MISSOURI WATCH: LEGISLATURE ABUSES PRE-EMPTION

As regards most matters of human frailty, there is a tendency in political affairs to assume that power extends even to uncharted areas. This tendency of one political force to expand its power and influence to regions regarded as possessing lesser power is often evident in matters between the federal government and state governments, and in issues affecting state government and local (county/city) government.

Despite the interpretation given the 10th Amendment of the federal Constitution that supposedly holds congressional power in check, Washington has frequently mandated changes in laws and regulations enacted by the states. These power extensions have often been upheld by the U.S. Supreme Court, although interpretations have most often been based on the liberality or conservatism of the nine justices, not on a strict interpretation of constitutional law.

For the most part, strict adherence to granting states all. residual powers not specifically reserved by the federal government has most often been applauded by conservatives, although liberals have, over the years, rejoiced at this far-sighted vision of the constitutional authors. The court decisions reaffirming this restriction have added a note of authenticity that seems in perfect sync with the American concept of checks and balances.

Since most state constitutions, including Missouri's, attempt close resemblance to the federal concepts, many states have adopted both the language and spirit of the 10th Amendment in their own documents. For example, Section 40 of Article III of the Missouri Constitution reads:

"The general assembly shall not pass any local or special law:"

Listed after this clause are numerous restrictions, although the Missouri charter does not include the broad federal granting of all other powers to local governments.

Nevertheless, other specific language in the Missouri Constitution does make it quite clear that voters, regardless of the jurisdiction, have the right to enact their own laws to suit their own needs and requirements.

It is this right that is so seldom observed in the legislative halls in Jefferson City, where local needs and requirements seem to be the least concern of state officials. It is not unusual, for example, to read a law enacted by the General Assembly that bears the phrase, "No municipal (or county) law is hereby permitted." Sometimes the bill simply declares all contradictory municipal legislation null and void. Even worse is restriction on local public safety ordinances.

An excellent case in point is a 1995 statute on convenience store security which effectively ended an earlier ordinance enacted by the Columbia city council. Officials in Columbia had just cause for concern over how much protection was afforded the public, particularly at late hours, by convenience store operators: three persons were killed in just one robbery at an area store.

When the General Assembly sought to address this problem, lobbyists for the company owning the store saw to it their client was not "burdened" with costs attached to more effective security. Lobbyists also saw to it that the owner's stores would not be forced to comply with the wishes of the public, and a pre-emption clause was inserted and approved.

A few days ago, another late-night, robbery-murder occurred in another central Missouri town, not that far from Columbia, at another convenience store. Thanks to the company's efforts to maintain its profit levels and the general effectiveness of lobbyists in Jefferson City, a Bowling Green woman is dead and the state has once again proved it is incapable of enacting laws that will protect the innocent.

Worse, the state has even prevented Columbia from taking the steps requested by residents to protect the lives of convenience-store employees and customers.

The act of invalidating local laws, even when they are not contrary to state statute, is called pre-emption, but the word, like many in the legal lexicon, is too innocuous and innocent. The practice is nothing short of state invalidation of legally enacted ordinances, something not authorized or countenanced by the Missouri Constitution.

Another example, just as egregious, is the threatened pre-emption/invalidation of a municipal ordinance in the City of St. Louis, requiring persons possessing a legal firearm to have a lock on their weapon. The rule has a just and valid rational, based on several unfortunate accidents in St. Louis. Young children, upon discovering a parent's weapon, have been responsible for several deaths from accidental pistol and rifle discharge. Sometimes other young children, close by, have been fatally wounded from these accidents.

St. Louis municipal and police officials believe a local weapon-lock ordinance could prevent needless shooting deaths of young children, but this right has been denied by state legislators and lobbyists from weapons companies and gun owner associations.

But if such a law is requested by local residents and local law enforcement officials, why should the General Assembly have the right to prevent its enactment?

An even better question is: What authority gives the General Assembly the right of pre-emption in this instance?

Whenever the legal needs of residents of Columbia or St. Louis or any other community in Missouri are being met, and are provided with due regard to the state Constitution, by what authority does the Legislature nullify these laws?

Missourians vote on a large number of issues every election day, but few are as important as the issue of illegal and irresponsible pre-emption of duly enacted local laws by the General Assembly.

~Jack Stapleton of Kennett is the editor of the Missouri News and Editorial Service.