E-Newsletter Edition: October 3, 2007
Response Provided By: Brian S. Batterton
Always note that state law may be more restrictive on police power than the U.S. Constitution.
QUESTION:
Is there any statutory or case law making it a criminal offense for city council members to order police not to enforce state laws? Example: City passing an ordinance allowing the use of marijuana, and trying to stop the police from enforcing state law prohibiting possession.
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ANSWER:
Generally, state statutes and state constitutions regulate the power of a city to enact ordinances. Usually city ordinances that directly conflict with a state statute are not allowed. In other words, state statute usually “preempts” cities from enacting ordinances that are in direct contradiction to the state law.
For example, in Michigan, MCLS § 117.4j states that municipalities have “authority to pass all laws and ordinances relating to its municipal concerns subject to the constitution and general laws of this state [emphasis added].” This has been held by case law to mean that a municipality is not allowed to enact an ordinance if the ordinance is in direct conflict with the statutory scheme, or if the statutory scheme occupies the field of regulation which the municipality seeks to enter even where there is no direct conflict between the two schemes of regulation. Sherman Bowling Center v Roosevelt Park (1986) 154 Mich App 576, 397 NW2d 839.
Considering that state statute prohibits the possession of marijuana, it is unlikely that a city ordinance that allowed the use or possession of marijuana would be permissible.
