Long and growing is the list of property rights abuses by federal agencies such as the Environmental Protection Agency. Even at the state level, wetlands and other laws are being used to invade and destroy private property rights.
Last term, the United States Supreme Court in Koontz v. St. Johns River Water Management District brushed back the government on its bullying treatment of private property owners, but the case was remanded for further litigation.
Private property owners can go bankrupt litigating to defend and protect their property rights, and government bureaucrats and lawyers rely on that as part of their strategy to push their extortive agendas. Property owners have skin in the game; government bureaucrats and lawyers do not.
The threat to property rights is not confined to behemoth government; it is very real at the local government level as well. From the abuse of eminent domain typified in the Kelo case to abusing land use or zoning laws, local governments have become a dangerous threat to property rights.
This vast local power over property rights has not been lost on the anti-property rights crowd, who believe that your property rights actually belong to the community.
When Virginia’s Fauquier County cited farmer Martha Boneta last year for hosting a birthday party for eight 10-year-old girls because she did not have a permit and site plan, little did county officials think they would set off a revolution for legal remedies against such abuses.
The “Boneta Bill” introduced in the Virginia General Assembly last session provided remedies against county governments and county officials who violate rights of farmers, or otherwise abuse the law. Farmers could proactively institute lawsuits for damages, including their legal fees, against law-violating bureaucrats.
The bill, popular among the grassroots, was advanced without paid lobbyists, but it was ultimately defeated in the face insider opposition from property rights opponents such as the Virginia Association of Counties and the Piedmont Environmental Council. To this day, Martha the Farmer remains under threat of $5,000 fines per day and even criminal penalties.
If you are smacking your lips at the notion of being able to sue bureaucrats who abuse their authority, history is on your side.
In his brilliant treatise, The Fourth Amendment: Origins and Original Meaning, 602 -1791, William J. Cuddihy explains that Lord Halifax lost more money in private lawsuits against his unlawful attempts to collect under the Stamp Act than was ever collected.
Private lawsuits against federal officials were used through the 19th century, explains Michael Greve in his Claremont Review of Books review of Jerry Mashaw’s Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law.
According to Greve, Mashaw describes the use of “common-law remedies, including damages” under “the precept that citizens whose private rights were at stake had to have access to an independent court,” and “no ‘immunity’ shielded officials who had acted without legal authority.”
Those looking for at least a partial solution to the problems of big government should focus on obtaining remedies legislation. As Greve writes, simply “[t]he threat of lawsuits for damages provided an equally potent deterrent against overreach” by federal bureaucrats.
State legislatures often delegate broad powers to localities to legislate and enforce land use laws for the health, safety, and welfare of the public. The problem is that state legislatures fail to put in place adequate controls to ensure that local power is not abused. Local land use laws are enforced by bureaucrats, and many are trained with an anti-property rights agenda.
Compounding the problem in Virginia, the state Supreme Court gave local county ordinances the “presumption of constitutionality.” That judicial doctrine means that legislation passed is presumed constitutional, and the burden is on citizens to show that laws are not constitutional. Anyone who has challenged a law on constitutional grounds knows that this is a near-Herculean feat.
The doctrine, which renowned law professor Randy Barnett calls “unconstitutional” itself while advocating for a “presumption of liberty” instead, was already given to federal and state legislation, although it is found nowhere in the U.S. Constitution or any state constitution.
But at the federal or state level, laws are passed usually by two legislative chambers under threat of an executive veto. Local governments have no similar constitutional checks and balances.
In Virginia, for example, a land use ordinance can be deemed “reasonable” and needed for the “health, safety and welfare” of the public by a vote of three out of five county supervisors. That’s unworthy of a presumption of constitutionality, and it is easy pickings for the anti-property rights crowd and their agendas.
The “Boneta Bill 2.0” has been drafted, and while it would apply to land use laws regulating farmers, it should serve as a model for protecting all property owners from local government abuses.
It would shift the burden to local governments to legislatively articulate and show the connection between an ordinance and protection of the health, safety, and welfare of the public. This will help prevent localities from making the unreasonable the law in place of the reasonable.
Boneta Bill 2.0 would eliminate the presumption that local ordinances are constitutional and would make null and void any ordinance that violates the Constitution. It would also require local governments to follow due process of law rather than relying on local kangaroo court administrative proceedings.
The remedies provisions of the bill may help make bureaucrats think twice before bullying property owners such as Martha Boneta. Here they are in their full text:
A. Any county or locality that violates this chapter shall be liable to aggrieved persons in amounts equal to the fines and/or penalties that the county seeks to impose on such aggrieved persons, plus actual damages and attorneys fees.
B. Any county or locality that willfully violates this chapter, or whose interpretation or enforcement of ordinances willfully operates in violation of this chapter, shall be liable to the aggrieved person for special treble damages, plus attorneys fees.
C. Any official or employee of a county or locality who willfully violates this chapter, or whose interpretation or enforcement of duties willfully operates contrary to this chapter, shall be personally liable to aggrieved persons in the amount equal to the fines and/or penalties that such county official or employee seeks to impose on such aggrieved persons, plus actual damages and attorneys fees; and a court may order that the county’s employment of such person be terminated.
D. The Attorney General shall establish a website where persons, including employees of counties or localities, may report violations of this chapter.
E. No county or locality may take disciplinary actions against any employee who reports violations of this chapter for reporting violations. Any county or locality that violates of this subsection shall pay the aggrieved person’s damages, including attorneys fees.
F. The Attorney General of Virginia (i) shall have authority to institute legal proceedings in the courts of the respective county or locality, and (ii) may intervene in any proceeding, to enforce this chapter against any county or locality.
For normal Americans, it’s “follow the law or face the consequences.” It’s time to hold overweening bureaucrats to the same standard. Hopefully Boneta Bill 2.0 will be the next of many steps toward stopping the legal loopholes for government, and toward consequences for government bureaucrats who don’t play by the rules.
Originally published in American Thinker
Mark Fitzgibbons is a constitutional lawyer
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