Q: Can I challenge the legality of Va. Code 18.2-136 "Right to Retrieve" in appellate court?
Owners of hunting dogs can access private property with or with out permission of the owner at any time. In fact, by code, a property owner can't deny access to private land under any circumstance.
I think the General Assembly has this wrong. How can I challenge this in court. Seems like this would possibly violate the 5th and/or the 14th amendment.
A: One thing I love about law practice is that I keep learning new things 35 years after I started practice and about 29 years after I became a Virginia lawyer. Interesting Code section. A trip to a real library rather than the Internet version would get the history of the statute first enacted before 1950. It appears as § 29-168 of the Code of 1950, and the section is amended in 1964, 1975, 1988, 1991, 2007, and 2011. I wonder if there are cases on it, and I'll bet there are. Sounds like a fine, short research project for a junior lawyer, and that research may save you time or money in evaluating your chances of success. In any event, my instincts tell me that your best claim is not under the Federal 5th and 14th Amendments. I'm not even sure they are relevant except in the same way that racially discriminatory restrictive covenants could not be enforced in court. That seems like a tremendous stretch to these facts. But, the Virginia Supreme Court takes real property rights very seriously in all of the cases I've ever read. The remedy is likely there.
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