Parish runs up against the Constitution

Jarvis DeBerry

Friday, April 11, 2008
Jarvis DeBerry

Given that it was written and amended so long ago, one would think that news of the Constitution would have reached St. Bernard Parish by now.

Officials in other jurisdictions have acquainted themselves with the document -- or at least hired lawyers who've seen it -- but St. Bernard officials figure they'd do just as well without the Constitution and its limits on government power.

In places governed by the laws of the United States, politicians don't have the right to abridge a law-abiding citizen's property rights. In St. Bernard, however, the Parish Council granted itself the authority to do what the Constitution says it can't. It passed an ordinance that forbids homeowners from renting their homes unless the Parish Council grants them express permission.
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If those councilmembers had forgotten that they operate within the borders of the United States, they should be reminded now that they've been dragged into United States District Court in New Orleans. They'll find it to be a different kind of place, a place where the Constitution does apply.

Sometimes it applies rather quickly. Having been sued last month, St. Bernard Parish has already been issued a temporary restraining order, preventing the parish from enforcing the ordinance.

The plaintiffs, 25 investors who are mostly from Florida, call the ordinance "unduly oppressive" because it forces those who want to rent their homes to undergo "an intimidating, irrational, oppressive and indefensible process."

The ordinance is only "indefensible" if one expects it to jibe with the Constitution. But so long as there's not such an expectation, one can make the argument that renters are undesirables and that it is the duty of a local government to keep such undesirables away.

That's parish officials' argument: that it is their duty to enforce a pre-Katrina percentage of owner-occupied homes, that an influx of renters will be a scourge on the parish, that such concerns give them permission to restrict individual rights.

Are neighborhoods filled with owner-occupied homes better than those with mostly renters? Generally speaking, yes. Are absentee landlords highly regarded? Generally not. Does distaste for such property owners or for those renting from them justify St. Bernard's ordinance? Expect the courts to say no.

The original ordinance drafted by Craig Taffaro in December 2006 had an extra dose of offensiveness, in that it required a renter to be a blood relative of the person who owns the property -- unless the owner came to the Parish Council and begged its permission.

It is theoretically possible that the blood relative clause was not meant to keep people who aren't white from renting property in an overwhelmingly white parish. But no matter the intent, the ordinance would still have had a discriminatory effect.

The parish put up a pathetic but costly legal fight after the Greater New Orleans Fair Housing Action Committee objected to the blood-relative clause. The parish settled with the fair housing group for $32,500 and got rid of just that clause. The edited ordinance requires every potential landlord to seek permission from the parish -- and threatens those who don't with fines or jail -- as if abridging everybody's rights makes the ordinance acceptable.

David Peralta, St. Bernard Parish's chief administrative officer, said last month that all 25 homeowners who've applied for a rental permit have been approved. He, therefore, can't understand why the plaintiffs are making a fuss.
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"We haven't turned anyone down," he said. "Why don't they apply for a permit and see what happens?"

Because doing so would be an admission that the St. Bernard Parish Council has the authority to decide if a property owner has full rights to his or her property -- when everybody with knowledge of the law knows it does not. The plaintiffs have two goals: to rent their properties as they see fit and to put St. Bernard's meddling government in its place. To apply is to submit. To triumph will be to have the ordinance struck from the books.

The plaintiffs are from Florida, but when they win their case, they will have won for all of us; for they will have forced the St. Bernard Parish Council to recognize the Constitution. St. Bernard's voters should have done that themselves and voted out everybody who thought it wise to draft a stupid ordinance and waste their tax dollars defending it.

They say bought sense is the best sense. St. Bernard Parish is buying a look at the Constitution, when it could have glanced at it for free.

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Jarvis DeBerry is an editorial writer. He can be reached at (504) 826-3355 or at jdeberry@timespicayune.com.