Preemption Part 2: A Path out of the Morass

Research shows that implied preemption of local laws by state courts creates unpredictable results throughout the country. But there is one state where a clarifying constitutional amendment removes uncertainty.

A report developed for MACo by a candidate for a Master’s degree in Public Policy at the University of Maryland details the history of preemption and its types while identifying ways that Maryland might end this unpredictable court doctrine.

Case Laws Lay on Boggy Ground 

When a state court strikes down a local law based on a doctrine of “implied preemption.” the court is making a judicial judgment based on its interpretation of a law. Implied preemption occurs when courts determine legislative intent to preempt local governments in a policy area, even when there was not an explicit statement of preemption by the legislature.

A court’s decision that local law is preempted may come years after the law has gone into effect, creating uncertainty, and at times, confusion. For example, in Maryland, a court found that the State’s Public Service Commission could preempt a local zoning decision regarding placement of solar power facilities, despite the passage of legislation after the filing of the case that strengthened the role of local zoning in the citing process.

As described by Les Knapp, MACo’s policy lead on planning and zoning matters,

While this case is nominally about solar siting and local zoning, the broader issue for local governments is the vague and somewhat arbitrary “test” Maryland Courts use when determining implied preemption. Absent a clear rule about when a policy area is preempted by the state, local governments face uncertainty in many policy areas where both state and local regulation currently coexist.

In his paper, Implied Preemption in State and Local Law, J. Dylan Mooers, then a master’s degree candidate at the University of Maryland School of Public Policy, highlights implied preemption as the most complicated and controversial means of limiting local government powers.

Implied preemption is controversial because it removes preemption from the democratic process, because it impacts laws that may have been on the books and uncontroversial for years, and because it is significantly harder to predict or prevent and is less well understood than express preemption.

In Maryland, the doctrine of implied preemption has been used multiple times by the courts to strike down local laws seeking to protect the public’s health, such as local laws intended to limit the sale of tobacco to minors, seeking to prevent exposure of children to pesticides. In these cases, the courts found that State’s laws and regulations in the area of tobacco and pesticides revealed the State’s intent to occupy these fields, removing local governments’ jurisdiction.

Research by Dylan Mooers, Public Policy Master’s Candidate, University of Maryland

Judicial Morass Muddies State and Local Laws

Courts are inconsistent in their application of implied preemption doctrine. The Alaskan Supreme Court has adopted a rule to only imply field preemption of local laws when the state legislature has expressly stated that it intends to occupy that area.

Mooers describes the historic opinion,

In a 1974 case dealing with local sewer ordinances, the Alaska Supreme Court forcefully rejected an argument that the state had “occupied the field”, instead holding that “We reaffirm our rejection of the doctrine of state pre-emption by “occupying the field.” We will not read into a scheme of statutory provisions any intention to prohibit the exercise of home rule authority in that area of the law. If the legislature wishes to “preempt” an entire field, they must so state.” -Jefferson v. State. 1974. P.2d 37 (Alaska Supreme Court).

As described by Paul Diller in his paper, Intrastate Preemption for the Boston Law Review (2008), “Other state courts have, at times, made statements that might seem to indicate that they share Alaska’s view, but they have not been consistent.”

In Maryland, there has not been any consistent doctrine of implied preemption among the courts, Court of Special Appeals overturned a lower court finding of implied preemption with regard to a local restriction on pesticide application in residential settings. The State’s highest court, the Court of Appeals ultimately affirmed that the local law should not be preempted.

Mooers found that there were 23 examples of implied preemption throughout the country – with state governments preempting local laws on a range of social issues, including health, minimum wage, and the environment. Some of these laws may have been in place for years before the courts nullified them through preemption.

For more information on this topic, see Implied Preemption in State and Local Law by Dylan Mooers.

Illinois Cuts a Clarifying Path

Issues of home rule, including local preemption, were a focus of the 1970 Constitutional Convention where Sam Witwer, known as the father of the Illinois Constitution, presided. Photo courtesy of Illinois Periodicals Online.

In Illinois, the possibilities of preemption of local law by the legislature are made more clear through a constitutional provision. Section 6 of the Local Government Article allows local government to exercise their home rule powers and functions unless the General Assembly has passed a law that “specifically” limits the local government’s powers.

Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive. -Constitution of the State of Illinois, Article VII, Local Government, Section 6, (i)

The Illinois Constitutional provision removes the threat of a finding of implied preemption, but still maintains a role for the courts with regard to interpreting the implications of express preemption.

Quoting Paul Diller again,

While Illinois courts still play a role in determining whether the legislature has expressly preempted a certain field, and, if so, the extent of such a preemption provision, two issues which can prove quite thorny, they do not decide whether preemption has occurred absent some express statement by the legislature on the matter.

Statutory Shortcut to Drier Ground

A clarifying rule on preemption like the Illinois constitutional amendment would add to predictability in local lawmaking. It would also strengthen the powers of the General Assembly by ensuring that legislative intent is not left to determination by the State’s courts.

The General Assembly in Maryland could create clarity through statutory change that provides the judicial branch interpretive direction. Such a law could specify the legislators intent that their laws are not intended to limit the ability of a local government to make local laws in the same area unless they specifically state that local governments are preempted.

When lawmakers intend preemption, they would state it in law, such they did in 2015 legislation relating to drone regulation. In other cases, the concurrent ability of county governments to make law would be understood.

A statutory change would accomplish the same intended goal as Illinois’s constitutional amendment – it would provide an understandable guideline to Maryland’s lawmakers as they draft legislation, and create a bright-line rule for Maryland’s courts.

Repealing the court doctrine of implied preemption is a 2020 Legislative Initiative of the Maryland Association of Counties.


Prior post in this series:

The County Program: Local Duties, Local Powers