State and Local Gov T

State and Local Gov’t

I. Theoretical Perspectives on Gov’t A. Conceptions of Local Gov’t. 1. What is gov’t about? a. Group 1: providing goods and services that are best provided collectively by the gov’t. ( schools, water, elec, trash collection) Issues in determining which level of gov’t should dictate and who should provide the service: gov’t or private market. b. Group 2: providing focus for public particiation and public discourse. Local and State gov’t has advantagein this arena b/c of access to citizen impact. Input and speech component. ( town meetings w/ political listening commities) 2. Descriptive Theories a. Group 1: Civic Republican Theory- gov’t is concerned about the welfare of constituents and doing what is right. Two considerations in making decisions- motivations of the policy makers and elected officials attempting to make constituents better off. Characteristics: conception of law w/ mission to serve the public. (platonic) Goal to educate the public (elitist) and achieve the “public good”. b. Group 2: Public Choice Conception- elected officials with efforts and concerns aimed toward re-election. What ever it takes. No best society, just re-election. Characteristics: rationally self interested (not necessarily selfish) and goal to be re-elected via keeping constituents happy. B. Analysis: Starting with the “public good”. Three conceptions as to what it is- 1. What ever the majority wants in a democratic system. Out come of voting rule. a. Problematic b/c: measuring majority will be problematic, what if same minority group is a repeat loser, at state and local gov’t people can vote w/ their feet but not at the federal level. National and State Constitutions places constraints on the majority will always being favored (exclusion of people, gov’t regulation). 2. Correct process yields correct outcome. Components: Deliberation and including all groups. a. Problematic b/c how do we know when the correct process occurs and why it occurred. Too much or too little info. Including all groups assumes each member of each group thinks the same thing.

1 3. Platonic: Having the right people making the decisions will lead to good decisions. (wise decision maker) Extremely elitist. a. Problematic b/c although we don’t trust ordinary people to make their own decisions they miracously pick the right people to do it for them. Generally disagreement among platonic leaders has who is most qualified to make the decisions.

C. Perspectives from Politics 1. Advantages of a Centralized Large Gov’t: a. economies of scale- ntl defense (coordination and finance) b. uniformity of laws c. one voice- antifaction d. the median voter: suggest the ideal or genius is not happening. The bigger group yields repression to the mean. Too much homogenization e. Dream Team of Politicians- principled and big picture person.(mill) f. Homogenization of preferance in groups. g. More money h. Madison – effects of faction. Large gov’t controls and mitigates effects of state faction. i. Redistribution- from wealthy to less wealthy. Must occur at high level gov’t. j. More and better information

2. Advantages of Decentralized Small Gov’t: a. More participation- if what you say matters than an increase of voters b. Local problems need local solutions c. Local officials have local knowledge. d. Impact of decision b/c local officials must live w/ decisions e. Accountability w/in the local community f. Offers a check on majoritarism; more diversity **important advantages** g. Decision making process is different. Less conflict, less acromoniuos, more compassion, more expeditious. h. Smaller groups generate more of a sense of responsibility. i. Less posturing, less grandstanding j. Better community b/c more participation.

3. Terms of Art: a. Economies of Scale- anytime it is advantageous for a group to share a service.

2 4. Theories Predicting Outcomes of Strategic Behavior w/o complete info. Two criteria: no control over other party and no complete info. a. Game Theorm: Prisoners Delima B Pay Hold out A Pay 4,4 -1,7 Hold out 7,-1 0,0  Numbers describe A’s net position, B’s net position (benefit – cost = net position)  A stable game is when a clear winning strategy exists, like in this game. If B holds out whether A pays or not.  Take a look: 7>4 and 0>-1, therefore B’s always better when it holds out as opposed to when it pays.

 Gov’t enters picture when positive externalites exist however, no one will chip in to cover the costs. Gov’t often serves collective action issues to yield positive externalities- everyone receives the benefits and a bill, justified on basis of economies of scale.

b. Game Theorm: Chicken Game Toxic Waste Hypo- Total cost = $100, Benefits to Each = $125 B Pay Hold out A Pay 75,75 25,125 Hold out 125,25 0,0 1. Gov’t intervention needed b/c: chemical hazards don’t mind political boundries due to their fluid nature. Race to the bottom issue is present which calls for regulation. 2. Gov’t necessary to make sure good things happen when no one wants to pay. 3. Potential market failures- if left to themselves people may not get the right answer, even when they know what it is. This is b/c they don’t know what others will do. There is also a free rider problem. D. Four problems/ issues that the Gov’t is uniquely qualified to solve: 1. Coordination- when individuals cant predict what other people will do….Chicken game. Ideally everyone would chip in however there are no garuntees.

3 2. Free Riders- rational is for everyone to wait, therefore under supplying issue. 3. Over provision of public bad, negative externalilties. Tragedy of the commons arguenment. 4. Centralized repository of information to get people morte complete info. Ie…..FDA. Gov’t in a position to supply complete info at a reduced cost. People are often bad when it comes to their own risks. Additionally, certain precautions wont be taken when people under predict there own risk. ( prenups, wills, seatbelt wearing) a. Characterisitcs to best justify Gov’t regulation: 1. Demonstrable harm most people wish to avoid. 2. if people thinking rationally would make the decision.

