AG: Lower Nashville Pot Penalties Won't Fly

NASHVILLE, TN — In an opinion issued Wednesday, Tennessee's Attorney General says Nashville's ordinance lowering the penalties for possession of small amounts of pot violates the state's constitution.

Memphis-area lawmakers Sen. Brian Kelsey and Rep. Ron Lollar, both Republicans, requested the opinion from Attorney General Herbert Slatery after Nashville and later Memphis passed local ordinances allowing police officers the option to issue a small civil fine for possession of a half-ounce of marijuana or less and giving judges the discretion to replace that fine with community service hours.

Backers of the bill — which passed the Metro Council 35-3 — equated the change from the stiffer state penalty to a lighter local one was similar to Nashville's enforcement of the litter law, which is treated as a codes violation under Metro's code rather than a violation of state law, and thus has lower penalties.

In his opinion, however, Slatery said that because the state has an comprehensive and meticulous regulatory scheme for controlled substances under Tennessee's drug control law, the state legislature has "impliedly preempted" local regulation of drugs.

The opinion goes to say that Metro's law effectively removes prosecutorial discretion from district attorneys, giving it instead to police officers. The state's constitution and laws, the opinion says, intends only DAs, who are accountable to the people through election, to have prosecutorial discretion.

Unlike judicial opinions, Attorney General's opinions are not binding.

Push-back from Capitol Hill was not unexpected on the ordinance as the General Assembly has frequently used Dillon's Rule to countermand Metro laws and when the council voted on the ordinance, State Rep. William Lamberth said he was considering a bill stripping state road funding from any local government that lowered pot penalties.

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