Judge Anne Haynie ruled earlier this year that city ordinances that include jail time violate the Kentucky Constitution. Her opinion was part of a challenge brought by 32-year-old Albert Marshall, who was arrested in January for violating a Louisville ordinance that makes it illegal to fire a gun within 300 feet of a public road or occupied building. Metro Council passed the ordinance late last year.
In her opinion issued on May 23, Haynie wrote that only the state legislature can create crimes punishable by a jail sentence because of the constitution’s separation of powers principle. Local governments, she said, are limited to civil penalties.
“The enforcement has to be through fine or other penalties (such as loss of a privilege (for example no longer being able to own an animal)), but not through loss of liberty,” Haynie wrote.
Haynie’s order allows the Jefferson County Attorney’s Office to continue prosecuting Marshall, but it prevents them from seeking a jail sentence. The county attorney filed a motion asking the court to vacate Haynie’s ruling or expand on her arguments, indicating they plan to appeal.
Kevin Trager, a spokesperson for Mayor Craig Greenberg, said in a statement that the ruling “is a complicated issue that impacts Metro government’s efforts to promote safety.”
“We are working with our legal team on an appropriate response to ensure we are upholding our top priority of keeping our community safe,” Trager said.
Legal experts interviewed by LPM News said they believe the opinion is likely to be thrown out.
Ken Katkin, a professor of law at Northern Kentucky University, said he believes Haynie’s ruling misunderstands the laws that are already on the books.
“Every other judge is going to know this opinion is wrong,” Katkin said. “And if this comes up again, I’m sure the county attorney is already putting the arguments together. So, I don’t think they’re going to lose another case like this in another courtroom.”
If an appeals court lets the ruling stand, it could impact the ability of Louisville to enforce its local laws.
The city currently has other misdemeanor crimes on the books that carry the threat of jail time, including impersonating a police officer, making a false report to police and disorderly conduct.
Metro Council enacted the ordinance at issue in the Marshall case to address celebratory gunfire on holidays. It allows police to arrest someone for firing a gun near a road or building without needing a complaint from a person who was endangered by the action.
Council member Pat Mulvihill, a Democrat representing District 10, was the primary sponsor of the ordinance. He said he knew the new rule would be challenged, but thought it would be because of Kentucky’s strict pre-emption law, which forbids local governments from regulating firearms in most cases.
If local governments can’t enforce any of their ordinances with the threat of jail, Mulvihill said, that’s a big problem for residents.
“I’m not sure why there are [local governments] if we aren’t really able to adopt and enforce suitable laws that make our community safer and better,” he said.
‘Just plain wrong’
The Kentucky legislature passed a bill in 1992 that delegated the power to create new misdemeanor crimes to local governments.
That law, Kentucky Revised Statutes 83A.065, says “a city may make the violation of any of its ordinances a misdemeanor.” And when an offense is designated a misdemeanor, “a term of imprisonment … may be imposed for the offense.”
If that state statute hadn’t been enacted, Katkin said Judge Haynie’s order would have probably been correct.
“But, in this particular instance, the state legislature did give the power to [local governments], so there’s no serious argument here,” Katkin said. “The judge’s argument is just plain wrong.”
Haynie acknowledged the 1992 change to state law in her opinion, but she argued it conflicts with an earlier law passed in the mid-1970s.
“The legislature's enactment of [the earlier law] makes it clear the legislature did not intend to delegate its authority to enact and define crimes and criminal offenses to local municipalities,” she wrote.
On this issue, legal experts said Haynie also has it wrong.
State Sen. Cassie Chambers Armstrong, a Democrat who also teaches administrative law at the University of Louisville, said she doesn’t interpret that earlier law as having anything to do with local governments.
“Nothing in that statute references local government and nothing in that statute says that local government doesn’t have the ability to create any types of crimes,” she said.
Even if it did, Chambers Armstrong said the later rule would likely supersede it.
“There is a robust tradition of local governments creating misdemeanors and imposing different types of penalties and we haven’t seen the General Assembly react to that saying, ‘That’s not what we intended,’” she said.
Chambers Armstrong said she “thinks it’s a stretch” to interpret the Kentucky Constitution the way Haynie did in the Marshall case. Sheryl Snyder, a lawyer at Frost Brown Todd and a past president of the Kentucky Bar Association agrees.
While Haynie interpreted the separation of powers principle in the state constitution to mean only the legislature can create criminal penalties, Snyder said that’s a bad reading.
“The separation of powers applies to the three branches of state government,” he said. “It has no application to the authority of the General Assembly to grant powers to cities, which is expressly provided by the state Constitution.”
Chambers Armstrong and Katkin said they expect the opinion will be thrown out if it's appealed by the Jefferson County Attorney’s Office.
