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"The laws
are out of sync," said Patricia Griffin.
The
county code provides for fines and jail sentences for repeat
violators, but the section of the state code dealing with
municipal ordinances -- which is what the county code is --
limits the amount of fines to $1,000 and does not empower the
lowest courts to imprison offenders.
The issue
arose several months ago when Delaforum reported that a
homeowner in Claymont who has been cited numerous times by
county code enforcement officers for an unkempt property had not
paid several fines. County lawyers sought to impose the
alternate penalty, a 30-day prison sentence, but the justice of
the peace in the case balked at doing so.
As a
result, the General Assembly passed a resolution establishing a
committee to look into the situation and come back with
recommendations for possible corrective legislation, if that is
found necessary and appropriate, in time for the 2002 session.
The committee has yet to meet and, as far as Delaforum can
determine, all its members have not yet been appointed. Griffin
is designated as a member and said she will personally
participate in the committee's deliberations.
She said
she did not want to anticipate what the committee will find but
added that, in general terms, she would favor changes to
reconcile differences in the laws.
In
connection with a currently pending case involving the same
defendant who is alleged to be illegally keeping inoperative
cars on his property, a county attorney told Delaforum the
Griffin had issued a memorandum prohibiting the justices from
sending anyone to jail.
Griffin
acknowledged that she, indeed, has issued such instructions in
the form of legal memorandums, but said she had no alternative
because of the state law. When state and local law conflict,
state law prevails. Neither memorandum originated with the case
in question and Griffin declined to comment on it because it is
a pending matter.
The more
pertinent memorandum dates back to July, 1999, and applies to
violations of the Wilmington city code, but its application to
the present and the county code is the same.
The
memorandum states that the state law "prescribes only a fine of
up to $1,000 and does not provide for any term of imprisonment
to be imposed by a justice of the peace for the violation of a
municipal ordinance."
It is a
well accepted legal principle, Griffin said, that absent the
law's granting an authority, it is presumed that such authority
does not exist.
"Without
a change in the justice of the peace court statutory
jurisdiction, we cannot impose incarceration of a municipal
ordinance violation although a municipal ordinance may, under
certain circumstances, include the penalty of imprisonment," the
legal memorandum concludes.
The
applicable section of state law was enacted in 1971 and
originally set the maximum fine at $100.
Magistrates, who usually hear misdemeanors and serve as the
entrance point for other criminal cases into the state judicial
system, do have the authority to impose sentences of up to one
year for violations of other laws.
A legal
memorandum by Griffin, issued in May, 2000, said that the
standing right of a defendant to transfer a case to Court of
Common Pleas "does not apply to cases involving violations of
municipal or county codes, ordinances or regulations." That, too
is based on state law.
The
transfer question is fairly academic. Reasons a defendant might
want to change the venue include a desire to have the case heard
by a jury or before a judge who is a lawyer by profession.
Justice of the peace courts do not have juries and not all those
justices are lawyers.
Since
Court of Common Pleas has the authority to send a guilty person
to prison, it would seem unlikely that anyone charged with a
municipal or county code violation would choose to run that
risk. A plaintiff does not have a right of transfer.
A
potentially applicable third power which the lowest courts do
not have, Griffin said, is the ability to order someone to do
something. Failure to obey such an order to remedy a code
violation would elevate the issue to contempt of court, for
which there are more severe penalties.
The
closest a justice of the peace can come to that, she said, is
agreeing to suspend a fine if certain conditions -- such as
remedying the violation -- are met.
Griffin
said that "a variety of complex issues" apply to handling
violations of local ordinances. Not the least is a general
public impression that such violations are minor when weighed
against the grand scheme of things. "I doubt there are many
people who would like to see [a neighbor] sent to jail for not
cutting his grass even though they don't like the tall grass,"
she said.
County
officials maintain that flagrant and repeated violations of
housing and property laws are not trivial matters and can
involve serious health and safety risks.
Griffin
said she does not dispute that. As judges, she said, justices of
the peace are bound to decide cases on the information and
evidence brought before them. By definition, their courts exist
to deal with the lowest level of offenses and, taken out of
context, that could give the impression that they involve
situations of little consequence.
That is
not so on the other side of the bench, she added. "You can be
assured that we take seriously everything that's brought before
us."
The decision whether something is
not worth being concerned about is made long before the justice
is aware of it, she added. "It's made by the county [officials]
when they decide to prosecute and bring [the case] before us."
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