Local Government Autonomy Needs for State Constitutional Statutory, and Judicial Clarification

Home , Charter city, Home Rule, LAN, Model state constitution

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U.S. Advisory Commission A-1 27 on Intergovernmental Relations October 1993

Advisory Commission on Intergovernmental Relations 800 K Street, NW Suite 450, South Building Washington, DC 20575 Phone: (202) 653-5640 FM: (202) 653-5429

U.S. Advisory Commission on Intergovernmental Relations EXECUTIVE SUMMARY

Local government in the United States has a rich his- (2) function-choosing the functions they perfom; (3) fis- tory. Cities, counties, towns, townships, boroughs, vil- cal-raising revenue, borrowing, and spending; and (4) lages, school districts, and a host of special purpose personnel-fixing the numbers, types, and employment districts, authorities, and commissions make up the 86,743 conditions of their employees. units of local government counted in the 1992 Census of Governments. These local governments have many differ- The most common form of home rule grants initiative ent forms and organizational structures. Variations in the to local governments. Local governments, however, are numbers and forms of local government arise from each not immune from constitutional and/or statutory limits on state’s unique political culture. these grants of initiative. State restrictions do not present Local self-government has been institutionalized in local government immunity in strongly positive terms, al- thousands of compacts, charters, special acts, statutes, lowing the courts to rule in favor of the state more often constitutional provisions, resolutions, ordinances, admin- than not. istrative rulings, and court decisions. Among these enact- Home rule is jeopardized if the state legislature is ments, state constitutional provisions are singled out for free to impose unfunded mandates on local governments. special attention in this report. Sometimes, these state mandates are the result of federal State constitutional provisions that speak directly to mandates. States have not always relaxed the restrictions the allocation of authoritybetween state and local govern- on the fiscal autonomy of local governments or provided ment embody a judgment about the preferred allocation them with additional resources to cope with mandates. of power within the state. These provisions have been This double burden places financial pressures on local gov- created, revised, and refined over time as a popular politi- ernments and reduces their ability to make choices about local response to empirical conditions. As such, they are the cal priorities-effectively reducing local autonomy. cornerstones on which any sound theory of local government autonomy can be built. As home rule has become a common feature of state The Commission’s findings on the relationship of the constitutions and general state law, the relationship be- states and local government autonomy are as follows: tween the states and their local governments has become more complicated. Increasingly, state courts are serving as Home rule for municipal and county governments is arbiters of state-local relations. Courts have begun to rec- now available in most states. By state constitutional and/ ognize local governments as “juridical persons” able to or general law provisions, 48 states grant home rule au- sue their parent state government. In addition, courts thority to municipalitiesand 37 states grant such powers to have played a major role in defining the constitutional counties. framework of interlocal cooperation.

Wolegal concepts of local government have conten- There is no single best model of constitutional lane ded for ascendancy in the American federal system: home guage that states can apply to clarify the extent and limits rule and creatures of the state. The home rule concept of of local government autonomy. Different state courts can, granting greater discretionary authority to local govern- and often do, interpret identical constitutional language ments has been gaining ground on the creatures-of-the- differently. A state’s civic culture, legislative traditions, state concept of strict limits on local discretionary author- and judicial temperament all affect such interpretations. ity. Most states have adopted a system of devolved powers Local governments in some states prefer a statutory rath- for local governments within which they can act freely. er than constitutional approach to the definition of local government autonomy. Local government autonomy consists of degrees of Based on these findings, the Commission recom- discretionary authority separately established for cities mends the following: and counties in four basic areas: (1) structure-determining their form of government and internal organization; (1) That the states increase and clarifi local home rule

U.S. Advisory Commission on intergovernmental Relations iii by adopting constitutional andlor statutory provi- persons, and the extent to which autonomy and dis- sionsgranting broadpowers of structural,functional, cretion are to be accorded to different types of local fiscal, and personnel authority to local governments governments. and authorizing joint exercise of author@. (3) That the statewide local government organizations (2) That the states review their constitutional provisions and their national counterparts cooperate toprovide andlor statutes governing the powers of localgovern- legal support to advocating local assertion of initia- ments and consider amending them as appropriate to tivepowers and immunityfrom the reach of stategov- clarifV the went of local power, the degree of immu- ernment. nity from state statutes, liberal rules of construction to be followed by rhe courts in interpreting consfitu- (4) That state and federal courts reconsider local gov- tional or statutoryprovisions in favor of localgovern- ernment as entailing citizen rights of local self- ments, the status of local governments as juridical government, not merely as creatures of the states.

iv U.S. Advisory Commission on Intergovernmental Relations PREFACE

The importance of local self-government in the for securing citizen participation in designing the instru- United States, and its relationship to state governments mentalities for making public policy decisions. State con- through constitutional and statutory provisions, needs stitutions and statutes reveal that citizenship encompasses reexamination. Agreement on the principles, purposes, empowering local citizens to create structures of gover- and roles of local governments is not universal. This lack nance to define and solve common problems. Each state of consensus is most apparent in the pronouncements of must clarify its state-local government relationship. If state and federal courts. states enact unfunded mandates and regulatory restric- There are two competing legal concepts of local gov- tions on local governments, they impose a serious re- ernment in the American federal system, which can be straint on the ability of those governments to exercise summed up by Dillon’s Rule (“creatures of the state”) and even a modicum of autonomy. the Cooley Doctrine (“home rule”). A survey of recent court The historical relationship between states and local gov- decisions indicates that many state constitutional and statu- ernments developed in the twentieth century into a complex tory provisions may not contain the degree of local govern- web of shared responsibilities. The courts have played an ment legal autonomy desired by home rule proponents. ever larger role in interpreting the limits of the exercise of In this report, the Commission recommends that local local powers and state legislative powers. Local govern- self-government requires clarification of state constitutional ments are being recognized more and more as “juridical and statutory formulations of home rule to refocus the de- persons” able to sue the state. The Commission recom- bate over how to balance state control and local autonomy. mends that the organizations representing local govern- The Commission also reviews the historical underpin- ments coordinate resources to provide effective legal nings of the American tradition of local self-government. support to local governments in meritorious suits when their This historical dimension provides a basis for rethinking the initiative and immunity are threatened by state action. allocation of authority between local governments and the The Commission reiterates its support for well-defined states in state constitutions, statutes, and court decisions. powers of local autonomy. The long and thriving tradition The development of American local self-government of local government can encourage and strengthen local au- is inextricably linked to an expansive concept of citizen- tonomy. The clarification of home ruleby the states can help ship. Local government is a key institutional mechanism restore the state-local balance in the system.

U.S. Advisory Commission on intergovernmental Relations V vi U.S. Advisory Commission on Intergovernmental Relations ACKNOWLEDGMENTS

Michael E. Libonati, Laura H. Camel1 Professor of Government, State University of New York, Albany; Ri- Law at Temple University School of Law, was the principal chard Briffault, Columbia University Law School; David investigator and author of this report. Gelfand, Tulane Law School; Otto Hetzel, Wayne State A thinkers’ session was held in 1990 to establish the University School of Law; Melvin Hill, Institute of Gov- scope of the project. An initial critics’ session was held in ernment, University of Georgia; James Kee, George August 1991 to review a draft report, and a final review Washington University; Frank J. Mauro, Rockefeller In- took place in March 1993. Many scholars and experts in stitute of Government, State University of New York, the field of local government gave generously of their time Albany; Mavis Mann Reeves, University of Maryland; Ste- and effort to contribute to this report. We acknowledge them phen L. Schechter, Russell Sage College; Carl w. Sten- with gratitude. The following took part in thinkers’ sessions berg, 111, Center for Public Service, University of Virginia; or critics’ sessions, or both, or provided written or telephone Robert W. Thomas, University of Houston; Joan Williams, comments, or in other ways provided assistance: American University School of Law; and Joseph F. Zim- merman, State University of New York, Albany. Federal Government: Earl Armbrust, Congressional Budget Office; Andrea Hillyer, U.S. Department of Jus- Private Consultants and Others: Wayne Anderson; Wil- tice; David Kellerman, U.S. Department of Commerce, liam N. Cassella, Jr., Institute of Public Administration; Bureau of the Census; Stephen McMillan, Office of Rep- William G. Colman; John Peterson, Government Finance resentative Craig Thomas (R-WY); Robert W. Rafuse, Jr., Research Center; and John Shannon, Urban Institute. U.S. Department of the Treasury; and James Roberts, For the Commission, Bruce D. McDowell, Director U.S. Department of Education. of Government Policy Research, supervised the project. State and Local Governments: Enid Beaumont, Acade- Sharon Lawrence, Senior Analyst, and Seth B. Benjamin, my of State and Local Government; Benjamin Brown, Na- Senior Analyst, provided assistance in the preparation of tional Institute of Municipal Law Officers; Richard the material for the Commission and publication of the re- Hartman, National Association of Regional Councils; port. The report was edited by Joan Casey. Secretarial as- Louise Jacobs, Council of State Governments; Christine sistance was supplied by Suzanne Spence. Milliken, National Association of Attorneys General; Professor Libonati acknowledges with thanks the Chris Nolan, Federal Funds Information for States; Brian study leave granted by Temple University and Temple Law Roherty, National Association of State Budget Officers; School, during which he completed most of the research David Russell, Connecticut Advisory Commission on In- for this study. tergovernmental Relations; Hirst Sutton, Virginia Advi- Responsibility for the contents of this report and any sory Commission on Intergovernmental Relations; and errors lie solely with the Commission and its staff. Alice Tetelman, Council of Governors’ Policy Advisors. John Kincaid Academics: Gerald Benjamin, Rockefeller Institute of Executive Director

U.S. Advisory Commission on Intergovernmental Relations vii ... Vlll U.S. Advisory Commission on Intergovernmental Relations CONTENTS

Findings and Recommendations ...... 1 Findings ...... 1 Recommendations ...... 2 Recommendation 1 -Reaffirming the Need for Local Discretionary Authority while Preserving State Responsibilities ...... 2 Recommendation 2-Strengthening Local Immunity from State Preemptions and Mandates ...... 2 Recommendation 3-Enhancing the Ability of Local Governments to Challenge State Governments in Suits over Powers ...... 3 Recommendation 4-Recognizing an Alternative Theory of Local Government Autonomy ...... 3 Part I Local Government Legal Autonomy: The Issue of Constitutional Choice ...... Chapter I Defining Local Government Legal Autonomy ...... Autonomy as Determined by Initiative and Immunity ...... Powers of Both Initiative and Immunity ...... Power of Initiative but Not Immunity ...... Power of Immunity but Not Initiative ...... Neither Power of Initiative nor Immunity ...... Shortcomings of the Immunity and Initiative Concepts ...... Structural, Functional. Fiscal. and Personnel Autonomy ......

Chapter 2 Analyzing Local Government Autonomy ...... 11 A Closer Look at the Definition of Autonomy ...... 11 Structural Autonomy ...... 11 Functional Autonomy ...... 13 Fiscal Autonomy ...... 14 Personnel Autonomy ...... 14 Policymaking Concerns ...... 15 Restrictions on the State ...... 15 The Degree of Local Government Autonomy ...... 16 The Role of Citizen Choice ...... 16 Eligibility for Local Autonomy ...... 17 Intergovernmental Cooperation ...... 17 The Role of the Judiciary ...... 17 The Legal Content of Local Autonomy ...... 17 Clarity of the Text ...... 17 Principles of Construction ...... 18 Judicial Perspectives about Local Autonomy ...... 18 Citizen Demands to Expand, Constrict, or Clarify Home Rule Provisions ...... 19 Official and Institutional Demands to Expand, Constrict, or Clarify Home Rule Provisions ...... 19 Conclusion ...... 19 Purf II The Historical Framework Toward a Legal Theory of Local Government Autonomy ...... 23 Chapter 3 The Historical Legacy ...... 25

U.S. Advisory Commission on Intergovernmental Relations ix Background ...... 25 Ancient and Medieval Local Government ...... 25 Classical Roots: Greece and Rome ...... 25 The Civic Republic: Italian Medieval Cities ...... 26 The English Antecedents of American Local Government (1066-1688) ...... 27 Settlements in America and their Local Governments ...... 27 The Relationship of Colonies to England ...... 27 The Relationship between Colony and Locality ...... 28 Local Self-Government in Colonial America ...... 29 The Constitutional Dimension to Colonial Local Government ...... 30 Local Autonomy in the First State Constitutions ...... 30 Organizing State and Local Government Relations: From the Northwest Ordinance to Dillon's Rule (1789-1868) ...... 31 Northwest Ordinance ...... 31 Dillon's Rule ...... 31 An Increasing Role for the Judiciary ...... 33 Judicial Constraints on State Interference with Local Autonomy ...... 33 Judicial Restraints on Home Rule ...... 33 An Inherent Right to Local Self-Government? The Cooley Doctrine ...... 34 State Constitutions and Restrictions on State Supremacy ...... 34 Conclusion ...... 35

Chapter 4 The Developing Concept of Home Rule in 'hentieth Century America ...... 41 The Missouri Experiment ...... 41 The Early Twentieth Century and Home Rule ...... 42 The City Republic ...... 42 A Local Bill of Rights ...... 43 The Devolution-of-Powers Approach ...... 44 Twentieth Century Constitutional Developments in Local Autonomy ...... 45 New Jersey and Home Rule ...... 45 Local or Special Legislation ...... 45 Interlocal Collaboration ...... 46 Illinois and the Devolution-of-Powers Approach ...... 46 Greater FiscaLAutonomy ...... 47 Conclusion ...... 47

Chapter 5 Recent Trends in Judicial Decisions Affecting Local Autonomy: 1978-1992 ...... 51 General Issues ...... 51 Capacity to Sue ...... 51 Constitutionality of Local or Special Legislation ...... 51 Ripper Clauses ...... 52 Interlocal Agreements-Service Transfers ...... 52 Autonomy of Governmental Structure ...... 52 Delegations of Power ...... 52 HomeRule ...... 53 Autonomy of Function ...... 53 Fiscal Autonomy ...... 55 Tax Indices ...... 55 Local Voter Choice ...... 55 Restrictions on Mandates ...... 55 Home Rule and Tax Capacity ...... 56 Personnel Autonomy ...... 57 Autonomy as Immunity ...... 57 Autonomy as Initiative ...... 58 Conclusion ...... 58

X U.S. Advisory Commission on Intergovernmental Relations FINDINGS AND RECOMMENDATIONS

of absolute right, which cannot be taken away by the state. Few states have followed this rule, however. Instead, most states adopted what became known as the Fordham Rule, which sets out an area of devolved powers for local gov- The States and local Government Autonomy ernments within which they can act freely. This approach provides home rule localities with a liberal construction of 1. Home rule for municipal and county governments is their powers, limiting state court imposition of a doctrine now available in most states. of implied preemption.

