Daily Development for Wednesday, March 16, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

CONSTITUTIONAL LAW; SUBSTANTIVE DUE PROCESS:: When a governmental objective is legitimate, a municipality's exercise of its police power need only be reasonable and ordinances to achieve the objective need not be the best solution, but only need to be rationally related to achieving the desired end result.

Singer v. The Township of Princeton, 373 N.J. Super. 10, 860 A.2d 475 (App. Div. 2004); November 18, 2004.

A municipality received approval for it to designate a special deer management area and for implementation of its five-year comprehensive deer management plan.  As part of the plan, the municipality adopted an ordinance which provided that no person could purposely or knowingly feed wild white-tailed deer on public or private land.  The preamble to the ordinance stated that overpopulation was threatening the viability of the deer herds and was causing environmental and ecological degradation, damage to landscaping, spread of Lyme disease, and an increase in car accidents.  A group of local residents filed an action challenging the plan, including the implementing ordinance.  The lower court upheld the validity of the ordinance.

On appeal, the challengers claimed that the ordinance violated their substantive due process rights because it arbitrarily and unreasonably deprived them of their property right to feed deer on their own land.  Additionally, the challengers contended that a higher standard of review than a "rational basis" was required because the ordinance affected a fundamental property right.  The Appellate Division disagreed, concluding that no fundamental property right was implicated because there was no cognizable property right to feed wild deer.  Wild game belong to the people of the state, and feeding deer is not a right incident to land ownership.  Thus, the ordinance would not be an unlawful taking of property and would not impair a protected property interest.

The Court noted that although an ordinance may be found to be unconstitutional even if it does not touch conduct that is constitutionally protected, when no constitutional right is involved and when the government's objective is found to be legitimate, the exercise of the municipality's police power need only be reasonable.  In the case of a protected property interest, the municipality's police power may be exercised as long as the objective outweighs the impairment to the property interest and the means bear a real and substantial relationship to the ends.

Here, the Court found that the municipality's purpose was to combat the adverse effects of the deer population by limiting well-documented environmental and ecological damage, disease, and deer-related motor vehicle accidents.  The Court concluded that it was reasonable for the municipality to assume that feeding deer would undoubtedly increase the concentration of deer and therefore exacerbate the identified problems. Accordingly, the Court then held that the means selected to deal with the problems were both rationally related and had a real and substantial relationship to the legislated end.  Simply because there might have been alternative or better approaches did not mean that the means selected were unconstitutional.  For those reasons, the Appellate Division affirmed the lower court's decision to uphold the validity of the ordinance.

Comment: If the “right to housing” is not a specially protected right, and “poverty” is not a suspect classification, as the Supremes have held in the past, it’s not surprising that the court here felt uninclined to clothe the interest in feeding Bambi as a specially protected right.

Communities routinely regulate conduct on land for all manner of reasons.  At one time, there was some concern that this unduly interfered with the right of private property.  But all this put to bed 80 years ago when the Supreme Court approved the concept of zoning as a constitutional governmental activity.

Of course, there’s nothing new here, but the editor found the facts intriguing and assumes that readers will get some mileage in cocktail parties with this one.

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