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In many cases towns and cities have unconstitutional laws on their books. For example, recently the Supreme Court ruled that blanket give-all-records-to-police hotel ordinances were unconstitutional. Nevertheless, many cities and town have ordinances that require hotels to record extensive information on all their guests and to allow police to search those records whenever the police want without a warrant or even notice of any kind.

So, the question is how can a hotel challenge such ordinances and have them voided by the courts without breaking them and criminalizing themselves?

Update: I found an article on this subject dating back to 1967 (Declaratory Relief in the Criminal Law, Harvard Law Review, Vol. 80, No. 7 (May, 1967), pp. 1490-1513 (24 pages)). So, answers to this question could be seen as modern extensions to this paper with specific emphasis on civil or regulatory law (not criminal and not private).

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  • A couple questions to narrow this down: (1) are you assuming that the ordinance in question is clearly unconstitutional under the SCOTUS ruling, or is it different enough that there could reasonably be some dispute as to its constitutionality? (2) Has the town actually ever tried to enforce the ordinance since the decision, or announced an intention of doing so? If not, does the hotel have any evidence to suggest that they are likely to try to enforce it?
    – Nate Eldredge
    Aug 22, 2021 at 15:24
  • Btw, I suppose you know that courts have no power to actually take a law off the books: that is a legislative function, not a judicial one. Courts can only determine that the law cannot be enforced - that's the strongest sense of the word "voided" that you can get from a court. If the hotel thinks the ordinance should actually be repealed, they need to convince their town council to repeal it.
    – Nate Eldredge
    Aug 22, 2021 at 15:27
  • And "criminalizing themselves" is not a legal concept as far as I know. If you violate a law which is unenforceable, and which the authorities appear to have no intention of trying to enforce, then maybe that makes you a "criminal" in some abstract philosophical sense, but not in any sense that courts care about preventing. You will not be convicted of such a violation, and that is what counts.
    – Nate Eldredge
    Aug 22, 2021 at 15:43
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    @NateEldredge A citizen does not know if taking a criminal or violating action will hold up in court ahead of time. Just because a ordinance seems or appears to be unconstitutional, does not mean a hotelier could be criminalized by violating that rule. By "criminalized", I mean arrested or cited, forced to stand trial, or being put in prison or being fined. The question is how a business can challenge an apparently unconstitional law without risking criminalization. I feel like I am repeating myself.
    – Cicero
    Aug 22, 2021 at 16:09
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    @NateEldredge Are you a prosecutor? If I am a businessman, I want the court to frickin VOID the municipal ordinance that is threatening me without risking getting fined or going to jail. Just because the Supreme Court voided an ordinance in Santa Monica CA, does not mean that different, but similar ordinances are also voided. Each ordinance has to be voided separately. Once a court has ruled that a PARTICULAR ordinance is unconstitutional, then it becomes safe for the businessman to ignore that ordinance, but not until then.
    – Cicero
    Aug 22, 2021 at 16:41

1 Answer 1

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There are two cases to consider.

  • If there is some evidence that the city intends to enforce the ordinance, then the business can go to court for an injunction preventing the city from doing so, if they can show that such enforcement would harm them (e.g. by making them impose a records policy they don't want). They don't have to risk arrest by actually violating the ordinance first. In granting the injunction, the court would likely rule that this particular ordinance is unconstitutional, which seems to be the "voiding" that you're looking for.

  • If the city shows no signs of wanting to enforce the ordinance (e.g. they are well aware that it is unconstitutional and not legally enforceable), then a request for an injunction would likely be dismissed as not ripe. Courts do not want to waste their time on cases where there is no real dispute between the parties, or on issuing orders for an entity not to do something that they weren't going to do anyway. It's understandable that the business might wish for an explicit ruling anwyay, in case they fear that the city will change its mind tomorrow and start cracking down, but unfortunately for them, courts do not agree that this is worth doing.

Note in either case the ordinance will remain on the books until such time as the town council (or other relevant legislative body) should vote to repeal it. Courts have no power to make that happen, no matter how unconstitutional the ordinance might be. So the business might find it more effective to petition the council for a repeal.

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