Opinion By Mark J. Fitzgibbons
The American Thinker
Posted 2/5/2014
American Thinker has covered the saga of Virginia farmer Martha Boneta, who was cited in 2012 by Fauquier County government and threatened with $5,000 per-day fines for hosting a private birthday party for eight 10-year-old girls without a permit, and advertising pumpkin carvings — even though she had a business license.
Boneta’s tiny farm store where she sold organic vegetables, beeswax candles and fibers from her over-100 rescued animals was shut down as she took a principled course of action to fight the county.
Every day local governments across the country abuse zoning laws to bully citizens, and violate property and other constitutionally protected rights. Most of these abuses are never known by the general public because citizens lack the resources to challenge these violations, or fear fighting back because of the well-known propensity of government to retaliate.
Citizens often concede to these abuses, and part little by little — or a whole lot, literally and figuratively — with their rights. The U.S. Supreme Court recently called some local abuses of zoning or land use laws “extortive.”
Local governments have vast opportunity to violate rights on private property because they exercise zoning power through land use laws.
Predatory local bureaucrats and anti-property rights crusaders masquerading as environmental groups figured out that it is easy to override property rights at the local government level. In Willie Sutton terms, that’s where the control is.
The National Association of Counties, for example, works more and more with the Obama administration to implement by executive order intrusive climate change and other invasive regulation at the local and national levels.
Into this issue of local government abuses of property rights has stepped Delegate Bob Marshall, well-known as perhaps the most principled constitutional conservative in the Virginia legislature. Marshall has introduced HB 1219, a landmark remedies bill that relies on old and recent precedent to hold abusive government in check.
The essence of HB 1219 is that it makes local government and even government officials subject to consequences for their abuses of rights, but in no way impedes proper uses of zoning authority.
Under the bill, citizens who sue when localities violate constitutional rights through zoning abuses can be awarded damages including attorney fees. Local governments that intentionally violate rights face stiffer penalties. Local officials who intentionally violate this law are subject to liability.
Federal precedent includes the law codified at 42 U.S.C. 1983 and 1988, where citizens can sue for damages and attorney fees when state actors violate constitutional rights “under color of state law,” meaning under the guise of state law.
HB 1219 creates whistleblower protections for local officials who come forward with violations of this law, and allows the state attorney general to intervene on behalf of victims of government abuse.
The bill also instructs courts to nullify local ordinances that violate constitutional rights. Localities would now have better incentive to write ordinances that comply with our supreme, fundamental and paramount law, the Constitution, in the first place.
People will say that courts already have this power to nullify unconstitutional laws. True. But in the name of judicial restraint, courts too often defer to inferior laws that violate our supreme law, which allows legislative bodies to trample on our rights. Here, the inferior law eliminates that foible.
Constitutionalists especially will like the next provision. It is that local ordinances do not have a presumption of constitutional validity.
In a 1981 constitutional challenge to a zoning ordinance, the Virginia Supreme Court declared that local ordinances have a presumption of validity, hence a presumption of constitutionality. This presumption is not created by statute, but by the judiciary, and places the burden on citizens to prove that laws are unconstitutional rather than making government prove that their laws are constitutional, or at least start the case from a level playing field.
The respective supreme courts have accorded state and federal statutes a presumption of constitutionality. Some legal scholars including Professor Randy Barnett have criticized that presumption, even calling it unconstitutional. But, state and federal laws at least go through a constitutional process of two legislative chambers and a threat of executive veto. It is that constitutional structure — checks and balances — on which the presumption is based.
Local ordinances do not go through such a constitutional process, but may be passed merely by a vote of three out of five elected officials in some localities. That’s hardly a basis for giving ordinances a presumption of constitutional validity.
In the first century of our American republic, citizens could sue and obtain damages from federal officials who exceeded their legal authority. This had the effect of making officials at least think twice before overreaching. HB 1219 includes remedies for ultra vires acts, meaning acting in excess of one’s legal authority.
Any good remedies law should be intended to prevent the need for litigation in the first place by creating disincentives for bad behavior. Bob Marshall’s remedies bill does that by putting arrows in the quiver of any citizen bullied by local governments. It’s a model that other state legislatures should replicate, and soon.