a nuisance for which the legislature has authorized can be restricted but only if substantial tests and procedures are met, the city has decided that the cops can then feel free to make up whatever law they want and enforce it without a notice, a hearing, a summons, or procedural due process. The fact the city attorney says due process is met because a person can appeal to a board set up by the county is preposterous, more importantly it isn't likely to result in a return of a persons attorney fees for prevailing parties making it too expensive for most people to challenge the police actions. We all know how boards tend to operate, not as a matter of laws and precedence, but completely arbitrary and subject to favoritism or the reverse. Congratulations mayor Tomlin, you have created a police state where the police make the laws. And if it is allowed to start with real estate it will continue to expand to other sectors, and even private individuals. Congratulations Tomlin, you have gave your unelected police department the power of the state legislature.

The further problem is that police can also target properly owners based upon who they or the mayor doesn't like. More enforcement by unmarked officers may be under the pretense of making a facility safer, but it can be under the pretenses of forcing the company to be under control of the police. Furthermore, the another problem is that these business owners are being punished for the actions of others even though they completely lack the motive, and cannot thus have a fair warning. It may also lead to companies under reporting crimes, which may have the effect of making the police practice be successful, but simply masks existing crimes as to not have them count against them. Why? The police power is virtually unlimited and artbitrary-and the police could even refer companies by certain products sold by only one vendor. They could force a company to spend thousands or even millions of dollars in upgrades without so much as a hearing. Even in the punishment for a crime, which the owners have not committed, the punishment for a lawless violation may not be arbitrary.

If the mayor and the police chief think they can do real estate better than the private practice, why don't they get out off of their their lazy protected tax payer paid behinds and make some money in the private sector. Oh yeah, they can't which is why they are spending their lives bullying others.

The people running Cobb are not republicans, it is time to call them for what they are: These are Republican In Name Only, in the form of Fascists. Kick their behinds out to the street.
Ben Twomey
July 10, 2014
Goldstein has this one right. This is not a "crime reduction ordinanace". It is another in a growing series of government control ordinances.
John Galt
July 10, 2014
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