Cecily Zamora
In the United States, preemption occurs when a higher level of government uses its authority to overrule a lower level of government. State law can preempt local ordinances, and federal law can preempt state or local law. This is an often-overlooked legal issue that has come to the forefront in recent years, with state preemption gaining prominence alongside federal preemption. This raises the question: can West Virginia towns pass ordinances that conflict with state law? While there is no one-size-fits-all answer, the outcome depends on the specific circumstances and the laws in question.
| Characteristics | Values |
|---|---|
| Can WV towns pass ordinances that conflict with state law? | No, state law can be used to preempt local ordinances. |
| What is preemption? | Preemption occurs when law at a higher level of government is used to overrule authority at a lower level. |
| What are some examples of preemption conflicts? | State preemption of local ordinances related to minimum wage, firearms policy, plastic bags, and marijuana decriminalization. |
| Can a local ordinance be challenged in court? | Yes, for example, in the case of State ex rel. Jennings v. City of Seaford, the court held that a local ordinance was preempted and invalid as it conflicted with state law. |
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What You'll Learn
State preemption of local ordinances
Preemption is a legal doctrine that allows higher levels of government to restrict or prevent lower-level governments from self-regulating. While it often describes the federal government's ability to overrule state law, preemption is also used by states to limit the legislative power of cities, counties, and other municipalities. The extent of a state's ability to preempt local government depends on various factors, such as whether the state grants local governments the power to govern (Home Rule) or follows Dillon's Rule, which only permits local governments to legislate where the state has expressly allowed.
In the case of California Proposition 10, a Local Rent Control Initiative was defeated in 2018. This proposition was an initiated state statute that would have allowed local governments to adopt rent control ordinances. However, the defeat maintained the Costa-Hawkins Rental Housing Act, a state statute that limits rent control by preventing cities from enacting rent control on housing first occupied after February 1, 1995, and on separate housing units like condominiums and townhouses.
State preemption can also occur due to differences in the partisan makeup of state and local governments. For example, Democratic-led cities may be preempted by Republican state governments, as seen in Missouri when the state legislature blocked efforts to increase the minimum wage in St. Louis. Conversely, Democratic state governments may conflict with Republican-led localities, such as when Virginia municipal governments passed firearms resolutions that were preempted by state law. These examples illustrate how state preemption of local ordinances can significantly impact policy-making and governance at the local level.
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Federal preemption
There are three types of preemption: outright conflict, express preemption, and implied preemption. Outright conflict occurs when a local ordinance directly contradicts a state law. Express preemption happens when a federal statute explicitly states Congress's intention to supersede state law. This was illustrated in the case of Morales v. Trans World Airlines, where the Airline Deregulation Act included language to ensure that states did not undermine federal deregulation with their own regulations.
Implied preemption, a more controversial form, can occur in two ways: field preemption or conflict preemption. Field preemption occurs when a local ordinance prohibits something permitted by state law or permits something prohibited by state law. Conflict preemption was demonstrated in Mutual Pharmaceutical Co. v. Bartlett, where federal law under the Commerce Clause prohibited state tort law from holding generic drug manufacturers liable for not adding information to FDA-approved labels.
While federal preemption typically takes precedence, there are instances where local ordinances may preempt state law. In City of Riverside v. Island Empire Patients Health and Wellness Center Inc. (2013), it was ruled that if significant interests for a particular issue vary across localities, local ordinances will be favored over state preemption unless expressly forbidden by state statute.
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Minimum wage and sick leave
West Virginia labor laws cover various topics, including minimum wage, overtime, wage payments, vacation and sick leave, child labor, meal and rest breaks, and more. In West Virginia, employers are not mandated by law to provide their employees with sick leave benefits, whether paid or unpaid. However, if an employer chooses to offer these benefits, they must adhere to the terms outlined in the employment contracts. Additionally, employers may be required to grant sick leave based on the Family and Medical Leave Act (FMLA).
While West Virginia labor laws outline specific regulations, employers must also comply with relevant federal labor laws that offer stronger protections for workers. These federal laws include the Fair Labor Standards Act (FLSA), Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), Family and Medical Leave Act (FMLA), National Labor Relations Act (NLRA), Occupational Safety and Health Act (OSHA), and others.
