united-states constitutional-law
How can a business challenge a law or town ordinance without breaking it?
<p>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.</p>
<p>So, the question is how can a hotel challenge such ordinances and have them voided by the courts without breaking them and criminalizing themselves?</p>
<p>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).</p>

<p>There are two cases to consider.</p>
<ul>
<li><p>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 &quot;voiding&quot; that you're looking for.</p>
</li>
<li><p>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 <a href="https://www.law.cornell.edu/wex/ripe" rel="noreferrer">ripe</a>.  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.</p>
</li>
</ul>
<p>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.</p>