Forty-eight states grant home rule authority to munic- 3. Local government autonomy consists of degrees of ipalities and 37 states grant such powers to counties.These discretionary authority separately established for grants of authority are provided by the state constitutions cities and counties in four basic areas: (1)structure - and/or by general law. determining their form of government and internal or- For municipalities, 37 states grant home rule by con- ganization; (2) function-choosing the functions they stitutional provision and 34 by general law (24 states have perform; (3) fiscal-raising revenue, borrowing, and both types of provisions, 13 use the constitution only, and spending; and (4) personnel-fuing the numbers, types, 10 use general law only). and employment conditions of their employees. For counties, 23 states grant home rule authority by In most states, the amount of discretionary authority constitutional provision and 25 by general law (12 states differs for cities and counties and for the four different have both types of provisions, 11 use the constitution only, types of power. Grants of structural and functional au- and 13 use general law only). thority frequently exceed grants of financial and person- Between 1978 and 1992, five states granted home rule nel powers. These imbalances can create difficulties for authority to municipalities. On the county side, nine more local governments. states provide home rule authority now than in 1978. 4. Home rule can (1) empower local governments to take 2. Wolegal concepts of local government have conten- initiative, (2) confer immunity on local governments ded for ascendancy in the American federal system: from the reach of state legislation, and (3) instruct the home rule and creatures of the state. The home rule state courts to interpret grants of local authority lib- concept (granting greater discretionary authority to erally in favor of local discretion. States have focused local governments) has been gaining ground on the most of their authorizations on initiative; few state creatures-of-the-state concept of strict limits on local grants of home rule authority include or adequately discretionary authority. address immunity and liberal construction. The idea of local governments as creatures of the The most common form of home rule grants initiative state is embodied in Dillon’s Rule, which holds that the to local governments, subject to constitutional and/or stat- political subdivisions of a state owe their existence to utory limits. Such limitations are frequently substantial. Im- grants of power from the state. Therefore, local govern- munity from such limitations often are weak or absent. Also, ments possess no inherent sovereignty. Their powers are instructions to the courts to interpret liberally in favor of lo- construed strictly to be no more than what is expressly per- cal governments are frequently absent. Without these provi- mitted by state statute. No room can be made for discre- sions, the courts generally rule in favor of the state. tionary authority or even incidental powers. The home rule concept was initially articulated in the 5. Home rule is jeopardized if the state legislature is free Cooley doctrine, holding that local government is a matter to impose unfunded mandates on local governments.

U.S. Advisory Commission on Intergovernmental Relations 1 State legislatures have imposed an increasing number of Different state courts can, and often do, interpret iden- mandates and regulatory restrictions on local governments tical constitutional language differently. A state’s civic cul- as the result of statewide policies. Sometimes, these state ture, legislative traditions, and judicial temperament aU mandates are the result of federal mandates. At the same affect interpretations of constitutional language. Thus, con- time, states have not always relaxed the restrictions on the stitutional language with respect to local government must fiscal autonomy of local governments or provided them with be adapted to the civic culture and traditions of each state. additional resources to cope with mandates. This double Indeed, because of prevailing traditions, local governments burden places severe financial pressures on local govern- in some states prefer a statutory rather than constitutional ments and reduces their ability to make choices about local approach to the definition of local government autonomy. priorities-effectively reducing local autonomy.

6. As home rule has become a common feature of state constitutions and general state law, the relationship between the states and their local governments has become more complicated. Increasingly, therefore, state courts are serving as arbiters of state-local relations. Recommendation 7 During the colonial era, the royal executive granted Reaffirming the Need local government charters, following the English tradi- for Local Discretionary Authority tion. After the Revolution, state legislatures ordinarily ex- While Preserving State Responsibilities ercised this responsibility by special acts that provided local governments with individualized powers-always The Commission finds that its previous recommenda- subject to legislative revision. By the 1870s, however, mis- tions encouraging states to formalize a thriving system of use of the legislative power to create local governments local self-government are as important as ever. To be ef- led to reform movements seeking general laws for local fective and accountable, local governments need the flexi- government authority and constitutional recognition of bility and autonomy to undertake the responsibilities home rule outside the scope of state legislative discretion. allocated to them and the responsibilities chosen for them As a result, state-local relations have become more by their citizens. complex. Today, in any one state, the scope of home rule or local autonomy is often difficult to discern. Moreover, The Commission rea-m,therefore, its previous recommenda- constitutional and statutory protections of local autonomy tions to the states to increme und cluri3 local home rule by do not eliminate legislative authority. State courts, there- adopting constitutional undlor statutoiy provisions granting fore, have taken on a key role in interpreting the limits of broad powers of structural, Jicnctional,fical, und personnel au- the exercise of local powers and state legislative powers. thority to local governments and to authorize them to erercise In several states, the courts have begun to recognize lo- their authority jointly with other govemments as they deem best. cal governments as “juridical persons” able to sue their parent state government, thus conferring (or at least asserting) Recornmendation 2 state constitutional claims against the state sovereign. Also, Strengthening local Immunity some state courts have scrutinized more closely legislation from State Preemptions and Mandates intended to affect specific local governments and have heard challenges to these acts as special or local laws. In addition, courts have played a major role in defining the constitutional The Commission finds that the provisions for local framework of interloml cooperation. In each area of local home rule and discretionary authority in many states are discretionary authority-structural, functional, fiscal, and being eroded by increases in regulatory and statutory con- personnel-state courts have made major contributions to trol of local government functioning through enactment the definition of state-local relations. of federal and state mandates and preemption of local Nevertheless, state courts across the nation take very decisionmaking. The state courts have increasingly as- different approaches to home rule. Even the same state serted their power to adjudicate state-local relations, supply- court may issue confusing dicta on the subject of state- ing their own solutions in the absence of clear constitutional local relations. Thus, although there is a discernible trend and/or statutory direction. Thus, ambiguity in state-local toward a greater recognition for local government autono- relations places substantial political decisionmaking au- my, the guidance for local governments is far from clear. thority in the hands of the judiciary.

7. There is no single best model of constitutional lan- The Commission recommends, therefore, that the states guage that states can apply to clarify the extent and review the local government articles in their constitutions andl limits of local government autonomy. or statutes governing the powers of local governments, and

2 U.S. Advisory Commission on Intergovernmental Relations consider amending them as appropriate to clarifi: state’s legal resources in specific cases. Such an inconsistent The extent of local power intended to initiate struc- arrangement for professional counsel is not conducive to tural, functional, fiscal, and personnel matters with- sustained local government advocacy. out prior permission of the state, and to ensure a proper balance among these powers; The Commission recommends, therefore, that the statewide local government organizations and their national coun- The degree of immunityfrom the reach of state stat- terparts cooperate to provide continuous, well-financed, and utes intended, including limitations on the right of the well-staffed legal support devoted to advocating the local gov- state to preempt local authority and to mandate ernment assertion of local initiativepowers and local immuni- functions without giving local governments the fiscal ty from the reach of state government. resources to cany out required functions; Liberal rules of construction to be followed by the courts in interpretingthese constitutional or statutory Recommendation 4 provisions in favor of local governments; Recognizing an Alternative Theory (d) The status of local governments as juridical persons of local Government Autonomy having the same capacity and rights to assert legal claims against the state as natural persons and pri- Although the United States Supreme Court has sanc- vate corporations; and tioned the view that local governments are essentially the legal creatures of the states, the Commission finds that (e) The extent to which autonomy and discretion are to there is another, equally persuasive, theory of local gov- be accorded to different types of local governments, ernment status in America. Best articulated by Judge including counties, municipalities, townships,school Thomas Cooley of Michigan in the late nineteenth centu- districts, and special districts. ry, this theory holds that American local government has an inherent right to self-rule, that is, a sovereignty of its Recommendation 3 own. This concept was embodied in some early state con- Enhancing the Ability of Local Governments stitutions, such as Massachusetts, that gave local govern- to Challenge State Governments ments representation in the state legislature. in Suits over Powers Nevertheless, such a view has not been favored by the federal courts and many state courts. Given the historical The Commission finds that, in virtually all states, local strength of this alternative view of American local govern- government interests are represented in the state capital by ment, the Commission finds that the courts are distorting a local government associations or leagues. Their effective- viirant chapter in the American history of local government. ness in challenging state legislation that affects local governments adversely varies across states. Some statewide local 77te Commission recommends that the courts begin to look government associations possess strong in-house counsel more serious!^ again at an alternative view of local government in that monitors state legislative activities actively and repre- America, which stresses the primacy of local government sover- sents local interests quickly and thoroughly in court. Others, eignty Such a view should be evaluated as the bmifor making however, rely on private ad hoc expert counsel, leaving the decisions about the powers of local governments, thus challenging results very much to chance. Moreover, individual local gov- the auihority of ihe creatures-of-the-state theov confirmed by the ernments rarely have the time and resources to match the US.Supreme Court.

U.S. Advisory Commission on Intergovernmental Relations 3 4 U.S. Advisory Commission on Intergovernmental Relations Part I LOCAL GOVERNMENT LEGAL AUTONOMY: THE ISSUE OF CONSTITUTIONAL CHOICE

U.S. Advisory Commission on Intergovernmental Relations 5 6 US. Advisory Commission on Intergovernmental Relations Chapter 7 DEFINING LOCAL GOVERNMENT LEGAL AUTONOMY

Local government in the United States has a rich history of variety, both in type and form. Cities, counties, towns, townships, boroughs, villages, school districts, and a host of special purpose districts, authorities, and commissions make up the 86,743 distinct units of local government counted in the 1992 Census of Governments. These This report begins by examining the legal definition of local units of government have many different forms and local government autonomy. One of the most useful clas- organizational structures. In New Jersey, for instance, lo- sifications of local self-government is Gordon Clark’s cal governments can adopt one of 12 different organiza- principles of autonomy. These principles distinguish be- tional forms of government. Variations in the numbers tween a local government’s power of initiative and itspow- and forms of local government arise from the unique po- er of imm~nity.~By initiative, Clark means the power of litical cultures and forces that created and shaped local local government to act in a “purposeful goal-oriented” self-government in each state. fashion, without the need for a specific grant of power.4By Experience with local government, which is shared by all immunity, he means “the power of localitiesto act without Americans, has rarely given rise to sustained and systematic fear of the oversight authority of higher tiersof the ~tate.”~ reflection about the relationship between local government There are four variations in the exercise of these two and the state.’ Instead, the desire for local self-government components to autonomy: has been institutionalized in thousands of compacts, charters, special acts, statutes, constitutional provisions, resolu- (1) Powers of both initiative and immunity; tions, ordinances, administrative rulings, and court decisions (2) Power of initiative but not immunity; since the earliest dates of settlement of this country.2Among (3) Power of immunity but not initiative; and these enactments, state constitutional provisions are singled out for special attention in this report. (4) Neither power of initiative nor immunity? Analysis of state constitutional provisions can further our understanding of the complex relationships between Powers of Both Initiative and Immunity state government and its political subdivisions in the American political system. Today, local government au- Initiative and immunity powers as expressed in state tonomy is understood to be an important part of this sys- constitutions vary considerably from one state to another. tem, and no account of American federalism that omits The Colorado Constitution, for example, confers both ini- the dynamic interplay of local governments with the fed- tiative (“the people of each city and town of this state . . . eral and state governments does justice either to historical are hereby vested with, and they shall always have, power experience or contemporary practice. to make, amend, add to, or replace the charter of said city Indeed, state constitutional provisions that speak di- or town, which shall be its organic law and extend to all its rectly to the allocation of authority between state and lo- local and municipal matters”) and immunity (“such charters cal government embody a judgment about the preferred and the ordinances made pursuant thereto in such matters allocation of power within the state in the most authorita- shall supersede within the territorial limits and other juris- tive way. These provisions, of course, have been created, diction of said city or town any law of the state in conflict revised, and refined through time, as a popular political therewith”).’ These texts both empower the home rule unit response to empirical conditions. As such, then, they are to exercise initiative as to all local and municipal matters and the cornerstones on which any sound theory of local gov- immunizes the home rule unit from state legislative interfer- ernment autonomy can be built. ence in all local and municipal matters.

