Tennessee AG Puts Memphis and Nashville's Marijuana Decriminalization in Jeopardy
By Ryan Poe
Memphis and Nashville cannot legally enforce new civil fines for small amounts of marijuana, Tennessee Attorney General Herbert Slattery III said in an opinion issued Wednesday.
And, within hours, Memphis officials said they are suspending enforcement of the new ordinance while they review the opinion.
Slattery said local ordinances allowing officers to give citations for $50 fines for a half-ounce or less of marijuana cannot be "enacted" or "enforced" because they "run counter to a state statutory scheme." Ordinances approved by Nashville in September and Memphis in October give officers the option of enforcing the civil fines instead of state criminal law, a Class A misdemeanor punishable by up to a year in jail and a $2,500 fine.
"We have received the attorney general's opinion on the marijuana ordinance, and are in the process of reviewing it to determine how we will move forward," Ursula Madden, the city's chief communications officer, said in a late Wednesday afternoon release. "For now, we are suspending enforcement of the city ordinance."
Memphis police have only issued one ticket, City Court Clerk Kay Robilio said Wednesday.
Republican state Sen. Brian Kelsey of Germantown and Rep.Ron Lollar of Bartlett requested the opinion.
Memphis City Council member Berlin Boyd, who co-sponsored the ordinance with Martavius Jones, said he doesn't expect the opinion to affect the city's ordinance, which he doubts would ever be contested in court.
"I can't see anyone going out and challenging this, spending their money to challenge Memphis and/or Nashville," Boyd said.
The opinion is just that -- an opinion -- but could give Memphis officials pause as they move forward with preparations to implement the fines, and make a recently rejected Shelby County ordinance even less likely to win approval.
"This, of course, is an opinion," said Robilio, a former Shelby County Circuit Court judge. "It's not a ruling from the courts. And while it's informative and provocative and offers much food for thought, it's not controlling."
The opinion comes two days after County Commissioners voted 4-9 against a similar ordinance that would have applied only to areas of unincorporated Shelby County that are part of the Memphis annex reserve area.
"I have tried in vain to warn and advise my colleagues both across the street (at City Hall) and here with the County Commission regarding this matter," Commissioner Terry Roland said in a prepared statement on the opinion. "We have serious problems that need to be addressed, but now this issue will probably end up costing taxpayers if/when it ends up in court. I extend an olive branch to all elected officials to work with the County Commission's Legislative Agenda to affect common sense reform in Nashville."
State lawmakers -- especially those with the Black Caucus -- have called for changes to state laws that would soften the penalties for casual possession of small amounts of marijuana. With civil marijuana fines in place in the state's two largest cities, the issue will almost certainly be addressed in some form by legislators, lawmakers in the caucus have said.
Nashville attorneys were also reveiwing the opinion Wednesday, although enforcement hadn't been suspended in the meantime.
Memphis Chief Operations Officer Doug McGowen said possible changes to the city's ordinance could be considered. But, until then, he added, "We've been working to move straight ahead."
The question comes down to whether the civil fines are an additional regulation or a regulation in opposition to state law, Slattery said in his opinion. And marijuana punishment is "squarely covered" by the 1989 state Drug Control Act.
"In short, the ordinance displaces the more stringent state law criminal penalties that the General Assembly has prescribed with substantially reduced civil fines by allowing an officer to issue a municipal civil citation, in lieu of a criminal warrant, to an offender," he wrote in the opinion.
Proponents of the ordinances argued that cities had the authority to propose alternate regulations, as long as officers had the choice of whether to enforce them. But in the opinion, Slattery said a government's authority on such matters "is subject to specific limitations."
"One well-established limitation is that a municipality is not authorized to enact ordinances that conflict with either the federal or state constitutions, the statutes of this state or established principles of common law," the opinion stated.
(c)2016 The Commercial Appeal (Memphis, Tenn.)