Am. Jur 2d 2021 Ordinances
1.
§ 133. Judicial notice of municipal and county ordinances
a. According to some courts, and in the absence of a statutory requirement, courts of
general jurisdiction, whether civil or criminal, will not take judicial notice of the
bylaws or ordinances of municipal corporations, as these must be pleaded and
proved.
Yates v. City of Milwaukee, 77 U.S. 497, 19 L. Ed. 984, 1870 WL 12827
(1870); Lifestar Response of Alabama, Inc. v. Lemuel, 908 So. 2d 207 (Ala.
2004); Matta-Troncoso v. Tyner, 343 Ga. App. 63, 806 S.E.2d 10 (2017), cert.
granted, (May 7, 2018); City of Kansas City v. Cosic, 540 S.W.3d 461 (Mo. Ct.
App. W.D. 2018); Jackson/Hill Aviation, Inc. v. Town of Ocean Isle Beach, 796
S.E.2d 120 (N.C. Ct. App. 2017).
b. These courts hold that an appellate court also may not take judicial notice of city
or county ordinances,2 unless the original or a properly certified copy of the
ordinance is produced.
Childers v. Richmond County, 266 Ga. 276, 467 S.E.2d 176
(1996); Matta-Troncoso v. Tyner, 343 Ga. App. 63, 806 S.E.2d 10
(2017), cert. granted, (May 7, 2018); Mills v. Town of Eliot, 2008 ME
134, 955 A.2d 258 (Me. 2008).
2.
Am. Jur. 2d Injunctions §148 Protection of Private Rights
a. Although generally courts do not issue injunctions for actions that are subject to
the penal law, an injunction will be issued if a criminal act will result in a violation
of a private right1 such as an irreparable injury to a private party's vested property
rights.2 Where the intervention of equity by injunction is warranted by the
necessity of protection to civil rights or property interests, the mere fact that a
crime or statutory offense must be enjoined, as incidental thereto, will not deprive
the court of its jurisdiction.3
b. To obtain relief by an injunction against the commission of criminal acts, on the
ground of a resulting injury to the property rights of an individual, the
complainant must clearly show such facts and circumstances as will justify the
court in granting the injunction,4 such as that he or she will sustain some special
injury, such as damage to his or her property.5
Matlock v. Weets, 531 N.W.2d 118 (Iowa 1995); Miller v. Minneapolis
Underwriters Ass'n, 226 Minn. 367, 33 N.W.2d 48 (1948).
Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 98 Ed. Law Rep. 491 (Tex.
1994); Corporation of President of Church of Jesus Christ of Latter-Day Saints v.
Wallace, 573 P.2d 1285 (Utah 1978).
State v. Twin C Convenience Store, 2009 OK CIV APP 69, 218 P.3d 529 (Div.
3 2009); John Paul Mitchell Systems v. Randalls Food Markets, Inc., 17 S.W.3d
721 (Tex. App. Austin 2000).
Arkansas State Bd. of Architects v. Clark, 226 Ark. 548, 291 S.W.2d 262
(1956); Miller v. Minneapolis Underwriters Ass'n, 226 Minn. 367, 33 N.W.2d 48
(1948).
American Legion v. Miller, 183 Ga. 754, 189 S.E. 837 (1937); York v. American
Service Co., 204 Tenn. 173, 319 S.W.2d 76 (1958).
3.
Injunctions §149. Conduct of Profession or business
a. Injunctions will be issued to restrain persons who engage in professions that
require licensure, hold themselves out as possessing such licenses, or fail to comply
with professional conduct or ethics rules. Among the professions for which
injunctions against these actions will be issued are attorneys at law,1 paralegals,2
accountants,3 chiropractors and other medical professionals,4 and
veterinarians.5
b. Persons who engage in businesses will be enjoined when they fail to comply with
licensing or registration requirements.7
c. However, there is some authority that merely operating a business without the
required license does not justify the issuance of an injunction;8 there must be
some indication that such operation is a nuisance, which is a question of fact for
the court to determine.9 (Question of law or question of fact?)
Am. Jur. 2d, Attorneys at Law §§ 119 to 136.
The Florida Bar v. Schell, 422 So. 2d 308 (Fla. 1982); State v. Robinson, 321
S.C. 286, 468 S.E.2d 290 (1996).
Biever, Drees & Nordell v. Coutts, 305 N.W.2d 33 (N.D. 1981).
Am. Jur. 2d, Physicians, Surgeons, and Other Healers § 106.
Thornton v. Breland, 441 So. 2d 1348 (Miss. 1983).
Louisiana Dept. of Agriculture and Forestry v. Harper, 973 So. 2d 922 (La. Ct.
App. 2d Cir. 2007); Mega Child Care, Inc. v. Texas Dept. of Protective and
Regulatory Services, 29 S.W.3d 303 (Tex. App. Houston 14th Dist. 2000); Dairy
Product Services, Inc. v. City of Wellsville, 2000 UT 81, 13 P.3d 581 (Utah
2000).