After deciding gov’t regulation is necessary, Determine which level of gov’t should be involved!

E. Review the same list as above. 1. any level can do it 2. any level can do it 3. economies oof scale will dictate 4. level moost important in positive and negative externalities. Ideally you get scope of regulation and scope of problem equal/ matching.

F. Some other arguments 1. some situations can still be decided outside the gov’t 2. three characteristics of a group that evolves toward cooperation. a. monitor who is defective and who is not (group must be small) b. people need to value their reputations. c. Group norm must be that cooperation must be good. 3. Any groups w/ these characteristics tend to be cooperative. However the reality is that most groups are to big for this to be effective.

G. Federalism ( state and federal relationship) line of cases for three aspects: 10th Amend, congressional commerce power Art. 1 sec. 8, Anti commandeering Doctrine 1. 1976- National League of Ussery (10th Amend case) Issue- is the federal gov’t precluded from interfering w/ state and local functions? Holding- there are areas of state and local gov’t that are immune from federal regulations. They are: a. integral gov’t functions b. Traditional gov’t functions

4 c. Functions essential to the state gov’t Application of Case- four prong test to determine if federal regulation not applicable, yields State and Local immunity. a. if federal regulation is regulating states as states b. if regulation regulates matters that are indisputably of state sovereignty c. Does federal regulation impare state ability to structure internal operations in areas of traditional gov’t functions. d. Does nature of federal interests justify intrusion of the states self determination. 3. 1985- Garcia ( 10th Amend case, most extraordinary decision) Issue- Court doesn’t want to “do” the test anymore! Holding- congress polices itself very well and congress can decide when it regulates too much and when it doesn’t. Application of Case- no one minded the decision Another Judicial argument- congress is the states therefore not fox guarding hen house but hens guarding hen house. Effect- 10th Amend has little effect after Garcia!

4. 1992- NY vs US ( Anti commandeering case and Interpretation of Commerce Power) Issue- Regulation of Hazardous waste materials. Staes given choice called “take title provision”. Is this seen as an unconstitutional forced transfer? OR states could just implement rules and standards congress had enacted- viewed as a commandeering of state officials. Holding- Each one individually standing alone is unconstitional and just b/c states are given choice does not make it constitutional!

5. 1995- US vs Lopez ( commerce clause) Issue- commerce clause challenge to the criminal conviction standard under Federal gun free school zones. Holding- Congress can regulate commercial activities that substantially effect interstate commerce, even if activity is solely in one state. However, this is not one of them. This case remains in line w/ all other commerce clause decisions. There are limits on congressional power. Defines scope of congressional power. Application of Case- three areas of traditional State authority: a. Crimainal law enforcement b. Education c. Family Law

5 Dissent- says substantial effects are everywhere and that guns in the school zone has an effect on the economy. However, levying this argument allows for congress to regulate everything.

6. 1997- Printz vs US ( commandeering issue) Issue- challenge to the Brady Bill and background checks for gun purchases. Basically, federal gov’t telling state employees what to do. Holding- relies on NY vs US, it is a problem when the federal gov’t tells state employees what to do and how to interact w/ it’s citizens. Additionally, prior to passing the bill, congress did not look to exercizing other options like regulating it themselves or funding a project and giving the states a right to refuse it. Before they encroach on state sovereignty they must look at non encroaching options. Application of the Case- court continues to limit congressional powers.

7. 2000- Reno v Candon (commandeering issue)(9-0 decision, very rare) Issue- Driver’s privacy protection act- federal law states must ask peoples permission before releasing info provided while getting Driver’s license. Challenged b/c federal gov’t dictating states relationship w/ state citizens. Holding- Court said law ok and that congress can do this type of commandeering. This law is distinguishable in two ways: In Printz only state officials were effected, this law is of general applicability effecting market, not just state officials. Secondly, this law doesn’t require the states to do anything. At the end of the day, therte is no extra burdon-acually it is a deminimus burdon. Ie only check one more box. Also, no additional work for the employees and legislature doesn’t have to enact any new laws.

8. 2000- US vs Morrison (commerce clause issue) (5-4 decision) Issue- federal remedy for gender motivated violence in form of money. Again good federal law is invalidated. Holding- Morrison reaffirms three prong test set out in Lopeza. a. congress can regulate channels of interstate commerce. b. congress can regulate and protect instrumentalities of interstate commerce even if threat may come from w/in only one particular state. c. (issue in this case) congress can regulate activites that substantially effect commercial interstate commerce.

6 Majority says gender motivated crimes do not effect economic activity and court will not aggregate when no economic activiety is in issue.

II. Defining the Community A. What Communities Do- Including and excluding 1. Who gets to decide and who gets to vote? Usually determined by geographical boundries however it is possible to exclude people w/in the boundries when the decisions entail discrete choices. ( ie..only property owners vote on certain issues.)

