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MultiState's Local Policy Digest explores the top legislative developments from municipalities across the U.S.

Federal appeals court deals blow to state preemption, reinstates lawsuit on constitutionality of minimum wage cap.

Last week, a federal appeals court reversed a previous decision regarding Alabama's preemption of local authority over employment issues, including minimum wage.

The Alabama Uniform Minimum Wage and Right to Work Act came as a reaction to Birmingham's 2015 decision to pass an ordinance increasing the city's local minimum wage, and retroactively voided the ordinance. The Alabama NAACP chapter and several labor groups filed a federal lawsuit, which was initially dismissed for what U.S. District Judge R. David Proctor called “conclusory allegations, not supported by any alleged factual information.”

Proctor's decision stood until the 11th U.S. Circuit Court of Appeals found that the plaintiffs had a plausible claim that the 2016 state law had violated the Equal Protection Clause of the 14th Amendment, citing the “disproportionate effect of the Minimum Wage Act on Birmingham’s poorest black residents; the rushed, reactionary, and racially polarized nature of the legislative process; and Alabama’s historical use of state power to deny local black majorities authority over economic decision-making.”

The court did not rule on whether discrimination could be proved, as that issue will now be taken up in a district court.

Alabama State Conference NAACP President Bernard Simelton hailed the decision as “a win for African Americans in Birmingham,” and some are speculating that it could have a subsequent impact on other ongoing preemption battles across the country.

Texas court slaps down plastic bag bans; Brownsville repeals ordinance following order from AG.

Last week, the Brownsville City Commission voted to overturn a 2010 ordinance that banned plastic grocery bags. The ban, which went into effect in 2011, made Brownsville the first city in Texas to pass such an ordinance. However, following the Texas Supreme Court decision in City of Laredo, Texas v. Laredo Merchants Association, which ruled that local bag bans are preempted by state law, the Texas attorney general sent letters to 11 municipalities — including Brownsville — explaining that their bans are unenforceable under state law. Although the Brownsville ordinance was designed “to rid the landscape of . . . so-called 'urban tumbleweeds,'” both the court and attorney general explained that it is invalid under Texas law regulating solid waste disposal.

At the time of passage, the ordinance was controversial. Supporters argued for its environmental and city beautification benefits, while opponents cited concerns over practicality. Regardless, the policy was quickly integrated into the city’s budget planning. According to the Brownsville Herald, the city generated over $4 million dollars in bag fees over the life of the policy. Assistant City Manager Arturo Rodriguez said that plastic bag fee revenues allowed the city to fund a trail master plan, curbside recycling, landfill compactor, and duck pond.

While debate may continue on the merits of banning plastic bags or other environmentally damaging items, they are no longer a policy option for Texas city councils.


Missoula appeals to judge for a favorable ruling on mandatory background check ordinance.

Last week, the city government in Missoula, Montana, filed a summary judgment motion to end a legal battle with the state's attorney general over a local gun control ordinance. A summary judgement motion is a request for a judge to rule that there are no facts in dispute and the law is on the requester's side, obviating the need for further litigation.

The Missoula city ordinance — passed in September of 2016 — mandated background checks for all gun sales within the city limits, including private sales. The ordinance text argues that background checks would improve public safety by keeping guns out of the hands of those whom the state has deemed unfit to posses firearms, such as people with felony convictions or mental illnesses.

In its summary judgment motion, the City of Missoula asked the judge to rule that, as a self-governing city, Missoula is entitled to regulate firearm purchases via local ordinance. However, Montana Attorney General Tim Fox argues that under a state law that says local governments “may not prohibit, register, tax, license, or regulate the purchase, sale … ownership, possession … of any weapon,” Missoula is barred from doing so.

"Plainly interpreted, the Montana Legislature has prohibited all forms of local government from exercising any regulatory power over the purchase, sale or transfer or firearms,” Fox wrote. In his legal opinion, Fox held that the ability to sell and transfer firearms was inherent to a person's right to keep and bear arms.

The Missoula government filed suit against the Attorney General in April of this year, claiming the purpose of its ordinance had been misrepresented as preventing law-abiding citizens from keeping and bearing arms, when its true aim was to keep guns out of the hands of “people already prohibited by law from possessing firearms.”

As of publishing, the judge presiding over the case has yet to issue a response to the city's motion, but it is expected that no matter which side prevails in the final ruling, the loser will try and appeal the case to the Montana Supreme Court.


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