U.S. Advisory Commission on Intergovernmental Relations 7 Power of Initiative but Not Immunity Shortcomings of the Immunity and Initiative Concepts Pennsylvania’s home rule provision exemplifies how states afford a charter unit the authority to “exercise any Although Clark’s classification of these concepts power or perform any function not denied by this Consti- helps in understanding local legal autonomy, it is both in- tution, by its home rule charter, or by the General Assem- adequate and overly general. bly at any time.” It grants initiative but not immunity? In Sho Sat0 and Arvo Van Alstyne help fill this gap, us- this formulation, known as the Fordham-American Mu- ing the example of the practical, everyday problems of nicipal Association devolution-of-powers approach to lo- those who give legal advice about home rule: cal governance? the state legislature has a free hand in From the viewpoint of the attorney-wheth- defining and limiting the scope of local initiative. er he represents a public agency or a private client-the significant issues relating to home Power of Immunity but Not Initiative rule ordinarily cluster around three distinguish- able problems: (1) to what extent is the local enti- State constitutions contain several types of provisions ty insulated from state legislative control; (2) to conferring immunity, but not initiative, on local govern- what extent in the particular jurisdiction does the ment. For example, the Utah Constitution prohibits the city (and in some states the county) have home legislature from passing any law granting the right to con- rule power to initiate legislative action in the ab- struct and operate a street railroad, telegraph, telephone, sence of express statutory authorization from the or electric light plant within any city or incorporated town state legislature; and (3) to what extent are local “without the consent of local authorities.”1° Thus, a Utah home rule powers limited, in dealing with a par- municipality cannot be forced to accommodate certain ticular subject, by the existence of state statutes state-franchised utilities, but may not otherwise have any relating to the same subject?” affirmative regulatory authority over these enterprises. It is this third aspect of home rule, the preemption Virginia’s prohibition of state taxation for local pur- question, that is important in determining the true scope poses does not, for example, provide thereby its political of local government autonomy. subdivisions with affirmative taxing authority.” In several The Illinois Constitution speaks directly to this states, the “ripper c1ause”l2 forbids the legislature from preemption issue when it asserts that “home rule units delegating “to any special commission, private corpora- may exercise and perform concurrently with the State any tion, or association, any power to make, supervise, or in- power or function of a home rule unit to the extent that terfere with any municipal improvement, money, the General Assembly does not specifically limit the con- property, or effects or to levy taxes or perform any . . . current exercise or specifically declare the State’s exercise municipal function whatsoever” without conferring on to be exclusive.”’* protected municipalities any correlative power to initiate One other difficulty that initiative and immunity mod- action in any of the enumerated policy areas.13 Also, state els of local government autonomy face is the ability to constitutional prohibitions against special or local laws are cope with collaboration in intergovernmental relations, aimed at conferring immunity, but not initiative, on local intergovernmentally(among federal, state, and local gov- governments.l4 ernments), interjurisdictionally (among counties, cities, and special districts), and with the private sector.lg The Neither Power of Initiative Nor Immunity collaborative perspective has undoubtedly influenced the entrenchment of rules concerning interlocal cooperation The Connecticut Constitution illustrates the strict and transfer of functions in state constitutions.20Thus, the controlby the state over its political subdivisions. It states: Illinois Constitution provides that: The General Assembly shall . . . delegate Units of local government and school dis- such legislative authority as from time to time it tricts may contract or otherwise associate among deems appropriate to towns, cities, and boroughs themselves, with the State, with other states and relative to the powers, organization, and form of their units of local government and school dis- government of such political subdivision^.^^ tricts, and with the United States to obtain or share services and to exercise, combine, or trans- The apparent utility of this type of provision is to defeat fer any power or function in any manner not pro- challenges to a broad allocation of authority to local gov- hibited by law or by ordinance. Units of local ernments based on a delegation doctrine or due process government and school districts may contract and claims.I6 otherwise associate with individuals, associations,

8 U.S. Advisoly Commission on Intergovernmental Relations and corporations in any manner not prohibited by Notes law or ordinance. Participating units of govern- Exceptions include: Arthur Maass, ed., Area and Power(Glenm, ment may use their credit, revenues, and other Illinois: The Free Press, 1959); Anwar Syed, The Political Theory of American Local Government (New York Random House, resources to pay costs and to service debt related 1966) W Hardy Wickwar, TIze Political Tlleory of Local Govern- to intergovernmental activities2’ ment (Columbia: University of South Carolina Press, 1970). ’A comprehensive account of the allocation of authority between state and local government, even in a single jurisdiction, has never been written. The complexities involved are well illustrated by Joseph Zimmerman’s discussion of how advisory opinions by the attorney general and comptroller of the State of New York constrict or broaden the statutory powrs of local govemments. Joseph E Zimmerman, State-Local Relations: A Partner- ship Approach (New York Praeger Publishers, 1983), pp. 34-37. Gordon L. Clark, Judges and the Cities, Interpreting Local Au- tonomy (Chicago: University of Chicago Press, 1988), and ‘A Theory of Local Autonomy,” Annals of the Association of The notion of autonomy as both initiative and immu- Anterican Geographers 74 (Spring 1984): 195. nity is not specific enough to facilitate the task of con- Clark, ‘ATheory of Local Autonomy,” p. 197. structing indices of local discretionary authority;22 Ibid., p. 198. additional tools are needed. Ibid., p. 199. He then goes on to relate these ideal types to several concrete examples of local governments: (1) the autono- These tools were presented in a report of the U.S. mous city-state (ancient and medieval); (2) decentralized Advisory Commission on Intergovernmental Relations liberalism; (3) local discretionary implementation of centrally (ACIR) entitled Measuring Local Discretionary Authority defined tasks; and (4) local government under Dillon’s Rule. (1981). In this report, ACIR defined local discretionary ’Colorado Constitution, Art. XX, 36. authority as: Pennsylvania Constitution, Art. IX, $2. American Municipal Association, Model Constitutional Provi- sioiis for Municipal Home Ride (Chicago: American Municipal the power of a local government to conduct its Association, 1953). Jefferson Fordham was hired by the Na- tional Municipal League to prepare a model state constitution own affairs-including specifically the power to including home rule provisions. determine its own organization, the functions it lo Utah Constitution, Art. XII, 38. performs, its taxing and borrowing authority, and “Virginia Constitution, Art. X, 910. the numbers and employment conditions of its l2 See David 0. Porter, “The Ripper Clause in State Constitu- personnel.” tional Law-An Early Urban Experiment,” Utah Law Review 69 (April and June 1969): 287 and 450. l3Pennsylvania Constitution, Art. 111, $20. Examining these four dimensions of local govern- l4 C. Dallas Sands, Michael E. Libonati, and John Martinez, Lo- ment discretionary authority-structure, function, fiscal Governtizent Law (Wilmette, Illinois: Callaghan & Compa- cal, and personnel24- helps citizens and public officials ny, 1982), Volume 1, 3.25-3.34. get a clearer picture of local government autonomy and ‘5C~nnecticutConstitution, Art. X, 31. the trends affecting it. It enables the observer-wheth- ‘6BOttone v. Town of Westport, 209 Conn. 652 (1989). 17ShoSat0 and Arvo Van Alstyne, State and Local Government er trained in law, public administration, or political Law, 2nd ed. (Boston: Little, Brown and Company, 197‘7) p. 136. science-to organize and synthesize the otherwise un- 18111inois Constitution, Art. VII, 6(i). See David C. Baum, “A wieldy universe of state constitutional provisions, and Tentative Survey of Illinois Home Rule: Legislative Control, court cases interpreting them, that bear on the question Transition Problems, and Intergovernmental Conflict,” Uni- of local autonomy. venity of Illinois Law Forutii 3 (3, 1972): 559. l9 Daniel J. Elazar, The American Partnedtip (Chicago: Universi- There is much debate as to whether courts are un- ty of Chicago Press, 1962); Joseph E Zimmerman, State-Local duly hostile or friendly to local auton0my.2~This debate Relations: A Partnership Approach (New York: Praeger Publish- parallels the perennial discussion on the merits of cen- ers, 1983); US. Advisory Commission on Intergovernmental Relations (ACIR), Metropolitan Organization: The St. Louis tralization versus decentralization in American govern- Case (Washington, DC, 1988); William G. Colman, State and ment.26A careful study of state constitutions can reveal Local Govenzment and Public-Private Parinenhips (Westport, how much and to what extent constitutional provisions Connecticut: Greenwood Press, 1989); and E. Blaine Liner, ed., A Decade of Devolution: Petspecfiveson State-Local Rela- have been shaped in reaction to judicial decisions con- tions (Washington, DC: The Urban Institute Press, 1989). cerning the division of powers between states and their 2o Comment, “Interlocal Cooperation: The Missouri Approach,” units of local government. Missouri Law Review 33 (Summer 1968) 442; ACIR, State Legis- Thus, the four categories of discretionary authority lative Pmgmn #2, Local Government Modernization:Interlocal Contracting and Joint Entetprise (Washington, 1975) defined in the 1981 report are reviewed in the next chapter DC, 21 Illinois Constitution, Art. VII, lqa); Mark A. Hall and Jeny B. to determine their fruitfulness in analyzing local govern- Wallack, “Intergovernmental Cooperation and the Transfer of ment autonomy. Powers,” University of Illinois Law Review 3 (1981): 775.

U.S. Advisoty Commission on Intergovernmental Relations 9 22 James W. Fesler, ‘Approaches to the Understanding of Dean- Part I-The Structure of Local Government Law,” and “Our tralization,” Journal of Politics 27 (Summer 1965): 536. Localism: Part 11-Localism and Legal Theory,” Columbia 23 ACIR, MeaFuring Local Discretionary Authority (Washington, Law Review 90 (January and March 1990): 1 and 346. See also DC, 1981) p. 1. Frank J. Macchiarola, “Local Government Home Rule and the Judiciary,” Journal of Urban Law 48 (2, 1971): 335. 241bid., p. 6. 25 Gerald Frug, “The City as a Legal Concept,”Harvard Law&- 26MichaelE. Libonati, “Home Rule: An Essay on Pluralism,” view 93 (April 1980): 1059; Richard J. Briffault, “Our Localism: Washington Law Review 64 (January 1989): 51.

