COLUMN -- Get rational about when the state should pre-empt local decisions

Thursday March 1, 2007

Pre-emption — a legislative clause prohibiting communities from passing ordinances that are stricter than state law — has been ricocheting through committee hearings on the statewide smoking ban like a bounding football. Rule of law, as opposed to whim of men, demands a consistent application of pre-emption. Pre-emption is not just a loophole to be opened or closed.

As readers of this column know, I oppose a statewide smoking ban extended to bars and restaurants. I don't believe the science on secondhand smoke warrants it, and a reasonable person can protect himself from exposure in privately owned bars and restaurants by not patronizing them or choosing not to be employed in them. The danger of exposure to secondhand smoke doesn't rise to a level that requires government to trump fundamental property rights.

The concept of pre-emption figures prominently in the statewide smoking ban debate. Anything less than a comprehensive statewide ban with no exceptions raises this question: "Should local jurisdictions be pre-empted by state law from enforcing smoking bans stricter than the state might impose?"

Ban supporters will say "no," ban opponents, "yes" — both positions reflecting the whim of men.

However, there is a broader question, one that has to do with the rule of law: "When is it legitimate, necessary and proper for the state to pre-empt local decisions?" — not just smoking-ban ordinances, but any decision that is the expression of local will.

Questioning the limits of government is important regardless of one's position on the smoking ban. It is important to identify the principles necessary to find limits all can agree to.

Under Minnesota law, local jurisdictions are creatures of the state. So the state grants or denies municipalities the authority to impose ordinances stricter than state law. So pre-emption may be legitimate, but that doesn't always make it necessary and proper.

How might we judge when pre-emption is necessary and proper, as well as legal? By reverting to the principle of government's role in protecting fundamental rights. If the state determines a fundamental right is at stake, municipalities shouldn't have the authority to violate it. If the state punts on making that decision, it becomes the responsibility of municipalities to decide the question of fundamental rights.

Here's how that concept plays out in the statewide smoking ban debate.

Besides a comprehensive ban with no exceptions, the two most likely scenarios for a statewide smoking ban are these: 1) no new law — the status quo — a statewide ban that excludes bars and restaurants; or 2) a ban that extends to bars and restaurants but allows for exceptions if specified requirements are met — installation of ventilation equipment, for example.

Pre-emption — prohibiting a stricter local ordinance — can dramatically change the intent and purpose of the Legislature in each of these scenarios.

Take the first possibility — the status quo: A new statewide smoking ban is not passed. In that case, absent a clear legislative stand on the private property issue, municipalities should have the authority (and, it can be argued, the responsibility) to impose stricter smoking rules than the state to protect citizen health. Each city must weigh the science and the economic and social consequences and make its own call.

The second possibility is a statewide ban that includes bars and restaurants but allows exemptions for establishments that install ventilation equipment and maintain an air quality standard — an approach that seeks to balance the perceived health risk of secondhand smoke with private property rights and individual choice. In that case, should the state allow local municipalities to pass stricter ordinances? Many local jurisdictions already have comprehensive smoking bans in place, including St. Paul.

I would argue "no" in that instance. The Legislature is saying that, having weighed the evidence, the danger of secondhand smoke does not rise to the level where it is necessary to trump personal property rights and individual choice. The state would have taken a stand to protect the fundamental right of a property owner to determine what legal activities he will allow on his property. It would not then be proper to allow municipalities to curtail that fundamental right.

Although the focus of the smoking ban debate is on the "yeas" and "nays," it raises broader issues that should not be ignored. "When does public health trump fundamental rights?" and "For what reasons do we prevent local people from making local decisions?" The debate challenges legislators' willingness to be rational about the reach of government power and to be consistent with the principle of using the least restrictive means to achieve state interests.

How the Legislature approaches the broader issues raised by the smoking ban debate says a lot about the society we are becoming. Are we listening?