Although injunctive relief should be a measure of last resort and require a clear
showing of irreparable harm, a municipality may obtain an injunction against a
business selling protected material when that business operates without a license
or violates some valid regulatory provision. Midvale City Corp. v. Haltom, 2003
UT 26, 73 P.3d 334 (Utah 2003).
Olson v. City of Platteville, 213 Wis. 344, 251 N.W. 245, 91 A.L.R. 308 (1933).
5.
Am. Jur. 2d Licenses and Permits §18 Due Process as restriction on licensing
legislation – Vagueness and overbreadth
a. An ordinance is unconstitutionally vague, in violation of due process,1 if
persons of common intelligence must necessarily guess at its meaning and
differ as to its application.2 Thus, although architectural licensing statutes do
not specify what they mean when they state engineers could perform services
on buildings intended for "utilitarian functions, with human occupancy
including office space as required for the support of these functions," the
statutes are not unconstitutionally vague, where a critical element in the
definition of the practice of architecture is that the building be designed for
human occupancy or habitation, and a person of ordinary intelligence could
determine that architects design buildings primarily intended for people to live
and work in, while engineers design buildings primarily intended for the
accommodation of equipment, vehicles, goods and/or processes.3
b. A municipal ordinance is constitutional, for purposes of due process
protection against vague ordinances, if it provides adequate notice of
prohibited conduct and prevents arbitrary, discretionary enforcement.4
c. Statutes and regulations are void for overbreadth if their object is achieved by
means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms.
City of Pasco v. Shaw, 161 Wash. 2d 450, 166 P.3d 1157 (2007).
U.S. Const. Amend. XIV.
Holloway v. Arkansas State Bd. of Architects, 352 Ark. 427, 101 S.W.3d 805
(2003).
City of Pasco v. Shaw, 161 Wash. 2d 450, 166 P.3d 1157 (2007).
Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967).
6.
Am. Jur. 2d Constitutional Law §933 Consitutional provisions for due process of
law, generally.
a. The guarantee of due process found in the Fifth Amendment of the United
States Constitution declares that no person will "be deprived of life, liberty, or
property without due process of law."1 The 14th Amendment declares that no
state will "deprive any person of life, liberty, or property without due process
of law" and is a limitation only upon the powers of the states.2
b. The Due Process Clause protects an individual's right to be deprived of life,
liberty, or property only by the exercise of lawful power.3 The mere
deprivation by state action of a constitutionally protected interest is not in
itself unconstitutional. What is unconstitutional is the deprivation of such an
interest without due process of law.4 The cornerstone of due process is the
prevention of abusive governmental power,5 and to prove a due-process claim,
the plaintiff must show that he or she has been deprived of a protected interest
without due process of law.6
c. The protections of due process do not apply to the indirect adverse effects of
governmental action.7 The restraint imposed upon legislation by the Due
Process Clauses of the Fifth and 14th Amendments is the same.8 The Due
Process Clause of the 14th Amendment imposes no more stringent
requirements upon state officials than does the Due Process Clause of the
Fifth Amendment upon their federal counterparts
d. Thus, incorporated Bill of Rights guarantees are enforced against the States
under the Fourteenth Amendment according to the same standards that
protect those personal rights against federal encroachment; if a Bill of Rights
protection is incorporated by the Fourteenth Amendment's Due Process
Clause, and thus enforced against the States, there is no daylight between the
federal and state conduct it prohibits or requires
e. Some of the personal rights safeguarded by the first eight amendments against
national action may also be safeguarded against state action, because a denial
of them would be a denial of due process of law. This is not because those
rights are enumerated in the first eight amendments but because they are of
such a nature that they are included in the conception of due process of law.
The general test as to whether a right is so included in the Due Process Clause
of the 14th Amendment was said to be: "Is it a fundamental principle of
liberty and justice which inheres in the very idea of free government and is the
inalienable right of a citizen of such a government? If it is, and if it is of a
nature that pertains to process of law, this court has declared it to be essential
to due process of law." Thereafter, in numerous decisions affirming in
principle what it had intimated before, the Supreme Court laid down the rule
which is now the accepted and settled principle, that the Due Process Clause
requires that state action, through one agency or another, shall be consistent
with the fundamental principles of liberty and justice which lie at the base of
all our civil and political institutions.
f. Due process analysis requires first a determination that due process applies
and then what process is due. U.S. Const. Amend. 14; N.J. Const. art. 1, par.
1. S.C. v. New Jersey Department of Children and Families, 242 N.J. 201,
231 A.3d 576 (2020).
U.S. Const. Amend. V. - In addition to the specific freedoms protected by
the Bill of Rights, the "liberty" specially protected by the Due Process Clause
includes the rights to marry, have children, direct the education and
upbringing of one's children, marital privacy, use contraception, bodily
integrity, and abortion. Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct.
