Opinion
July 9, 1999
15-A Constitutional Law 71-1-B Municipalities — Home Rule Charter LSA-R.S. 14:91.8 (B) LSA-R.S. 14:91.11 (C) LA CONST Art. 6, § 4 9 23 Loy. L. Rev. 961 (1977) Bodet v. Broussard, 407 So.2d 810 (La. 1982) Shreveport v. Provenza, 231 La. 514, 91 So.2d 777 (4th Cir. 1956)
Municipalities with home rule charters may adopt identical state laws in order to share jurisdiction with the state, provided the police powers of the state are not abridged.
Mr. Douglas C. Caldwell City of West Monroe 2305 North 7th St West Monroe, LA 71291-5278
Mr. Caldwell:
This office is in receipt of your request for an opinion from the Attorney General. In particular, you asked how to interpret the word "supersede," of LSA-RS 14:91.8(B). You asked if the interpretation of this word determines whether or not the State statute allows a city (West Monroe) to adopt an identical ordinance, thus allowing the City Court, instead of the D.A., prosecution. Your question hinges on the legislative intent of the language used in the statute, and is answerable by analysis of the state-home rule charter relationship.
The statute gives the intent as, "enforcement of this Section shall be implemented in an equitable manner throughout the state." The next sentence provides, "uniform implementation and application of state and (emphasis ours) local laws and regulations . . ." Therefore, it is the opinion of this office that Section B of LSA-R.S. 14:91.8 allows local law consistent with the statute. The use of the word "supersede," therefore, describes those local laws/ordinances which may be contrary to the statute. The answer is made clear upon determining how state laws and local laws interact.
Home rule charters give parishes, municipalities, and the like, the power to enforce laws on a local level. The Louisiana Constitution of 1974 granted home rule charters, which were in existence, the power to retain authority, LSA-Const. Art. 6, § 4. According to your office, West Monroe had such a charter prior to 1974, thus retaining authority to act with regards to local matters. Since 1974, home rule charters can be created according to LSA-Const. Art. 6, § 5. The issue here involves a home rule charter's relationship to the state statute.
The structure of the relating governmental entities can be understood best in pyramid form, with the federal government at the top, state government in the middle, and municipalities and other home rule charters making up the broad base. These municipalities, like the states, can have authority delegated to them or taken from them. 23 Loy. L. Rev. 961 (1977). In the present situation there is ambiguity as to whether authority has been delegated or taken. Indeed it seems that other than the one phrase, ". . . state and local laws . . ." of LSA-R.S. 14:91.8(B), the statute is silent as to the issue of identical local and state laws. However, a view of how courts treat conflicting state and local laws may further explain the validity of future local adoption of LSA-R.S. 14:91.8 for West Monroe.
One such conflict exists in the problem of conflicting police powers. "Notwithstanding any provision of this Article, the police power of the state shall never be abridged," LSA-Const. Art. 6, § 9 (B). Ordinances furthering the purpose of state law to meet the necessities of the locality and local laws that supplement, not conflict, with state laws are not invalid. Shreveport v. Provenza, 231 La. 514, 91 So.2d 777 (La. 1956). Also, pre-emption as a matter of law was denied by the 4th Circuit Court of Appeals in Bodet v. Broussard, 407 So.2d 810 (4th Cir. 1982). In that case, the court said that the State Code of Governmental Ethics could only be administered, interpreted and enforced by the State Commission on Ethics, but found no prohibition from the Parish having their own Code of Conduct and enforcing it, thus allowing for two separate but equal jurisdictions. West Monroe, then, falls within the perimeters of valid police power according to these two cases.
Of course, there is no precise definition of "police power" except on a case-by-case basis; it can be described as a general power of the state to promote, among other things, general morals. The significance of this is that Title 14, Chapter 1, Part V, Subpart B, and in particular, number 2, is specifically aimed at "Offenses Affecting the Health and Morals of Minors." So far, only LSA-R.S. 14:91.8 has been addressed, but in order to get an accurate portrayal of the police powers involved, a brief look at LSA-R.S. 14: 91.11 is merited.
Similar to the sale of tobacco to minors (LSA-R.S. 14:91.8), is the sale of material harmful to minors, i.e., pornographic material (LSA-R.S. 14:91.11). In particular, LSA-R.S. 14:91.11(C) states that "This section does not preempt . . . the regulation of obscenity by municipalities . . . in order to promote uniform obscenity legislation throughout the state "The similarities between the two provisions are striking, as they have the same purpose or intent. Granted, the language of LSA-R.S. 14:91.8(B) could have been clearer, but nonetheless, LSA-R.S. 14:91.11 serves as a suitable guide in determining the validity of identical local and state laws.
In conclusion, it is the opinion of the Attorney General that West Monroe is granted the right to adopt a local law identical to LSA R.S. 14:91.8, as the rights of home rule charters are protected by the La. Constitution. As long as state police power is not abridged, the jurisdiction of the state can be equally shared by that of the municipality.
If this office can be of further assistance, please feel free to contact us. With warmest regards, I remain,
Sincerely,
RICHARD P. IEYOUB Attorney General
By: Jimmy White Assistant Attorney General