Issues: a. Constitutional restraints- line drawing, equal protection, freedom of speech. b. Federal law constraints- fair housing act, and analogous state laws. Overarching Theme: Decisions made by any group affect people outside the group, either in a positive manner or a negative manner.

2. Schad v. Boroughof Mount Ephriam: (Defining the Community)  Zoning issue: (Broad) 1st Amend and porno issue. Zoning ordinance prohibiting all live entertainment inclluding nude dancing.  Challenge to ordinance: violation of 1st Amend. And under 14th Amend.claim the zoning power is not unlimited.  Ct. Conclussion: ordinance is problematic b/c it infringes on 1st amend. Rights.ordiance is overly broad if the restriction is to be on live entertainment, must be narrowly drawn to to further substantial govt interest.  Dissent says bedroom community should be allowed to preserve it’s own character. 3. Hill v. Communtiy of Damien of Molokai: (Disagreement w/in the Community)  Issue: Can group home for 4 aids victims be excluded from neighborhood via single family residence requirement.  Three arguments: a. under language of the covenant can the family be excluded? b. Look at relevant zoning laws c. Consider federal housing and civil rights laws  How does court define the term “family”? a. ct. deterines it is a functional term, not necessarily by blood.

7 b. as long as behavior and function of individual is like a family then they come w/in the definition. There is no reason to exclude THIS particular group.  Ways to stop the group home from moving in: a. if covenant is written extremely clearly to define”famiy” status, federal laws allow discrimination on. b. Buy the house, buy the people out. Market economy allows this to happen. 4. Holt Civic Club v. City of Tulsa: (Effects on Nonmembers)  Police district is different than the city limits district.  Issue: should residence of the police district( subject to taxes, fees and regulation of city) be able to vote on certain issues.  Holding: NO b/c a. (most compelling) they don’t pay property tax to the city. Regulation w/o representation happens a lot. b. True taxation in the police district did not occur. c. Zoning power and Eminant domain city proverb didn’t have power to take property w/ compensation. 5. The way equal protection is applied depends on two things: a. interest at stake. Is it fundamental. The supreme court decides what is fundamental and what’s not. Ie…Home is not fundamental. b. Are you a part of a suspect classification. Various levels of scrutiny are applied depending on the classification. It all hinges on how you are classified, after that it’s all acedemic. Heightened: Race- law invalidated Intermediate: gender bias- discrimination against female Rational basis: everything else- allowed

Hypo: community for old people only- IS CONST’L Reasoning: age discrimination has always been subject to rational basis discrimination. Age changes, it is mutable. We all go through the ages. Additionally, strong interest and lobby group.

B. Municipal Boundaries and Deciding who Decides Schematic: Rule #: Annexer(pop larger) Target(pop smaller) How votes counted 1 all citz vote all citz vote maj of total 2 all citz vote all citz vote maj of each 3 all citz vote none maj 4 none all citz vote maj

8 Analysis: rule #1- target will lose if annexer wants them. Essentially gives annexer all the power rule #2- gives target an effective vote. There by target has all the power. rule #3- almost indistinguishable but not used b/c deemed bad- everyone should have an opportunity to express via a vote even if academic. rule #4- not commonly used. Concerns: 1. majority of annexers get what they want. 2. target has unilateral veto.

Policy Considerations:  Creationist theory. (Hunter) Municipalities are the creation of states. States have plenary authority over localities.  Murphey says if target is unicorporated then no vote for target, but if target is incorporated target has veto. Rationalized by need to allow incorporation to occur easier. It is a public policy decision. Incorporated intites take care of them selves, they internalize many externalities.  1 person:1 vote- set aside rules 3 & 4 for conflict. Under rule 1 target feels like they don’t count. Under ruke 2 annexers feel like their vote is being tossed out. Can be a complicated issue.  Competition concerns- annexation yields large towns, expanded tax baseand potential for economies of scale. Redistribution in large towns is easier and often more feasible. Ameliorating concentration of urban blithe.  Advantages of a small town: voters have a more direct voice. Officials more responsive b/c population is more homogenious. Need less regulation on formal level. Less tax for less services: often desired tradeoff of small town inhabitants.  Thibout Theory: Diversity and Efficiency. We should prefer more rather than less of anything. Therefore Rule #2 which resists annex yields more small towns and more competition allowing people to pick there own place and plight. Competition is good b/c of the push towards efficiency. Multiple gov’ts allows people to hold their govt’s more accountable due to competitive market place.

1. Moorman v Wood: ( const’al constraints on boundary making) Gomillion v Lightfoot: new 28 sided city limit designed to exclude blacks Issue: equal protection, 15th Amend claim for voter right abridgment. Holding: based on 15th amend Reasoned: these indiv. Previously had right to vote in a square city limit, now no right to vote in the 28 sided city. Court sees this as displacement of voters therefore the deprivation of voting rights to blacks is a 15th Amend issue.

