September 19, 2001

Justices of the peace are not out to thwart New Castle County's efforts to enforce its housing code, according to the chief magistrate. However, she told Delaforum they have run up against a 30-year-old state law which ties their hands when it comes to getting tough with violators.

"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."

2001. All rights reserved.

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