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?

COLUMN -- Stubborn facts — and a stubborn defense of principle to go with them

Thursday, February 8, 2007


John Adams' defense of British soldiers accused in the 1770 Boston Massacre (and of the greater principle of due process) gave us his oft-quoted observation, "Facts are stubborn things, and whatever may be our inclinations, or the dictums of our passions, they cannot alter the state of facts and evidence."

Facts are still stubborn things.

Last week, the Health and Human Services Committee of the Minnesota House held a hearing on the Freedom to Breathe Act — otherwise known as the statewide smoking ban. In defense of a greater principle, Reps. Laura Brod, R-New Prague, and Tom Emmer, R-Delano, took on the cause of bar and restaurant owners who dare exercise their private property rights and permit smoking in their establishments. It was a good, old-fashioned political butt whipping. Brod and Emmer shredded the arguments of bill sponsors Thomas Huntley, DFL-Duluth, and Dan Severson, R-Sauk Rapids.

Unfortunately, the attitude that the end justifies the means is also still stubborn.

Ruled by its inclinations, the dictums of its passions and an altered state of facts and evidence, a 12-6 majority in that committee advanced the statewide smoking ban to the Commerce and Labor Committee.

Even if one favors a comprehensive statewide smoking ban, one ought be embarrassed by the bill passed out of the Health and Human Services Committee. Not only did ban supporters do a poor job of justifying the necessity of a statewide smoking ban, the Freedom to Breathe Act is a jumble of inconsistencies and potential unintended consequences.

And therein lies the problem: When legislation is predicated on inclinations and passions and justified by an altered state of facts and evidence, not only is the result unnecessary legislation, it's bad legislation.

The case can be made that all legislation is invariably subject to interpretation. If there aren't loopholes, some smart lawyer will create them and some "activist" judge will validate them. That may be true as far as it goes, but the assumption ought to be that legislators have done their best to create a tight piece of legislation. When legislation is fact-based and addresses compelling state issues, that's generally the case. When it follows the dictums of passion, it ain't necessarily so.

Brod, Emmer and others raised numerous implications and potential unintended consequences of the Freedom to Breathe legislation. Does the bill inadvertently affect private homes used for business? Does public law that provides Minnesota the authority to enforce "criminal and prohibitory law" on American Indian reservations affect the legislation's attempt to exempt tribal casinos from the ban? When does a patron violation become a violation for which the establishment owner is criminally liable?

Normally, such issues are resolved in the committee process. Last session, eminent domain reform that limited when government could take private property for a public use passed through eight committees before earning a floor vote. This year, when Brod raised the question of what committees would be hearing the Freedom to Breathe Act, Huntley said he had no idea what the path might be, but he "would just as soon send it to the floor as soon as we can."

If the objective were crafting a bill that best served Minnesotans, then, as Brod suggested, it would pass through committees on local government affairs and public safety as well as commerce. But if the purpose of the bill were simply to ban smoking, then, as is Huntley's inclination, the quicker it got to the floor, the better — especially after Brod and Emmer shredded every health and economic justification for a smoking ban, save two.

By the time the committee was ready to vote, Rep. Ken Tschumper, DFL-La Crescent, was justifying the trumping of private property rights with the only undisputed argument ban supporters could muster — secondhand smoke smells bad.

Rep. Tina Liebling, DFL-Rochester, finally clarified the real motivation behind the Freedom to Breathe Act — she declared a statewide smoking ban necessary to "set behavior norms" for all Minnesotans.

"I hear a train a' comin' — it's roaring round the bend," the American Lung Association's Pat McKone sorta sang, giddily concluding her pro-ban testimony with a fitting metaphor for a bill being railroaded through the committee process despite inconsistencies, unintended consequences and confused justifications.

Brod, Emmer and stubborn facts will get another shot when the legislation goes to the House floor for debate. The outcome may not be any better, but when gutsy legislators persevere against intrusive government, one can always hope.

Selective smoking ban enforcement

Via email comes this note from Kevin --

See the hypocrisy of the Ontario provincial government and their smoking ban (here).

Thank goodness the State of Minnesota isn't in the casino business.

Coincidently, this is the example I used to argue that Minnesota shouldn't be in the casino business.

A state-tribal casino would not just compete with other tribal casinos; it would compete with private restaurants, private hotels and other private forms of entertainment.

