County's Ordinance for Low Priority Enforcement of Pot Preempted by State Law

By Benjamin Lowenthal -
Ruggles v. Yayong (ICA February 7, 2014)
Background. The voters on the Big Island passed an initiative to make the enforcement of marijuana laws the lowest enforcement priority in the county. The law required law enforcement activities related to drug offenses for adults to be higher than cannabis possession and cultivation of a single case involving twenty-four or fewer plants when intended for adult personal use. The law also prohibited the chief of police and the police commissioner from working with federal law enforcement agencies and prohibited the County Council from authorizing the acceptance of funds to investigate, cite, arrest, prosecute the lowest law enforcement priority policy. A group of concerned citizens on the Big Island brought a lawsuit against county officials alleging that the officials failed or refused to enforce this new law. The County responded by dismissing the case. The circuit court dismissed it on the grounds that the Hawaii Penal Code superseded the new law.

County v. State Powers (State Wins most of the time). The counties derive their power to enact and enforce its ordinances from the general laws of the State. Haw. Const. Art. VIII, Sec. 1. The legislature, however, has the power to enact laws of “statewide concern.” Haw. Const. Art. VIII, Sec. 6. The State legislature can “enact all laws of general application throughout the State on matters of concern and interest and laws relating to the fiscal powers of the counties, and neither a charter nor ordinances adopted under a charter shall be in conflict therewith.” HRS § 50-15. If they do conflict, the county ordinance is invalid. Stallard v. Consol. Maui, Inc., 103 Hawaii 468, 473, 83 P.3d 731 ,736 (2004).

On the other end of the spectrum, counties have the power to protect “health, life, and property, and to preserve the order and security of the county and its inhabitants on any subject matter not inconsistent with or tending to defeat, the intent of any state statute where the statute does not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the State.” HRS § 46-1.5(13). In other words, the ordinance is preempted by State law 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.” Richardson v. City and County of Honolulu, 76 Hawaii 46, 62, 868 P.2d 1193, 1209 (1994).

Why does the County Represent the State in Prosecutions? The ICA has duly answered this age-old question. The power to detect, investigate, and prosecute criminal offenses lies within the purview of the chief law enforcement officer of the state, the Attorney General. HRS § 28-2.5(a). “The public prosecutor, however, has been delegated the primary authority and responsibility for initiating and conducting criminal prosecutions within his county jurisdiction. What is thus reserved to the attorney general is the residual authority to act.” Amemiya v. Sapienza, 63 Haw. 424, 427, 629 P.2d 1126, 1129 (1981).

Hawaii Penal Code and Hawaii’s Uniform Controlled Substances Act Preempt the County Ordinance. The ICA held that the Hawaii Penal Code that regulates and (outlaws) the possession of just about any kind of marijuana and the Uniform Controlled Substances preempt the county ordinance. “[H]ow violations of state penal laws are investigated by authorized state and county officials is inherently . . . a matter of statewide concern.” Marsland v. First Hawaiian Bank, 70 Haw. 126, 133, 764 P.2d 1228, 1232 (1988). Here, that was enough for the ICA to agree with the circuit court’s dismissal.

. . . Nice Try, Big Islanders. The pro se parties that brought this lawsuit tried to get the County to enforce its own initiative. The County has refused on the grounds that State laws preempt it. That may be so. Looks like the only way to get this through is through the Legislature, not the County Council.


So What Else is Preempted? This opinion—a refresher course in the delegation of power from the State to the counties—raises interesting questions. Just about every county prohibits the use of a cell phone while in the car. But now it seems like the State has passed a law too. Are the counties preempted? It would seem so.

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