9 2. Incorporation: becoming a formal entity, management structure Types of facts included as prerequisites to qualify for incorporation: 1. size: population- min number for consideration; land size- min size for consideration 2. contiguity- geographic as long as one piece. 3. Homogenuity- community, very prone to litigation 4. Economic variables- taxes and services 5. Externality effects- lots of litigation, population growth, land use, property values, effect on service provisions and taxes on next community. Think if statute is skewed to incorporate or annex? Who votes on the issue?

3. In Re Incorperation of Borough of Glen Mills (Standards for Incorporation and the Judicial Role) ct makes big deal out of exit vs. voice. a. Issue: contiguity, proposed borough will look like swiss cheese. b. Holding: c. Reasoned: court has discretion and not held exclusively to the three listed factors. Citizens of Rising Sun v Development Committee Incorporation case. Facts: city of RS wants to incorp. They provided an petition to the city development board, who makes determination if the factors are met. Ie providing customary and reasonable services w/in a reasonable time. (litigation: what does customary and reasonable mean) RS contracted w/ neighboring city to provide half the services. Other services provided indiv. RS contributes very little, so nothing will really change after incorp. For RS Board said standards not met. Issue: was there substantial evidence to preclude incorp. Given evidence. Holding: RS would not be able to provide reasonable services in a reasonable time. (a city must provide services)

Additional info: RS wanted to incorporate for protection, b/c then it is harder for someone else to annex you. Incorporation means isolation/segregation-it is a degree of self determination, control over services, tax base, school ciriculum.

10 4. Albert Hirschman- “Exit, Voice, and Loyalty” Applies to any group of actors. Over time decline will be seen in every organization. As things start two responses exist: 1) exit 2) voice- an attempt to preclude voice. Question: Under what conditions should we expect to see exit and voice? Most people do voice over exit.

Organizations are most sensitive to exit. Consumers use exit, share holders use voice. Annexation is a combo of exit and voice.

5. Bunch v City of Jackson: (annexation and boundary problems) Nonconclusive list of std considerations for annex: 1. need to expand 2. path of growth 3. health hazards 4. finances-redistribution 5. zoning/planning 6. services(what’s needed) 7. natural barriers 8. present service provisions 9. impact of annex 10. impact on voting strength 11. service/tax relationship- no free riders 12. “reasonableness” Broad issues w/in list: Land use Services Judicial discretion Finances- does it look like a tax grab  Dissent said if tax grab- OK b/c annexee uses city services and city would be in a better position to improve the services. Also, how did annexee’s come to rise, is it b/c they fled the city due to evasion. Also, already not eqiutable b/c most don’t have kids in school Also, it’s never an equitable ratio b/c services and taxes paid, no one desires to pay.

6. Town of Mount Pleasant v City of Racine (Strip Annexation and Congruity) Issue: Has contigruity reqirement been met. Holding: Court of appeals said no, standard not met. Reasoning: exercised ct discretion as to whether they think something is a good idea or no. They decided it didn’t meet the contigruity std’s. If leg wants something more contigous they

11 should have told us and if they want something more they can tell us w/ a new statute and we will abide. Other problems w/ proposal, service provision extremely difficult, not most efficient. Tax grab? Questionable motives.

What are goals of contigruity statutes: provide efficient and timely way to offer services. Allow new people of city to take advantage of city services. Physical fairness for services received based on taxes paid.

7. Secession- questions to think about why do they want to succed? What will the costs be? If there was no ability to suceed, what would the difference be? a. Multiple ways to do it, but always two characteristics present: group based and expensive b. Why Suceed: 1. other parts always get good services 2. community issue always in minority 3. sense of disrespect 4. immigrant based culture wants to be their own- relocation not option 5. infastructure issues 6. regulatory enforcement 7. appreciation of ability to be self suff. 8. Political boundries c. Costs to suceeding: 1. loss of tax base 2. infastructure issue- must provide your own services 3. set up new gov’t 4. organizing seccesion is difficult 5. massive collective action problem 6. leverage to get more via threat of seccesion d. Cost to remaining entity: 1. loss of tax base 2. worry about slippery slope 3. loss of natural resource 4. publicity of not taking care of all portions of city would be bad e. organizing a secession is more difficult and dangerous.

12 III. Relationship between Localities and States Five Major topics:  States plenary power via localities  Special Legislation  Dillon’s Rule  Home Rule- charter cities  Conflict and preemption State Constitutions are documents of limitations- States retain power to extent it is limited by grant of power to localities. Equal protection clause in St. Const. is more powerful than in the federal const. (reason: equal rights didn’t pass congress so states enacted their own and more powerful) Due Process clause has effect of limiting state and local authority. Economic regulation given more scrutiny on state level. States provide broader standing to tax payers alllowing to challenge st. laws while on federal level no such standing- went out w/ the new deal.

