2011-12 Proposed law for dealing with Municipalities Violating Preemption Law

[Bills340]

This law seems counter productive, it still makes a citizen go to court on an illegal act to begin with, at his own expense, and hopefully if if gets the right judge he will get reimbursed, Id rather see the person r municipality commtiting the illegal act to begin with bear the expense,, maybe pattern it after floridas law??

[ChamberedRound]

I'm not sure, CR. This is a difficult needle to thread. However, I do want to correct one thing you said. This isn't about honest mistakes. It's about willfully giving the State the finger. If a municipality passes an ordinance that violates preemption, it seems we've been really successful at having them change things without having to go to court just by bugging the hell out of them about it. We rarely, if ever, have had to threaten going to court that I'm aware of, and even rarer have we actually had to go there. For those types of offenses, it's of the "honest mistake" variety IMHO. They've been made aware, they generally take correction action, all is well in the world.

However, some places in the state just don't care, like, say, Philly. Philly basically does what it wants and lets the courts deal with the fallout. I'm convinced they know that what they're doing is against the law. They also know that there's nothing that can happen to them as a result, so there's no disincentive. $5M payout? Big deal. That's taxpayer money.

Now, if you wanted to include something in that $5M payout that would make the people that voted for the ordinance/law/whatever personally liable for the award on a "known or should have known" basis, then they've got skin in the game. It also makes passing restrictions a very, very risky proposition, which is another added benefit. That said, I'm not sure if this is legally possible (or even desirable, in the big picture).

I agree that this is a problem that needs to be addressed, but I don't agree with punishing the taxpayers for the (alleged) criminal acts of their representatives. There has to be some way to join the actor with the consequences here. Failing that, you're just punishing the wrong people.

Fair points. I agree that I used the wrong term when I said "mistakes", because they're not mistakes, it's willfully ignorning the law. However, I again pose the question: what else can be done? I honestly don't know, which is why I'm asking.

FWIW, I'm not trying to argumentative, I'm soliciting ideas. Many people here complain often that they don't have enough input in what goes on, well, I'd like to know what else people think could be done. If we collectively come up with something worthwhile, it might be something we can bring to the attention of those more directly involved in authoring the law.

[FNG19]

FWIW, I'm not trying to argumentative, I'm soliciting ideas.

I don't think you're being argumentative. You're asking a legitimate question of the people who are raising objections to what's being offered. The only thing I can say is this: If violators can't be personally punished somehow for their misdeeds, then we're going to punish the wrong people.

One thing I could say, possibly, is passing this law as it stands, and adding a second provision. Basically, the sequence would go like this:

1) Municipality violates preemption, even if the law in question is 20 years old.
2) Municipality is notified in a legally verifiable way that the law is in violation.
3) Municipality fails to take corrective action in some period of time (180 days, maybe?)
4) Municipality is sued, plaintiff (hopefully) wins.
5) Activate damages clause, damages are awarded.
6) Second Provision Here: Municipality board/council/whatever is sued in their individual, personal capacity to recover financial damages done to municipality by their actions, under a "known or should have known" standard (see #2, above).

This gives the municipality due process to defend its actions. It also gives the taxpayers the opportunity to be made whole after the inaction of the municipality's governing body leads to a large payout.

Even that's kind of a stretch, but it heavily incentivizes the municipality and the governing body members to be very, very sure that what they're doing is legal. It provides a two-step process for dealing with these. The first step is to get a judgment that preemption was actually violated and have damages awarded. The second step is to "personalize" those damages to the people who failed to correct a known illegal condition, despite having the power and authority to do so.

That's one possible alternative, at least.

[Activist]

Friends,

I appreciate the thoughtful suggestions and discussion that is going on here. One of the problems we have in this state is a breakdown between who is responsible to press charges against local officials when they violate Pennsylvania law. When you couple that with the ambivalence of so many citizens, and that includes gunowners, then you have the recipe for arrogance on the part of government.

First of all any payout on the award related to a civil suit over violations of Pennsylvania preemption law would be paid by the insurance carrier. I then suggest you take a look at the concept called Dillon's rule wherein you will see that local officials lose their immunity once they knowingly and intentionally violate the law. This would be the case since the local solicitors would be required to live by these local officials as to the proper course of action to take. Then this will become a personal issue where in the insurance carrier would most likely take the local officials responsible to court for restitution. Since this would be a criminal act on their part as well as a knowingly and intentionally violation flaunting the civil remedies based on the law they could not use community funds to defend themselves against this action on the part of the insurance carrier.

There are many nuances to this approach that need to be considered but this is most definitely not feel-good legislation. Here in Pennsylvania we have a difficult time holding local officials accountable criminally speaking because of the ambivalence of district attorneys to actually apply the law. This would also provide local voters with an issue to be able to use against incumbents at election time.

Please see the attached file for the response from the Allegheny County District Attorney's Office to the Allegheny County sportsmen's league when we solicited action on our part to uphold current Pennsylvania preemption law that provides for criminal penalties.

Thanks again for your time and consideration of these issues and for your convenience I also have attached a synopsis of Dillon's rule for you to consider.

I hope you find these thoughts helpful!

Kim Stolfer

[DonM55]

[QUOTE=FNG19;1644975]

3) Municipality fails to take corrective action in some period of time (180 days, maybe?) state funds will be with held until compliance.

[FNG19]

I appreciate the thoughtful suggestions and discussion that is going on here.

Thanks for weighing in here, Kim. I appreciate your comments. I was only vaguely aware of Dillon's Rule, and had entirely forgotten about it. I learned something new. Thanks for the attachments. I'll check them out.

First of all any payout on the award related to a civil suit over violations of Pennsylvania preemption law would be paid by the insurance carrier.

Is there a history of insurance carriers specifically and successfully going after public officials for things like this? I'm not challenging you so much as I'm trying to determine if there is precedent for what we're hoping will occur. If there is, the calculus changes significantly. The threat of the insurance company paying a call to the members of a governing body is a pretty big deterrent in and of itself.

[Activist]

DonM55,

That is not in the proposed changes to the law??? I have attached the actual bill and the underlined sections are what are proposed additions.

Kim Stolfer

[Activist]

FNG 19,

There is an interesting history of legal actions on Dillon's Rule that goes back to the late 1800's. This has caused problems for public officials in the past. Once an insurance carrier finds itself on the hook for the bill the actions of these local reps are likely to be the subject of some legal attention.

There is an old saying that if you 'follow the money' you will find the source of the problem. In this case these local officials should find themselves under a microscope and no solicitor will want to be on the wrong side of an insurance carrier for giving bad advice. This presents a conundrum for local officials especially since the standard and threshhold of evidence is generally lower for civil lawsuits.

Kim Stolfer

[DonM55]

DonM55,

That is not in the proposed changes to the law??? I have attached the actual bill and the underlined sections are what are proposed additions.

Kim Stolfer

Yea I know. I was changing FNG's suggestion for a second provision.

[Activist]

DonM55,

Sorry as I must be dense tonight!

The problem with withholding state funds is that then the taxpayer's do suffer as do projects in the community and perhaps it becomes a safety issue. Shifting funds around is common in some of these communities and it is a difficult proposition to go after certain funds that may or may not be fungible and transferable or subject to modification or termination.

The end result was this was discussed and for a variety of reasons determined to be unworkable.

Kim Stolfer