Unlocking full preemption vs Minich v. Jefferson

[MDJschool]

18 Pa.C.S. 6120 declares that "(a) General rule.--No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition or ammunition components when carried or transported for purposes not prohibited by the laws of this Commonwealth." (emphasis added)

In Minich v. County of Jefferson, 869 A.2d 1141, 1143 (Pa.Cmwlth. 2005), appeal denied 889 A.2d 90, 585 Pa. 700, the court stated, "In other words, the County may not enact an ordinance which regulates firearm possession if the ordinance would make the otherwise lawful possession of a firearm unlawful. [FN3. See Schneck v. City of Philadelphia, 34 Pa.Cmwlth. 96, 383 A.2d 227 (1978) (stating that it is a well-established principle of law that where a state statute preempts local governments from imposing regulations on a subject, any ordinance contrary to state law is unenforceable); see also Ortiz v. Commonwealth, 545 Pa. 279, 681 A.2d 152 (1996) (stating that the General Assembly may negate ordinances enacted by home rule municipalities only when the conflicting state statute concerns substantive matters of statewide concern).]" (emphasis in original) The court in Minich (or Schneck or Ortiz) does not address 53 Pa.C.S. 2962(g).

53 Pa.C.S. 2962(g) declares that "(g) Regulation of firearms.--A municipality shall not enact any ordinance or take any other action dealing with the regulation of the transfer, ownership, transportation or possession of firearms." I cannot find a definition in Title 53 for 'municipality' and given the content of Title 53, I surmised it was the same definition used in Article IX of the Pa. Const., but it turns out a similar definition is found in 1 Pa.C.S. 1991. "The following words and phrases, when used in any statute finally enacted on or after September 1, 1937, unless the context clearly indicates otherwise, shall have the meanings given to them in this section: “Municipality.” (1) When used in any statute finally enacted on or before December 31, 1974, a city, borough or incorporated town. (2) When used in any statute finally enacted on or after January 1, 1975, a county, city, borough, incorporated town or township." The credits for 53 Pa.C.S. 2962 state the following history: "1996, Dec. 19, P.L. 1158, No. 177, § 1, effective in 60 days."

In the aforementioned Minich case, and its sister case, Minich v. County of Jefferson, 919 A.2d 356 (Pa.Cmwlth. 2007), the court held that not only was this part of the following ordinance,
A. No User [i.e., no person entering a County building] shall possess a Weapon in any County building or cause a Weapon to be present in any County building.
B. Any User in the possession of a Weapon that is in violation of this Section shall surrender such Weapon to the Jefferson County Sheriff's deputy or other security personnel charged with the duty of enforcing this Ordinance. Said Weapon shall be secured by said security person and returned to the User from whom it was obtained when the User departs the building. Any Weapon not retrieved within fifteen (15) days shall be subject to destruction or other disposition determined by the County.
valid because it didn't regulate contrary to 18 Pa.C.S. 6120, it was also valid under Pa. Const. art. I, § 8 because the need for regulation of firearms in courthouses for public safety was so important, valid under Pa. Const. art. I, § 21 because "exercise of the police power for the good order of society and the protection of the citizens" trumps individual liberty, and valid under 16 P.S. §§ 509(a) and (c) ("The County Code") as an exercise of the power to regulate "public safety" by ordinance. The disposition of the two latter issues is not comprehensive. Here is § 509:
§ 509. Ordinances and resolutions
(a) The board of commissioners may adopt resolutions and ordinances prescribing the manner in which powers of the county shall be carried out and generally regulating the affairs of the county.
(b) All such proposed ordinances, unless otherwise provided by law, shall be published at least once in one newspaper of general circulation in the county not more than sixty days nor less than seven days prior to passage. Public notices of any proposed ordinance shall include either the full text thereof or the title and a brief summary prepared by the county solicitor setting forth all the provisions in reasonable detail and a reference to a place within the county where copies of the proposed ordinance may be examined. If the full text is not included a copy thereof shall be supplied to a newspaper of general circulation in the county at the time the public notice is published. If the full text is not included an attested copy thereof shall be filed in the county law library. In the event substantial amendments are made in the proposed ordinance or resolution, upon enactment, the commissioners shall within ten days re-advertise in one newspaper of general circulation in the county, a brief summary setting forth all the provisions in reasonable detail together with a summary of the amendments. Such ordinances shall not become effective until recorded in the ordinance book of the county. In any case in which maps, plans or drawings of any kind are adopted as part of an ordinance, the commissioners may, instead of publishing the same as part of the ordinance, refer in publishing the ordinance to the place where such maps, plans or drawings are on file and may be examined.
(c) The board of county commissioners may also prescribe fines and penalties not exceeding one thousand dollars ($1,000) for a violation of a building, housing, property maintenance, health, fire or public safety code or ordinance and for water, air and noise pollution violations, and not exceeding six hundred dollars ($600) for a violation of any other county ordinance, which fines and penalties may be collected by suit, brought in the name of the county, in like manner as debts of like amount may be sued for.
(d) Any person violating any of the ordinances adopted by the board of county commissioners pursuant to this section shall, upon conviction thereof at a summary proceeding, be sentenced to pay such fine as may be prescribed in such ordinances by the county commissioners but not in excess of one thousand dollars ($1,000), to be paid to the use of the county, with costs of prosecution, or to be imprisoned for not more than ten days, or both.
Credits
1955, Aug. 9, P.L. 323, § 509. Amended 1974, Feb. 1, P.L. 22, No. 7, § 1; 1976, July 9, P.L. 532, No. 128, § 1; 1988, March 2, P.L. 107, No. 21, § 1, effective in 60 days.

