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Speaking Out: Government by retaliation

Speaking Out: Government by retaliation

Retaliation. It has a very negative connotation. We think of some examples on how the word is used.  We have sentences such as, “The enemy will retaliate.”  If we talk to the police, “The criminals will retaliate.”  If I punch him, the bully will retaliate, and so on. Rarely is the word used in the positive.

I hear the word often. My clients generally have issues with the government. It may be federal, it may be state, it may be local, or it may be a regional commission, but their issues involve some aspect of government activity. It generally falls into the context of, “We know we are correct, and we think the law is on our side, but we are afraid if we complain, they will retaliate.”  As such, they believe that they might win the battle but ultimately lose the war.

Just so it’s clear, this is a general conversation and not involving a specific agency. It could be the tax man. It could be the building inspector. It could be the environmental regulator. Heck, it could even be the garbage man. The problem is the perception is all too real and all too repetitive. We frequently refer to our legal practice as a “government-abuse practice,” responding to clients’ concerns, but the ultimate concern being if they speak for their rights, they will lose more in the end.

An anomaly is occurring, and we are seeing it more frequently. Often governments regulate governments. The most unusual form of the retaliation sentence is when a local government—a county, a city, or a regional authority—walks into the office believing another government—state or federal—has exceeded its legal authority.

The result is always a cost to the taxpayer at a different level and a shift to taxation demand from one branch to another in the system. Most often, because the majority of services are provided at the local level, it is the local government having the overly-broad demands placed upon them which exceed legal authority.

When a representative of a local government or a regional authority comes into my office and tells me they believe a higher government authority has exceeded their legal abilities, right there, is enough to get the hair on the back of my neck on the rise. But it is even more annoying and more wrong when those local governments or regional authorities express fear of retaliation from other governments. That gets my spine shivering. Theoretically, all these governments are supposed to represent one party—the taxpayer.

When a local government or regional authority fears retaliation, it is different than when a private individual feels the same.

When a local government fears retaliation, that is the very time they should step up to the plate and defend the constitutional integrity of the system. It is the time when they represent the most important concept of the Constitution—individuals not fearing their government. When the collective rights of a community are threatened by excessive behavior of a branch of government, it is time that a local government authority should be praised for its assertiveness and encouraged to defend.

One major reason I practice in the environmental areas is that it is rife with the potential for abuse. We all want a clean environment. Yet that outcome does not justify a violation of the Constitution, the proper passage of law and rule, or a compromise of procedure to the detriment of one side of the ledger. Because of the religion of environmentalism and protecting the planet, the propensity to accept the waiver of law is easy, but illegal nonetheless.

More frequently, cities, counties and regional authorities are faced with decisions that private companies have experienced for years—the real or perceived threat of retaliation. The difference, however, is a city, county or regional authority is a government, too, and represents the taxpayers as well. And when it perceives or believes there is a threat of retaliation, it has an obligation, both legal and principle, to fight inappropriate government when it exceeds its legal authority. This is because it is the last bastion of the defense and the protection of the local taxpayers.

We should never fear our government. We might not agree with it, but we should never fear it. The threat of retaliation or the perceived threat of retaliation is sufficient to call for change. Local governments that challenge other branches of government for the improper exercise of their authority should be praised. It is the consummate example of peaceful revolution expressed in the most conservative values of our constitutional law. Their vigilance should be encouraged, their risk acceptable, their expenditure valued.

David Shorr practices law at Lathrop & Gage in Jefferson City and Columbia. The views expressed in this column are Shorr’s and do not reflect the views of Lathrop & Gage. He can be reached at (573) 761-5005 or [email protected]

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