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Preemption: WHAT the FRACK IS PREEMPTION?

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Preemption: WHAT the FRACK IS PREEMPTION? 12/28/2017 Preemption: WHAT THE FRACK IS PREEMPTION? Presentation Objectives When you leave here today you will be able to: 1. Define “preemption” as it relates to municipal court practice; 2. Understand the political and practical forces affecting the current state of federal, state and local government lawmaking; 3. Identify the different types of preemption; and 4. Understand how to spot and respond to preemption issues when they arise. Preemption is a doctrine in conflicts of law: when a superior government (as of a state) has undertaken to regulate a subject its laws supersede those of an inferior government (as of a municipality). 1 12/28/2017 UNITED STATES CONSTITUTION Supremacy Clause: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” UNITED STATES CONSTITUTION 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 2 12/28/2017 John Dickinson, a Virginia delegate, wrote of this concept of state rule “The government of each stateis,andistobe,sovereigninallmattersthat relate to each state only. It is to be subordinate barely in those matters that relate to the whole, and it will be their own faults, if the several states suffer the federal sovereignty to interfere in the things of their respective jurisdictions.” State Governing Structures: Dillon’s Rule Home Rule LOCAL CONTROL vs. STATE/FEDERAL CONTROL 3 12/28/2017 Recent efforts by the State of Texas to Preempt Local Government Ordinances: Oil and Gas Fracking Bans Plastic Bag Bans Ride Sharing Property Taxes/Budget Caps Bathroom Bill Sanctuary Cities Tow Companies Wireless Handheld Devices Tree Preservation Knife Restrictions The Wood Independent School District has a new superintendent. She believes strongly that each high school campus in the district should have its the power and autonomy to set rules, handle discipline and create order on their own. At the beginning of the school year she orders the principals of every campus to get together with their assistant principals and teachers and to rework everything – throwing out the school district‐wide student handbook and rules and procedures. She gives each school two weeks to report back on their creative approach to running their schools. The principals and their teams quickly go to work. Soon they start delivering their plans to the superintendent. 4 12/28/2017 SCENARIO NO. 1 Maple High School has adopted a new schedule for its campus that derives its new policy from research that shows teenagers need more sleep than the average person and perform better in the mid‐day and afternoon hours. Their school day now starts at 10:00 a.m. and ends at 6:00 p.m. The superintendent accepts Maple High School’s plan with enthusiasm, but not everyone is happy. Who might not be happy? School bus drivers. With Maple High School’s plan, they now have a completely different schedule for one of the six high schools in the district. They are understaffed and without a lot of resources as it is. Parents. Now their kids are going to be asleep through breakfast – the only real time the parents get to spend with their kids. And, now they have to manage homework and extracurriculars two hours later each weekday than normal. No more 5:15 soccer practice or church youth group. After a year of implementation, the dropout rate has plummeted and standardized test scores are 34% better than last year. And over half of the graduating class are headed to college instead of only 42% before the change in school schedule. The superintendent is getting calls for her to establish the high school schedule shift to all of the high schools in the district. 5 12/28/2017 SCENARIO NO. 2 Aspen Grove High School has the highest population of blind students of any of the high schools in the district. As part of their new rules, they adopt that windows and doors throughout all school buildings must be unlocked and unobstructed by furniture and items that might impede a student’s escape. The superintendent accepts Aspen Grove High School’s plan with enthusiasm, but not everyone is happy. Who might not be happy? School resource officers. Already beleaguered with active shooter issues, drug sales and budget cuts, the security and policing of schools just became that much harder if all the doors and windows are unlocked all the time students are present. Teachers. After moving all of the obstructions out of the way of the windows and doors, more and more often teachers struggle with keeping their students’ attention as most just stare out the window at the new Cane’s restaurant across the street from the school when they’re hungry. After a year of implementation, the blind student population falters with most transferring to Maple High School because of the better school hours. With only one blind student left, Aspen Grove abandons their doors and windows rule. The superintendent is getting calls that letting the school make rules instead of district‐wide rules is a failed initiative and she should be reprimanded. 6 12/28/2017 SCENARIO NO. 3 Pines High School takes an innovative approach and allows its teachers a shot at drafting the school rules. The teachers, all women, promote dividing the students into classes based on gender. Boys in one class and girls in another. The teachers believe separating the teenagers will help them focus and learn. The superintendent accepts Pines High School’s plan with enthusiasm, but not everybody is happy. Who might not be happy? Boys. Every day on their Instagram the boys of Pines see their buddies at other high schools in the district taking selfies with cute girls in class and getting to push their hormonal limits to the max. They become listless and completely not focused on their studies. The girls on the other hand are excelling academically and nearing a solution to ending world hunger. Parents. Three sets of parents have already met at the school with the principal, frustrated that their son is in a crowded class and being taught by one of the school’s football coaching staff. These parents want their sons to not only make good grades but to actually learn – so they will do well on the ACT and SAT and get into great colleges. The teacher with a graduate education and 20 years of experience is teaching the all girls class. After a year of implementation, the group of teachers who created the gender segregation of classes rule are committed, now more than ever, to keeping the policy. They point to the great successes that the girls group is achieving. The school superintendent disagrees and believes all students, no matter their gender, should receive a balanced and fair opportunity to education. The school superintendent is considering revoking Pines High School’s ability to govern itself altogether over the mess. 7 12/28/2017 PREEMPTION TYPES 1. Express preemption 2. Implied preemption (a) conflicts preemption (b) field preemption EXPRESS PREEMPTION 8 12/28/2017 TEXAS ALCOHOLIC BEVERAGE CODE Sec. 109.57. APPLICATION OF CODE; OTHER JURISDICTIONS. (a) Except as is expressly authorized by this code, a regulation, charter, or ordinance promulgated by a governmental entity of this state may not impose stricter standards on premises or businesses required to have a license or permit under this code than are imposed on similar premises or businesses that are not required to have such a license or permit. (b) It is the intent of the legislature that this code shall exclusively govern the regulation of alcoholic beverages in this state, and that except as permitted by this code, a governmental entity of this state may not discriminate against a business holding a license or permit under this code. TEXAS TRANSPORTATION CODE Section 545.4251. USE OF PORTABLE WIRELESS COMMUNICATION DEVICE FOR ELECTRONIC MESSAGING; OFFENSE. (j) This section preempts all local ordinances, rules, or other regulations adopted by a political subdivision relating to the use of a portable wireless communication device by the operator of a motor vehicle to read, write, or send an electronic message. SENATE BILL 15 TEXAS TRANSPORTATION CODE Sec. 542.2034. PREEMPTION OF LOCAL AUTHORITIES’ REGULATION OF USE OF WIRELESS COMMUNICATION DEVICE. (a) In this section, "wireless communication device" has the meaning assigned by Section 545.425. (b) The authority of a local authority to regulate or prohibit the use of a wireless communication device while operating a motor vehicle is preempted by this code, including Sections 545.424, 545.425, 545.4251, and 545.4252. 9 12/28/2017 TEXAS OCCUPATIONS CODE Sec. 2402.003. CONTROLLING AUTHORITY. (a) Notwithstanding any other provision of law, and except as provided by Subsections (b) and (c), the regulation of transportation network companies, drivers logged in to a digital network, and vehicles used to provide digitally prearranged rides: (1) is an exclusive power and function of this state; and (2) may not be regulated by a municipality or other local entity, including by: (A) imposing a tax; (B) requiring an additional license or permit; (C) setting rates; (D) imposing operational or entry requirements; or (E) imposing other requirements. IMPLIED PREEMPTION CONFLICTS
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