Preemption and the Fair Share Act - Some More Thoughts

I was thinking a bit more over the weekend about Retail Industry Leaders Association v. Fielder (and, yes, I know I obviously need a hobby), and Judge Motz‘ determination that the Fair Share Act is preempted by ERISA. Although the court’s opinion makes it sound straight forward, the truth is that the outer boundaries of ERISA preemption are actually somewhat amorphous. Here in the First Circuit, by precedent and judicial temperament, preemption is stringently applied, and even coming close to infringing on the operation of employee benefit plans or on ERISA’s remedial scheme will typically be enough to invoke preemption; judges in other circuits are sometimes a little more tolerant, at least up to a certain point, of causes of action or statutes that touch upon those topics.

Now in the case of the Fair Share Act, without bothering to first research Fourth Circuit precedent on preemption, I am of the mind that if it looks like a duck, walks like a duck and quacks like a duck, it is preempted. This is pretty much how Judge Motz saw it.

At the same time, however, if it is this obvious, one has to wonder why the Maryland General Assembly spent so much time and taxpayer treasure debating and enacting this statute. Wasn’t there a lawyer somewhere on staff on some committee or another who should have caught this point? And if the General Assembly is like most state legislatures, one can assume that many of the politicians debating its merits were lawyers, and one would like to think this issue would have at least crossed their minds as something that had to be considered before voting on the Act.

This issue may well have been flagged and considered before enactment; I simply don’t know. But I will be curious to see as this issue progresses up the appellate ladder whether there may be something more here on the question of whether the Act is preempted than is immediately apparent from the court’s opinion. Perhaps when briefs to the Fourth Circuit are filed we will know a little more. And perhaps once I spend a little more time thinking about it, it might pop out at me.

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