This bill would:
- Award prevailing party attorney fees in lawsuits that challenge whether a local government ordinance is expressly preempted by state law. The bill is intended to “punish” local governments that intentionally adopt ordinances they know are preempted.
- Force judges to award attorney fees even if both parties have reasonable legal interpretations of a statute and one party’s argument is slightly more persuasive (51% vs. 49%). This is bad policy for everyone.
- Cause many local governments to repeal perfectly legal ordinances if threatened with a lawsuit, because the risk of being only 49% right exposes taxpayers to attorney fees and monetary damages.
SB 1140 will punish good actors far more often than wrongdoers.
Why? The term “express preemption” is undefined. Many statutes do not clearly delineate the scope of what is preempted and what is permissible. Often preemption statutes include exceptions or allow certain types of local actions. Local governments may enact an ordinance in good faith, believing they are acting within the boundaries of authorized law.
Statutory attorney fees are extraordinary remedies that are used to deter and punish bad behavior. CS/CS/CS/SB 1140 misuses this extraordinary remedy to punish local governments that have no desire to break the law but are simply trying to work within the bounds of an ambiguous framework.
Oppose CS/CS/CS/SB 1140 because it would:
- Encourage needless litigation and frivolous lawsuits.
- Needlessly put public money at risk; statutory preemptions are not always express or explicit.
- Punish local governments when legitimate questions of law exist and have a chilling effect on necessary and needed local actions.
- Eliminate any judicial discretion to award fees and costs to legitimate abuses and bad actors.
