Showing posts with label Dillon. Show all posts
Showing posts with label Dillon. Show all posts

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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Friday, January 11, 2013

Gloucester, VA - Dillon Rule For State And Local Government And Home Rule Laws

Once again we have heard from the person who stated yes to Gloucester Animal Control Law, Section 3-15 being a valid law.  The following is the recent reply and we again wish to thank that person for taking the time to respond and the invaluable argument that person gives as well as contributing to the knowledge base of us all.

Me again. I think the discussion is moving in the correct direction. I would suggest that the intent of 6543 is to permit local governments to adopt AND make more stringent ordinances that parallel the sections listed. Localities may adopt parallel ordinances for all of the code so long as they are not more stringent. In fact, they do not need to do so because the locality could simply rely on the state code to file charges. Adopting codes locally serves to make ordinances overall more clear and transparent so a citizen does not have to navigate a few applicable ordinances in local law (that in this case are permitted to be more stringent) and a few from state law never really knowing if they have observed all laws. 

So, I continue to maintain that if you do not like the ordinance, your beef should be with the state, not the locality. This is particularly true in Virginia given it is a "Dillon Rule" state.

I trust this information is useful.

One argument I have here is the use of "Adopt AND" phrase in the above argument. In state law 3.2-6543, there is a coma after adopt in the wording that the state uses and it is there for a reason.  It has a meaning.  If the state law makers meant "adopt and", then they would not have used the coma in the sentence.  In law, the coma break is used to signify the proper context of the meaning.  Now let's look at the Dillon Rule.


Dillon Rule in Virginia

Fairfax County operates under the urban county executive form of government, an optional form of Virginia county government, and like other Virginia local governments,Fairfax County has limited powers.
More specifically, Virginia courts have concluded that local governments in Virginia have only:
  1. Those powers that are specifically conferred on them by the Virginia General Assembly
  2. Those powers that are necessarily or fairly implied from a specific grant of authority
  3. Those powers that are essential to the purposes of government -- not simply convenient but indispensable
This doctrine of limited authority for local governments is commonly called the Dillon Rule, a name that is derived from the writings of John Forest Dillon, who served as a judge, a law professor and an author of legal textbooks in the latter part of the nineteenth century. The Dillon Rule is used in interpreting law when there is a question of whether or not a local government has a certain power. The Dillon Rule narrowly defines the power of local governments. It also 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.
The Dillon Rule as a concept is found in all states – meaning that apart from the power ceded to the federal government in the U.S Constitution, the state governments have all the remaining governmental authority. However, most states have adopted various types of “home rule” provisions that permit some or all of their local governments to undertake those governmental functions that are not specifically precluded by the laws of those home rule states. Virginia has not provided such home rule authority to its local governments.
The Virginia Supreme Court and other Virginia courts routinely apply the Dillon Rule to determine whether or not a local government has the legal authority to undertake a disputed action. For well-established county functions, like planning, zoning, and taxation, there are a number of statutes that give the county clear direction and authority to act, but in new areas of governmental concern, the Dillon Rule can serve as a constraint to innovative governmental responses.
This means that Fairfax County has limited powers in areas such as raising revenue, and it cannot take certain actions without appropriate action from the state, which limits revenue diversification options among other things.

The above is reprinted from the Fairfax County Government web site.

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Home Rule Law & Legal Definition

Home rule is the power of a local city or county to set up its own system of self-government without receiving a charter from the state. Home rule is allowed under some state constitutions. The authority to act in local affairs is transferred from state law to a local charter, adopted and, as need be amended, by the voters through referendum. Home rule shifts much of the responsibility for local government from the state legislature to the local community. A county that adopts a home rule charter has the ability to amend its governmental organization and powers to suit its needs. A home rule charter is, in essence, a local constitution.
A home rule county is still subject to restrictions found in the United States Constitution, state constitutions, and in state laws applicable to all counties. While not restricted to only things specifically authorized by state law, home rule counties can do anything not specifically forbidden by state or federal law.

The "Home Rule" definition is reprinted from US Legal web site.  The link will take you right to the definition as re printed above.

  So again, I like the argument.  It is very clear, well thought out and executed, however I still see all of these flaws.  So again, I argue that the state has not authorized the county to import and or alter Gloucester County Animal Control Section 3-15 as derived from state law 3.2-6503 as it pertains to what the state does permit under 3.2-6543 which only allows restricted adoptions of certain laws and 3.2-6503 not on the approved list for adoption.  No where do we see the Dillon Rule working on Gloucester County's behalf, but instead, against it.  The Dillon Rule is limited government not expanded government.  To import 3.2-6503 and alter it is an expansion of power, not a limitation of power and definitely not a transparent use of law but more like an abuse of law in our view.

§ 15.2-1425. Actions by localities.
The governing body of every locality in the performance of its duties, obligations and functions may adopt, as appropriate, ordinances, resolutions and motions.

  If you wish to argue this as being open to adopting state laws under the Dillon Rule, we don't see it as a valid argument.  We have gone through the laws of what localities can and can not do, 3.2-6543 seems to stand as what localities may adopt for the laws and or ordinances of each locality within the state under Animal Control Laws.  Section 3-15 of Gloucester County Animal Control Law does not seem to stand the test as it is derived from 3.2-6503 of Virginia State law that does not fall under 3.2-6543 as having the ability to be adopted by localities.  Again the coma after the word, "Adopt" in the state law 3.2-6543 is the key here.

  If I were to hazard a guess as to who our person is with a brilliant grasp of our legal system, I would guess that it's a person who is employed by the Gloucester County government.  If I were to hazard an even further guess as to exactly who this person is I would hazard it to be Ted Wilmot, the Gloucester County Attorney.  These are only guesses.  Either way, it seems clear that the intent of the continuing arguments for 3-15 is in defense for having the law on the books of Gloucester County as it has the ability to raise plenty of money for the county and court system.  Taking it off the books would cause a serious cash flow issue for the county and certain services which in many cases seems more like citizen dis services as it seems to be abused by Animal Control officers on a regular basis.

  Still I like the arguments and would prefer them to continue.  It's a learning curve and I will not say we are 100 percent right.  There could be areas we are missing.  After all, we are not attorney's and this is not meant as legal advice in anyway.  It's just questioning everything.  Again, thank you and  please continue the input and we ask that you not take offense to our arguments.  We all have something to learn from it.

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