A Very Bad Ordinance

By Scott Lilly | Sep 03, 2014

There is a “Haywood County Emergency Management Ordinance” that became effective on November 16, 2009.  For the purpose of this discussion, let’s take out of the picture any element of politics and who’s at fault for bringing this nasty ordinance into Haywood County.  Let’s just examine this on the facts and consider how horribly wrong this is and let’s all agree that this ordinance is so un-American that it can only be called “unconstitutional”.

Let’s get right to the un-American things that we all should take offense.  Legal documents say EXACTLY what they mean.  Legal documents cannot say one thing and then be explained away as they are supposed to mean something else.  If the way it is written in inaccurate, then the document needs to change.  That’s how legal documents work.

However the ordinance is intended, it unarguably becomes ridiculously unsupportable in section 31.07(4) which says our beloved County Manager has these (unimaginable) powers:

(b) To take such action and give such directions to law enforcement officers…

Article I, Section 6 of the NC Constitution says this:  “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.”  Note that the Constitution does not say there is a separation of powers UNLESS there is an emergency declared by the Legislative branch that gives the same Legislative branch control over the Executive branch!  The Sheriff is a county-elected Executive branch (law enforcement) official who cannot be ordered around by the Legislative branch against his good conscious – so says his oath to the constitution!

(d) To relieve any public official having administrative responsibilities under this chapter of such responsibilities for willful failure to obey an order, rule or regulation adopted pursuant to this chapter.

Which can mean if the County Manager tries to direct the Sheriff and the Sheriff doesn’t think that’s constitutional, this ordinance says the County Manager can relieve the Sheriff of duty!  Separation of powers is “forever” – not conditional.

(f) To establish a system of economic controls over all resources, materials and services to include food, clothing, shelter, fuel, rents and wages, including the administration and enforcement of any rationing, price freezing or similar state/federal order or regulation;

According to this ordinance, the County Manager “owns” everything (“all resources”) in the County!  Ask yourself if it’s appropriate to give the County Manager the power to set a price of $0.00 for food, clothing, shelter, and paychecks and to dictate who can have what any time there is a disaster.  Keep in mind how ridiculous that sounds – the document is written to allow it!

(g) To regulate and control …the congregation of persons in public places or buildings…

I am reminded of the First Amendment of the US Constitution: “Congress shall make no law …abridging the …right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  Correct me if I’m wrong, but isn’t this abridging the right of the people to peacefully assemble?  No, County Manager, you cannot regulate and control my right to peacefully assemble.  What happened in Ferguson recently with peaceful protesters cannot be regulated and controlled by law – especially by a section 31.07(4)(g) of a Haywood County Emergency Ordinance!

(j) To procure, by purchase, condemnation, seizure or by other means to construct, lease, transport, store, maintain, renovate or distribute materials and facilities for emergency management without regard to the limitation of any existing law.

The County Manager has the ability to take anything he needs WITHOUT REGARD TO THE LIMITATION OF ANY EXISTING LAW!  An ordinance is written that eliminates the rule of law!  How ironic is that?  So much for the Fifth Amendment of the US Constitution: “No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”  So in other words, once the County Manager declares a disaster, he becomes a dictator and can take anything he wants from anybody and no law can stop him.  This is EXACTLY how this legal document is written!

 

There are certainly more problems with this ordinance but let’s stop there.  A direct violation of separation of powers in the NC Constitution, a direct violation of the Fifth Amendment of the US Constitution, and a direct violation of the First Amendment of the US Constitution.  There should be no argument that this is a BAD ORDINANCE!

 

This is no joke.  Let’s examine an example of the NC Castle Doctrine.  Use of deadly force to protect your home, motor vehicle, or workplace is justified if:

 

1)     The person against whom defensive force was used was unlawfully and forcefully entering or had already entered a motor vehicle, or workplace, or if the person had taken or was trying to take another person against his will from the home, motor vehicle or workplace;

 

2)     The person using defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

 

Deadly force is not ok if: the person against whom the defensive force is used is a law enforcement officer or bail bondsman in lawful performance of his official duties, and the officer or bail bondsman identified himself or herself or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer or bail bondsman;

 

Now, if the County Manager, for example, tells law enforcement to seize food/clothing/shelter/firearms from my home, how am I going to know the normal “rule of law” is suspended and the law enforcement officer is acting by Haywood County Ordinance and not by law?  And if an officer is acting ILLEGALLY but in accordance with the instruction of the County Manager, who is at fault if blood is spilled?  It’s an ugly hypothetical example but one that demands consideration.

 

Now how do we get rid of this bad ordinance?

 

Option 1:

We appeal to the good sense of the County Commissioners to repeal this ordinance.  This is the best solution for all involved.

 

Option 2:

We vote some people into office that will not make an ordinance that literally puts them above the law.

 

Option 3:

We appeal to the Judicial branch of government to weigh in on how unconstitutional this ordinance is.

 

Let’s kick the politics to the curb on this one.  Let’s just find a way to get rid of this ordinance and pretend it never existed.  If we have a 9/11 kind of emergency in our neighborhood it won’t be a dictator that is needed to pull the community together – what would be needed is leadership.  We elect a sheriff to uphold the rule of law.  Under no circumstances should we accept politicians eliminating, suspending, or putting themselves above the rule of law.

Comments (3)
Posted by: Scott Lilly | Sep 03, 2014 17:48

It was brought to my attention that the Franklin County Sheriff made a declaration that addresses a similar situation:

 

"...As the Sheriff of Franklin County North Carolina I, Jerry W Jones, will not participate in, nor enforce, any Unconstitutional Edicts, Orders or Laws handed down by any Government Body..."

 

Ref:

https://www.facebook.com/FranklinCountySheriffOffice/posts/404380459655247

 

Has anyone ever put the Haywood County Sheriff on record on his position of the Emergency Ordinance?



Posted by: Scott Lilly | Sep 04, 2014 07:14

Someone else let me know that indeed Sheriff Greg Christopher has been asked about this ordinance.  His thoughts are summarized in Windy McKinney's website and in April 2014 the Sheriff indicated he would discuss it with the commissioners.  (Windy is a Libertarian candidate for County Commissioner)  I guess I'm looking to publicly document that discussion between the Sheriff and the commissioners.  Or at least get a direct and public on-the-record statement by the Sheriff on the matter.

 

Ref:

http://windymckinney.com/2014/03/31/my-take-on-the-emo/

 

(This controversial ordinance has been around since 2009.  Yet searching the Mountaineer website for "emergency ordinance sheriff" or "emergency ordinance judge" yields nothing.  Did I miss the debate on this and it's just filed under something else?)



Posted by: Scott Lilly | Sep 04, 2014 11:38

If Option 1 and Option 2 fail, who would be the right person to bring this before a judge?

 

  • NC Attorney General?
  • Some university law program or law student?
  • A constitutional law group?  (American Center for Law and Justice)
  • The Sheriff's office?
  • A private citizen?

 

Any opinions as to if Haywood County would actually spend money defending this thing in a court of law?

 



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