The Pennsylvania Constitution provides the following, which I believe are inclusive of all the possible forms of municipal (that is, county, city, borough, and township; standard, home rule, and optional plan/charter):
"The General Assembly shall provide by general law for local government within the Commonwealth. Such general law shall be uniform as to all classes of local government regarding procedural matters." Pa. Const. art. IX, § 1. "Municipalities shall have the right and power to frame and adopt home rule charters. . . . A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time." Pa. Const. art. IX, § 2. "Municipalities shall have the right and power to adopt optional forms of government as provided by law. The General Assembly shall provide optional forms of government for all municipalities. . . ." Pa. Const. art. IX, § 3. ". . . Provisions for county government in this section shall apply to every county except a county which has adopted a home rule charter or an optional form of government. One of the optional forms of county government provided by law shall include the provisions of this section." Pa. Const. art. IX, § 4. "As used in this article, the following words shall have the following meanings: "Municipality" means a county, city, borough, incorporated town, township or any similar general purpose unit of government which shall hereafter be created by the General Assembly. . . ." Pa. Const. art. IX, § 14.

I think the first thing to do is to discover the scope of § 2962(g). While it's plain wording says one thing, statutes in pari materia can cause great effect. "§ 2901. "Short title and scope of subpart" (a) Short title of subpart.--This subpart shall be known and may be cited as the Home Rule Charter and Optional Plans Law. (b) Scope of subpart.--This subpart applies to all municipalities except cities of the first class and counties of the first class." (emphasis added) 53 Pa.C.S. 2961 offers that "A municipality which has adopted a home rule charter may exercise any powers and perform any function not denied by the Constitution of Pennsylvania, by statute or by its home rule charter. All grants of municipal power to municipalities governed by a home rule charter under this subchapter, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the municipality." To me, other than the simple restatement of the Pa. Const. provision, that says nothing of prohibitions as to limit the scope of § 2962(g). 53 Pa.C.S. 2962 at first provides "(a) Powers granted by statute.--With respect to the following subjects, the home rule charter shall not give any power or authority to the municipality contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable to a class or classes of municipalities: . . . " This becomes general without reference to any special type of governance: "(c) Prohibited powers.--A municipality shall not: (2) Exercise powers contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable in every part of this Commonwealth." It continues to speak without reference to special governance: "(e) Statutes of general application.--Statutes that are uniform and applicable in every part of this Commonwealth shall remain in effect and shall not be changed or modified by this subpart. Statutes shall supersede any municipal ordinance or resolution on the same subject."

