Monday, August 19, 2013

Gloucester Animal Control Ordinances Debate Continues

Gloucester, Virginia Animal Control Ordinance 3-17 continues it's legal debate as we have heard back from Gloucester County Attorney, Ted Wilmot on his opinion of the code.

First let's once again explore the code and our arguments against it, then we shall turn our attention to his arguments that are pro.  Once we cover his pro arguments, we shall again show you what looks like holes to us.

Gloucester, Virginia Animal Control Ordinance 3-17 reads as follows;

Sec. 3-17. Animals riding in open vehicles.

It shall be unlawful for the operator of any motor vehicle on a pubic road to place or keep an animal in any portion of such vehicle that is open in such a manner so as to permit such animal to jump out of or escape the vehicle or to be thrown from the vehicle by acceleration or stopping of the vehicle or by an accident involving the vehicle. The prohibited portions of a motor vehicle shall include, but not be limited to:

(1)The open bed of a truck or upon a motorcycle; or

(2)The rear storage portion of a vehicle with the tailgate, truck, or hatchback portion open or down. For the purposes of this section, the operator of a motor vehicle shall be deemed to have control of any animal found there.

Our arguments here are that we can not find any corresponding state code to the above local ordinance which is what the Dillon Rule would seem to argue for.  It appears to us to be made up.  We received confirmation from the Gloucester County attorney, Ted Wilmot, that it is in fact made up.  However, he claims justification for it.  Here is his argument.

"There does not appear to be one specific Virginia State Code section constituting enabling legislation for Gloucester County Code Section 3-17. However, that code section’s requirements are legally defensible regulatory measures in light of the following:

1. The section is limited to public roads and public places, and does not regulate activity on private property;

2. Va. Code Section 3.2-6570 prohibits the carrying by vehicle of any animal in a cruel or inhumane manner;

3. The County has the authority to prohibit cruelty to and abuse of animals and fowl, see Va. Code Sections 3.2-6544(B) and 3.2-6543;

4. The County has the authority to prohibit animals running at large (see, e.g., Va. Code Sections 15.2-1218, 3.2-6538, 3.2-6543, and 3.2-6544) ;

5. The County has the authority to require that animals have “adequate shelter.” “Adequate shelter” is defined, in part, by Va. Code Section 3.2-6500, to include shelter that is “safe and protects each animal from injury.”;

6. No case or opinion of the Attorney General of which I am aware demonstrates the unlawfulness of Gloucester County Code Section 3-17; and

7. Va. Code Section 15.2-1201 generally vests in the County Board of Supervisors the same authority and powers as are vested in City Councils. Va. Code Section 15.2-1102 vests in municipal corporations (here, cities) the authority to legislate to protect welfare, safety and health.

I hope that you can understand and appreciate that one of my roles is to defend and assist in enforcing the ordinances passed by the Board the citizens have elected, at least unless such an ordinance has been declared unlawful by a court of competent jurisdiction, or is clearly unlawful even without a court determination. Mr. Thompson’s assertion the Section 3-17 is unlawful is not sufficient for me to agree.

Ted Wilmot"

So here we have Ted stating that it's fine to create new ordinances via hodge podge means.  Just cut and paste areas of state codes from various sections.  Even if it creates new meanings, it's justified.  We sent a message back that if the codes are already in place, there is no reason to duplicate them in new manners especially when those manners have a tendency to change the meaning of the original codes.  To be fair, we also stated that we are going to create a new form questionnaire and send it out to other attorney's, the state and law schools to get their opinion on all of this.  

The form will be ready before the end of this week.  

Argument 6 from above, Ted states that he is unaware of any opinion the Attorney General may have on Gloucester County ordinance 3-17, well if the Attorney General has not seen it, why would he have an opinion on it?  Bad argument there.

Argument 7 from above, Ted states that counties in Virginia have the same rights as city councils.  So?  What is that supposed to mean?  Does that mean that both counties and cities can make up whatever ordinances they want in violation of the Dillon Rule?  I don't think so.  

From what we see of Ted's arguments, as already stated, codes are already on the books to cover the proper protection of animals.  So there really is no reason whatsoever to duplicate them through a mosaic of words that create new meanings, unless of course the final desired results were to create new meanings.

The Dillon Rule Applied In Another Virginia County:

The Dillon Rule Defined:

What is the Dillon Rule?

The Dillon Rule is used in interpreting state law when there is a question of whether or not a local government has a certain power. Lawyers call it a rule of statutory construction.

Dillon's Rule construes grants of power to localities very narrowly. The bottom line is that if there is a question about a local government's power or authority, then the local government does not receive the benefit of the doubt. Under Dillon's rule, one must assume that the local government does not have the power in question.

In legal language, the first part of Dillon's Rule reads like this: Local governments have only three types of powers, those granted in express words, those necessarily or fairly implied in or incident to the powers expressly granted and those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.

It is the second part of the Dillon Rule, however, that puts the vice on local government's powers. 

This part states that if there is any reasonable doubt whether a power has been conferred on a local government, then the power has not been conferred. This is known as a rule strict construction of local government powers.  Fairfax County PDf of the Dillon Rule.  Sent to Ted Wilmot, Brenda Garton and the entire Gloucester County board of supervisors.
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