Nelson Symposium explores hot legal, political issues
By Richard Goldstein
Its 19th century provenance is “sordid;” it is employed today in the service “political bullying;” and the best that a lawyer can hope for is to embrace “ambiguity,” while navigating this legal realm.
Such was the abuse heaped on the seemingly mild-mannered legal doctrine of preemption during UF Law’s Feb. 8 Nelson Symposium at the UF Hilton Conference Center.
“Preemption Puzzles: Firearms, Fracking, Foreigners, Fuels and Farming” explored some of the hottest legal and political issues as they sift through.
Preemption is the doctrine for establishing which level of law takes precedence – local, state or federal – when they come into conflict.
UF Law Professor Michael Allan Wolf, host of the Nelson Symposium and the Richard E. Nelson Chair in Local Government Law, noted that the history of preemption tends to involve early 20th century railroads when sorting out when the federal government’s authority overrides that of states. A railroad gets out of safety standards for cabooses because the caboose was a mail car and the Supreme Court ruled in 1919 that the federal rules overrode the state’s (Pennsylvania Rail Road Co. v. Public Service Commission). In a 1917 case, a man had to pay back his railroad worker’s compensation award because the federal government didn’t cover cases in which negligence played no part even though the state allowed for such compensation (New York Central Rail Road Company v. Winfield).
But the granddaddy of all preemption cases, and the reason Wolf calls the history a sordid one, was the 1842 Prigg v. Pennsylvania in which the Supreme Court ruled that the state could not prosecute a man who captured and returned a black woman to the heirs of her original slave owner. She had been living as a free woman in Pennsylvania and was returned to slavery in Maryland after her owner died. The state convicted the man who transported her against her will to Maryland. But the court ruled that Congress had preempted the authority of the state to prosecute people under its fugitive slave law. The Congress had legislated slaves as property under federal law and in accordance with the U.S. Constitution.
Much of the conference focused on the collision between local law and state laws. Amy T. Petrick (JD 00), senior assistant county attorney for Palm Beach County, explained the difficulties that local officials in Palm Beach County have encountered as the Legislature has attempted to enforce preemption of local firearm regulations by threatening local officials with fines and removal from office. Petrick is lead counsel in a case pending in Leon County, Marcus v. Scott, which challenges the Legislature’s ability to punish local officials for passing laws regulating firearms. Commissioners can be fined $5,000 and removed from office by the governor
Petrick called the law “political bullying with no proper purpose.”
The 2011 state law came in part as a response to the county’s attempt to ban high-capacity magazines. Petrick said the commission put that idea on the shelf after Gov. Rick Scott signed the legislation into law in 2011. But in response, Palm Beach County sued the Florida governor, the Florida Legislature as well as Attorney General Pam Bondi, saying that the effect of the law was to “chill” commissioners’ lawmaking. Petrick said the threatened penalties has led her to advise commissioners to steer clear of even some zoning questions because of uncertainty about what precisely remains under local authority.
More conflicts between local and state government were brought out by Professor John R. Nolon, of Pace University School of Law in White Plains, N.Y. He described attempts by state governments in Pennsylvania and Ohio to preempt local government zoning when it pertained to fracking, the method of extracting gas using high pressure streams of water. Courts in both states have sided with local governments’ rights to dictate the location of industrial operations within their jurisdictions.
Nolon argued that state and local governments should cooperate in the decision-making on the use of the technology so that fracking can proceed and its benefits to society in the form of energy generation are realized even as local interests are taken into account.
Uncertainty, or “ambiguity,” as Wolf put it, was a theme of the conference. Wolf advised law students and lawyers to get used to it.
Surveying recent cases, Wolf noted that preemption cases can fall on either side of the political divide or even divide the same side. For example, the Republican-dominated Chamber of Commerce called for federal law to preempt Arizona immigration law, while the state’s elected Republican administration fought against preemption.
“Maybe we can actually have a level playing field because ideology … doesn’t point us in the direction of preemption or non-preemption.” The solution, said Wolf, is to embrace ambiguity.
Speakers at the symposium included Professor Michael O’Shea, Oklahoma City University School of Law; Associate Professor Rick Su, SUNY Buffalo Law School; Assistant Professor Hannah Wiseman, Florida State University College of Law; environmental and land use law attorney Robert N. Hartsell, Fort Lauderdale; Dave Mica, executive director, Florida Petroleum Council; as well as Samantha Culp (3L) and Eric Fisher (3L).
The symposium is named in honor of Richard E. Nelson, who served with distinction as Sarasota County attorney for 30 years, and his wife, Jane Nelson, two UF alumni who gave more than $1 million to establish the Richard E. Nelson Chair in Local Government Law, which is responsible for the annual event. Their support of the Levin College of Law’s Environmental and Land Use Program has been key to the program’s success and national recognition for excellence.