10 U.S. Advisoty Commission on Intergovernmental Relations Chapter 2 ANALYZING LOCAL GOVERNMENT AUTONOMY

tion of 1851 prohibited the legislature from “creating new counties, changing county lines or removing county seats” without referendum approval of the electors of the affected countie~.~ Many nineteenth and early twentieth-century state A more detailed analysis of autonomy in local govern- constitutions sought to immunize local governments from ment should start with a reexamination of the four typesof state legislatures enacting local or special laws affecting local autonomy identified in the previous chapter-struc- local government structures and the duties of local offi- tural, functional, fiscal, and personnel. cials. Pioneering provisions of the 1851 Indiana Constitu- tion prohibited state regulation of: Structural Autonomy (1) Jurisdiction and duties of justices of the peace and of constables; Several elements affect the degree of structural au- (2) County and township business; tonomy provided to local governments. These include: (3) Election of county and township officers and Barriers to the enactment of impermissible their compensation; state legislation; (4) The assessment and collection of taxes for. . . Approval of the local electorate as a check on county, township, or road purposes; the state legislature; (5) Fees or salaries; and Local voter initiatives as a counterweight to (6) The opening and conducting of elections of. . . state power; county or township officers and designating Constitutional restrictions on the scope of the places of voting. . . ? home rule authority; The Missouri Constitution of 1875 contained a more Geographic reach of local government pow- elaborate and systematic set of prohibitions crafted topro- ers; and tect local structural autonomy and theaccountability of lo- Constraints on collaborative action. cal officials. It barred: (1) Locating or changing county seats; Barriers to the Enactment of Impermissible State Legislation. Autonomy in the sense of immunity from state legislative (2) Incorporating cities, towns, or villages or interference preceded affirmative grants of local initia- changing their charters; tive. Many early state constitutions, for example, made (3) Erecting new townships or changing town- the filling of certain local offices the prerogative of local ship lines or the lines of school districts; electors.’ The New Jersey legislature might define the (4) Creating offices or prescribing the powers contours of the office of county sheriff, for instance, but and duties of officers in counties, cities, the state constitution of 1776 required that the sheriff be townships, election, or school districts; elected by the inhabitants of the county? (5) Regulating the fees or extending the powers Connecticut’s first constitution required the annual and duties of alderman, justices of the peace, election of town selectmen “and such olfices of local po- magistrates, or constables; lice as laws may prescribe.”’ A similar provision in the 1850 Michigan Constitution was used by the Michigan Supreme (6) Regulating the management of the public Court to strike down a statute substituting state-appointed schools. . .; boards for locally elected officials in order to manage ser- (7) Extending the time for the assessment orcol- vice provision in the City of Detr~it.~The Ohio Constitu- lection of taxes or otherwise relieving any as-

U.S. Advisory Commission on Intergovernmental Relations I? sessor or collector of taxes from the due ta, for example, the legislature must provide counties with performance of their official duties or their optional forms of government, including the county man- securities from liability; and ager plan, but no optional form may become operative (8) Legalizing the unauthorized or invalid acts of without the approval of 55 percent of those voting in a lo- any officer or agent . . . of any county or mu- cal election.’* Local voters in Montana periodically must nicipality. . . .’ be offered an opportunity to review their existing local government ~tructure.’~ In addition, Alabama’s 1901 Constitution defined a local Several state constitutions contain rules requiring law as one “which applies to any political subdivision or sub- that fundamental changes in county government struc- divisions of the state less than the whole” in creating a simi- ture, such as consolidation, dissolution, and shifts in lar enumeration of impermissible legislative enactmenk8 boundaries or county seats, must be approved by a major- It should be noted, however, that prohibitions against ity of voters in each affected county.” local or special legislation create only a permeable barrier to The ripper clause also is a device for assuring a negative state legislative actions affecting local government decision- liberty of local government (that is, freedom from control by making structures. They reach only statutes that do not meet a state-created agency appointed by the legislature without the constitutionallyprescribed level of generality and unifor- the direct consent of the local electorate).*l mity. The legislature is ordinarily still free to classify local governments by population or some other general criterion? Local Vder Znitihtives as a Counterweight to State Powex A Thus, the Missouri legislature retained the capacity to more robust guarantee of voter choice is found in state con- interfere in structural matters by enacting legislation gener- stitutions that entrench not only the blocking power of the ally applicable to home rule cities.” Nonetheless, the Mis- local referendum but also the power for citizens to initiate souri Constitution was changed to prohibit the legislature municipal or county The constitutions of Ohio, from creating more than four classes of cities and towns.” Oklahoma, and Oregon provide examples of this approach. To protect the autonomy of Boston, the Massachu- setts Constitution requires that general laws apply to a Constitutional Restrictions on the Scope of Home Rule Au- class of not fewer than two cities and towns.12In North Da- thoritj. With regard to autonomy in the sense of initiative, kota, a statute denying powers must apply to all home rule no state constitutions limit the ambit of home rule power cities and village^.'^ The Rhode Island General Assembly simply to matters of has the power to enact general laws applicable to all cities The constitutions of 16 states (California, Colorado, and towns provided they do not affect “the form of govern- Florida, Georgia [cities only], Illinois, Iowa, Kansas, Loui- siana, Maine, Michigan [counties only], Ohio, Oregon ment.”14 The South Carolina Constitution expressly limits [counties only], Rhode Island, West Virginia, Wisconsin, the authority of home rule entitics to set aside “the structure and the administration of any governmental service or func- and Wyoming) contain terms like “municipal affairs,” tion, responsibility which rests with State Government or “municipal matters,’’ and “powers of local self-government,” which would appear to convey discretion over the which requires statewide ~niformity.”’~ Not all state constitutions take an inflexible position structure and methods of operation of local go~emrnent.2~ against state legislative interference in local matters. Of- This hypothesis is apparently confirmed in the case law of California, wherein matters concerning local elections, pro- ten, state constitutional provisions governing local or special legislation may provide for flexibility through local cedures for enacting and enforcing ordinances, forms of government (e.g., city manager, strong mayor, or weak mayor), choice. For example, home rule governments in New York may opt out of the protection otherwise afforded by the and the establishment and operation of local administrative constitutional ban on local or special laws on request of ei- bodies fall within the ambit of municipal affairs.= The force of these provisions, however, is weakened ther a super-majority of its legislative body or its chief executive officer with a concurrence of a legislative considerably when the question presented for decision in- majority.16 The New Jersey Constitution permits private, volves a relevant state statute arguably in conflict with a local, or special laws affecting the internal affairs of a local charter provision.26 Thus, when an agreement entered into by a California home rule city under a state statute government on petition of its governing body, with the approval of a super-majority of each house of the state legis- providing for the joint exercise of powers was challenged as violating its charter, the state supreme court sustained lature. The law becomes operative only if adopted by an ordinance of the governing body or a local referendum.” the agreement. It stated, “If the conceivably conflicting charter provisions of all the contracting cities were held to Approval by the Local Electorate as a Check on the State Leg- be applicable and relevant, the effect would be to vitiate islature. State constitutions are sprinkled with provisions the statute authorizing joint and cooperative action.”*’ that allow state legislative power over a variety of structur- Courts in California and other jurisdictions where a al issues only with local electoral approval. In North Dako- constitutional grant of home rule initiative is qualified by

12 U.S. Advisory Commission on Intergovernmental Relations the adjective “local” or “municipal” have not been shy in Constraints on Collaborative Action. Similarly, express holding that the subject matter in question is susceptible constitutional or statutory grants of power are required to to redefinition as a matter of statewide concern when the allow home rule units to engage in collaborative activities state legislature has so spoken.= and agreements with other units of g~vernrnent.~~ The Louisiana Constitution guarantees structural autonomy by prohibiting the legislature from changing or affecting the structure and organization or the distribution Functional Autonomy of powers of a home rule entity.” The constitutions of Government is not simply a question of fom and Georgia (counties only), Michigan (cities only), New York, structure. It exists for a purpose, usually the identification and Rhode Island have language that conveys power over and resolution of common problems?* It is predictable matters concerning “property, affairs or go~ernment.”’~ that functional autonomy, in the sense of initiative, pre- Maryland, Nebraska, Nevada, Oklahoma, Utah, and dominates over autonomy, in the sense of immunity, in Washington each have constitutions that employ the term various state constitutions. “its own government” to delineate the scope of local ini- tiati~e.~’As in the case of texts using the arguablybroader Current Constitutional Approaches. A study of early terms of municipal affairs or local self-government, the constitutional home rule provisions indicates that the power scope of structural autonomy afforded will be subject to to create a charter “for its own government” was granted to the vagaries of judicial interpretation as well as to the local governments along with the power to regulate and the preemptive effect of general state statutes. power to provide ~eMces.~~For example, the Michigan and The Oregon and Texas constitutions grant eligible Cities Ohio constitutions resolved the debate over municipal own- comprehensive power to formulate the contents of their ership of public utilities by expressly permitting it.” home rule charters, limited onlyby the preemptive powers The Bill of Rights provision of the local government of the legislat~re.~~Eleven states (Alaska, Connecticut, article of the New York Constitution includes a compendi- Massachusetts, Missouri, Montana, New Hampshire, ous grant of regulatory authority over “the government, New Mexico, North Carolina, North Dakota, Pennsylva- protection, order, conduct, safety, health and well-being nia, and South Dakota) embrace the devolution-of-powers of persons or property,” as well as an express power to ac- model, making the extent of powersafforded local govern- quire, own, and operate transit fa~ilities.4~Under the Flo- ments dependent on state enabling legislation, which may rida Constitution, home rule municipalities “shall have or may not confine the scope of structural autonomy.33 governmental, corporate and proprietary powers to en- Four state constitutions speak unambiguously to the able them to conduct municipal government, perform mu- issue of structural initiative. The Colorado Constitution nicipal functions and render municipal services.”46 empowers home rule counties to provide for the organiza- Local regulation of private conduct may, of course, be tion and structure of county government consistent with problematic in the 16 states that employa qualifyingadjec- state ~tatutes.3~Tennessee authorizes each home rule en- tive like “local” or “municipal” in conveying discretion to tity to provide for “the form, structure, personnel and or- local governments over their structure and administra- ganization of its go~ernrnent.”~~South Carolina grants the tion. Thus, a home rule city’s power to enact a rent control power to frame a charter “setting forth governmental ordinance was struck down in Florida but sustained in Cal- structure and organization.. ..”36Finally, the South Dako- if~rnia.~~In the ten states adopting the devolu- ta document achieves clarity on the issues of initiative and tion-of-powers model, the scope of regulatory authority is immunity by stipulating that: limited by the charter, state law, or the constitution it- [Tlhe charter may provide for any form of execu- self.48Home rule regulatory powers are subject to the tive, legislative and administrative structure preemptive effect of state statute in these ten jurisdic- which shall be of superior authority to statute, tions. In California and other states that provide concur- provided that the legislative body so established rent powers of the state with their local governments, be chosen by popular election and that adminis- home rule regulatory powers are subject to preemption if trative proceedingsbe subject to judicial review.37 the matter in conflict is of statewide c0ncern.4~ In any event, autonomy in the sense of immunity can- Geographic Reach of Local Government Powers. Home not be conferred on home rule regulatory activities be- rule powers are not generally interpreted to extend because individuals subject to such regulation possess yond the territorially defined boundaries of the home rule procedural and substantive constitutional rights against unit.38 Thus, except in Minnesota and Texas, a home rule governmental regulatory overreach?’ Local govern- entity cannot, on its own initiative, change its bound- ments, like the state and federal governments, exercise arie~.~~A home rule city in Alaska, however, could be dis- their regulatoly authority subject to judicial review. This solved at the behest of the state restriction always applies.

U.S. Advisory Commission on Intergovernmental Relations 13 Authority to Provide Services. Nevertheless, states have government, financial management is a realm of con- authorized specific functions as responsibilities that local ~traint.~~Forty -eight states, for example, impose debt lim- governments may wish to or must undertake. Oklahoma its on cities, 40 on counties. Other detailed restrictions and Arizona empower municipal corporations to “engage cover referendum requirements (40 states); maximum du- in any business or enterprise” that may be engaged in by ration of bonds (41 states); and interest ceilings (24 states). the private ~ector.~’The Arizona Constitution vests spe- Thirty-eight states impose property tax limits on cities and cial purpose service provision districts “with all the rights, 35 do so on counties. Forty-eight states establish the meth- privileges, benefits . . . immunities and exemptions” af- od of property tax assessment for local governments. forded Arizona municipalities and political Only a handful of states have provisions that directly Home rule units in South Carolina can undertake to pro- address the question of fiscal initiative. Nine state consti- vide gas, water, sewer, electric, and transportation ser- tutions expressly provide autonomy with respect to bor- vices if the local electorate consent^?^ The Illinois rowing and taxationM Tennessee and Iowa expressly Constitution established only two unlimited powers of preclude additional taxing authority. Massachusetts and home rule cities: the power to make local improvements Rhode Island do so for both borrowing and taxati0n.6~ by special assessments and the power to impose taxes for Vaguer constitutional grants of power couched in the provision of special services.54 terms like “municipal matters” or “local self-government” are unsparingly criticized in the legal literature.& Yet, Intergovernmental Relations. A sampling of the constitu- such provisions of the California, Missouri, Ohio, and tions of California, Florida, Illinois, Missouri, New York, Oregon constitutions have been interpreted by courts to Ohio, Pennsylvania, and Texas yields a good snapshot of con- empower home rule units to diversify their portfolio of temporary variations in state constitutional law on intergov- revenue generating measures beyond the property ernmental relations. The Ohio text, unrevised since 1912, is Despite the success in these four states, the courts did not silent on this topic. A series of ad hoc amendments to the approve municipal income taxes in two states with similar ’Exas Constitution permits specific collaborative projects be- constitutional language, Missouri and Colorado.@Also, tween countie~.~~TheCalifornia Constitution speaks only to taxation, like other exercises of home rule powers in states the issue of whether a county may perform municipal func- giving substantial local autonomy, even if somewhat tion~.~~But the California Supreme Court assured a broad vaguely stated, may be preempted by statute on the competence to collaborate when it sustained a state statute grounds that the subject is of statewide concern.@ providing for joint exercise of powers in dealing with matters State mandates are the only area of fiscal policy in of statewide concern which could, therefore, lawfully over- which state constitutions confer a degree of immunity ride conflicting charter provision^.^' from the otherwise plenary power of the state legisla- The New York Bill of Rights confirms that local gov- t~re.~OMandate provisions range from Alaska’s, which im- ernments have the power, as authorized by the legislature, poses a local referendum requirement on local acts of the “to provide cooperatively, jointly or by contract any facil- state legislature necessitating appropriations by a political ity, service, activity or undertaking which each local gov- subdivision, to the cost-sharing approach of Tennessee ernment has the power to provide ~eparately.”~~ and Hawaii to the broader strictures of the California, Pennsylvania even allows local voters in the areas af- Massachusetts, Michigan, Missouri, New Hampshire, and fected to compel local governments to cooperate with or New Mexico constitution^.^^ transfer functions to other governmental units, including special districts, the state, and the federal government.% Personnel Autonomy Other states have broadly phrased language permitting collaboration in the provision of public improvement, In State Laws Governing Local Government Structure facilities, and services.@ and Administration, ACIR also delineates the scope of personnel autonomy.“ Personnel matters include: Fiscal Autonomy (1) The hiring, promotion, discipline, and termination of public employees; Fiscal autonomy, whether in the sense of initiative or (2) Civil service and the merit system; immunity, traditionally has not been considered a neces- (3) Levels of compensation and entitlement to sary component of home Dillon’s Rule of strict con- fringe benefits, such as pensions; struction of empowering legislation is riddled with qualifications, but not as to the subjects of borrowing and (4) Collective bargaining; and taxation.62ACIR’s recent study State Laws Governing Lo- (5) Conflict-of-interest requirements, disclo- cal Government Structure and Administration: A Compari- sure requirements, and restrictions on parti- son of the Laws in 1978 and 1990 reveals that, for local san political a~tivity.7~

