Ky. Op. Atty. Gen , Ky. OAG 90-95, 1990 WL (Ky.A.G.) *1 Office of the Attorney General Commonwealth of Kentucky OAG 90-95

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1 Ky. Op. Atty. Gen , Ky. OAG 90-95, 1990 WL (Ky.A.G.) Ms. Barbara Gregg Dear Ms. Gregg: *1 Office of the Attorney General Commonwealth of Kentucky OAG October 2, 1990 RE: Ordinance 166, Series 1990 This is in response to your inquiry concerning the legality of Ordinance 166, Series 1990, otherwise known as the hate crimes ordinance. Your letter asks whether the ordinance violates the preemption doctrine, whether principles of double jeopardy are implicated, and whether a city has authority to increase criminal punishments imposed by state law. Following the title and preamble, Section 1 of the ordinance increases the penalty for any crime committed by reason of discrimination. A bias-related crime is defined as: [A] criminal offense including a criminal violation of law with the intention or design to intimidate or terrorize a person or a class of persons because of age, race, religion, national origin, ethnic identity, gender, sexual orientation, disability or health related condition. A person acts with the intention or design to intimidate or terrorize if the person's conscious objective is to cause that result. Section 1 then increases the maximum fines and periods of incarceration otherwise authorized by law for felonies, misdemeanors, and violations. Sections 2 and 3 of the ordinance provide for victim assistance, data collection, educational and prevention programs, and additional staff positions on the Louisville-Jefferson County Human Relations Commission. Section 4 of the ordinance concludes by stating that the date on which it becomes effective shall be 90 days after passage by the Board of Aldermen (July 10, 1990) and approval by the Mayor (July 16, 1990), i.e., October 14, For the reasons which follow, it is the opinion of this office that a city lacks authority to increase the criminal penalties provided by statute to the extent attempted here, and that Section 1 of the ordinance conflicts with a comprehensive legislative scheme as defined in KRS (2). Because crimes defined by statute would effectively

2 become lesser included degrees of those contemplated in Section 1 of the ordinance, it further appears that a conviction or acquittal under one would bar a successive prosecution under the other. Finally, we note that Section 1 contains a severability clause whereby the invalidity of one provision in the ordinance does not affect the validity of any other provisions. As explained below, Sections 2 and 3 do not appear to conflict with existing law. We begin our analysis of Section 1 by emphasizing that within certain statutory limits, a city has the authority to enact an antidiscrimination ordinance. In Commonwealth v. Beasy, Ky., 386 S.W.2d 444 (1965), for example, Kentucky's highest court upheld an ordinance enacted by the City of Louisville which prohibited discrimination in service, in places of public accommodation, on account of race, color, religious beliefs, ancestry or national origin. 386 S.W.2d at 445. The Beasy court reasoned that the ordinance was a valid exercise of the city's police powers and, more importantly, that the general subject matter of bias-related discrimination in that context had not been comprehensively occupied by the state legislature. 386 S.W.2d at 447. The soundness of the precise holding in Beasy is questionable, however, in light of KRS (enacted after Beasy was decided), which forbids discrimination concerning public facilities. *2 Unlike the ordinance in Beasy, the enactment under discussion here does not seek to punish bias-related discrimination in a context where the legislature has remained silent. Instead, this ordinance ventures much farther by imposing punishment where discrimination is the motive for a crime already punishable under the Kentucky Penal Code or the United States Code. Whether such a discriminatory motive is characterized as an additional element or as an aggravating circumstance makes no difference where the pre-emption doctrine is concerned, for in either event the ordinance is attempting to redefine statutory crimes. This is self-evident from the fact that the ordinance incorporates the state and federal penal codes by implication, piggybacking itself onto anything and everything elsewhere defined as a criminal offense including a criminal violation of law. As the United States Supreme Court observed in Liporota v. United States, 471 U.S. 419, 424, 105 S.Ct. 2084, 2087, 85 L.Ed.2d 434, 439 (1985), The definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute. (Emphasis added.) See also Dawson v. Hamilton, Ky., 314 S.W.2d 532, 536 (1958), where Kentucky's highest court said: What conduct shall in the future constitute a crime in Kentucky or be subject to severe penalties is a matter for the Kentucky legislature to determine in view of the then existing conditions when the need for such a statute arises. [Citation omitted.] It is not a matter that may be delegated... The statutory basis for this part of our opinion is found in KRS , which succinctly defines the authority of a city to regulate via ordinance. At first blush, subsection (1) of KRS would appear to impose no legal barrier to the hate crimes ordinance: A city may exercise any power and perform any function within its boundaries... that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute.