A. States plenary power via localities: several schools of thought. 1. Cooley-Mcquilly: municipalities have authority above and beyond anything given to the states. Reasoned- muni’s where here first and natural laws. 2. McBain-Dillon: localities have agreed to become part of the state receive their powers via the state const.. Look at text of state const. 3. Frug- Munro: Communitarian view. Need to distinguish b/w three entities- people, private corporations, and municipalities. Cities have public and private functions- unique services are public functions( roads) while services competing for your business are private. Problem is where to draw line!! 4. Case law- Dwyer and Specht cases: Overview: consider three entities and interactions- St const, St Leg, and localities. Consider- to the extent that muni’s conduct themselves w/in the st leg the std. Of Review should be that if no negative externalities occur w/ an authorized act, let it occur.

Dwyer : Legislature ok’d law to allow city’s and counties to create a building commissioner w/ powers to aid in construction. Powers include ability to levy taxes, eminant domain- aquire property in condemnation, and issue bonds. Issue: the commission provided an end around to const. max’s for property taxes, which are often tapped out. Other counties don’t want them to be able to levy the additional tax. Holding: tax ok. Reasoned: internalizing externalities.

13 Specht: legislation established a regional emergency medical authority. Issue: Is this legeslation unconstitutional b/c it created special commission w/ municiple powers. Analysis: (questions to ask) 1. Is there a municiple function at hand? 2. Do we have a special commission? Yes b/c once created mostly locality deals w/ it 3. Does commission intrude on local control b/c appointed not vote on by people. 4. Does commission have power to tax? (Baker: if every thing is internalized why should anyone car?) Holding: Not allowed! Reasoned: Politics matters….look who brought the suit- firefighters! Interest group?? Who is it best to least offend?

B. Special Legislation: Greatest difference b/w National and State Const’s 1. Special Legislation occurs in two forms: a. attempt to provide a unique benefit to a particular group or entity. b. Impose a particular disadvantage on a particular group or entity. 2. Most States have const’al provisions that limit special leg. Goal is to increase local autonomy. a. allows state to focus time on state wide concerns instead of particular localities. b. Occasionally particular localities are critically important to the state as a whole. c. Prohibiting provisions, depending on how they are written, can prevent ganging up d. In theory: they can help prevent vote trading. However, vote trading may not be bad. e. Concern w/ bribery and corruption, evidenced in vote trading. Reduction in bribery and corruption . 3. Reasons why State leg. Should operate differnetly than federal leg. a. Federal leg doesn’t need the protection b/c corrupt people only at the state level. Today this argument fails. b. Over time Federal leg. constraints have gone by the way side. A constraint would have been- spending power.

14 4. Vote Trading: may be best path to allow minority groups to get what they want. Often allows aggregate welfare to prevail w/ happiness. 5. Single Subject Rules present in St. legisaltues. Bills must be about single subjects, no riders, serves to avoid cycling. Therefore, setting agenda is important b/c order which votes taken is critical. 6. Case law: Maple Run (constraints) - Not allowed to pass special leg., but if general then can/must be passed. Test- rational basis scrutiny via reasonable basis for the classification. Different than federal b/c state more concentrated where no avenue of attack if in the form regulation or money. At the federal level only suspect classes and historically discriminated groups receive strict scruitiny, all others receive rational basis and law is sustained. Difference exists to prevent ganging up. 7. TQ: Imagine having something like special and local leg. at federal level wouldn’t be bad idea. Why haven’t we seen a proposed provision to Amend the federal Const.?? (all but 4 states have it) It would provide no discriminated group.

C. Dillon’s Rule: a rule of state construction. Pro state and Anti locality. 1. The source of all local power is the state. Only three categories of powers that municipalities can exercise: a. Any power granted expressly by the legislature to locality. b. Any power implied from those expressly granted. c. Those powers essential to accomplishment of declared objects and purposes of the municipal corporation. 2. If there is any reasonable or substantial ambiguity or doubt concerning the existence of the power, it is to be resolved against the municipality by the courts. 3. Dillon’s Rule is good b/c lots of municipal power is bad. ALSO, Dillon’s rule says to state legislature- giving power to municipalities- be clear b/c ambiguity means no power. 4. Burden of proof on the municipality. 5. Dillon’s Rule is a common law creation (creation of the courts). 6. Case law: Early Estates Issue- local ordinance requires hot water and lighting. Challenged by landlord under Dillon’s rule. Court Holding- lighting requirement ok; but hot water requirement is NOT allowed under State Leg. Statute. ( court did not find hot water under safe, sanitary, or fit for human habitat) WHY? Reasoned- several potential reasons: light for halls, therefore a low ticket item and passing of the costs. Hot water is a high ticket item and on going expense. Additionally, costs are passed

15 on to the tenants. This case is seen as courts trying to protect very low income housing and tenants. (supply of low income housing must remain)

Tabler v Brd. Of Supervisors: Issue- local ordinace challenged as not being authorized by Leg. Currently no law on the books addressing the issue; therefore look at history of law proposed and not passed. Holding- court says clearly and unambiguously that the leg. Didn’t intend to authorize the municipalities to regulate in this area. Baker believes the court missed critical distinctions: This case sucks- No Mas

State of Utah v Hutchinson: Issue- county ordinance requires filing of campaign contributions and statements. Public official challenges ordinance not valid under state leg. Law says “ promote health, safety, preserve health….etc..” Holding- local ordinance is valid. Reasoning- court says leg shifted Dillon’s rule presumption, provision allows localities to do what they want and subsequently state will take powers away when necessary. (unique delegation by legislators to localities) Good policy reasoning: rural/ urban issue is gone, corruption of local officials not the same issue, competence b/w two groups is equal- local govt is the peoples voice so w/holding power from them is saying the people are incompetent. Effect- acts as precedent for other states, doesn’t leave much of Dillon’s rule!