14 U.S. Advisoly Comniission on Intergovernmental Relations This area of the law annually produces a flood of court Autonomy in the sense of initiative, as is the casegen- cases, few of which turn for their resolution on the home erally, turns on judicial decisions interpreting varied state rule status of the public employer.74 constitutional texts as well as judicial receptiveness to claims that proper home rule enactments are preempted Constraints Imposed by Federal Law. Autonomy in the by state statutes. As has been observed: “It may, in fact, be sense of immunity is hard to come by in personnel matters the case that cities, in effect, already have expansive powers. because public employees’ claims are increasingly shel- But it would be more accurate to say that, because of the on- tered by individual rights provisions of the state and feder- going judicial interpretation, no one really al constitutions applicable to all governments, regardless of home rule status. A home rule public employer is just as limited as any other public employer by constitutional strictures forbidding patronage hiring, sex discrimination, or termination for exercising protected freedoms of speech or as~ociation.~~Similarly, a public employee’s due process rights to procedural fairness bind all governments The analysis above may help with the more demand- in the federal system.76 ing policymaking tasks that states face with regard to local government autonomy. Moreover, the influence and will- State Judicial Activism. An activist state judiciary may ingness of the courts to make their own assessment of the fashion protection for public employees that exceeds the bounds within which local government can operate poses floor provided by federal courts, as, for example, in the for the states an ever more difficult determination of what area of drug or polygraph te~ting.~’ the right balance ought to be in the relationships they have with their political subdivisions. Pension and Ben&. Public employee pension and First, the increasing fiscal pressures on government benefit rights also may be protected by an express provi- and rising service expectations by the citizenry make con- sion of the state constitution or a judicial interpretation of tinued controversy and debate over state constitutional a provision forbidding the impairment of In treatment of local governments inevitable. As policy- Florida and New Jersey, public employees are constitu- makers evaluate proposals for change, they should consid- tionally guaranteed the right to organize.79Financial dis- er six basic concerns before altering the state-local rela- closure by Illinois public employees and officials is tionship embodied in their state’s constitution: mandated by the state constitution; in California, howev- Whether it is desirable to increase or decrease er, the extent of disclosure by public employees is limited the restrictions, if any, imposed on the power by their constitutional privacy rights.8O of the state to regulate local government; Merit Systems. New York became “the first state to The degree of autonomy, however defined in constitutionalize a merit system of civil service employ- the minds of the citizens of a particular state, ment” in 1894.8l The New York provision, like that in to be granted to local governments; Ohio’s Constitution, applies to both the state and its polit- The extent of citizen choice in local govern- ical subdivisions.82 ment; Which local government units are eligible for Limited Zmmunity. Immunity from interference by the local autonomy; state legislature is a possible outcome mostly in those jurisdictions that allow for concurrent regulatory control. Aspects of intergovernmental cooperation; During 1978-1990, significant trends in the case law of Cal- and ifornia, Oregon, and New York diminished, if not extin- The role of the courts in determining issues guished, local autonomy over personnel matters. of local autonomy. The most recent state to entrench local autonomy over personnel matters in its constitution is Louisiana. Its Restrictions on the State 1974 constitution renders the appointment and functioning of city civil service commissions impervious to state First, decisionmakers should consider whether any limits should be placed on the otherwise plenary power of legislative contr01.8~The legislature is forbidden from en- the state legislature to arrange the activities and affairs of acting laws mandating “increased expenditures for wages, local government. the United States Supreme Court hours, working conditions, pension, and retirement bene- As made clear in 1907, it is to the state and not the federal fits, vacation or sick leave benefits of political subdivision Constitution that one must look for restraints: employees” unless the governing body of the affected entity approves or the state legislature appropriates and pro- Municipal corporations are political subdivi- vides the necessary funds.84 sions of the State, created as convenient agencies

U.S. Advisory Commission on Intergovernmental Relations 15 for exercising such of the governmental powers of attitude toward its political subdivisions (as expressed by the State as may be entrusted to them. . . . The the people of that state, who must approve such constitu- number, nature, and duration of the powers con- tions). On the one hand, local governments are seen as ferred upon these corporations and the territory somewhat independent actors in a statewide framework, over which they shall be exercised rests in the ab- making and implementing decisions with a fair degree of solute discretion of the State. Neither their char- autonomy. On the other, local governments seem to de- ters, nor any law conferring governmental rive their authority from grants of power-sometimes powers, or vesting in them property to be used for general, sometimes specific-and are constrained to act governmental purposes, or authorizing them to within a state-initiated delegation of power. hold or manage such property, or exempting With regard to the former, a measure of immunity them from taxation upon it, constitutes a contract from state interference in local government has been hard with the State within the meaning of the Federal to preserve, as is revealed in the trend of judicial decisions Constitution. The State, therefore, at its pleasure during the 1978-1990 period (discussed later in this re- may modify or withdraw all such powers, may take port). Local immunity may be easily overridden by a state without compensation such property, hold it it- statute treating the policy problem as one of “statewide” self, or vest it in other agencies, expand or con- rather than exclusively “municipal” concern. Local initia- tract the territorial area, unite the whole or a part tive may be quashed by a narrow construction of the scope of it with another municipality, repeal the charter of “municipal” powers or by giving broad preemptive ef- and destroy the corporation. All this may be fect to state statutes dealing with the policy problem. done, conditionally or unconditionally, with or As for the latter attitude, the state legislature may without the consent of the citizens, or even be afforded too much flexibility, particularly in an era of against their protest. fiscal stress. In addition to these practical considerations, a judi- In all these respects the State is supreme, cially determined “one person-one vote” rule has drasti- and its legislative body, conforming its action to cally limited the historic practice of assuring a strong the state constitution, may do as it will, unre- nexus between state legislative district boundaries and lo- strained by any provision of the Constitution of cal governments, thus attenuating the influence of identi- the United States. Although the inhabitants and fiable local political communities in the state legislature?* property owners may by such changes suffer in- The emergence of organized interest groups capable of convenience, and their property may be lessened mobilizing a statewide constituency may further dilute the in value by the burden of increased taxation, or force of claims to local government autonomy-califor- for any other reason, they have no right by con- nia is a prime example.89 tract or otherwise in the unaltered or continued existence of the cot$oration or its powers, and The Degree of local Government Autonomy there is nothing in the Federal Constitution which protects them from these injurious conse- That there is a complex patchwork of local govern- quences. The power is in the State and those who ment autonomy is demonstrated throughout this report. legislate for the State are alone responsible for Variety exists in every category of autonomy. Existing state any unjust or oppressive exercise of it?6 constitutional provisions exhibit every conceivablepermu - tation of initiative and immunity as to structural, function- Nineteenth century experiments with establishing al, fiscal, or personnel matters. constitutional limitations on legislative power, such as the If the policy of affording a constitutionally protected prohibitions against local, special, or ripper legislation, sphere of immunity to local government is to be a serious have not generally proved to be meaningful guarantors of one, it needs to be addressed in each of the policy areas local immunity. Several states with robust local self-gov- discussed earlier in this report: structural, functional, per- ernment, notably Vermont and Virginia, prefer the flexi- sonnel, and fiscal autonomy. bility and adaptability to local circumstance offered by a regime of local or special legislation?’ Other states, through The Role of Citizen Choice such devices as local option laws and classification by population, have been able to accommodate varied local prefer- State constitutions teach concern not only for the role ences, even where local or special legislation is forbidden. of institutional actorsbut also for citizen choice. An exclu- The decision to provide for the powers of local gov- sive focus on entrenching rules relating to the roles of state ernment in the state constitution clearly shows a consider- and local institutions may divert attention from the claims of ation for a healthy and viable local government. The local citizens to participation in decisions with respect to manner in which it is presented depends on the basic state structural, functional, personnel, or fiscal matters.

16 U.S. Advisory Commission on Intergovernmental Relations The “tax revolt” in California in 1978 may well have (1) How is the constitutional text to be inter- come about over the perceived loss of citizen control in lo- preted? cal taxing policy?O Even in the Missouri Constitution of (2) Do political subdivisions have the authority 1875, there was a marked shift in the locus of consent con- to assert constitutional claims against the cerning the institutional form and functional powers of lo- state and its agencies? cal government. (3) How are conflicts between state statutes and A local government article of the state constitution home rule charters or ordinances to be re- could facilitate citizen choice either by specifying the rules solved? for direct citizen participation in local decisionmaking or by making it clear that the home rule charter can employ Failure to think through whether or not decisions con- any of the devices of direct democracy-referendum, re- cerning these recurrent topics are appropriate to include call, and initiative?l in state constitutions may lead to the kinds of unanticipat- ed consequences that beset the implementation of complex Eligibility for local Autonomy State constitutions have extended various forms of autonomy to general purpose units of government. Coun- ties, as well as municipalities, have been recognized increasingly as appropriate candidates for home rule?* Special districts, including school districts, have played a significant role in furthering local self-government through collective actionP3Consideration may be given to Translating the concepts of local government autono- making their powers of initiative constitutional, as in Ari- my into statutory or constitutional language will no doubt zona, or immunity, as in Virgk1ia.9~ tax the ingenuity of the drafters because the language There is no question that the statutory powers given must not only articulate agreed-on policy decisions but to a wide variety of local government units presents seri- also must be sensitive to factors concerning the way in ous issues of jurisdictional overlap. State policies concern- which the text will be interpreted. The most important of ing the impact of the grant of autonomy to a whole host of these are: political subdivisions need clarification in most states. (1) Clarity of the text; (2) Principles of construction; Intergovernmental Cooperation (3) Judicial perspectives on local autonomy; Almost as a necessary concomitant to the issue of eli- (4) Citizen demands to expand, constrict, orclar- gibility, intergovernmental cooperation will become a ify existing texts; and powerful resource in resolving the questions raised by lo- (5) Official and institutional demands to expand, cal government autonomy. Intergovernmental coopera- constrict, or clarify existing texts. tion provides various local governments with options to expand the scope of discretionary authority in a wide range Clarity of the Text of services provided to the public. As such, it must be reviewed as a possible constitutional fixture in state-local The process of selecting language for incorporation and local-local government relation^?^ It also allows for into a state constitution should be based on a careful con- the consideration of public-private partnerships in service sideration of the precise intention of that language. Thus, delivery and government organization. Indeed, it is, per- the use of the adjective “local” or “municipal” in the con- haps, one of the most flexible of tools in meeting the ever text of empowering local governments invites both a limit- changing demands of a local citizenry. ing interpretation and a body of interpretive case law focusing on whether the matter in question is of local rath- The Role of the Judiciary er than statewide concern. The elimination of a qualifying adjective, however, incurs the risk that a home rule unit Home rule policies in state constitutions are shaped will seek to extend its policy reach to areas generally rec- to a significant degree by the judiciary. Because judicial re- ognized as falling within the competence of state or na- view is an inevitable part of the American constitutional tional, rather than local, authorities, as those who drafted framework, policymakers are obliged to take into account the Illinois Constitution recognized?’ juridical problems that predictably occur when power is An ideal text is one “in which the author’s intended diffused among political subdivisions. These juridical is- meaning is always the way the words are read by any read- sues include: er.’w8But a judge is not just any reader. A judge occupies a

