Thursday, Apr. 03, 2008

On smoking, sloppiness, arrogance and poetic justice

YOU COULD say it’s poetic justice.

Or, if you wanted to be less charitable, what goes around comes around. Or, the Legislature got what it had coming.

Whatever language you use, the Supreme Court’s unanimous decision upholding Greenville’s workplace smoking ban dealt a stunning blow to the sloppy, shortcut-laden way the Legislature does business. And there is no other way to see that than as a good thing. That it happened in a case that will protect the public health against increased risks of cancer, asthma and emphysema is just icing on the cake.

To understand why this ruling is about more than smoking, you have to go back to the genesis of the local smoking ban debate, in 1996.

Public health advocates were pushing legislation to let school boards declare their schools smoke-free. The tobacco and restaurant industries were up in arms over Spartanburg’s decision to ban smoking in most restaurants, shopping malls and other retail businesses, and so they cooked up a most insidious plan: They would hijack the anti-smoking bill and tack a provision on the end that declared, “Any laws, ordinances, or rules enacted pertaining to tobacco products may not supersede state law or regulation.”

A second sentence was added as a compromise to let Spartanburg keep its rules in place, and as far as everybody was concerned, the Legislature foreclosed any additional assaults on citizens’ God-given right to poison those around them with a lethal concoction of 250 toxic and carcinogenic chemicals.

The restaurant industry, which had lobbied for a year and a half to pull off this coup, declared victory. The tobacco companies, which had sent their high-powered lobbyists out to force a vote when a few senators tried to hold up the bill as the clock ticked down on the two-year session, nodded in silent approval.

But there was this one little problem: The Legislature put the language pre-empting local laws in a section of the criminal law that dealt with teen smoking rather than in the section of the law that dealt with indoor smoking restrictions. So if you read the state Clean Indoor Air Act itself, you see no mention of local governments having to live with the inadequate statewide restrictions.

It’s hard to say for sure why this happened. It might have been mere sloppiness, and if so it wouldn’t be the first time the Legislature did the opposite of what it meant to do in its rush to cram a year’s worth of work into the last couple of days of a session. If that’s the case, the court couldn’t have picked a better place to teach the Legislature that it has to live with the consequences of its incompetence.

Or it could have been an arrogant, calculated risk. The pre-emption language was being inserted into a bill where it didn’t belong — a dangerous legislative practice that is a close relative of the more notorious bobtailing and logrolling — and so for technical reasons, it was more likely to be ruled out of order during debate if it were put in the right place.

It wouldn’t surprise me if legislators figured, “Hey, the court — whose members have to come back to us every 10 years to get re-elected — wouldn’t dare hold us to a strict standard on something as clear as this.” At the time, it would have been a good bet; the court has a history of being, shall we say, understanding when the Legislature cuts corners.

Perhaps cognizant of this, perhaps merely being so accustomed to the culture and not-quite-by-the-book customs of the Legislative State that they seemed legitimate, state attorneys general spent the next dozen years warning local governments away from trying to protect the public

I had no doubt the attorney general’s opinions were right. Perhaps that reflects my own blind spots. I had sat through every meeting when the pre-emption was debated. There was no question what the Legislature’s intent was. And the language was unambiguous. It would be years before I even noticed it wasn’t where it should be, and even then the combination of clear language and clear intent convinced me it would stand.

On Monday, the court essentially said, “We don’t care what you intended to do; you didn’t do it.” Except it couldn’t say that exactly, because that would suggest that it knew what the Legislature intended, and as the justices are quick to remind us, “the cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature.”

Fortunately for the public health, that can only be divined in the letter of the law. So the court read the text of the Clean Indoor Air Act and found nothing there that precluded local action. Then it read the teen smoking law, where the pre-emption language was housed; it concluded that the Legislature must have put that in there with the intention of precluding local governments from enacting stricter laws against the sale of cigarettes to minors.

Here’s the great irony: The votes were almost certainly there in 1997 for the Legislature to write a pre-emption law that actually did prevent local governments from banning smoking. For that matter, the votes were probably there four years ago. But to correct a mistake is to admit you made one, and if there’s anything our Legislature dislikes more than it likes playing fast and loose with the rules, it’s admitting its mistakes.

For once, that turned out to be a good thing.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.