DrTodd
Michigan Moderator
imported post
Proposed power C (prohibition of firearms): is it a power, privilege, or authority that the agencies share in common and that each might exercise separately? No (This is the problem I see, I would think it to be Yes.
Since a school district can ostensibly ban firearms on their own, it appears that they can ban firearms if they are operating in common with a local unit of government.
Let me explain it this way: say a fire department and a police department merge to form a "Public Safety Department". This is an ongoing occurrence in Michigan. If what you say is correct, the new public safety department could not enforce the laws of Michigan because although the PD did have the powers before the merge, they no longer have the ability because they have merged with the fire department. Another example, a transportation authority has the right to tax based on the powers inherent to one of the governmental units that has formed it, even though not all of the enabling organizations have that power, if one of the governmental units do, the new entity does too.
There was a court case as I was looking this up that dealt with the issue. Basically, a private contractor merged with a city government's housing authority to run a housing project. Citing the role that governmental entities play in an intergovernmental endeavor, the court ruled that the new entity had governmental immunity because of the merge with the city. The argument that the court accepted was that the housing authority had the powers of one of its enabling entities, governmental immunity. If one were to follow the interpretation you hold, some entities may have NO power because it is one only held by one of the parent organizations.
I think that the difference of opinion stems form the use of "and". You believe that any merger/alliance has to both be a power that they have individually along with one they have separately. I believe that the law is written so that the library could exercise a power they all have and it can exercise a power any one of them has.
Earlier you stated "essentially, MCL 124.504 limits the power and privileges ofsuch entities or agreementsto the least powerful and/or privileged of the "public agencies" which participate". I think you are incorrect. Your use of the term "less powerful/ least privileged" is erroneous... their powers are "different", not less or more privileged.
As I stated above, I think any ban by the library would be illegal. I do think that the library district would NOT want to see this go to court and, if they were pressed on the issue, would drop the rule. The chances of them winning are slim at best, per the Ferndale decision. I think they can maintain their position if one bases the decision on MCL124.504 but, with MCRGO v. Ferndale making it clear that the state has exclusive control over the regulation of firearms; they would lose if it ever was challenged in a court of law.
I don't mean to shut the conversation down, but I really think that the more important point of preemption is this: "the state of Michigan has exclusive power to regulate firearms". Any attempt by any other unit of government (except for universities which are constitutionally "exempt") would be soundly determined to be illegal.
Proposed power C (prohibition of firearms): is it a power, privilege, or authority that the agencies share in common and that each might exercise separately? No (This is the problem I see, I would think it to be Yes.
Since a school district can ostensibly ban firearms on their own, it appears that they can ban firearms if they are operating in common with a local unit of government.
Let me explain it this way: say a fire department and a police department merge to form a "Public Safety Department". This is an ongoing occurrence in Michigan. If what you say is correct, the new public safety department could not enforce the laws of Michigan because although the PD did have the powers before the merge, they no longer have the ability because they have merged with the fire department. Another example, a transportation authority has the right to tax based on the powers inherent to one of the governmental units that has formed it, even though not all of the enabling organizations have that power, if one of the governmental units do, the new entity does too.
There was a court case as I was looking this up that dealt with the issue. Basically, a private contractor merged with a city government's housing authority to run a housing project. Citing the role that governmental entities play in an intergovernmental endeavor, the court ruled that the new entity had governmental immunity because of the merge with the city. The argument that the court accepted was that the housing authority had the powers of one of its enabling entities, governmental immunity. If one were to follow the interpretation you hold, some entities may have NO power because it is one only held by one of the parent organizations.
I think that the difference of opinion stems form the use of "and". You believe that any merger/alliance has to both be a power that they have individually along with one they have separately. I believe that the law is written so that the library could exercise a power they all have and it can exercise a power any one of them has.
Earlier you stated "essentially, MCL 124.504 limits the power and privileges ofsuch entities or agreementsto the least powerful and/or privileged of the "public agencies" which participate". I think you are incorrect. Your use of the term "less powerful/ least privileged" is erroneous... their powers are "different", not less or more privileged.
As I stated above, I think any ban by the library would be illegal. I do think that the library district would NOT want to see this go to court and, if they were pressed on the issue, would drop the rule. The chances of them winning are slim at best, per the Ferndale decision. I think they can maintain their position if one bases the decision on MCL124.504 but, with MCRGO v. Ferndale making it clear that the state has exclusive control over the regulation of firearms; they would lose if it ever was challenged in a court of law.
I don't mean to shut the conversation down, but I really think that the more important point of preemption is this: "the state of Michigan has exclusive power to regulate firearms". Any attempt by any other unit of government (except for universities which are constitutionally "exempt") would be soundly determined to be illegal.
