Gavin Howe
The relationship between state law and local ordinances is a complex one, with local ordinances being enacted by local governments to address specific needs and characteristics of their jurisdiction. However, local ordinances cannot violate state laws or the state constitution, and state law generally preempts local ordinances in the case of a conflict. This is known as preemption, where a higher authority's laws take precedence. For example, in Wisconsin, the state law preempted a local ordinance in the city of Seaford, Delaware, which mandated that all fetal remains from abortions or miscarriages be cremated or interred, as it conflicted with the state's statutory scheme for the disposal of human remains.
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What You'll Learn
State law can preempt local ordinances
Local ordinances, on the other hand, are enacted by local governments, such as cities, towns, or counties, and address matters specific to their jurisdiction. These ordinances can include zoning regulations, noise restrictions, and building codes. While local ordinances can fill in the gaps or provide additional regulations, they must not conflict with state laws. If a local ordinance violates or conflicts with state law, the state law takes precedence due to its higher authority.
For example, in Missouri, the state legislature preempted efforts to increase the minimum wage in St. Louis. Similarly, in Colorado, a district court affirmed the preemption of a Boulder ordinance banning certain types of firearms and magazines, as it conflicted with state law. In another case, the Wisconsin Supreme Court observed that state law preempts a local ordinance when the state legislature has expressly withdrawn the power of municipalities to act, or when the ordinance conflicts with, defeats the purpose of, or violates the spirit of state legislation.
In some states, local law cannot duplicate state law, and certain subjects are prohibited from being covered by local ordinance. For instance, in Maryland, local governments are expressly prohibited from passing gun control laws or ordinances dealing with firearms or ammunition, as these are exclusively controlled by state law.
Understanding the hierarchy between state laws and local ordinances is crucial for individuals and businesses to ensure legal compliance and avoid legal pitfalls.
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Local ordinances can't violate state constitutions
Local ordinances cannot violate state constitutions. Preemption occurs when a law at a higher level of government is used to overrule authority at a lower level. State law can be used to preempt local ordinances, and federal law can be used to preempt state or local law.
For example, in December 2021, the city of Seaford, Delaware, enacted an ordinance requiring that all fetal remains from abortions or miscarriages be cremated or interred. The state attorney general challenged the local law in the Delaware Court of Chancery, arguing that the ordinance conflicted with Delaware's statewide statutory scheme for the disposal of human remains. The state court struck down the local ordinance, demonstrating that local ordinances cannot violate state constitutions.
Another example of preemption occurred in Kansas in April 2021, when the state legislature passed the Energy Choice Act, which preempted parts of the city of Lawrence's renewable energy transition plan. In March 2021, a Colorado district court affirmed the preemption of a Boulder ordinance that would have banned certain types of automatic firearms and magazines. These cases illustrate that local ordinances cannot override state laws or constitutions.
When determining if preemption has occurred, courts consider if the state legislature has expressly withdrawn the power of municipalities to act, if the ordinance logically conflicts with or defeats the purpose of state legislation, or if it violates the spirit of state legislation. Mere overlap in subject matter is typically insufficient to establish preemption. If an individual can comply with a local ordinance without violating state law, there may not be a true conflict between the two.
In summary, local ordinances cannot violate state constitutions due to the principle of preemption, where higher-level laws supersede conflicting lower-level laws.
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Local ordinances can't duplicate state law
In the United States, preemption occurs when a law at a higher level of government is used to overrule authority at a lower level. State law can be used to preempt local ordinances, and federal law can be used to preempt state or local law.
Local ordinances cannot duplicate state law in some states. For example, in Maryland, local governments are prohibited from passing gun control laws or other ordinances dealing with the possession, carrying, and ownership of firearms or ammunition. State laws on firearms in Maryland are exclusively controlling.
In other cases, local ordinances may overlap with state law, but only if the penalty provided by the local ordinance is higher than the state statute. For example, if a state law sets a minimum penalty of $30 for driving faster than 25 mph on residential streets, a local ordinance on the same subject would only be valid if the penalty was greater than $30.
