Challenging Local Criminal Ordinances in Virginia

Attacking the Validity of a Local Ordinance – A Good Defense!

The best defense often is a good offense, even when facing criminal charges. This is especially true when the crime charged is the violation of a city or county ordinance. Defendants can always argue they did not commit the crime, or they can try to have the charge or the penalty reduced. Another tactic, though, is to attack the constitutionality or validity of the ordinance at the outset. If an ordinance infringes a constitutional right or violates state or federal law, or if the municipality did not have authority to pass the ordinance, the local law could be struck down entirely. In other situations, the ordinance might not be applied in the particular case.

The Ordinance may violate the US or Virginia Constitution.

Attacks on local criminal ordinances can be divided into three categories. First, the ordinance may violate the U.S. or Virginia Constitutions. In Virginia, the two most common constitutional challenges to local criminal ordinances are First Amendment challenges and Fourteenth Amendment challenges. The First Amendment guarantees freedom of religion, freedom of speech and of the press, freedom to assemble, and the right to petition the government. The Fourteenth Amendment, among other things, guarantees due process of the law. One aspect of due process requires criminal laws to be “sufficiently precise and definite to give fair warning to an actor that contemplated conduct is criminal. Thus, the language of a law is unconstitutionally vague if persons of common intelligence must necessarily guess at the meaning of the language and differ as to its application.” Tanner v. City of Va. Beach, 277 Va. 432, 439 (2009) (internal citations and punctuation omitted).

In 2009, Virginia Beach found itself on the wrong side of the First and Fourteenth Amendments when it charged the owners of a local club with violating a city noise ordinance. The ordinance prohibited “unreasonably loud, disturbing and unnecessary noise in the city or any noise of such character, intensity and duration as to be detrimental to the life or health of persons of reasonable sensitivity or to disturb or annoy the quiet, comfort or repose of reasonable persons.” In reviewing this ordinance, the trial court determined that the police were not using a consistent standard in enforcing the ordinance. On appeal, the owners of the club claimed the ordinance was vague and subjective. The Virginia Supreme Court acknowledged that ordinances are presumptively constitutional, and therefore the Court would accept any reasonable interpretation of the ordinance that would prevent the ordinance from being vague. The Court would not seek mathematical precision in the language. But this ordinance raised additional concerns because it regulated speech and communications—activities protected by the First Amendment. The Court concluded that ordinance was unconstitutional, because the “reasonable person” standard left police officers too much discretion to determine what violated the law without giving notice to the citizens that their conduct was unlawful. Tanner, 277 Va. 432.

The Locality May Not Have the Authority to Enact the Ordinance – Dillon’s Rule.

A second type of challenge to local ordinances argues that the law was enacted without authority. In Virginia, local government “can exercise only those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable.” Eberth v. County of Prince William, 49 Va. App. 105, 111 (2006). In other words, in general, if the General Assembly has not authorized the local government to pass regulations on the subject matter, any ordinance passed on the subject matter is void. This is called “Dillon’s Rule,” named for a 19th century jurist who wrote an influential book on municipal law. The Virginia Court of Appeals has also stated, “If there is any reasonable doubt whether [the municipality’s] legislative power exists, that doubt must be resolved against the local governing body.” Id.

This kind of challenge is not as useful as it may seem, as the powers delegated to cities and counties are fairly broad. See, e.g., Va. Code ss 15.2-1102 (general grant of power to cities), -1200 (general grant of power to counties). Those powers have their limits, though. Perhaps most significantly, the Virginia Supreme Court has ruled that local governments may not criminally prohibit private nuisances. White v. Culpeper, 172 Va. 630 (1939). “[U]nless the statute in question is one which in some way provides for the public safety, pertains to the public health, or concerns the public morals, it is not a valid exercise of the police power.” Id. at 638. A few other challenges have been successful. In Prince William County, an ordinance that expanded the meaning of “operating” a motor vehicle on a “public highways” to cover parking a vehicle on private parking lots of apartment complexes was deemed invalid under Dillon’s Rule. Eberth v. County of Prince William, 49 Va. App. 105 (2006). In Chesterfield, a zoning law was struck down because it made every day of noncompliance a new violation, without express statutory authority. Lawless v. County of Chesterfield, 21 Va. App. 495 (1995). In a very creative argument, a Loudoun Circuit Court found a DUI ordinance adopting a DUI statutory amendment to be unconstitutional, because the county did not delay the enactment of the new ordinance until the statutory amendment took effect.  Saunders v. Commonwealth, 42 Va. Cir. 231 (Loudoun Cir. Ct. 1997).

