DN-R: Valley Town Councils Taking Roll-Call Votes

Here's a longish article from 12 years ago but an interesting take on the inside baseball town councils face.


Valley Town Councils Taking Roll-Call Votes
Daily News-Record (Harrisonburg, VA) - Saturday, February 27, 1999
Ruling By Court Puts Ordinances At Risk

By CHARLES PANNUNZIO News-Record Staff Writer When Dana Marie Conover was stopped by Strasburg Police and charged with driving under the influence last October, nobody could have known the legality of the town's DUI ordinance would come into question.

While Conover's attorney, Jerry Talton, and James Allamong, who handles criminal cases for the town, have come to an agreement that will see Conover charged with improper driving and pay a $100 fine, the issue raised in the case is one area towns have been dealing with for about a year.

Conover, 49, Winchester, was charged with violating the town's ordinance, rather than the state law against driving under the influence. In a motion to dismiss the case, Talton argued Strasburg's ordinance was null and void, because it wasn't approved on a roll- call vote by the Strasburg Town Council, as required by the 1971 Virginia Constitution. Instead, minutes from several meetings where the DUI ordinance was updated simply note it passed "unanimously."

According to Article VII, Section 7, of the Virginia Constitution, "on final vote on any ordinance or resolution, the name of each member voting and how he voted shall be recorded." This was the basis for a February 1998 Virginia Supreme Court decision in the case of Madison vs. Ford. In that case, the town of Madison's zoning ordinance was found to be null and void because the minutes of the Oct. 25, 1972, town council meeting do not indicate who voted for its passage, stating only that it passed unanimously.

"Because we cannot tell from the minutes which of the members actually voted for the adoption of the zoning ordinance, whether any member abstained, or if any member was absent when the vote was taken, we conclude that the minutes simply do not comply with the constitutional requirement . . ." Justice Henry H. Whiting wrote in the majority opinion of the 4-3 decision.

The Madison vs. Ford case was cited in an unpublished opinion by the Virginia Court of Appeals in May, when convictions against Simon Philip Pound and Arnold Karl Zinnecker were overturned because Front Royal's DUI ordinance was found to have been improperly adopted. Talton also noted the Pound and Zinnecker cases in his motion.

Allamong said Madison vs. Ford was applied differently in the two Front Royal cases.

"I cannot believe that the Court of Appeals or the Supreme Court of Virginia would say that criminal ordinances are null and void retroactive, because what a can of worms that would open up," Allamong said. "They said it was prospective in nature, which means all ordinances after they handed down Madison vs. Ford."

Since the question came up, Allamong said Strasburg has passed its DUI ordinance by roll-call vote.

"I suppose I could see this as a problem for any jurisdiction that doesn't pass their ordinances by roll-call vote," he said. "I don't think there's any excuse for any community not to do that now."

Others have taken such steps since the decision last February. Bridgewater Town Superintendent Bob Holton said the town was advised by Town Attorney Don Litten to take roll-call votes on all items.

"Since that ruling, we don't do anything except adjourn by voice vote," Holton said. "We've even said it seems so tedious sometimes that you're always having a roll- call vote on every little thing, but these little things, if they add up to something big, you can really be in bad shape."

New Market has been taking roll-call votes for at least seven or eight years, according to the town clerk. Minutes from Broadway and Mount Jackson also include a breakdown of the voting. Dayton Town Attorney Jay Litten said the council is still polled by voice vote, but the names of each member and their votes are noted in the minutes.

Eventually, several attorneys said, the question of retroactivity is expected to make its way to the Virginia Supreme Court.

"(Talton) was saying if that's the case in Front Royal, then it certainly applies in Strasburg," Allamong said. "Frankly, I think I might have been able to argue otherwise, but rather than open up Pandora's box, I'm just going to let this one slip through."