7. In light of this, these are reasons for unchecked local powers: a. people still have vote and can change local officials b. still leg. Opportunity, just a change in burden has occurred. c. Judicial Review- State and federal const. provisions, localities can be preempted by st. leg.

D. Home Rule: (Applies to charter cities) 1. grant of authority to localities via const’al privileges. 2. two sources of powers: a. state enabling statute b. constitutional origin. 3. intended to give autonomous decision making powers in many areas, goal is to free them from constantly seeking legislative approval.

16 4. Two kinds of Home Rule: a. imperio home rule- (most popular) grants a defined limited scope of power to municipalities affairs and county affairs. b. Legisaltive home rule- ( less popular b/c new) also called “national league of cities”?? leg grants powers to localities and can also limit and deny the power. 5. Imperio NLC (leg) 1. Starting point No muni authority No muni authority 2. Const’al grant to Power over municipal ALL powers except municipality affairs those w/ held or limited by leg. 3. Scope Determined by courts: Set by legislature they define muni affairs 4. Dillon’s rule ( only Ambiguity resolved in Presumtion in favor of applies to about five favor of the state if in State authority if states) a Dillon rule ambiguity. jurisdiction

5. Case law- City of Atlanta: Issue: three provisions enacted by Atlanta effecting only Atlanta are under review( all were about sex orientation) a. anti- discrimination based on sexual orientation b. Domestic partner registration for jail visitation c. Employee benefits to domestic partners of city employees Court Holding: a & b are valid, but c is not. Analysis: 1) Determine what type of home rule jurisdiction we are in- in this case, due to the effect of ordinance it will be deemed NLC/leg home rule. 2) recall implication- look at the state enactments to see if the state has taken responsibility to rule in these areas. a. Anti- discr. provision passes b/c no state preempts it. b. Dom partner provision passes b/c power given to city jail and no state law preempts it. c. Dom partner benefits fails b/c domestic partners didn’t meet the definition of dependants. This interpretation is problematic and probably would have been different under imperio HR. d. this is also a Dillon’s Rule jurisdiction. Baker’s Point: benefit of autonomy at local level is diversity in an upward direction. Home rule authorizes localities to exceed floors, therefore one would expect to see every attempt to allow

17 them to exceed floor and allow for local diversity. The dissent says state statute is meant as both a floor and a ceiling. But this is not how this works in principle for local and state autonomy.

Hayes v Bonem: “charter cities” means Home rule ordinance Issue: can they decide how many people will be on their governing body if they are a charter city, even though state const. predetermines a number? Ct holding: yes Reasoning: Although this was a NCL/leg HR they used an imperio analysis!! Effect is that Home rule cities, in this case, may do what they want and state legislation is a default for non HR cities OR HR cities not indicating a number!!

City and County of Denver v State of Co.: Issue: Residency requirements on employees. If you work for city of Denver you must live w/in the city limits. Analysis: What kind of HR provision? Imperio Are there any externalities? Any adverse effects on surrounding municipalities? Ie competitive disadvantage. Courts Analysis: Three types of Legislation: a. Local- HR locality prevails. b. State- State prevails precluding locality. c. Mixed- if conflicting, State prevails, looks like Dillon’s rule. How does court place you in a category? Five factor test is applied: a. Is there a need for statewide uniformity? Applied to this case -no b. What is impact on neighboring municipalities? Applied to this case- yes, there is an impact in revenue. Problem is you can’t prove where they work and shop. c. History d. Local interest Applied to this case- state const says muni’s set terms for employees. Large presumption toward the state: if local must pass five prong test, state and mixed go to state.

CHR General INC. v City of Newton: Issue: rent control, conversion of apartments to condos. Should rent control be left to localities control or state regulation? In

18 Mass. There is a NCL/Leg HR provision. Are there existing state laws meant to prevent or preempt local ordinances? Holding: city doesn’t have authority to regulate ownership.