3 Subsection (2) of the statute, however, forecloses any attempt by a local government to redefine crimes already specified by the General Assembly. It defines conflict as follows: A power or function is in conflict with a statute if it is expressly prohibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes including, but not limited to, the provisions of Chapters 95 and 96. (Emphasis added.) Section 1 of the hate crimes ordinance obviously furthers an important societal interest in discouraging discrimination, and it is not directly at odds with any specific penal statute enacted by Congress or Kentucky's General Assembly. This office is not at liberty to ignore the plain language of KRS (2), however. It seems clear to us that the Kentucky Penal Code constitutes the very kind of comprehensive scheme of legislation contemplated by Subsection (2) of the statute. Consequently, we cannot escape the conclusion that the ordinance runs afoul of the pre-emption statute by attempting to enter a field already comprehensively occupied by the legislature. See, for example, the case of Boyle v. Campbell, Ky., 450 S.W.2d 265, (1970), holding that an ordinance identical to a statute would be nonetheless invalid. To the same effect is Pierce v. Commonwealth, Ky., 777 S.W.2d 926, 928 (1989), wherein the Kentucky Supreme Court struck down a sodomy solicitation ordinance because the subject matter had been similarly pre-empted by statute: *3 [T]he ordinance enacted by the City of Florence directly addresses criminal conduct which is comprehensively addressed by state statutes. * * * [T]he General Assembly designed a comprehensive approach to prohibiting the solicitation of criminal acts, which includes a coherent classification scheme for determining the range of penalties from which an appropriate punishment may be imposed. The Florence Ordinance conflicts with the statute by its description of the proscribed conduct and by the excessive penalty it authorizes. For this reason, it is an invalid exercise of the power granted to cities under KRS When state legislation is intended to occupy the field, a city has no power to enact local legislation on the subject. Morris, Municipal Law, 70 Ky.L.J. 287, 301 ( ). Having concluded that KRS (2) prohibits a city from redefining the elements of a statutory crime, we now turn to the issue of punishment. As noted earlier in this opinion, Section 1 of the hate crimes ordinance increases the maximum fines and periods of incarceration otherwise authorized by law for all felonies, misdemeanors, and violations. In particular, the various penalty ranges are increased as follows: felonies by an additional fine of not more than $1000 or imprisonment in jail for not more than 6 months or both ; Class A misdemeanors by an additional fine of not more than $500 or imprisonment in jail for not more than 30 days or both ; Class B misdemeanors by an additional fine of not more than $250 or imprisonment in jail for not more than 10 days or both ; and violations by an additional fine of not more than $ Section 1 of the hate crimes ordinance conflicts with KRS (2)

4 by the criminal penalties it imposes, the same as it conflicts with that statute by redefining criminal offenses. In Pierce v. Commonwealth, supra, the City of Florence had enacted an ordinance which doubled the maximum possible fine for a Class B misdemeanor to $500 and which quadrupled the maximum possible jail time to twelve months incarceration. 777 S.W.2d at After concluding, as we do here, that KRS (2) pre-empts the field of criminal offense definition generally, the Kentucky Supreme Court in Pierce went on to say that the statute likewise forbids local government from significantly increasing criminal punishments by way of ordinance: As the General Assembly chose the language used in the statute, we must conclude it did so intentionally and we cannot approve an ordinance which amounts to an enlargement of the conduct proscribed by the act of the General Assembly. * * * The Florence Ordinance conflicts with the sttute by its description of the proscribed conduct and by the excessive penalty it authorizes. For this reason, it is an invalid exercise of the power granted to cities under KRS S.W.2d at 928. (Emphasis added.) Your letter also asks whether the double jeopardy doctrine would bar cumulative punishments or successive prosecutions where the same act violates both the ordinance and the statute on which it relies. Because any hate crime defined by the ordinance necessarily includes all the elements of the penal statute on which it is based, it is clear that conviction or acquittal under one would bar cumulative punishment or a successive prosecution under the other. See, e.g., Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932) (barred by double jeopardy unless each requires an element which the other does not); Grady v. Corbin, --- U.S. ---, 109 S.Ct. 548, --- L.Ed.2d --- (1990) (barring the conclusive relitigation of an essential element common to both). Kentucky's General Assembly has codified the Blockburger rule in KRS *4 Although the scope of this opinion is confined to the specific questions you have asked, it occurs to us that the ordinance raises a variety of other practical considerations. Not the least of these is whether persistent felony offender enhancement under KRS could apply to felonious violations of the ordinance. Implementation of this ordinance could also frustrate the applicability of the Truth-In- Sentencing procedure provided for by KRS , since that statute contemplates a conviction under state law rather than local ordinance. As indicated earlier in this opinion, Sections 2 and 3 of the ordinance provide for victim assistance, data collection, educational and prevention programs, and additional staff positions on the Louisville- Jefferson County Human Relations Commission. None of the provisions contained in Sections 2 and 3 appear to be pre-empted by a comprehensive legislative scheme as defined in KRS (2). Although the General Assembly has enacted statutes dealing with victim assistance (KRS , et seq.) and data collection (KRS , et seq.), such legislation comtemplat[es] local action. Boyle v. Campbell, supra, 450 S.W.2d at 267. KRS , for example, in

5 general terms requires local law enforcement agencies to cooperate in the collection and reporting of criminal data. See also KRS , which deals with data collection in the area of non-criminal discrimination (employment, housing, and public facilities). KRS (9) contemplates the establishment of local victim assistance programs. Accordingly, Sections 2 and 3 of the hate crimes ordinance are not precluded by comprehensive legislation. In conclusion, it is the opinion of this office that the creation of the new class of bias-related discrimination offenses or hate crimes in Ordinance 166, Series 1990 is the province of the General Assembly rather than local government, for these are matters of a state-wide concern. Therefore we can only suggest a resumption of the efforts made during the 1990 legislative session to enact hate crime statutes. See, e.g., Senate Bill 408 (90 RS BR 1918, 90 RS BR 1918/SCS). You may find it helpful to know that other States have recently enacted similar legislation: Cal.Penal Code, Title 11.6, ; Conn.Gen.Stat.Ann. 46a-58; Mass.Gen.L., Ch. 265, 39; N.Y.Penal L., Art. 240, ; Okla.Stat.Ann., Title 21, 850; 18 Pa.Cons.Stat.Ann. 2710; Wash.Rev.Code Ann. 9A ; W.Va.Code Please do not hesitate to contact this office if you have any further questions concerning Ordinance 166, Series Sincerely, Frederic J. Cowan Attorney General David A. Smith Assistant Attorney General Manager Capital Litigation Branch Criminal Appellate Division Ky. Op. Atty. Gen , Ky. OAG 90-95, 1990 WL (Ky.A.G.) END OF DOCUMENT