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Consider this scenario. In California hotel tenants are arguing that its against the law to kick them out after 28 days. This was always true but hotels ignored the law. Now that tenants made it an issue the court realizes its illegal all along and they pass a second law to confirm it. What's this second law called? Whats it called when something was already illegal but nobody noticed then they noticed and made it illegal again?

Another example is railroads. The railroad in Louisiana was charted in 1833 and has fixed rates. Now modern companies are suing based on 1833 laws. What's it called then a law already exists but nobody noticed it and it sort of drifted over time?

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    Thanks for accepting my answer, but it is common to wait a bit. Accepting too early discourages other, different answers.
    – o.m.
    Nov 23, 2023 at 7:45
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    It's called "Redundant."
    – ohwilleke
    Nov 23, 2023 at 19:40

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In , law enforcement works under the Legalitätsprinzip and the Opportunitätsprinzip.

  • The Legalitätsprinzip (principle of legal force) requires the police to enforce all laws on the book. They cannot simply decide to ignore a law. For instance, the police cannot decide that parking offenses are OK because everyone does it.
  • The Opportunitätsprinzip (discretionary powers principle) gives the police leeway to focus their attention on specific areas as they are ordered, or as it seems appropriate to them. Police on the way to a bank robbery can ignore a parking offense they notice on the way, because even a possible bank robbery is clearly more important than a certain parking offense.

For something like a parking offense, the same applies when they are scheduled to go off duty, or when they have more reports to file rather than uncover new offenses. So there are offenses which are enforced so infrequently that most people are unaware of the details. The regulations for honking the horn in traffic come to my mind (§16 StVO).

A police precinct may be ordered by their administrative superiors (or by the political leadership, through the chain of command) to focus their effort, say on drug dealers on the subway. If an officer gets bogged down on the way there by giving littering fines, the officer would face administrative consequences. But that would not invalidate the fines.

From time to time, when an event creates a public outrage, public opinion and sometimes political leaders call for new laws, banning something which is already criminal either through ignorance of the law, or as a populist move, or in a desire to increase punishment by creating a special, aggravated variant of the offense.

There have been examples like adding section (3) to §115 StGB, which clarifies the punishment for attacks on ambulance personnel -- it was a crime before, but the problem was visible in the media, so legislative action was taken.

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There's errors on so many levels - let's try to clear some up!

The 28 Day Shuffle - What is the law? An exercise in legal research!

Consider this scenario. In California hotel tenants are arguing that its against the law to kick them out after 28 days. This was always true but hotels ignored the law.

Was it? As far as I understand, the line between a guest in a hotel and tenant is the duration of the stay. The rule in California is, that if you lodge more than 30 days in the same place, you become a tenant and gain tenant protections, before that you are not protected. Now, hotel owners read that and thought... "Hey, 28 is less than 30, let's kick out everyone that stays longer for a day and interrupt their continuous stay!". That's the 28 day shuffle.

I found at least one law firm that brought suit against a hotel chain for 28-day-shuffles which they describe as "Forcing long-term occupants to check out and re-rent rooms every 28 days prevents them from gaining those valuable legal protections as a tenant. Motel and hotel operators prefer that their occupants maintain transient occupancy status rather than obtaining tenant status because unlike tenants, they can forcibly evict transient occupants." Other law firms agree that this pattern might be illegal, but none cites a case that is not settled.

Do note that they settled two cases*. Up to here, I found no court found that it was or was not unlawful. However, they law they claim was violated is California Civil Code Section 1940.1 for which the LA County Sherif Department has an information page that summarizes the law pretty well:

A guest is someone who is staying in a hotel or motel where any of the following situations exist:

  • They are staying in a hotel, motel, residence club, or other lodging facility for 30 days or less, and their occupancy is subject to the state’s hotel occupancy tax.
  • They are staying in a hotel, motel, residence club, or other lodging facility for more than 30 days, but they have not paid for all room and related charges owed by the 30th day, and their occupancy is subject to the state’s hotel occupancy tax.
  • They are staying in a hotel or motel to which the manager has a right of access and control, and ALL of the following is true: The hotel or motel allows occupancy for periods of fewer than seven days.
    • All of the following services are provided for all guests:
    • a fireproof safe for guest's use
    • a central telephone service
    • maid, mail, and room service
    • food service provided by a food establishment that is on or next to the hotel grounds and that is operated in conjunction with the hotel.

