A game of let's pretend when it comes to the state giving up control.
Most of us were so focused on the heat wave and power outage Sunday that we let a new Indiana law sneak in on almost unnoticed. July 1 was the effective date of the statewide public smoking ban. Hooray for the public health. But it wasn’t much of a reason to celebrate, alas, for those who value common sense and coherence when comes to the state’s approach to home rule.
If you’re keeping score, there are now both a statewide smoking ban and a Fort Wayne smoking ban. If you live in Allen County, come to think of it, you have a third ban to deal with, because county government came with its own rules. Do we really have to follow all the bans? Yes. But how do we do that when there are contradictory provisions in all three?
It’s really simple, although you might want to have a lawyer accompany you at all times just to be sure: Whichever provision is stricter is the one that must be followed. The state law has an exemption for private clubs, for example, while the city ordinance does not. In that case, the city ordinance applies: No smoking in private clubs. On the other hand, the city allows a small percentage of hotel rooms to be set aside for smokers, but the state bans smoking in all hotel rooms, so the state law kicks in here: No smoking in hotel rooms.
The cumulative effect of the “apply the stricter rule” principle is that public smoking is forbidden in more and more places. That’s the “hooray for public health” part. But it’s also the “incoherent home rule” part, because this mix-and-match-the-provisions process makes a complete hash of the very notion of a logical division of power.
Well, that’s not precisely true. State officials talk a good home-rule game – they know local control is growing in popularity. But they don’t really want to give up power, so they grant communities autonomy only reluctantly. And, as often as not, they soon take away some authority elsewhere just to keep things even in the classic one-step-forward, two-steps back strategy. The division of powers is a game of let’s pretend, with no one admitting the state’s still very much in charge.
That’s too bad. Some things need statewide control. Pollution, for example, does not stop at the county line. And how bizarre it would be for an act that constitutes murder in one county to be considered a misdemeanor in another. But most things are best dealt with by local officials who have the most knowledge of their communities’ needs and their constituents’ wishes. A good project would be to identify all those areas and cut them off from state influence, cementing home rule on them for all time.