Regarding minimum wage, West Virginia has its own set of laws that employers must follow. Additionally, West Virginia is an employment-at-will state, implying that employees without written contracts can be terminated at any time for any reason, as long as the reason is not discriminatory or retaliatory. Employers are required to maintain payroll records, certificates, agreements, notices, collective bargaining agreements, employment contracts, and sales and purchase records for at least three years.
In terms of leave, West Virginia does not have its own military leave law, but the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to all employers in the state. This law protects the rights of employees who serve in the military and guarantees their reemployment upon their return. West Virginia also has a mini-COBRA law, allowing employees to continue their disability insurance coverage for up to 18 months after being laid off.
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Firearms policy
West Virginia does not preempt towns and cities from making their own gun safety policies. The state recently weakened its gun safety laws, including by repealing the concealed carry permitting requirement and forcing higher education institutions to allow guns on campuses.
The state falls within the ""Weak Systems" tier of gun laws. Some of the existing gun laws in West Virginia include:
- Allowing law enforcement (and often family members) to petition for a court order to temporarily prevent someone in crisis from accessing guns.
- Not having a dangerous Shoot First law in place.
- Requiring that firearms be stored locked, unloaded, and separate from ammunition in certain circumstances.
- Barring the purchase of certain assault-style weapons originally designed for military use.
- Prohibiting devices that alter the trigger mechanisms of semi-automatic pistols and rifles and enable the guns to continuously fire rounds.
- Barring deadly force unless necessary to prevent serious bodily injury, and not making exceptions for felony suspects fleeing arrest.
- Limiting qualified immunity, a legal shield for police officers accused of civil and constitutional violations.
- Including funding for community violence intervention programming in the state budget.
- Allowing officials to deny sales if the buyer poses a danger.
- Ensuring gun sales can't proceed while a background check is still ongoing.
- Requiring gun owners to notify law enforcement if their guns are lost or stolen.
The Institute for Legislative Action (ILA), established in 1975, is the ""lobbying" arm of the National Rifle Association of America. The ILA is responsible for preserving the right of all law-abiding individuals to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.
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Marijuana decriminalization
West Virginia has some of the harshest cannabis laws in the United States. The state remains one of 19 that have not decriminalized cannabis possession, with a first offence for possession of any amount of cannabis carrying a mandatory minimum of 90 days' imprisonment. However, it is important to note that the city of Charleston has decriminalized cannabis, and it is partially decriminalized in Morgantown.
In West Virginia, trafficking marijuana carries a mandatory minimum sentence of 1 year, with a fine of up to $10,000. The state also imposes a two-year mandatory minimum sentence for sale/distribution to a minor or if the sale/delivery occurs within 1,000 feet of a school. Cultivation is punished based on the aggregate weight of the plants, either as simple possession or possession with the intent to distribute.
Driving under the influence of marijuana results in mandatory driver's license revocation. However, simple possession of marijuana does not qualify as a felony. The state allows conditional release or alternative sentencing for first-time offenders, and successful completion of probation means the individual's criminal record does not reflect the charge.
West Virginia has a medical marijuana program, with over 40 dispensaries across the state and 21,000 residents approved for medical cannabis cards. In 2017, Governor Jim Justice signed Senate Bill 386, legalizing medical cannabis for specific chronic medical conditions. This bill passed with a significant majority in both the Senate (28-6) and the House (76-24).
In the 2024 legislative session, several lawmakers have introduced a bill (HB 4873) to legalize, tax, and regulate cannabis for adults.
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Frequently asked questions
Preemption occurs when a law at a higher level of government is used to overrule a law 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.
Yes, in June 2022, the court ruled against the city of Seaford, Delaware, which had enacted an ordinance mandating that all fetal remains resulting from an abortion or miscarriage be cremated or interred. The court held that the ordinance was preempted and invalid as it conflicted with the state's statutory scheme for the disposal of human remains.
Some common targets of state preemption include ordinances related to the minimum wage, paid sick leave, firearms policy, plastic bags, and marijuana decriminalization.
In the event of a conflict between a local ordinance and a state law, the state law will typically preempt the local ordinance. However, it is important to note that the outcome may vary depending on the specific circumstances and the laws in question.