Ironically, the state could pass a smoking ban for private bars and restaurants that compete with a state-tribal casino in which a smoking ban could not be enforced.

Do we start to see the problem?

More on Smoking Bans

Sue Jeffers in the St. Cloud Times.

COLUMN -- Absent exaggeration, scientific case for smoking ban is weak

Following my Pioneer Press column is a column that appeared Monday in the St. Paul Legal Ledger. Taken together, the columns make the case that regardless of the outcome on the statewide smoking ban, the state ought to define limits to it's authority to make individual health issues "public health issues" as it defined limits to its authority of eminent domain.



Wednesday, January 10, 2007


In the editorial 'Ban smoking in the workplace statewide,' the Pioneer Press makes an intellectually honest case for extending the statewide smoking ban to include bars and restaurants. It steers clear of misleading exaggerations and attempts an objective view of the science of secondhand smoke. It acknowledges the larger issues of the debate — property rights, economic harm and the limits of government power.

However, eschewing exaggeration leaves the Pioneer Press without convincing scientific justification for a statewide smoking ban. Honestly presenting scientific fact opens the door to questions about if and how government should legitimately be involved. The Pioneer Press sidesteps the most fundamental question: How are the limits of government's public health authority defined?

Anticipating an obesity "crisis," a trans-fat plague and mandatory public health initiatives driven by homeland security, it's critical to define the limits of government's public health activities, regardless of the smoking ban outcome. That's where legislative attention ought be focused.

The Pioneer Press makes thiscase: A statewide smoking ban in bars and restaurants is justified because smoking in public is not a private act. It exposes a roomful of nonsmokers to polluted air. That makes it fair game for public health scrutiny.

According to experts, secondhand smoke is a "powerful trigger" that can cause blood clots in people with diseased arteries. Some diseases, including most cancers, require longer periods of exposure. Nonsmoking employees in smoke-filled workplaces and nonsmoking spouses of smokers are at risk.

The Pioneer Press specifically states it does not want to make smoking in one's home a crime, despite noting that there is stronger evidence that secondhand smoke has negative health impacts on pregnant women, young children and infants, and there is statistically significant evidence secondhand smoke can cause sudden infant death syndrome.

The editorial concedes there are limits to the government's responsibility to protect public health and safety, but it does not define them. The Pioneer Press's ultimate rationale for a statewide smoking ban is its "fear that half-measures, exemptions, city by city rules or voluntary programs" won't change anything. Government, it says, has a responsibility to act.

The debate over a statewide smoking ban highlights a dangerous inconsistency: There are limits on government's ability to physically take private property, but virtually none on its authority to regulate, in the name of public health, what is allowed on private property.

In the 2006 session, the Minnesota Legislature defined limits on the government's authority to use eminent domain to take private property for public use; in a like manner, the smoking ban debate is the opportunity to define when government has legitimate responsibility to limit individual liberty in the name of public health.

The Pioneer Press maintains that possible acute reactions to secondhand smoke and a statistical correlation to increased risk of some cancers is sufficient to necessitate a statewide smoking ban. The acute danger, however, is relevant only to people with pre-existing health conditions. The risk for some cancers correlates (statistically; it is not proven as a cause) only after decades of consistent exposure, and then on the order of two to three additional cases per 100,000 nonsmoker instances. If those levels of risk warrant government action, then some other conclusions follow.

The Pioneer Press says it does not want to make smoking in a private home a crime. Why not? The home is not sacrosanct; government makes it illegal to grow and smoke marijuana in private homes — even if it's recommended for health reasons by a physician. One can drink adult beverages at home, but not if one's intoxication endangers a child. According to the science, any amount of smoke in a house endangers children, spouses and infants. So why shouldn't smoking at home be a crime?

"If public health is the issue, how can we worry so much about smoke blown on adults in a restaurant or bar and so little about infants and children living in smoke-filled homes?" asks the Pioneer Press editorial. It is, however, silent on the obvious answer — public health is not the main motivation behind the statewide smoking ban however much the Pioneer Press would like it to be. It is about borrowing the undefined, unlimited public health authority to ban smoking "as a convenience" for the impatient majority that sees no tyranny when the immediate finality of legislation is chosen over the uncertain results of education and individual choice over time.

