IF IT WALKS LIKE A DUCK: THE CREATURE OF A MUNICIPAL ORDINANCE VIOLATION IN SOUTH DAKOTA.

• Author: Goetz, Justin J.

1. 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. (17) This need for clarity is magnified by the plain conflict that exists in statute regarding the procedure for municipal ordinance violations. (18) In turn, a treatment of the procedural and substantive authorities surrounding the prosecutions of ordinance violations is in order. (19) Indeed, a surprising amount of case law and statutory authority is needed for this purpose, because as this article demonstrates, the municipal ordinance violation is one odd duck.

2. THE CIVIL-CRIMINAL DICHOTOMY AND ITS IMPACT ON ORDINANCE VIOLATIONS

   1. STATUTORY AUTHORITY--S.D.C.L. SECTIONS 9-19-3.1 AND 23A-1-1

      Although not a model of clarity, with a complete dearth of case law to construe its provisions, S.D.C.L. section 9-19-3.1 appears to provide an answer for the question of what due process is required for municipal ordinance violations. (20) Since 1975, this statute has expressly provided that civil procedure applies to municipal ordinance violations, save those few provisions in the section that are not provided in civil procedure. (21) The non-civil procedure aspects in S.D.C.L. section 9-19-3.1 are two-fold: (1) the fact-finder needing proof of guilt beyond a reasonable doubt to find a violation "of any municipal ordinance which authorizes a penalty of a jail sentence," and (2) the availability of the oral plea. (22) Beyond those two provisions, then, S.D.C.L. section 9-19-3.1 requires the application of civil procedure for municipal ordinance violations. (23)

      Yet statute does not permit us to end our inquiry there. Three years after the codification of section 9-19-3.1, the legislature consolidated and re-codified the state's criminal procedure in title 23A. (24) The first provision in this re-codification is S.D.C.L. section 23A-1-1, which scoped the application of criminal procedure: "This title shall govern the procedure to be used in the courts of this state in all criminal proceedings and in all proceedings for violations of ordinances and bylaws of units of local government of this state." (25) "[U]nits of local government" is a descriptor defined in statute as including counties, townships, and municipalities. (26) Accordingly, adopted a mere three years apart, sections 23A-1-1 and 9-19-3.1 are in express, direct conflict regarding the procedure to be used for municipal ordinance violations--the former requiring the application of criminal procedure, the latter mostly requiring the application of civil procedure. (27)

      The legislature was prepared for such conflicts with title 23A, as suggested by S.D.C.L. section 23A-45-8: "the other statutory provision shall be reconciled and harmonized with this title as much as possible, and if such provision cannot be so harmonized and reconciled, then this title shall apply." (28) Left untouched by the legislature, finding this harmony, if it can be found, is obviously the province of the courts of the State of South Dakota. (29) While this issue awaits the final reconciliation of the South Dakota Supreme Court or revision by the legislature, in the meantime it is worthwhile to examine whether grounds for harmony exist, or whether section 23A-1-1 completely trumps section 9-19-3.1. The likely answer to this question requires, in part, an analysis of the case law tackling the nature of municipal ordinance violations in South Dakota. (30) Such an analysis is also helpful in discerning other key characteristics of a municipal ordinance violation and will help us get our ducks in a row.

   2. CASE LAW ON THE NATURE OF THE MUNICIPAL ORDINANCE VIOLATION

      Throughout its jurisprudence, the South Dakota Supreme Court has described an ordinance violation proceeding "as civil, quasi-civil, hybrid, criminal, quasi-criminal, and criminal in form with varying results to meet the exigencies of a particular case," even going so far as to denote ordinance violations as "sui generis." (31) In doing so, it has admitted that this bounty of designations has a tendency to "create confusion, inconsistency, and uncertainty with respect to the exact nature of the proceedings and the rights of the parties involved." (32) One of the sources of this confusion was explained in City of Brookings v. Thomsen, (33) in which the court recalled the organization of South Dakota's courts prior to the creation of the Unified Judicial System, and how municipal courts were charged with jurisdiction over "civil and criminal" cases "arising under the ordinances of such city." (34) This language indicated South Dakota's adherence to underlying law that the governing bodies of municipalities, much like the legislature, could propound authority via ordinance that created causes of action sounding in both criminal and civil law. The court "quoted with approval" an explanation of this underlying law from the treatise Wharton on Criminal Law and Procedure:

      At common law and independently of statutory enactments, punishments for violations of municipal ordinances are treated as civil actions, the imprisonment, after the noncompliance with the order of the court imposing the payment of a fine, being looked on not in the light of a punishment, but as a means of compelling a compliance with the order of the court and of enforcing payment, and such view is generally followed. Whether they are to be so regarded depends to a great extent on whether such offenses are made punishable by the general law as crimes or misdemeanors. If such violations are not made crimes by the general law, the proceedings to enforce or for a violation of such ordinances are civil in their nature. If such offenses are made crimes or misdemeanors by the general law of the state, the proceedings must be considered as criminal in their nature. The distinction appears to be correct, for many of the offenses which are punishable under municipal ordinances are not offenses against the state, either by...