Thanks GG, Right on SC, and Let's Recognize the Utility of Preemption

COMMENT FROM ARE FRIEND RAY.
GG,

Thanks for the notice. Although given my previous discussions of this issue, I am obviously not surprised. Indeed, I would be surprised if the Court had held otherwise.

The importance of this Myrtle Beach case to the biker rights movement should be widespread, both to dissuade municipalities from enacting city ordinances on subject matter already controlled by state law and to educate riders about the preemption argument and its utility to void such municipal laws as a matter of law. The preemption argument applies to any state that has some type of helmet law, e.g., the compromise over 21 helmet laws as in the state of South Carolina (and in the semi-free state of Utah, where Salt Lake City Mayor Rocky attempted the same type of municipal helmet law a few years ago). And it also applies to municipal noise abatement laws where they differ with the state noise abatement law, setting aside motorcycle free zones, lowering decibel levels, or increasing fines, as they did in Delray.

It is a simple and straightforward argument that any biker can make - much less complicated that the due process arguments that have evolved to challenge helmet laws. Indeed, making the preemption argument can be as simple as juxtaposing the state law against the municipal law, and then making plain in points and authorities that the municipal law is different, urging then that the municipal ordinance is void as preempted by state law. Some state laws will explicitly preempt municipal laws, which will make the argument even more obvious, but that is hardly necessary, as preemption applies wherever a municipal law conflicts with state law intended to control the subject matter. The California constitution has a preemption clause, as I would expect most states would, but all states recognize that state law is preeminent over municipal law.

To make it even more clear to the lower court, in your points and authorities you can point out that clearly the state was intended its law to "control" the subject matter, as with state helmet laws or state noise abatement laws. These are laws that if not uniform throughout the state would require bikers over 21 to carry helmets or specific kinds of helmets to put on and take off or switch as the biker rides across municipal lines. And the same with state and conflicting noise abatement laws that would require the biker to switch pipes and the municipal border. I think that if you wanted to really get fancy the next time this comes up, you could also look to the legislative history and I think you would find, as in the case of the SC over 21 helmet law that the legislators reached a compromise between legislators seeking total freedom and those seeking to require all bikers to wear helmets. It would indeed be offensive to the work and intent of the legislature if municipalities within the state could upset the legislative compromise by enacting municipal laws requiring all riders to wear helmets, regardless of age. (But for the same reason, unfortunately, I wouldn't count on succeeding in getting a local municipality to enact a city-wide freedom zone in a semi-free state.)

I'd seen a bunch of preemption cases, and I argued preemption to Mayor Rocky and the Salt Lake City Council, but I've never seen case law on this specific issue, so it is an important case, a state Supreme Court case. I assume that it will be published, so that it will be available for folks to cite nationwide where such cases arise as cases of first impression, and regardless whether its published, I think it would be instructive to municipal dictators who figure they can pander to their locals or local merchants with either anti-motorcyclist city helmet or noise abatement laws. It is amazing to me that these municipal politicians don't appreciate the limits of their power, but I think this SC Supreme Court case should be useful to cite to put the municipal tyrants in their places and nip in the bud any future efforts to run us out of their cities or off their city streets.

Ray