Now, that has been the law since 2004, as the law states it was Amended by Stats 2004 ch 950 (AB 2867),s 1, eff. 1/1/2005. The issue at hand in the cases of a 28 day shuffle is, if the praxis of evicting guests after 28 days (generally legal) and then readmitting them (after 24 hours) to start a new 30 day period is legal. But almost all cases, I found above, were not tested in court and settled, possibly because the "28-day-shuffle" was enforced by other illegal means.

Now that tenants made it an issue the court realizes its illegal all along and they pass a second law to confirm it. What's this second law called?

Courts can not pass a new law. Courts can only interpret law already there. That is part of the trifecta of constitutional split into the government branches of Legislative (law-making), Executive (executing) and Judicative (judging). The Judicative is not to make law, the Legislative is not to execute them and the executive is to neither make law nor judge, but just enforce them.

As such, there is no way to name such a "second law". The court just is just correctly using the (forgotten or so far ignored or just unenforced) law in its judgment. However, the court is also bound by precedent and would require a higher court to overwrite precedent or a law that is explicitly changed since the precedent (making such precedent inapplicable) before it can come to an outcome that goes against the precedent.

In this case, the judgement - if it ever came to one - would set precedent to end the 28-day-shuffle, or make it easier to sue for it. But it wouldn't make "new law", it would just indicate how the actual law is to be interpreted.

Whats it called when something was already illegal but nobody noticed then they noticed and made it illegal again?

There's a saying in Law: Ignoratia legis non excusat - Ignorance of the law is not an [acceptable] excuse. Even if the law has become forgotten and not used in a long time, the acts it describes as illegal never have been legal in the first place. Or phrased differently: The act was illegal all along, just people didn't enforce the law banning it.

In the case of the 28 day shuffle, legality isn't conclusively settled in courts, at least I could not find any precedential verdict on the matter. That would require a court of appeals judgement on the matter. At best I found a report about the praxis resulting in a fine in 2008, but I can't find the details of that case, which might be different from the other cases that were settled by the law firm I found.

Do note that, certain counties have enacted ordinances explicitly banning the practice, such as Orange County in 2015. That wasn't a law made by the courts, but the county did write its law to fix the gap in the California Civil Code in 2015, making it clear that from that time onwards, the praxis is now made illegal.

Louisiana Railroads - A look at when laws go away

The railroad in Louisiana was charted in 1833 and has fixed rates. Now modern companies are suing based on 1833 laws. What's it called then a law already exists but nobody noticed it and it sort of drifted over time?

If a law fell by the wayside, it might have many reasons:

  • It might have been inapplicable because the act banned or prescribed is nigh nonexistent today. For example, a local ordinance that prescribes wearing green hats during market on a particular marketplace loses any application if markets are no longer held and the market place removed to build a stadium.
  • It might have become unenforced for any reason. Maybe the public does not care for it, or its enforcement usually does not warrant the costs of its enforcement. Maybe the market still exists, but just nobody cares to enforce the green hat ordinance for the city can't be bothered to send someone or lacks the money to do so.
  • It might have been implicitly repealed by a subsequent law. Any law that requires the older law to be taken out of enforcement implicitly repeals the older law. If the township decides to enact a rule demanding red ones, that implicitly modifies, overwrites, or repeals the green hat ordinance as needed to make sense.
  • It might have expired. Many laws are only written to be enforceable for a time. Think of a tax reduction for 10 years to entice a company to settle somewhere.

Now, to the specific example: the Lousiana Railroad Charter of 1833? There's problems with this... there was one specific company that was chartered in 1833. According to this paper that would be the New Orleans and Carrollton Railroad, established 1833. The Lousiana charter can be found here, and as far as I can see there is nothing in the document that prescribes specific rates but describes a specific setup. This charter has since been amended and changed due to being sold, merged and other changes of operation. As a result, the charter in itself is not active in the way it was created in 1833 - and was very likely explicitly revoked or altered.

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  • It was never legal to kick guests out at all based solely on the shuffle.
    – John D
    Nov 24, 2023 at 2:32
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codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code

https://en.m.wikipedia.org/wiki/Codification_(law)

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