Sunday, June 13, 2010

Desuetude: A Simple Tool to Clean the Regulatory and Statutory Codes of Bad Laws

There is a procedural due process right to notice. It says, one must warn the public of a new rule or of an arrest warrant or a new law suit claim before enforcing it. Notice gives the person an opportunity to fight enforcement of this damaging decision. In the case of the criminal law, the Sixth Amendment requires one be informed of specific charges.

If a law or regulation prohibits a behavior but has not been enforced in 5 years, then it provides false notice. And false notice can be as oppressive and unconstitutional as lack of notice.

Instead of opening yet another bureaucratic office, why not enact legislation that any rule or statute not enforced for five years is repealed. A list of such laws should be drawn up at the end of each session of the state legislature, and all such laws should be repealed formally.

This simple tool reflects the opinion of officials who have not enforced the rule. The officials themselves nullify the rule by their not enforcing it.

Only West Virginia has case law supporting desuetude,

"The seminal modern case under U.S. state law is a West Virginia opinion regarding desuetude, Committee on Legal Ethics v. Printz, 187 W.Va. 182, 416 S.E.2d 720 (1992). In that case, the West Virginia Supreme Court of Appeals held that penal statutes may become void under the doctrine of desuetude if:

1. The statute proscribes only acts that are malum prohibitum and not malum in se;
2. There has been open, notorious and pervasive violation of the statute for a long period; and
3. There has been a conspicuous policy of nonenforcement of the statute.

This holding was reaffirmed in 2003 in State ex rel. Canterbury v. Blake, 584 S.E.2d 512 (W. Va. 2003)[1]"

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