Amy T. Petrick (JD 00), senior assistant county attorney for Palm Beach County, and Michael O’Shea, professor of law at Oklahoma City University School of Law, discuss firearms regulation at the 12th Annual Richard E. Nelson Symposium on Feb. 8. (Photo by Haley Stracher)

By Richard Goldstein

Its 19^th 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 20^th 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.

Michael Allan Wolf

On Friday, local and national experts gathered at the UF Hilton for the Richard E. Nelson Symposium, with this year’s event titled, “Local Government Liability Under Federal Law: Regulating the Sacred and the Profane.” Dean Robert Jerry began the event by expressing his appreciation for the symposium’s namesake, whose generosity made it possible to bring Professor Michael Allan Wolf to UF Law as the Richard E. Nelson Chair in Local Government Law.

Wolf then stepped to the podium and began by offering an analogy. He suggested that local government attorneys could find their ancient Greek equal in the muse Cassandra, who could tell the future, but never convince anyone of its truth. “So imagine you, Cassandra-like, trying to explain the due process clause to lay people,” Wolf said, stating that it’s not easy to get lay people to understand that, in law, words like ‘Congress’ may not mean what they think.

If that wasn’t enough to deal with, those Cassandras must also deal with voters, who Wolf analogized to sirens. “One of the toughest tasks that local governments have is to resist the insiders,” Wolf said, noting that individuals will often pressure their governments to pass unconstitutional measures. His solution to dealing with the sirens was a fitting one. “Put wax in your ears,” Wolf said.” “Well, leave them open a little, after all, they deserve to be heard.”

Ashira Ostrow, a professor at Hofstra University School of Law, took the podium next to speak about the ‘sacred’ side of things. This was represented by discussion of the fairly recent Federal RLUIPA statute (Religious Land Use and Institutionalized Person Act). While Ostrow, who holds a bachelor’s in religion in addition to her JD, discussed RLUIPA directly, she also discussed how it could be a model for land use planning as a whole.

The problem with contemporary zoning, Ostrow said, is that it usually lacks objective guidelines. As such, important decisions are often highly discretionary and suffer from “NIMBYism” – NIMBY meaning ‘not in my backyard.’ However, challenges brought under RLUIPA face stricter standards when as-applied challenges are brought, and Ostrow suggested that such a system would benefit zoning as a whole. “RLUIPA is important not only for religious land uses,” she said, “but for what it says about the land use process.”

Ostrow recognized the deferential the deferential standard created in the landmark zoning case of Village of Euclid v. Ambler Realty, but also noted that Euclid was a facial challenge to the constitutionality of the zoning statute. Ostrow suggested that courts follow the case of Nectow v. City of Cambridge more often, as that case suggested a much less deferential standard when a challenge is applied to a specific circumstance.

Franklin Zemel, a partner at Arnstein and Lehr in Ft. Laurderdale, continued the discussion by sharing his experience in litigating these matters. Zemel told the audience of one of his clients, who were given a license to operate as a church meeting center, with the limitation that they could not provide church services. Zemel said that, in this case, one letter from him was enough to get the local government to change their seemingly illogical position.

Zemel applauded that local government for correcting their mistake, and then told the audience what often happens to those that insist on litigating the matter. Since prevailing parties are often able to recover attorney’s fees in these cases, judgments against local governments can get very expensive. Zemel highlighted a few cases in which the judgments and attorneys fees added up to hundreds of thousands, or even millions of dollars.

Alan Weinstein, a professor at Cleveland-Marshall College of Law, and Marie Hartman, the City Attorney for Daytona Beach, spoke next. Their speeches covered the ‘profane’ side of things, with the focus on sexually-oriented businesses and how they can be regulated. Weinstein explained that such regulations are seen as content-neutral as long as the regulation is done for to reduce the crime associated with such businesses, and then sought to show that such a correlation does exist. Hartman followed, detailing the long road that Daytona Beach has traveled in their attempts to regulate sexually-oriented businesses in the city.

Students took the stage next, as 3L Tara Nelson and 2L Dwayne Robinson, discussed recent statutes and court decisions. Asmara Tekle, a professor at the Thurgood Marshall School of Law, and Steven Wernick, an attorney at Bilzin Sumberg Baena Price & Axelrod in Miami, capped off the event by discussing sex offender residency requirements.

This was the ninth symposium honoring Richard E. Nelson– who served with distinction as Sarasota County attorney for 30 years–and Jane Nelson, two loyal UF alumni who gave more than $1 million to establish the Richard E. Nelson Chair in Local Government Law, which sponsors 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.

A distinguished group of national and state experts will be on hand 8:30 a.m. to 4 p.m., Friday, Feb. 12, at the UF Hilton Conference Center in Gainesville, Fla., to discuss “Local Government Liability Under Federal Law: Regulating the Sacred and the Profane.” Presentation topics include First Amendment problems posed by the land use regulation of adult businesses, challenges posed to zoning authorities by the Religious Land Use and Institutionalized Persons Act, and constitutional pitfalls involved in crafting and enforcing residential restrictions for sex offenders. The symposium is free for UF faculty, staff and students.

“Especially during these times of intense fiscal distress for all levels of government, it is important for local government attorneys and their public clients to learn important lessons from cases and conflicts in which litigants have used federal statutory and constitutional provisions to challenge land-use decision making and other local regulations,” said Michael Allan Wolf, UF College of Law Richard E. Nelson Chair in Local Government, and organizer of the event. “This symposium will be a great opportunity to learn about the latest modes and theories of attack and defense.”

Presenters include Ashira Ostrow, associate professor, Hofstra Law School; Asmara M. Tekle, associate professor, Thurgood Marshall School of Law, Texas Southern University; Alan C. Weinstein, associate professor, Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs, Cleveland State University; Marie Hartman, city attorney, Daytona Beach, Fla.; Steven J. Wernick, attorney, Bilzin Sumberg, Miami, Fla.; Franklin Zemel, attorney, Arnstein and Lehr, Ft. Lauderdale, Fla.; and UF Law J.D. candidates, Tara Nelson and Dwayne Robinson.

To view the symposium agenda, visit www.law.ufl.edu/news/events/pdf/NelsonSymposium10.pdf. For more information, contact Barbara DeVoe at 352-273-0615 or devoe@law.ufl.edu.

The symposium is named to honor Richard E. Nelson, who served with distinction as Sarasota County attorney for 30 years, and his wife, Jane Nelson, two loyal UF alumni who gave more than $1 million to establish the Richard E. Nelson Chair in Local Government Law, which sponsors 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.