The Local Criminal Law Violates State or Federal Law.

The third type of challenge to local criminal law ordinances claims the law actually violates state or federal laws. Virginia Code s 1-248 provides, “Any ordinance . . . of any governing body . . . shall not be inconsistent with the Constitution and laws of the United States or of the Commonwealth.” This requirement can be a stumbling block for municipal governments in several ways.

First, some provisions of the Virginia Code limit the ordinances local governments may pass. For instance, Virginia Code 15.2-901 allows localities to require property owners to remove trash from their properties or face a civil fine of up to $50. An ordinance establishing such a fine, though, “shall be in lieu of criminal penalties and shall preclude prosecution of such violation as a misdemeanor” subject to one exception. Cities and counties can easily overlook limitations like this. See, e.g., City of Norfolk Code 14.5-1, -5 and -6 (making it a Class 1 misdemeanor to store, accumulate or fail to keep property clear of solid waste); City of Norfolk Code 41-6 (establishing civil fines for failure to remove solid waste). In 1980 the Virginia Supreme Court struck a Loudoun ordinance establishing a minimum cash refund value for bottles, including alcohol bottles, because a state law limited local regulations on alcohol and alcohol containers. Board of Supervisors v. Pumphrey, 221 Va. 205 (1980).

Second, if the General Assembly passes laws intending to establish uniform regulations across the Commonwealth, local ordinances may not prohibit what the General Assembly permits. In a 1940 case, the Virginia Supreme Court declared void a Lynchburg ordinance prohibiting obscene movies from being shown, because the Commonwealth at that time had Division of Motion Picture Censorship to review motion pictures. Lynchburg v. Dominion Theatres, Inc., 175 Va. 35, 37 (1940). Successful preemption claims such as this, though, are few and far between.

Finally, various provisions of the Virginia Code expressly permit local governments to enact ordinances that parallel or incorporate the Commonwealth’s criminal laws. In these cases, though, a substantive difference between the Commonwealth’s laws and the local laws may invalidate the local law. In one case, Newport News had an ordinance paralleling the state law on DUI—until the General Assembly changed the law to increase the DUI penalty. Because the City did not amend its ordinance as well, three criminal defendants had their convictions reversed because the local ordinance prescribed penalties less than the state law. Parker v. City of Newport News, 17 Va. App. 253 (1993).

The greatest obstacle in challenging the constitutional or validity of criminal ordinances is the attorney cost and the hassle involved. Legal research and drafting the arguments is time consuming. Moreover, local governments may only define misdemeanor conduct, not felonies. Because of this, violations are tried first in the general district courts. While an acquittal in the general district court based on the facts of the case precludes the city or county from pursuing the matter further, an acquittal in the general district court based on a finding that the law is unconstitutional is not necessarily the end or the story. Va. Code § 16.1-131.1 permits an extraordinary procedure whereby the city or county may have the matter put on hold in the general district court while the circuit court determines the constitutionality of the ordinance. This may be followed by appeals to the Court of Appeals and then to the Virginia Supreme Court. In some situations, the matter could go all the way to the United States Supreme Court. This places local ordinances among the most protected laws in the Commonwealth.

That being said, challenging the validity or constitutionality of local ordinances can be a valuable and powerful tool. It can be a complete defense if successful, and even the threat of it can encourage a dismissal or favorable plea offer. It can also educate the judge in preparation for other legal defenses in the facts of the case. Moreover, challenges like these are one way to ensure that local governments will not encroach on the liberties of citizens.

For such challenges, you should hire an attorney who specializes in this narrow area of the law.

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.

Contact:

Andrew T. Bodoh, Esq.
Thomas H. Roberts & Associates, P.C.
105 S 1^st Street
Richmond, Virginia 23219
(804) 783-2000 x 110
(804) 783-2105 fax