Municipalities without home rule or optional plans cannot expect to have greater authority than those with such plans. "The essential principle underlying home rule is the transfer of authority to control certain municipal affairs from the state to the local level. . . . This transference results in home rule municipalities having broader powers of self government than non-home rule municipalities. . . . As Allentown and Amici point out, under a broad interpretation of Section 2962(f), it is anomalous that third class cities which have not adopted home rule, such as Harrisburg, are not prohibited from enacting this type of ordinance, but a similar city that has adopted home rule is prohibited. Had Allentown not adopted Home Rule, which is designed to give a municipality broad powers, the trial court would have upheld the City's authority to enact this Ordinance. . . . Given that home rule municipalities are to have more authority than non-home rule, we do not believe that Section 2962(f) is intended to place more stringent limitations on home rule municipalities than its counterparts do in non-home rule municipalities." Hartman v. City of Allentown, 880 A.2d 737, 742, 744-746 (Pa.Cmwlth. 2005) (emphasis original). In City of Erie v. Northwestern Pennsylvania Food Council, 14 Pa.Cmwlth. 355 (1974), the court, at no time ackowledging the City of Erie as having any special plan of governance, applied a prior version of the Home Rule Charter and Optional Plans Law, at 53 P.S. s 1-302(b), which is analagous to 53 Pa.C.S. 2692(c), to the city, in apparent ackowledgement that § 2692 is not limited to those municipalites having home rule or optional plans. In Matter of Antolik, 93 Pa.Cmwlth. 258, 264 (1985), the court applied the Home Rule Charter and Optional Plans Law to a county, saying "With respect to Erie County, which is governed by home rule charter, and not by the County Code, Section 302(b) of the Home Rule Charter and Optional Plans Law, 53 P.S. § 1-302(b), provides in pertinent part that “no municipality shall ... (ii) exercise powers contrary to, or in limitation or enlargement of powers granted by acts of the General Assembly which are applicable in every part of the Commonwealth.” This plainly implies that a home-rule county is to be afforded no greater latitude than a non-home rule county where the judiciary is concerned."

Although I think Jefferson County loses right there, I want to examine the applicable county code, since, without in depth research and explanation, the court claimed a power under the County Code which a home rule municipality would not have. I do not see a section for Jefferson County under the Pa.Code., so I work on the assumption that they have no home rule or optional plan today. Although the court in Minich II said that "Section 509(c) of the County Code allows county commissioners to prescribe fines and penalties for violations of a “public safety” ordinance" and that "Here, the County ordinance regulates the affairs of the County, specifically the safety of members of the public who enter the Jefferson County Court House", the format of 16 P.S. 509's allowance actually differs significantly.

§ 509(c) actually provides that "(c) The board of county commissioners may also prescribe fines and penalties not exceeding one thousand dollars ($1,000) for a violation of a building, housing, property maintenance, health, fire or public safety code or ordinance and for water, air and noise pollution violations, and not exceeding six hundred dollars ($600) for a violation of any other county ordinance . . ." That "health . . . or public safety code or ordinance " phrase is interesting. Under Chapter 1. The County Code > Article XXI. Public Health > (a) General Provisions, we find some similar wording. "The board of county commissioners may provide and annually appropriate from any moneys in the county treasury not otherwise appropriated such sum or sums as they deem necessary for the protection of the health, cleanliness, convenience, comfort and safety of the people of the county." (emphasis added) 16 P.S. § 2101. § 2101 et seq. deals with health control as it is most plainly thought. There is also nothing under Chapter 1. The County Code > Article XXIII. Grounds and Buildings > (D) Policing, Administration and Public Order of Grounds and Buildings that provides for searches or denials to the courthouse.

Preemption needs a reboot and perhaps I've found the keys. If the county actually has no power to enact an ordinance to regulate any carry or possession, does that mean not only can the county not erect magnetometers, but also they may not place a sign providing notice that each person is subject to search, therefore lacking notice required under the four-factor analysis undertaken in Minich II?

[ImminentDanger]

Preemption needs a reboot and perhaps I've found the keys. If the county actually has no power to enact an ordinance to regulate any carry or possession, does that mean not only can the county not erect magnetometers, but also they may not place a sign providing notice that each person is subject to search, therefore lacking notice required under the four-factor analysis undertaken in Minich II?

There are many violations of the Federal Bill of Rights regarding 'The Right to Keep and Bear Arms' and specifically in PA the violation of Article 1, Section 21, of the Constitution of the Commonwealth of Pennsylvania ("The right of the citizens to bear arms in defense of themselves and the state shall not be questioned.").

The ultimate problem with legally addressing Preemption and any of these other violations is that the very courts which are tasked with protecting the citizens from unconstitutional laws (the US Supreme Court and the PA Supreme Court) have themselves been dismal failures at their assigned task.

But Good Luck....

...

[Statkowski]

I'm not a lawyer, nor do I pretend to be one, but, if I read 16 PS 509 correctly, a county must publish an ordinance authorizing the establishment of a security checkpoint at a court facility, correct?

If so, what about all the security checkpoints that have been established without an ordinance?