HAWSCT On Preemption: Local Weed No-Enforcement Initiative Conflicts With State Criminal Law (And That's Enough)
by Robert Thomas, InverseCondemnation, June 26, 2015
One for you muni law types (and for future students of Admin Law to assist them with writing their outlines). In Ruggles v. Yagong, No. SCWC-13-0000117 (June 25, 2015), a divided Hawaii Supreme Court refined the test for determining when a municipal ordinance or charter provision is preempted by state law.
The court clarified that the two part Richardson test is a disjunctive and not conjunctive standard, and if the plaintiff can show either that the local law covers the same subject as a comprehensive state statute intended to be uniform statewide, or the local measure conflicts with state law, it is beyond the power of the municipality to adopt. Until Ruggles, there was a little ambiguity about whether a plaintiff needed to show both. No longer. Plaintiff wins if she can show either.
To the unfamiliar, state law preemption can seem like a result-driven exercise since it is often hard to discern a pattern to predict when a Hawaii court will conclude a municipality painted outside the lines and adopted a law it had no power to adopt. But it shouldn't be that difficult, at least when figuring out the legal standard to be applied. The black letter test is the aforementioned Richardson v. City & County of Honolulu, 868 P.2d 1193 (Haw. 1994) (an eminent domain case in which the court held that Honolulu's version of the state law Land Reform Act for single-family residences upheld in Midkiff, which adopted the same process for condominiumized properties, was not preempted by state law). Under that case, an ordinance may be preempted:
if (1) it covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state or (2) it conflicts with state law.
Id. at 1209. In other words, if the local law either conflicts with state law, or (even if it doesn't conflict), the state has occupied out the field, prohibiting a municipality from acting at all.
The Intermediate Court of Appeals relied on Richardson to invalidate a 2008 County of Hawaii ordinance, adopted by initiative, which would have made enforcement of marijuana laws the lowest priority for the county government. In other words, pretty much no enforcement at all. The lawsuit followed after the county continued to appropriate and spend money to enforce weed laws, most notably the state's criminal code which still mostly outlaws cannabis.
The ICA held that the ordinance was preempted by state statutes under the second Richardson prong, concluding the ordinance conflicted with the state criminal code. The plaintiffs argued to the Supreme Court that the ICA was required to also have applied the first Richardson test, whether the ordinance covers the same subject matter as a uniform state law." The ICA concluded it did. The plaintiffs argued to the Supreme Court that the ICA got it wrong.
No matter held the Supreme Court (Justice McKenna, joined by the Chief Justice and Justice Nakayama), the ICA got it right on the "conflicts with state law" part, and it didn't need to evaluate both. Slip op. at 17 ("The ICA did not need to address Richardson’s first prong because it had already correctly determined that the ordinance was preempted under the second prong."). So even though the ICA wrongly saw the Richardson test as a singular "comprehensive statutory scheme" test, and it is really a two-part disjunctive either/or standard, the ICA reached the right result, even if for partially wrong reasons. And we all know what that means: affirmed.
Two justices dissented, arguing that even if the ordinance was substantively invalid and could not be enforced, it was a valid "expression of the voters' view that investigation and prosecution of certain minor cannabis offenses should be the lowest priority for local law enforcement[.]" The "nonbinding advisory statements" in the ordinance could be severed from the other stuff, and should be upheld, even if the substantive provisions are invalid.
PDF: Ruggles v. Yagong, No. SCWC-13-0000117 (Haw. June 25, 2015)