2258, 138 L. Ed. 2d 772 (1997).
J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 131 S. Ct. 2780, 180
L. Ed. 2d 765 (2011); Gordon v. Holder, 721 F.3d 638 (D.C. Cir.
2013); Knepfle v. J-Tech Corporation, 419 F. Supp. 3d 1281 (M.D. Fla.
2019); Book v. Doublestar Dongfeng Tyre Co., Ltd., 860 N.W.2d 576 (Iowa
2015); Dutch Run-Mays Draft, LLC v. Wolf Block, LLP, 450 N.J. Super.
590, 164 A.3d 435 (App. Div. 2017).
Wallace v. Tilley, 41 F.3d 296, 30 Fed. R. Serv. 3d 1317 (7th Cir.
1994); Gilbert v. North Carolina State Bar, 363 N.C. 70, 678 S.E.2d 602
(2009).
O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 100 S. Ct. 2467, 65
L. Ed. 2d 506 (1980); Dejean v. Purpera, 206 So. 3d 199 (La. 2016).
Procedural due-process protections do not extend to those who suffer indirect
harm from government actions; likewise, indirect beneficiaries of government
programs have no due-process rights as to the programs. Dumas v. Kipp, 90
F.3d 386, 111 Ed. Law Rep. 124 (9th Cir. 1996).
7.
Am. Jur. 2d Constitutional Law § 934 Origin of due process guarantee
a. Although the Fifth Amendment to the United States Constitution is the first
instance in which a written constitution limited the powers of government by
declaring that no person will be deprived of life, liberty, or property without
due process of law, the principle that no person should be deprived of life,
liberty, or property except by due process of law did not originate in the
American system of constitutional law1 but was contained in the Magna
Carta as a part of the ancient English liberties.2 Chapter 39 of the Magna
Carta, confirmed on June 19, 1215, declared: "No freeman shall be taken, or
imprisoned, or disseised, or outlawed, or exiled, or anywise destroyed; nor
shall we go upon him, nor send upon him, but by the lawful judgment of his
peers or by the law of the land."3 This has been a fundamental rule in the
judicial system of every state in the Union which has adopted the common
law. Among the historic liberties protected by due process under the United
States Constitution is the right to be free from and to obtain judicial relief for
unjustified intrusions on personal security. Vitek v. Jones, 445 U.S. 480, 100
S. Ct. 1254, 63 L. Ed. 2d 552 (1980).
Davidson v. City of New Orleans, 96 U.S. 97, 24 L. Ed. 616, 1877 WL
18471 (1877).
Due process is a historical product. Rochin v. California, 342 U.S. 165, 72 S.
Ct. 205, 96 L. Ed. 183, 25 A.L.R.2d 1396 (1952).
Munn v. People of State of Illinois, 94 U.S. 113, 24 L. Ed. 77, 1876 WL
19615 (1876); Deal v. Brooks, 2016 OK CIV APP 81, 389 P.3d 375 (Div. 2
2016).
Paulson v. City of Portland, 16 Or. 450, 19 P. 450 (1888), aff'd, 149 U.S. 30,
13 S. Ct. 750, 37 L. Ed. 637 (1893).
8.
56 Am. Jur. 2d Municipal Corporations, Etc §
a. The police power is an inherent reserved power to subject individual rights to
reasonable regulation for the general welfare,1 and the fact that an exercise of
police power impinges on a private interest does not restrict a reasonable
regulation.2 However, it is obviously subordinate to the equal protection and
other guarantees of the federal and state constitutions3 and may not be used
to violate a fundamental constitutional right.4
b.
c. The standard for evaluating ordinances claimed to be violative of due process
or equal protection is whether a rational basis exists for the police power
exercised or the classification established by the ordinance.5 For example, an
ordinance requiring the construction of two types of fencing for multifamily
dwellings had a rational basis and did not violate the plaintiffs' right to equal
protection by arbitrarily discriminating against the owners of multifamily
dwellings, when the problem of refuse and litter control, which the ordinance
sought to eliminate, became correspondingly more acute in proportion to
population density.6
d. A government purpose to control or prevent certain activities that may be
constitutionally subject to regulation under the police power may not be
achieved by unnecessarily broad means that invade the area of protected
freedoms and broadly stifle fundamental personal liberties, when the end can
be more narrowly achieved.7 Accordingly, local police power enactments may
not interfere with private rights beyond the necessities of the situation.8 Any
interference with the protected rights of the citizens of a municipality must
bear a reasonable relationship to the public need served9 and not unduly
restrict the citizens' constitutional rights. 10 To sustain an encroachment on
an individual's liberty by a municipal ordinance, there must be an obvious and
real connection between the ordinance and its purpose to protect the public
welfare, and the municipality must not be able to use a less restrictive means
to serve the intended purpose.