Before the Supreme Court's Kelo decision, which Justice Sandra Day-O'Connor opined allowed government to take virtually any person's home for any public purpose, people didn't really mind if government confiscated a car dealership here and there to build a tax-generating corporate campus. Now, the Pioneer Press maintains, although it is unfortunate, some people must bear the economic burden and suffer a loss of liberty and property rights for the public health of a smoke-free state.

It appears it's not government that governs least that is best; the best government governs "them" more than it governs "us." I don't believe the paper on the east side of the river believes that is the position it is endorsing. Unfortunately, without limits on government's public health authority, that is exactly the position the Pioneer Press is supporting.


*****


Monday, January 10, 2007


Last session the legislature faced the issue of whether the state’s authority to exercise eminent domain had limits. The legislature established in law objective criteria defining when the state’s taking of an individual’s private property would be justified – and when it would not.

A proposed statewide smoking ban confronts this legislature with the same legal conundrum – does the state’s authority to protect public health at the expense of private property rights have limits?

Before considering any statewide smoking ban, this legislature ought first set objective criteria, as was done with eminent domain reform, which define when an individual health issue rises to the level of a public health issue necessitating government intervention. Second, legislators must apply those criteria to secondhand smoke exposure to determine if a statewide smoking ban is a necessary government action.

There are three basic criteria that define when an individual health issue rises to a level necessitating government intervention --

1) A person is exposed to a risk to which he does not consent.
2) Every person or any person might be exposed to the risk.
3) A reasonable person cannot protect himself from the risk.

If a statewide smoking ban fails any one of the criteria, it is likely an unnecessary government intrusion on individual rights. Let’s test them --

There are two elements to the first criterion – the first is level of “risk”; the second is “consent.”

Smoking ban proponents are often guilty of exaggerating statistics and making non-scientific statements about secondhand smoke that are false and misleading. Nonetheless, an objective look at raw data does show that over time there is a greater than 99 percent probability secondhand smoke exposure is correlated with an increase in lung disease and other aliments. However, the same research studies show “exposure over time” is measured in decades and even then, secondhand smoke is at best a weak contributing factor statistically insignificant as a causal factor -- even for lung cancer.

There is virtually no risk from secondhand smoke to a casual, healthy bar patron. To put the risk to bar employees into perspective, a person would have to work in a smoking environment for over 21 years to run an increased risk of lung cancer from about 10 in 100,000 (the nominal rate of lung cancer in non-smokers) to 12.5 in 100,000 (based on a 95 percent confidence interval and a median risk ratio of 1.25).

Does that level of risk after two decades of voluntary exposure justify government intervention?

If legislators can answer “yes,” then the issue of “consent” must be considered – to be a public health issue a person must not consent to the risk. A non-smoker patronizing or working in a smoking establishment ultimately makes the choice to be there; he knows and consents to the risk. Even if one believes that secondhand smoke exposure is a health hazard, a smoking ban fails the first criterion on the basis of consent.

To be a public health issue, everyone or any one is at risk of exposure to dangerous levels of secondhand smoke. A smoking ban also fails this test. Only people that enter or accept employment in smoking establishments face the risk. Given the decades of exposure required for secondhand smoke to constitute a health risk, casual exposure does not create a public health issue.

The final criterion of a public health issue is that a reasonable person can’t protect himself from a risk. This criterion incorporates the principle of implementing “least restrictive means” of achieving the state’s objectives.

If the objective of a statewide smoking ban is preventing exposure to secondhand smoke, the least restrictive means is requiring property owners to post warning signs and inform potential employees that smoking is allowed. More restrictive than simple signage, but less restrictive that a smoking ban, is requiring a state-defined air quality level in bars and restaurants. By definition, a “reasonable person” is capable of making an informed decision about risk if given complete and accurate information.

Legislators had the luxury of being on the popular side when they passed eminent domain reform that protected individual rights. Opposing a statewide smoking ban, action that is unpopular but also protects individual rights, is more difficult. Nonetheless, the previous legislature had the intellectual honesty to set limits on the government’s power to confiscate private property. Regardless of the smoking ban vote outcome, the state does not have unlimited regulatory power when it comes to policing public health. Let us hope a few good legislators seize the day and make that clear.

If somking bans were really about public health

this is the approach lawmakers would be discussing.