U.S. Advisory Commission on Intergovernmental Relations 17 constitutionallyprescribed role as an authoritative interpret- In both home rule and reapportionment policies, er of language in a constitutional document. This is why the the role of the State’s high court, the Court of language of the text has to be formulated clearly to facilitate Appeals, as a guardian of State sovereignty against its reception and application within the legal, as well as polit- City incursions cannot be overstated. Strict inter- ical, culture of a given state. Indeed, it may well be that ex- pretation or broad, the court read New York’s con- planatory language in a document that precedes the drafting stitution so as to assure State is necessary to aid in clarifying intent. Such is the role of convention documents, which contain speeches, debates, ar- This is despite the fact that the New York Constitu- ticles, and other such references to written material on the tion has a provision directing interpreters to construe the principles and details of the subject under discussion. powers of home rule units in favor of the locality. Off-the-shelf language borrowed from model or sister Such directives do have an impact on the state judicia- state constitutions may create the illusion that knotty ry. For example, the Alaska Supreme Court, after floun- problems of constitutional choice can be resolved by ex- dering about with a local activity rule, finally recognized perts unfamiliar with local contexts. There are no right an- the force of the liberal interpretation rule.lo6Utah’s Su- swers about how a state constitutional text should be preme Court considered the statement in its state consti- phrased, only carefully considered ones. tution barring the use of a negative implication in construing grants of power as a repudiation of Dillon’s Rule.’” William Valente cites case law in California, Principles of Construction Ohio, and Wisconsin that substitutes liberal (pro-local) for strict construction of home rule powers in light of the rec- The legal profession enjoys no monopoly when it ognition of local autonomy by the state constitution.108 comes to appreciating the role that judges play in determining the success or failure of efforts to implement new understandings of local self-government.w Indeed, court Judicial Perspectives about local Autonomy decisions have frequently sparked constitutional reform. Thus, the 1896 amendment to the California Constitution There is a debate in the academic literature on local that sought to create a protected realm of immunity government autonomy as to whether judges are predis- against state legislative intrusion into the municipal affairs of posed to localism or centralization.1w Richard Briffault a charter city was designed to overturn several decisions of grounds his indices of localism in judicial decisions sus- the California Supreme Court interpreting the 1879 text.lo0 taining autonomy with respect to land use, schools, and Twelve states have included a constitutional provision property taxes.”O Gerald Frug, however, bases his indices rooting out Dillon’s Rule by mandating liberal interpreta- of centralization in judicial decisions that have disempow- tion of grants of power either to municipalities in general ered cities by applying rigid concepts drawn from a unitary or to home rule units.lO’The Florida legislature tried to theory of sovereignty like Dillon’s Rule.111 change case law exhibiting a narrow and ungenerous view This report takes a different tack. It describes an of home rule powers by passing an interpretive statute evolving conception of state-local relations in which such stating that the term “municipal purpose,” as used in the judge-made doctrines as Dillon’s Rule and the nondelega- state constitution, “means any activity or power which may tion doctrine, the public purpose doctrine, and the implied be exercised by the state or its political subdivisions.”102 preemption doctrine have been discarded or modified by On the other hand, state courts may interpret even inserting ratifying provisions in the constitutions of many cryptic language in a state constitution so expansively that states. Those constitutional provisions seem to indicate an interpretive provision is superfluous.The Texas Consti- that the framers of some state constitutions believed that tution, for example, confers charter-making authority on the legal culture fostered by the state judiciary needed to cities of over 5,000 population “subject to such limitations be changed. as may be prescribed by the Legislature and providing that Nevertheless, no one disputes the proposition that ju- no charter or any ordinance passed under said charter dicial perspectives play a significant role in determining shall contain any provision inconsistent with the Constitu- the legal content of local autonomy. tion of the State or of the general laws enacted by the Leg- islature of this State.”103This1912 text has been viewed Citizen Demands to Expand, Constrict, generally by Texas courts as tantamount to a plenary grant or Clarify Home Rule Provisions of local legislative authority, including the power to expand the boundaries of the home rule city through annex- The state constitution is, by definition, the appropri- ation and the power to tax.lo4 ate vehicle for the exercise of constitutional choice by One thoughtful commentator has summed up the state citizens. As such, citizen demands to expand, con- track record of the New York judiciary as follows: strict, or clarify constitutional provisions for local autono-

18 U.S. Advisory Commission on Intergovernmental Relations my have a significant impact on the constitution’s con- where.”121On the other hand, inclusion of home rule for tents. This is particularly true in jurisdictions that permit Chicago materially assisted the successful campaign for citizens to initiate amendments to the state constitution. adoption of the Illinois Constitution.lz2 California voters, for example, are responsible for the formulation of their particular style of home rule.”* The state’s electorate may shrink local autonomy as well as expand it, as Californianschose to do with respect to property tax rates and assessment practice^."^ Many detailed and specific amendments to state con- stitutionsare designed to clarify state policy by specifically Almost 30 years ago, ACIR concluded its first report overruling decisions of the state supreme court. For exam- on local autonomy by stating, “Evidence points to the con- ple, the North Carolina Supreme Court struck down, for clusion that units of local government with enlarged juris- want of a proper public purpose, legislation purporting to diction should be encouraged and that all such units and authorize county industrial development agencies to issue levels of government should work federati~ely.”’~’It rec- revenue bonds to finance industrial manufacturing and ommended further, ‘The variety of local government prob- pollution control fa~i1ities.l~~The state constitution was lems is almost infiiite. Solutions related to the locale should amended in response.11s be sought persistently along a broad front in 50 As American government moves toward the 21st century, those recommendations have just as much validity, if Official and Institutional Demands not more, than when they were first issued. to Expand, Constrict, or Clarify Home Rule Provisions Notes Howard Lee McBain, “The Legal Status of the American Co- Local governments are institutions with continuity lonial City,” Political Science Quartet@ 40 (June 1925): 177, 207-208. (See the early constitutions of Georgia, Maryland, and their own agendas of power, which may or may not Massachusetts, New Hampshire, New Jersey, New York, correspond to the interests of their constituents.ll‘ Fur- North Carolina, and Pennsylvania.) thermore, local government officials may prefer existing 2NewJersey Constitution, Art. XI11 (1776). Today, New Jersey political arrangements instead of constitutional change. has four elected county line officers-sheriff, county clerk, sur- rogate and register of deeds. (Only five counties have a register Both the Virginia Municipal League and the Virginia of deeds.) Association of Counties, for example, opposed proposals ’Connecticut Constitution, Art. X, $2 (1818). of the Commission on Constitutional Revision that would 4See, supra, Chapter 2, Endnotes and accompanying text. have empowered any charter city or county “to exercise ’Ohio Constitution, Art. 11, $30 (1851). any power or perform any function not denied to it” by the ‘Indiana Constitution, Art. IV, $22 (1851). constitution, its charter, or general law.117These organiza- ’Missouri Constitution, Art. IV, $53 (1875). tions preferred the existing regime of special legislation and strict construction to the devolution-of-powers model recommended by the commission. They were instrumen- C. Dallas Sands, Michael E. Libonati, and John Martinez, Lo- tal in excising the contested language from the document cal Covenintent Law (Wilmette, Illinois: Callaghan and Com- pany, 1981), Vol. 1, $33.25-3.34. submitted to and ratified by the voters.”* loKansas City v. Stegmiller, 151 189,52 S.W. 723 (1899). In contrast, the Florida League of Cities sponsored a Mo. l1 Missouri Constitution, Art. IV, $15. state constitutional amendment concerning state man- l2 Massachusetts Constitution, Art. 11, $8. dates whose “thrust is to further the ‘home rule’ move- 13N0rth Dakota Constitution, Art. VII, $1. ment through which local government has been given 14RhodeIsland Constitution, Art. XXVIII, $4. increasing autonomy from legislative a~tion.””~ l5South Carolina Constitution, Art. VIII, $14(6). In Illinois, local officials, particularly Chicago’s May- 16New York Constitution, Art. IX, $2(bX2Xa). or Richard J. Daley, actively promoted the concept of 17NewJersey Constitution, Art. IV, $VII, para. 10. home rule and shaped its unique language with regard to laNorth Dakota Constitution, Art. VII, $6. local revenues and preemption.120 19Montana Constitution, Art. XI, $9. Good government is not always good politics, as pro- 2oTexasConstitution, Art. 3, $63, $64;North Dakota Constitu- ponents of Maryland constitutional reform learned when tion, Art. VII, $3, $4; Nevada Constitution, Art. IX, $2; Mis- county officials mobilized to defeat a new constitution that souri Constitution, Art. VI, $$3-5; Michigan Constitution, Art. would have streamlined county government by eliminat- VII, $13; Colorado Constitution, Art. XIV, $3; CalifomiaCon- stitution, Art. XI, $1; Arkansas Constitution, Art. XIII, $2Kan- ing certain elective offices, including sheriffs. The officials sas Constitution, Art. 9, $1; and Kentucky Constitution, $64. to be eliminated, it turned out, were “of considerable im- 21 California Constitution, Art. XI, $13; Colorado Constitution, portance to the local political structure almost every- Art. V, $35; Missouri Constitution, Art. VI, $22; Montana

U.S. Advisory Commission on Intergovernmental Relations 19 Constitution, Art. V, $;New Jersey Constitution,Art. IV,$VII, (Summer 1984): 519; Independent School District No. 700 v. para. 9(12); Pennsylvania Constitution,Art. 111,331; South Da- City of Duluth, 170 N.W. 2d 116 (Minn. 1969). kota Constitution, Art. 111, $26; Utah Constitution, Art. VI, 4o City of Douglas v. Juneau, 484 I! 26 1040 (Alaska, 1971). $29; and Wyoming Constitution, Art. 3, $37. 41 See U.S. Advisory Commission on Intergovernmental Rela- 22 Ohio Constitution, Art. 11,912 and Art. X, $1, $3; Oklahoma tions (ACIR), A Handbook for Interlocal Agreements and Con- Constitution, Art. V, $5 and Art. XVIII, $4(a); and Oregon tmcts (Washington, DC, 1967); Comment, “Interlocal Constitution, Art. IV, $1(5). Cooperation: The Missouri Approach.” 23 Colorado delineates “the organization and structure of county 42SeeJohn Dewey, The Public and Its Problems (Athens, Ohio: government” as part of a more general enumeration of home Swallow Press, 1985); Vincent Ostrom, Charles M. Tiebout, rule competencies (see Colorado Constitution, Art. XIV, $15(1)). and Robert L Warren, “The Organization of Government in 24CaliforniaConstitution, Art. XI, $5; Colorado Constitution, Metropolitan Areas: A Theoretical In uiry,” American Politi- Art. XX, $6; Florida Constitution, Art. VIII, $1(9) (counties cal Science Review 55 (December 1968 831. have all powers of local self-government),Art. VIII, $2@) (Ci- 43 Colorado Constitution, Art. XX, $6 (1902) and Washington ties); Georgia Constitution, Art. IX, $11, para. I1 (cities); Illi- Constitution, Art. XI, $10 (1889). nois Constitution, Art. VII, $6(a); Iowa Constitution, Art. 111, 44 Ohio Constitution, Art. XVIII, $4, $5 (1912) and Michigan $38A (cities) and $39A (counties); Kansas Constitution, Art. Constitution, Art. VII, $24. 12, $5(b); Louisiana Constitution, Art. VI, $5(E); Maine Con- stitution, Art. VIII, Part Second $1; Michigan Constitution, 45NewYork Constitution, Art. IX, 52(cx7),(10). Art. VII, $2; Ohio Constitution, Art. XVIII, $3; Oregon Con- &Florida Constitution, Art. VIII, $2@). stitution, Art. VI, $10; Rhode Island Constitution, Art. XXVIII, $1; West Virginia Constitution, Art. VI, 539(a); Wis- 47Cityof Miami Beach v. Fleetwood Hotel, Inc, 261 So. 2d 801 consin Constitution, Art. XI, $3; and Wyoming Constitution, ma., 1972); Fisher v. City of Berkeley, 37 Cal. 3d 644,693 E 26 Art. 13, $l(b). 261 (1984). For example, Pennsylvania Constitution, Art. IX, $2. 25 Sho Sato, ” ‘Municipal Affairs’ in California,” Calqomia Law Review 60 (June 1972): 1055, 1079-1081. 49Fi~herv. City of Berkeley, 37 Cal. 3d 644,693 I? 26 261 (1984). 26 Ibid., pp. 1082-1090. See, generally, Louis L Jaffe, Judicial Control of Administm- five Action (Boston: Little, Brown and Company, 1965). 27 City of Oakland v. Williams, 15 Cal. 2d 542, 103 €! 2d 168 (1940). 51 Arizona Constitution, Art. XIII, $5 and Oklahoma Constitu- Connecticut Advisory Commission on IntergovernmentalRe - tion, Art. XVIII, $6. lations, Defining Statewide v. Local Concerns: Can I1 Be Done 52Arizona Constitution, Art. XIIT, 57. and Is If Necasay? (Hartford, 1989). 53 South Carolina Constitution, Art. VIII, 516. 29LOuisianaConstitution, Art. VI, Part I, $6. 54 Illinois Constitution, Art. VII, $60)(1),(2). 30 Georgia Constitution, Art. IX, $11, para. I(a); Michigan Con- stitution, Art. VII, $22; New York Constitution, Art. IX, 55TexasConstitution, Art. 9, $549, 11-13. $2(c)(i); and Rhode Island Constitution, Art. XXVIII, 52. ”California Constitution, Art. XI, $8. 31 Maryland Constitution, Art. XI A; Nebraska Constitution, ” City of Oakland v. Williams, 15 Cal. 2d 542,103 E 2d 168 (1940). Art. XI, §zNevada Constitution, Art. VIII, 38; Oklahoma ”New York Constitution, Art. IX, $l(c). Constitution, Art. XVIII, $(3Xa); Utah Constitution, Art. XI, $5(a); and Washington Constitution, Art. XI, $10. 59PennsylvaniaConstitution, Art. IX,$5. 32 Oregon Constitution, Art. XI, $2 and Texas Constitution,Art. WJ Florida Constitution, Art. VIII, 54; Illinois Constitution, Art. 11, $5. VII, $10; Missouri Constitution, Art. VI, $l4,516,$30(a); and Pennsylvania Constitution, Art. IX 535-7. 33 Alaska Constitution, Art. X, 51; Connecticut Constitution, Art. X, 51; Massachusetts Constitution, Art. 11, 56; Missouri 61 Harvey Walker, “Toward a New Theory of Municipal Home Constitution, Art. VI, $19(a); Montana Constitution, Art. XI, Rule,” Northwestem University Law Review 50 (May 1955): 571. $6; New Hampshire Constitution, Art. I, $39; New Mexico 62 Sands, Libonati, and Martinez, Local Government Law, Vol. 4, Constitution, Art. X, $6D; North Dakota Constitution, Art. $23.02, 525.01. VII, $1; Pennsylvania Constitution, Art. IX,$Z and South Da- 63 The state totals given in this paragraph are taken from ACIRs kota Constitution, Art. IX, 52. 1992 report, pp. 38-41. 34ColoradoConstitution, Art. XIV, $15(1). Colorado Constitution, Art. XX, 56(e),(g); Illinois Constitu- 35Tenne~eeConstitution, Art. XI, 59. tion, Art. VII, $6(a); Kansas Constitution, Art. 12, §S(b)(tax); LouisianaConstitution,Art. VI, 530; Maine Constitution,Art. “South Carolina Constitution, Art. VIII, $11. VIII, Pt. Second $2 (industrial development bonds only); 37 South Dakota Constitution, Art. IX, $2. Michigan Constitution, Art. VII, $2,921; New York Constitu- tion, Art. IX, 52(c)(4),(8); Utah Constitution,Art. XI, $5(a),(d); 38 See Frank S. Sengstock,Exfratemtorial Powers in the Metmpli- and Wyoming Constitution, Art. 13, $l(c). tan Area (Ann Arbor, Michigan: Legislative Research Center, 1962); City of Pueblo v. Flanders, 122 Colo. 571,225 E2d 832 6510wa Constitution, Art. 111, $38A, 939A; Massachusetts Con- (1950); Marcus v. Baron, 57 N.Y. 2d 862, 442 N.E. 2d 437 stitution, Art. I1 $7,(2),(3); Rhode Island Constitution, Art. (1982); Comment, “The Exercise of Extraterritorial Powers by XXVIII, $5; and Tennessee Constitution, Art. XI, 59. Municipalities,” University of Chicago Law Review, Vol. 45 No. 66 See, for example, Howard Lee McBain, 7he Law and Practice 1, 1977, p. 151. of Miuiicipai Home Rule (New York Columbia University Press, 1916). 39 Frank S. Sengstock,Antieratioti: A Soliition to the Mettvpolilan Area Problem (Ann Arbor, Michigan: Legislative Research 67 Weekes v. City of Oakland, 21 Cal. 3d 386,579 €? 2d 449 (1978) Center, 1960); Robert R. Ashcroft and Barbara Kyle Balfour, (occupation and business tax measured by gross receipts); St. “Home Rule Cities and Municipal Annexation in Texas: Re- Louis v. Sternsberg, 69 Mo. 289 (1879); Zielonka v. Carrell, 99 Cent Trends and Future Prospects,” st. Mary’s Law Journal 15 OhioSt. 220,124N.E. 134(1919)(occupation tax); Multnomah