Preemption conflicts between state and local governments can emerge due to differences in the partisan makeup of the respective governments. For example, Democratic-led cities may be preempted by Republican state governments, as in the case of Missouri preempting efforts to increase the minimum wage in St. Louis.
Recent examples of preemption conflicts include the Kansas State Legislature passing the Energy Choice Act in 2021, which preempted parts of the city of Lawrence's renewable energy transition plan. In the same year, a Florida appeals court upheld a 2011 law imposing penalties on local government officials who enact or enforce firearms ordinances.
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Local ordinances can't create lesser penalties
Local ordinances are laws enacted by local governments such as cities, towns, or counties. These laws govern behaviour within a specific jurisdiction and are often created to address issues not covered by state or federal laws. They can cover a wide range of topics, including noise violations, parking regulations, zoning restrictions, and pet ownership rules.
While local ordinances can cover the same crime or violation as a state law, they cannot be used to create a lesser penalty for a crime or traffic offence than state law. For example, if a state law sets a minimum penalty for a traffic violation, a local jurisdiction can only enact its own ordinance on the same subject if the penalty is greater than the state's. Similarly, if state law punishes a conviction with a prison sentence, a local ordinance would need to provide a minimum punishment of at least one day more than the state law to be valid.
This is because state law can preempt local ordinances. Preemption occurs when a higher level of government uses its authority to overrule a lower level. In the context of local ordinances, state preemption can occur when the state legislature has expressly withdrawn the power of municipalities to act, when the ordinance logically conflicts with state legislation, defeats the purpose of state legislation, or violates the spirit of state legislation.
In practice, this means that local ordinances cannot create lesser penalties than state laws for the same offence. For example, in Wisconsin, the state Supreme Court observed that there was "no conflict—express, implicit, logically, or otherwise" between a local ordinance and state law, meaning that individuals could comply with the local ordinance without violating the state law. In another instance, a Florida appeals court upheld a law imposing penalties on local government officials who enacted or enforced firearms ordinances, demonstrating the potential consequences for local officials who attempt to create lesser penalties through local ordinances.
Therefore, local ordinances cannot create lesser penalties than state laws for the same offence, as doing so would likely result in preemption by the state or conflict with state legislation.
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State preemption of local firearms ordinances
The impact of state preemption of local firearms ordinances can be seen in various states. For instance, in Florida, the state's preemption law has led to the rescinding of local ordinances that kept guns out of government buildings and parks, and a ban on firing guns in densely populated areas. In Pennsylvania, while guns are not allowed at state legislative meetings, cities cannot pass laws prohibiting guns in their municipal buildings. In Ohio, the state Supreme Court upheld a 2006 state law that invalidated stricter local firearms ordinances, citing the need to address a "confusing patchwork" of local regulations.
On the other hand, some states, such as California, Connecticut, Hawaii, Illinois, Massachusetts, Nebraska, New Jersey, and New York, generally allow local officials to pass firearms-related public safety laws. California, in particular, has seen important firearm policies, like requiring a locking device with every firearm purchase, originate as local regulations before being adopted statewide. This demonstrates how local innovation in gun violence prevention strategies can pave the way for state-level change.
The preemption of local firearms ordinances by state-level laws has sparked debates and legal challenges. Proponents of preemption argue for uniformity in gun laws across a state, while opponents highlight the importance of allowing local governments to address specific public safety concerns and criminal activities within their communities. The conflict between state and local governments over firearms regulations often arises due to differences in partisan makeup, with Democratic-led cities sometimes preempted by Republican state governments and vice versa.
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Frequently asked questions
Local ordinances must not violate state laws or the constitution of the state. State laws generally preempt local ordinances.
If a conflict occurs between a local ordinance and a state law, the principle of preemption comes into play, where the higher authority's laws (in this case, the state law) take precedence over the lower authority's laws.
Some common areas of conflict between local ordinances and state laws include minimum wage, paid sick leave, firearms policy, plastic bag use, marijuana decriminalization, and abortion.