E. Preemption and Conflict: 1. complex and multiple approaches by courts to preemption. 2. Overarching questions and issues: In the absense of autonomy the higher level of gov’t can come in and impose regulation. 3. Case law: Miller v. Fabius- Issue: two sets of laws dictating lake usage-township and state.  Township expressly prohibits use from 4pm to 10pm; implicitly ok from 10am to 4pm  State regulation expressly prohibits lake use from one hour after sunset to one hour before sunset. Analysis: Is there conflict? Test is whether ordinance prohibits an act which statute permits OR permits an act the statute prohibits. Holding: Local law is valid Reasoning: Look at goal of regulation: Safety, state has set floor and town wants a reduced floor for extra safety. Given purpose of state regulation the town is consistent w/ purpose. Also local conditions vary- it may be necessary for local govt to exceed safety bar. New prong to test: local law will be preempted when State statutory scheme “occupies the field,” even if there is no direct conflict. Test: a. Does the state law say exclusive regulation? b. Is occupying the filed implied in Leg. History? c. How pervacive is the state reg. Scheme? d. Maybe nature of the regulated item requires state wide regulation to achieve statewide uniformity.

Envirosafe Keep in mind: race to the bottom and pollutants don’t respect boundaries. State sets a floor and localities exceed it in a manner consistent w/ the floor. Is it valid? Test:  Direct conflict is problematic  Implied conflict?  Field fully occupied?  Is it a matter of state concern?  Is uniformity necessary? ( maybe we don’t want localities exceeding floor, ie cost to much)

19 IV. The Communities Relationship with its Residents- The Selection of Services. Two topics: 1. Service Provisions 2. Where does the money come from?

A. Service Provisions Tiebout’s Theory (1956)-  Asks = “what causes different people to live in different places?”  Looks at citizens and residents, people have different preference patterns and will seek to satisfy their needs.  Concerned w/ local expenditures.  More choice allows a greater likelihood for an exact match, which in turn is maximizing aggregate welfare.  Greater number of choices w/ variations allows for more people to meet their complex preferences.  Seven assumptions that are critical to understanding how people’s choices are made: 1. each citizen is fully mobile, only go where preferences are met. 2. full information- complete information of each locality. 3. large number of options(important) 4. all live on dividend income, therefore excludes the job preference 5. no positive or negative externalites 6. optimal size for every community 7. expectation is to see movement toward optimal size.  Criticisms of the Theory: 1. partial exit exists ( ie… private school) 2. what about voice and loyalty, this model assumes exit. 3. including voice would cause model to fail. 4. what if you are in a minority group and your rep has a personal agenda. 5. extent you believe rep’s are responsive to your needs is part of the package.  Baker’s thoughts: Take Tiebout to the argument for states rights. How persuasive is it? Does it still work?  Case Law: Reid- Water needed by developer- city says no b/c they want bigger lots. Falls under exclusionary zoning! Court’s Review- the city shows no reasonable basis for placing this constraint on the developer;

20 therefore the city abused it’s discretion. Notice that if this would have fallen under the 14th amend, the analysis would have yielded rational basis and turned out ok.

Veach- Fire causes lots of damages; people want fire hydrants, pther parts of the city has fire hydrants so they should too, but they want the city to pay b/c they gambled no fire would occur and they lost. Court reasoning: city can discriminate as long as they can envoke cost or need as a legitamate reason. Called “reasonable decision making” by the local govt. Take home message: cost and need as legit reasons or basis for discrimination. While race discrimination and use of political power may not be about wealth.

Ammons- what ends up being litigated are the lesser services. Remember, poverty is not a suspect classification, however, race will yield a lot of judicial scrutiny. Test of Ammons is an intent standard plus. Race based cases have four factors: a) size of disparity b) was it foreseeable c) sense of discrimiontory impact d) History of race relations e) Is it the case that this part of town doesn’t get the same services? Basically, the court finds that it is an intent and effect test.

Shaw- Always remember potential options to citizens. Exit, secede, private sector services, voice(lawsuit and political call).

 Five possible conceptions of equality (at least): 1. total per capita expenditures- 2. per service per capita( everyone gets the aggregate same) 3. equality of result

21 4. equality per taxes paid. (argument is that is not how the gov’t works) 5. Fee for service

 Consider all these w/ regard to public parks: 1. problematic b/c difficult to keep score. 2. manageable each side of town gets the same park. 3. Don’t worry about how much each one costs, as long as they look the same. 4. Could work 5. charge at the gate; ie parks (local, state, and national)

 GRADE SCHOOLS: a. Consider giving every student (whether rich or poor) the same $ for each student! b. Two reasons for controversy- 1. why punish those who grew up w/ educational advantages. 2. looks like suppression of academic achievers 3. How do you deal w/ LD who’s never up to speed? c. People feel need to consider education separately- too important. d. Can school districts self improve by self taxation ( very controversial) Problems: 1. poor would tax if they could. 2. vicious cycle- how is poor section supposed to improve.  Major points: litigation centers on “equality” and defining the term is extremely complex.  Baker Believes focusing on per capita equality may be doing more harm than good. Evolution to parallel affirmative action movement, ends up being more harmful to targeted group in the long run. If race not involved in the basis for the action in these suits the cases would have turned out differently.  School Finance: equlity discussion is even more complicated and no chance of consensus among litigating groups. Things to consider: 1. min. level (fairly high) of education is good for e all children. 2. This issue centers around children, it’s not their fault. 3. People desire $ from outside sources but don’t want their imput or regulations.