20 US. Advisory Commission on Intergovernmental Relations Kennel Club v. Department of Revenue, 295 Or. 279,666 F! 2d Community and Public Service, 1988); Blake R. Jeffery, Tanis 1327 (1983) (power to impose business income tax implied out J. Salant, and Alan L Ekxoshok, County Government and of grant of power over matters of “county concern”) Structure (Washington,DC: National Association of Counties, 1989); David R. Berman, Lawrence L. Martin and Laura A. City and County of Denver v. Sweet, 329 P. 2d441 (Colo. 1958) Kajfez, “County Home Rule: Does Where You Stand Depend Carter Carburetor Corp. v. City of St. Louis, 203 S.W. 2d 438 on Where You Sit?” State and Local Government Review 17 (Mo. 1947). (Spring 1985): 232. 69 C. Emory Glander and Addison E. Dewey, “Municipal Taxa- 93 Robert B. Hawkins, Jr., Self-Government by District: Myth and tion: A Study of the Preemption Doctrine,” Ohio State Law Reality (Stanford, California: Hoover Institution Press, 1976); Journal 9 (January 1948): 72. Elinor Ostrom, Governing the Commons (New York 70 Jon A. Baer, “Municipal Debt and Tax Limits: Constraints on Cambridge University Press, 1990); Elinor Ostrom, CrafringIr- Home Rule,” National Civic Review 70 (April 1981): 204. rigation Institutions: Social Capital and Development (Burling- ”Alaska Constitution, Art. 11, $19; California Constitution, Art. ton, Vermont: Associates in Rural Development, 1990). XI11 B, 510; Florida Constitution, Art. VII, Sec 18; Hawaii 94 Arizona Constitution, Art. XIII, $7. Virginia Constitution, Constitution, Art. VIII, $5; Louisiana Constitution, Art. VI, Art. VIII, $7; School Board of the City of Richmond v. Par- $14; Maryland Constitution, Art. XI E, F; Michigan Constitu- ham, 218 Va. 950,243 S.E. 26 468 (1978). tion, Art. IX,$2; Missouri Constitution, Art. X, $21, Art. Xn,$ 95ACIR,”he 0l;qanization of Local Public Economies and Resi- 2(b> New Hampshire Constitution,Art. 28(a> New Mexico Con- dential Cornmiwiry Rrsociations: Private Governmentsin the In- stitution, Art. X, $8; and Tennessee Constitution, Art. II, $24. tergovernmental System? (Washington, DC, 1987 and 1989); 72ACIR,XX, pp. XX. Joseph E Zimmerman, State-Local ReZations: A Partnersl2ip 73 Sands, Libonati, and Martinez, Local Government Law, Vol. 2, Approach (New York Praeger Publishers, 1983); and William ch. 10. G. Colman, State and Local Government and Public-Private Partnerships (Westport, Connecticut: Greenwood Press, 1989). 74 Ibid. 96 Jeffrey L Pressman and Aaron Wildavsky, Implementation, 3d 75 Elrod v. Burns, 427 US. 347 (1976); Monell v. New York City Erl. (Berkeley: University of California Press, 1984) pp. 220-223. Department of Social Services, 436 U.S. 658 (1978); Pickering v. Board of Education, 391 U.S. 563 (1968). 97 Record of Proceedings, Sixth Illinois Constitutional Conven- tion, p. 1621, as quoted by Daniel R. Mandelker, Dawn Clark 76Cleveland Board of Education v. Loudermill, 470 US. 532 Netsch, Peter W. Salsich Jr., and Judith Welch Wegner, State (1985); Owen v. City of Independence, 445 U.S. 622 (1980). and Local Goveninierit iri a Federal System, 3d ed., (Charlottes- 77 Patchogue-Medford Congress of Teachers v. Board of Educa- ville, Virginia: The Michie Company, 1!990), p. 134. tion of Patchogue-Medford Union Free School District, 70 98D~naldS. Lutz, “The United States Constitution as an Incom- N.Y. 2d 57, 510 N.E. 26 325 (1987); Texas State Employees plete Text,” Annals of the American Academy of Political and Union v. Texas Department of Mental Health and Mental Re- Social Science 496 (March 1988): 23,27. tardation, 746 S.W. 2d 203 vex. 1987). 99 Gordon L. Clark, Judges and the Cities, Interpreting Local Au- 7sAlaska Constitution, Art. XII, 57; Illinois Constitution, Art. tonomy (Chicago: University of Chicago Press, 1985); Gerald XIII, $5; Michigan Constitution, Art. IX, $24;New York Con- Frug, “The City as a Legal Concept,” Harvard Law Review 93 stitution, Art. V, $7; See, also, Gauer v. Essex County Division (April 1980): 1059. of Welfare, 108 N.J. 140, 528 A. 2d 1 (1987). looFragley v. Phelan, 126 Cal. 383; William C. Jones, “Municipal 79 Florida Constitution, Art. I, $6, and New Jersey Constitution, Affairs in the California Constitution,” Calvoniia Law Review Art. I, para. 19. 1 (January 1913): 132, 132-134. City of Carmel-by-the-Seav.Young, 2Cal. 3d 259,466 F! 2d 225 “‘Alaska Constitution, Art. X, $1; Illinois Constitution, Art. (1970); Stein v. Howlett, 52 Ill. 2d 570,289 N.E. 2d 409 (1972). VII(m), 96; Iowa Constitution, Art. 111, $38A, 338B; Kansas ’’ Peter J. Galie, 7heNew fink State Constitution (Westport,Con - Constitution, Art. 12, $4(d); Michigan Constitution, Art. VII, necticut: Greenwood Press, 1991), p. 114; New YorkConstitu- $34; Montana Constitution, Art. XI, $4(2); New Jersey Consti- tion, Art. V, $9 (1894). tution, Art. IvVII, para. 11; New Mexico Constitution, Art. X, $6; New York Constitution, Art. IX, $3(c); South Carolina 82NewYork Constitution, Art. V, $6, and Ohio Constitution, Constitution, Art. VIII, $17 South Dakota Constitution, Art. Art. XV, $10. IX, 92; and Wyoming Constitution, Art. 13, $l(d). 83LOui~ianaConstitution, Art. X, $4, $10. Civil Service Commis- lo2FloridaStat. 166.021(2); City of Miami Beach v. Fleetwood sion of New Orleans v. Guste, 428 So. 2d 457 (La. 1983). Hotel, Inc., 261 So. 26 801 (Ha. 1972) (Florida Constitution, s4Louisiana Constitution, Art. VI, 914. Art. VIII, $2). ”Stephen L. Elkin, City and Regime in the American Republic Texas Constitution, Art. XI, $5. (Chicago: University of Chicago Press, 1987), p. 176. lo4Millard H. Ruud, “The Legislative Jurisdiction of Texas Home “Hunter v. City of Pittsburgh, 207 US. 161 at 176-7 (1907). Rule Cities,” Terar Law Review 37 (June 1959): 682; Ashcroft and Balfour, “Home Rule Cities and Municipal Annexation in 87 Virginia Constitution, Art. VII, $2. Texas,” p. 5 19. “See, for example, Mahan v. Howell, 410 U.S. 315 (1973). Io5 Gerald Benjamin, “The Political Relationship,” in Gerald 89 See Mancur Olson, Jr., The Logic of CollectiveAction,Rev. Ed. Benjamin and Charles Brecher, eds., The Two New Yonks: State- (New York Shocken Books, 1971). City Relationships in the Changing Federal Sysrem (New York 90SeeDavid 0. Sears and Jack Citrin, Tax Revolr (Cambridge, Russell Sage Foundation, 1988) p. 146. Massachusetts: Harvard University Press, 1985). lo6Liberativ. Bristol Bay Borough, 584 l? 2d 1115 (Alaska, 1978). 91 See Citizens Committee to Recall Rimv. Board of Elections of Io7 State v. Hutchinson, 624 P. 2d 1116 (Utah, 1980). City and County of Philadelphia, 470 Pa. 1,367 k 26 232 (1976) Io8 William D. Valente, Local Government Law (St. Paul, Minne- (recall provisions of home rule charter are unconstitutional). sota: West Publishing Company, 1987), p. 67; City of Grass 92 Tanis J. Salant, County Home Rule: Perspectives for Decision- Valley v. Walkinshaw, 34 Cal. 595, 212 l? 894 (1949); Bazell v. Making in Arizona (Tucson: University of Arizona, Office of City of Cincinnati, 13 Ohio St. 26 63, 233 N.E. 26 864 (1968);

U.S. Advisory Commission on Intergovernmental Relations 21 Bearcisley v. Darlington, 14 Wis. 2d 369,111 N.W 26 184 (l%l). Commission on Constitutional Revision, 77ze Constitution of For the view that Dillon’s Rule is on its myout, see Richard Brif- Virginia (Charlottesville, Virginia: The Michie Company, fault, “Our Localism: Part I-The Structure of Local Govem- 1969), p. 228. ment Law,” Columbia Law Review W (January 1990): 8. I18A.E. Dick Howard, Commentaries on the Constitution of Vir- The chief protagonists in this debate are Richard Briffault and ginia (Charlottesville: University Press of Virginia, 1974), Vol. Gerald Frug. 2, pp. 811-812. “‘Richard Briffault, “Our Localism: Part 11-Localism and Le- Talbot D’Alemberte, The Florida State Constitution (Westport, gal Theory,” Columbia Law Review 90 (March 1990): 440. Connecticut: Greenwood Press, 1991), p. 119. ‘20 Elmer Gertz and Joseph I? Pisciotte, CharterforaNewAge(Ur- ’’’ Gerald Frug, “The City as a Legal Concept.” bana: University of Illinois Press, 1980) pp. 248-260. ‘12 William C. Jones, “Municipal Affairs in the California Consti- 12’ John I? Wheeler, Jr., and Melissa Kinsey, Magnificent Failure tution.’’ --The Maryland Constitutional Convention of 1967-1 968 New York: National Municipal League, 1970), p. 203. ‘13 Sears and Citrin, Tmc Revolt. 122 Gertz and Pisciotte, Charter for a New Age, p. 328. ‘14 Stanley v. Department of Conservation and Development, 284 N.C. 15, 199 S.E. 26 641 (1973). 123 ACIR, State Constitutional and Statutory Restrictions upon the Structural, Functional, and Personnel Powers of Local Govem- “’North Carolina Constitution, Art. V, 59. ment (Washington, DC, 1962), p. 79. ‘16 Clark, Judges and the Cities, Interpreting Local Autonomy, p. 6. 124 Ibid., p. 80.

