[1992/oagheade.htm]

OAG 92-163

December 28, 1992

Louis Coleman

Justice Resource Center

P.O. Box 75

Shelbyville, Kentucky 40065

Dear Mr. Coleman:

You have submitted this question to the attorney general:

We need the attorney general's opinion on the legal jurisdiction of the city of Frankfort, Anti-mask ordinance. Last Saturday, the K.K.K. wore masks that covered faces, and were in a public facility, or place of public use. Is this in opposition to the city law as written.

It is our opinion that the ordinance in question could have been applied to prohibit the wearing of masks or hoods by Ku Klux Klan members.

Background

In October of this year a local chapter of the Ku Klux Klan conducted a rally on the state capitol grounds. The KKK had procured the necessary permit from the state to conduct the rally. The Klansmen present at the rally wore robes with hoods that obscured their faces, thus concealing their identity.

The city of Frankfort has adopted an ordinance that says, “No group of three or more persons shall, while wearing any hood, mask, or device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, enter, be, or appear in any public place within the city of Frankfort.” By its plain terms this ordinance prohibits the wearing of hoods as was done at the KKK rally; but the ordinance was not enforced by peace officers because of uncertainty whether the city ordinance applies to conduct on state property.

Discussion

Cities may enact ordinances to preserve public health, safety, welfare, and morals; this is known as the police power. Under Kentucky's home rule statute, KRS 82.082, 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.” Such a power or function is deemed to be in conflict with a statute if it is expressly prohibited by the statute, or if there is a comprehensive scheme of legislation on the same general subject. KRS 82.082(2).

Ordinances prohibiting the wearing of masks and other disguises to conceal the face have been determined a valid exercise of a city's police power. 6A McQuillin Municipal Corporations, �24.01 (3rd edition); City of Pineville v. Marshall, 222 Ky. 4, 299 S.W. 1072 (1927).

In general, the police power of cities does not permit them to regulate state property. In 62 C.J.S., Municipal Corporations �157, the rule is stated thus: “Property of the state is exempt from municipal regulation in the absence of waiver on the part of the state of its right to regulate its own property; and such waiver will not be presumed.” This rule has been used on three occasions in Kentucky to invalidate a city's attempt to regulate state property.

In Kentucky Institution For The Blind v. City of Louisville, 123 Ky. 767, 97 S.W. 402 (1906), the court held that an otherwise valid city ordinance requiring the presence of fire escapes on tall buildings could not be applied to a state-owned institution located within the city limits. “The principle is that the state, when creating municipal governments, does not cede to them any control of the state's property situated within them, nor over any property which the state has authorized another body or power to control.” Id. at 404.

In Board of Councilmen of City of Frankfort v. Commonwealth, 243 Ky. 633, 49 S.W.2d 548 (1932), the court held that a city ordinance regulating the sale of milk could not be applied to the sale of milk to a state prison located within the city. “We see no room for distinction between a case concerning the buildings or property of the institution and one relating to the service or supplies to the inmates thereof. . . . Essentially and intrinsically the state prisons are matters of state, and not of local jurisdiction.” Id. at 550.

In City of Bowling Green v. T & T Electrical Contractors, Inc., Ky., 602 S.W.2d 434 (1980), the court held that a statute granting cities the power to regulate public buildings did not cede to a city jurisdiction to impose a local building code on state buildings located in the city.

These cases deal with a city's attempt to regulate directly either government property or a governmental activity. They do not present the question whether a city may regulate individuals' conduct that is unrelated to a governmental function and that happens to take place on state property.

We believe that the rule applicable to the situation presented is stated in 6A McQuillin Municipal Corporations, �24.55 (3rd edition) as follows:

Public ordinances and regulations of a city are binding upon all within the city, and all who go to the city must obey them. Furthermore, they are applicable to state agencies, at least to the extent that the ordinances are reasonably necessary for the protection of the municipality's inhabitants.

In the situation presented here, the city is not attempting to regulate state property or a state activity; rather the city is regulating the conduct of individuals within the city limits. The Frankfort anti-mask ordinance does not interfere with the state's control over its land and buildings, nor does it intrude upon the state's administration of its activities, nor does it conflict with a comprehensive scheme of legislation on the subject; therefore the ordinance may be enforced throughout the city, including the portions of the city that extend to state property.

We believe that the relationship between a city and the state, in the context presented here, is analogous to the relationship between a state and the federal government. That relationship has been stated thus: “Police power of the state extends over federal lands in the absence of a pre-empting federal interest.” 81A C.J.S., States �23 n. 80. Just as the state's statutes may regulate conduct undertaken within a federal building, a city's ordinance may regulate conduct undertaken on state property.

Conclusion

We conclude that Frankfort's anti-mask ordinance can be enforced to prohibit the wearing of masks on state property.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General