22 4. Rodreguz: Take home message- poor is not suspect classification and education is not a fundamental right. 5. Litigators hang their arguments on: St. const’al equal protection and state provisions addressing free public education. Look for magic words – equality and uniformity.  Edgewood Case: 1. Arguments set out- equal rights guaruntee; due course of law garuntee; efficiency mandate(focus of court) 2. Court defines “Efficiancy” using legislative history. 3. Court gave leg 7 instructions and sent issue back to them to work w/in these guidelines: a. efficiency doesn’t require equal per capita requirement b. do not allow concentration of $; when poor tax at highend and still don’t have money while rich tax at low end but have lots of $. c. Must be direct and close correlation in district tax rate and educational tools available. d. All children must be afforded a substantially equal opportunity to educational funds. e. Equalize educational opp’s f. Local communities may subsidize an efficient system- but only w/ local tax effort. g. Funds available must be distributed equally and equitably. 4. result: Our leg derived an elaborate system to provide three things: a. a floor for expenditures b. a scheme for wealthy districts to subsidizew above the min. floor c. options for rich districts to share the wealth- three ways- adopt another district, contract to provide education to

23 nonresidents, and consolidate tax base w/ another district. 6. Since Brown v Board courts have been very aware that all they offer is speech. This yields sensitivity to what is politically feasible.

V. Paying for Services Provided A. Constitutional Restrictions exist (two): 1. Due Process under US 14th Amend as a constraint on how to pay for services. a. How to raise Money- Source of Revenue b. City of Pittsburg: together a tax increase on private parking lots w/ no tax on the public parking lots is forcing the private ones out of business. Issue- 14th amend claim of uncompensated taking of property by the state. Court Holding- Tax by the city is OK Reasoned- Process was established b/c the additional people driving to work represent additional costs the city has to bear. Therefore they are recovering the costs via a tax….don’t have to tax themselves b/c we don’t know what portion of their price charged goes toward the additional costs. Powell wrote separate concurring opinion- said that although this is not the situation, he could imagine a case where similar facts would be an unconstitutional takings.

2. Spending of Revenues a. Public purpose requirement- must be on a public purpose. b. Lots of controversy on the issuence of debt- Bonds c. There are three types of Bonds 1. General Obligation Bonds- they are gov’t issued and paid back via the general revenue. (ie.. a locality can raise taxes to repay) 2. Revenue Bonds- These are keyed to a specific project. Yield a sharing in the profits. Generally characterized by higher risks and higher rates of return; also yield tax breaks (advantages)!!!! 3. Improvement/Special Assesment Bonds- d. Case law: 1. Riley: Two projects at issue: alcohol fuel production and commercial shopping center.

24 Issue- challenges on grounds of providing no public service-no benefit. Just a mere attempt of private investors looking for venture capital w/ tax breaks. Court Holding- Both projects impermissible for failing to meet the public purpose portion. If you see setup to yield tax benefits then must pass the public purpose test. 3. Why have a public purpose test in regards to issue of State/Local expenditures?: a. Four arguments: 1. protect public fisc 2. prevent grafting (bribery, etc) 3. deter or constrain rent seeking via preventing vote trading. If aggregate number is against public welfare (a neg. number), then it is not voted on therefore no vote trading will occur. 4. foster notion of community. Consistant w/ public welfare are activities and results that help communities. 4. Arguments for the courts to get involved: a. Generally public is suspect of polititians regulating our finances b. No remedy for public b/c voting people out will only replace them w/ the same types. Courts can offer guidelines and better regulations. 5. Have we cabined rent seeking behavior? a. Clean v. Washington: leg created commission w/in district to create own and operate a stadium, w/ team paying reeal rent and home games to be played there; at the end of the day the district ownes the stadium. Issue- commission challenged under public purpose doctrine. Ct upholds commission. Reasoning- anything that confers a reasonably general benefit to a significant portion of the public. Stadium embodies all the characteristics. Two prong test: 1) funds are expended to carry out a fund mental gov’t purpose? 2) Is what public receives for expenditures appropriate and whether a donitive intent or gift bequest is occurring? B. Restrictions on Over Expenditures 1. Ways to control over expenditure: Substantive measures: a. Const’al restrictions- a cap b. Itemized exclusions- public funds can’t be spent on any of the following…..

25 Procedural measures: c. Itimization d. Public vote e. Publicity- open meeting act, newspapers 2. five arguments that over expenditures will occur: a. tragedy of legislative commons- a mismatch of costs and benefits that yields expenditures b. failure to capture intensity of voting preferences c. prioritizing problems- cycling issues d. monitoring problems- people don’t spend time to go to meetings on their own. e. Timing problems- the buy now and pay later problem 3. characteristics of our system lead to over expenditure: majority rule, cycling, natural human tendencies. 4. Case law: a. Korzen: Issue- expenditures must be itemized. Citizen sued b/c degree to which non-itemization was occurring in area of custodial child care. Ct’s holding-