Model City Charter Revision Project - Eighth Edition

Option Memo

Issue: Effect of State Law

Seventh Edition: Section 9.04 states "To the extent that the constitution and laws of the state of _________ permit, all laws relating to or affecting this city or its agencies, officers or employees which are in force when this charter becomes fully effective are superseded to the extent that they are inconsistent or interfere with the effective operation of this charter or of ordinances or resolutions adopted pursuant thereto."

Proposed Change and Analysis: The Model could more clearly guide the courts in determining when there is implied state preemption of local law. Some state laws apply generally, for example state land use laws, state environmental laws, and laws affecting state instrumentalities. The charter could require deference to state law on such matters.

The provision could read "To the extent that the constitution and laws of the state of _________ permit, all laws relating to or affecting this city or its agencies, officers or employees which are in force when this charter becomes fully effective, other than state laws of general applicability, are superseded to the extent that they are inconsistent or interfere with the effective operation of this charter or of ordinances or resolutions adopted pursuant thereto. In the case of generally applicable state laws, any conflicting charter provisions or local ordinances shall be superseded."

Pros: Some areas of state law may be intended to preempt local law even when they do not explicitly say so. By clarifying that state laws generally applicable to all municipalities can not be preempted, confusion in the interpretation of the charter may be avoided.

Cons: Such a change may require cities to cede power to the state that they might otherwise be permitted to exercise as a result of home rule. If state law is intended to preempt local law, state law, not local law, should say so.

Options: The Committee should endorse one of the following positions by the end of the June 12 meeting:

1. The Model language regarding the effect of state law is adequate.
2. The Model should use the proposed language on the effect of generally applicable state law.
   1. The commentary could list examples of state laws such as environmental, state instrumentalities, land use, and others that apply generally.