Academic journal article South Dakota Law Review

If It Walks like a Duck: The Creature of a Municipal Ordinance Violation in South Dakota

Academic journal article South Dakota Law Review

If It Walks like a Duck: The Creature of a Municipal Ordinance Violation in South Dakota

Article excerpt

I. INTRODUCTION

Democracy was born not of great empires, but of humble city-states. That was not happenstance. Rule by the "demos" was most likely to arise in such a developed yet relatively small, familiar, and geographically concentrated polity. (1) Indeed, from its beginnings, democracy and localized government have been deeply connected--by necessity and design. Even today, the most successful communities are often the most democratically vibrant and civically engaged. (2) This makes logical sense, for being the lowest governmental unit of general jurisdiction and authority, a municipal government is necessarily closest and most responsive to the people's needs. With the appearance of increasing gridlock in representative political institutions throughout the United States, it is this unique quality of local government that has caused some to argue that The Honorable Justice Louis Brandeis' "laboratory" of democracy is a title for which cities are at least as deserving as states. (3) The dynamism of localized, concentrated polities drives our economy, our popular culture, and our attention--whether nationally, or here (as much as we may be loathe to admit it) in South Dakota. (4)

These high-minded theories, however, come face-to-face with the reality of our system of government and laws. In South Dakota, as in most states, a municipality is a subordinate entity, lacking any organic or plenary authority to exist in our constitutional system. (5) All municipal authority flows from our state constitution, and with one notable exception, municipal authority is subservient to the state's statutes and administrative rules. (6) In keeping with this reality, the tools by which local government responds to its people's needs derive almost entirely from the legislature's express will in statute, or from powers "implied from, or incidental to, the effectuation of [that] express authority." (7)

Nowhere is this dependency more apparent than in one of the unique means municipalities have to enforce their dictates--prosecuting an "ordinance violation." (8) For those practitioners with limited experience in municipal law, breaking down this important phrase may be instructive. Ordinances are the "permanent legislative act[s]" of a municipality "within the limits of its powers," (9) akin--but as suggested in the last quote--far subservient to the statutes enacted by the legislature. A "violation" is distinct from a crime, (10) and amounts to an "offense" or "public offense" for limited purposes within South Dakota Codified Laws (S.D.C.L.) title 22. (11) An ordinance violation often amounts only to a "petty offense" depending upon its nature and the maximum penalty assessable. (12) Out of this definitional milieu, one thing is clear--the ordinance violation has a demonstrably lesser punitive impact than its state criminal statutory counterparts. In fact, the humbling of the ordinance violation--both municipal and county--was nearly made complete in the Ninety-Second Session of the South Dakota Legislature, wherein a proposal was floated to eliminate the current maximum penalty for an ordinance violation of thirty days in jail and a five hundred dollar fine, (13) and replace it with a flat, twenty-five-dollar penalty per violation. (14)

As we enter into an era of increasing financial influence and a soft power (of sorts) of cities, and the deepening political cleavages between states and cities that this dynamic has caused, it is essential to ensure that we have a sound understanding of the limited instruments of municipal authority in our state and the role municipalities play in our constitutional order. (15) Without this understanding, these tools that our forebearers memorialized may fall into disuse, or may be substantially curtailed by confusion resulting from textual obscurity. (16) This article attempts to do its part by analyzing the procedure by which ordinances--local government's most authoritative pronouncements--should be enforced in court, as they are one of the few, and most common, means available to municipalities to enforce their authority. …

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