22 U.S. Advisoly Commission on Intergovernmental Relations Part /I The Historical Framework: Toward a Legal Theory of Local Government Autonomy

US. Advisory Commission on Intergovernmental Relations 23 24 U.S. Advisoly Commission on Intergovernmental Relations Chapter 3 The Historical Legacy

This chapter has two objectives. The first is to review briefly the classical and medieval European experience of Classical Roots: Greece and Rome local government and the English antecedents of Ameri- The framers of America’s state and federal constitu- can local government. Ideas drawn from the European ex- tions drew in part from the legacy of classical antiquity in perience played a role in the legal development of local their search for concepts and examples that could shape government in the United States, especially during the their work.’ In addition to the classical heritage, James nineteenth century when legal scholars looked to Europe Madison’s records of the Constitutional Convention of for precedents. The founding and development of local 1787 in Philadelphia show that the Bible was quoted and government, however, particularly its practices, were referenced more frequently than any other individual deeply influenced by Americans’ understanding of their work by the delegates to the C~nvention.~ biblical heritage and their own experiences in actually es- The Greek city-states, in associating with each other tablishing local governments in North America.’ for the purposes of their own defense and, sometimes, ag- Secondly, the chapter is an examination of the histori- gression, developed a concept termed “autonomy,” which cal contribution of early state constitutions to local gov- they used in treaties to characterize what were for them ernment and autonomy. This second objective involves a external power relationships. Autonomy portrayed a detailed discussion of the tensions between state and local world of competing and collaborating city-state^.^ It de- government that developed in America from the colonial fined varying degrees of political independence from their period to the framing of the ‘home rule’ provisions of the league allies? Missouri Constitution in 1875. It is with the rise of Roman power and its conquests, Particular emphasis is placed on the role that state however, that a developing notion of “state-local” rela- courts have played in either facilitating or hindering a tions begins to appear in the West. This issue became ever policy of local self-government. This survey shows how a more pressing on the minds of Roman thinkers and politi- tradition of “localism” developed in America, despite the cal actors as the Roman state evolved from republic to em- position of the state as the legally dominant partner. pire.’ The predominant forms of local governments A common legal view of the relationship between during this period are classified according to their origin, state and local governments has emphasized: character, and juridical relation to Rome, as colonia, muni- (1) The hierarchical form (i.e., the state is at the cipium, praefectura, and saltus.8 apex of a power pyramid and local govern- The colonia was a city authorized by Rome, made up ments are at the base); of settlers who were Roman citizens and “autonomous in the matter of local affairs.’w The rnunicipiurn resulted (2) The monopolization of power (i.e., power from the incorporation of a conquered town into the Ro- flows from the state to localities); and man state, and its degree of autonomy was based on the (3) Centralization (i.e., state institutions promul- charter granted by the Roman state.’” Praefecturu was a gate the rules for local government action)? “generic term applicable to any community which lacked the full right of self-government.”” It was, in effect, anad- The forces of localism, however, have helped shape a ministrative arm of the Roman Empire.12Saltus was an es- reevaluation of the role of local government autonomy in tate directly administered by the emperor with no the American political system. self-government .13

U.S. Advisory Commission on In1:ergovernmentaI Relations 25 Another nomenclature emerged with Roman expan- The Civic Republic: Italian Medieval Cities sion. Cities in lands outside Italy were classified according to whether or not their internal affairs were subject to the The intellectual climate that fostered the American supervision and control of the Roman governor of the Revolution was clearly aware of the example of the Italian province and whether or not they were obligated to pay medieval city-states.26 The peculiar juridical status tribute to Rome. achieved by the Italian civitas demonstrates the conflict Civitafesliberae et immUnes were both granted immunity between an “ascending conception of law and government from tribute and afforded a variety of functional privileges according to which law creating power may be ascribed to (e.g., to govern under their own laws, to administer justice in the community . . .” and a descending conception accord- local courts, to coin money, and to hold land free from the ing to which “governmental authority and law-creating provincial land tax).14If these privileges originated in a treaty competency descend from one supreme organ.”27 These cities existed in spite of what were by the (civitasfmdmata), they were regarded as irre~ocable.~~ Middle Ages generally accepted principles of Roman pub- Most cities, however, looked to a law or Senate decree lic law, which made the legitimacy of all forms of civic as- applicable only to that city to fK the scope and limits of local sociation contingent on Rome’s authority.28 prerogative. These cities (civitates sine fmdere liberae et im- Italian jurists of the time, such as Bartolus and Baldus, mum) were unprotected against changes in Roman policy.16 sought to reconcile local claims of autonomy with the Roman Gradually, the functional attniutes and prerogatives that public law doctrine. Bartolus (1313-1357) interpreted Roman differentiated free cities from tributary cities (civitates sripn- law texts to focus on popular consent the element from dm*ae)attenuated through changes in law and custom. Thus, as which both customary and statutory law derived their validi- a variety of enactments by the Roman people, the Senate, ty.” Given that the people could make law tacit consent, the emperor and the provincial governor authorized tribu- by they could do so, also, expressly by statute. Bartolus, there- tary cities to retain and administer their local laws, to operate fore, recognized that the people had the power to constitute local organs of government, to levy local taxes and to make contract^.'^ Indeed, under the empire, the city of Rome itself themselves as a civic community and to legislate concerning their own internal concerns without the consent of the em- was reduced to the same status as other cities.’* peror or pope.M result, city autonomy was both temto- Municipal status in the early empire was expansive, As a rially limited and subject to the authority of empire and predicated on a conscious imperial policy of promoting a Papacy. Of course, the civitas could also draw on a parallel robust practice of local self-g~vernment.’~Its results have set of rights, privileges, powers, and immunities established been described as follows: by imperial charters or papal concessions. Municipal institutions spread far and wide until the Baldus (c. 1327-1400) went further and made a claim empire became in great part an aggregate of for independence from the Papacy and irnpenal rule. As city-states. In each of these, the citizens displayed Joseph P. Canning says of Baldus, “natural reason, in the an intense pride in public welfare, and endowed form of its product, the ]us gentium, not only brought the their native town with splendid monuments, build- city-populi into existence, but endowed them with autono- rirgs; ~rrdg&&rq&~~~~~scekaK2&mm%- ~DDS~DWEX~afseJJ~mprnrnent without the need for rbe and schools. Offices and honors were eagerly authorization of a superior.”” There is no question that sought, and lavish contributions were made in at- the cradle of secular Renaissance thinking about a rising taining them. Public spirited citizens, civic pride, individualism was to be found in the Italian city-states of and keen uhan rivalries combined to produce a the late fourteenth and early fifteenth centuries. brilliant municipal life throughout the empire.2o As historian Susan Reynolds points out, the vibrancy of local collective action to run the daily affairs of both Although the view that the Roman empire was a con- townspeople and rural communities, such as they were, federation of cities persisted into the fourth century abounded.32 the municipality primarily had become a medium to facilitate Rome’s collection of revenues.Z2Rome interfered increasingly in municipal administration and established an elaborate bureaucratic machinery to superintend and control municipalitie~.~~ By the time of Justinian’s compilation of Roman law in 534 A.D., there was no doubt as to where the sovereignty of the Empire lay, despite a previous practice of lax control over what could be loosely termed “home r~le.”~~The The immediate precursor of American local govern- Roman Empire brought forth a conception of the suprem- ment, however, can be found in England. The history of acy of the state.25 English local government is characterized by a colorful

26 U.S. Advisory Commission on Intergovernmental Relations variety of institutional forms, such as towns, boroughs, cities, manors, parishes, and c0unties.3~Nevertheless, there was no clearly defined or anciently rooted doctrine of local self-government in England.34What En- glish history discloses from the time of the Norman conquest until the Glorious Revolution is something It must be remembered that local government in the more of a patchwork of hard-won privileges, liberties, American colonies had to cope with two competing exter- and charter rights.35This patchwork of local government nal governments. First, there was the relationship of the foreshadows the complex and intricate relationshipbetween colonies to in which the colony itself was the provincial legislatures and local government that viewed as local government within the terms of the Ern- shaped the American colonial experience. pire. Second, there was the relationship of local govern- Susan Reynolds’ survey of the emergence of the En- ment to the colony. glish local polity during this period deemphasizes the causal significance of the Norman Urban lib- The Relationship of Colonies to England erties were granted piecemeal, and vaned from town to Settlement of the American colonies brought with it, town. Towns began to purchase from the king local auton- at least after a while, a need for the orderly organization of omy over the collection of revenues due the royal exche- daily affairs. As such, colonial charters and royal commis- quer (Erma An analysis of clauses contained in sions specified the range of powers to be exercised by royal charters extant at 1150 A.D., for example, reveals settlers. Typically, clauses in the royal commissions of co- the following additional liberties: lonial governors empowered them “to summon and call General Assemblies of the . . . Freeholders and Planters A distinctive form of land tenure (burgage within their Government, according to the Laws and tenure) largely free from feudal encum- Usages of Our said Province” and to exercise, with colo- brances; nial assemblies, “full Power and Authority to make, constitute, and ordain Statutes and Ordinances for the Mercantile privileges exempting townsmen Laws, Public Peace, Welfare and good Government of Our said from interlocal tolls and fees that hampered trading; Province, and of the People and Inhabitants thereof,”4ssub - ject to the qualification that colonial enactments could “not Recognition of borough custom as a source of be repugnant” to the laws and statutes of Great Britain.46 binding law; and The king and the Parliament were occupied during the seventeenth century in a constant battle overpreroga- Allowing townsmen freedom to form tive. Although this battle, to a certain extent, involved the guilds.38 developing American colonies, they were left free of over- bearing administration from London. That was all to change, starting in 1696 with the creation of the Board of Thereafter, local governments began to petition for- Trade and Plantations, a subagency of the Privy Council. mally and receive additional grants of individual local pre- During the eighteenth century, the impact of parliamen- rogatives, creating the patchwork of state-local relations tary rule @articularly through this board) began increas- that was to characterize England at the turn of the six- ingly to be felt. As early as 1754, in what was known as the teenth century.39 Albany Plan, submitted by Benjamin Franklin, the colo- With the advent of the Stuart monarchy and the de- nies had responded with a proposal to develop a more for- veloping political struggle with the Parliament, there mal relationship between Great Britain and America.47 arose a need to coordinate and systematize an amor- Jack €? Greene neatly summarizes the situation facing phous local government structure.a As a result, by 1650, colonial governments by 1760: localities could be classified as administrative institutions, which “the sovereign could create, transform or Notwithstanding this lack of theoretical resolu- abolish in light of his own free judgment as to their util- tion or agreement as to the actual and customary it^."^^ distribution of power within the empire, the empire continued to function in practice with a clear The escalating tension between king and Parliament, demarcation of authority, with virtually all inter- which resulted in the Glorious Revolution of 1688, encom- nal matters being handled by the colonial govern- passed state-local relations as well.42After their success- ments and matters of general concern the ful rise to preeminence, the Parliament established local by metropolitan government.& government in England as an essential element of government admini~tration.4~ That the events after 1761 broke this delicate balancing

U.S. Advisoty Commission on Intergovernmental Relations 27 act and reduced the parties to ‘Titprinciples” is fortuitous ing borough corporations because to have attempted to do for American local government. After 1776, the previous so “would have been flagrantly illegal, because the Massa- question of Great Britain’s relationship to the Colonies now chusetts Company, as a corporation, had no authority to had to be resolved in the newly independent American states create other corporations.”54 as the state’s relationship to local governments. Nonetheless, the existence of self-created, self-defmed local polities in colonial America is ~ndeniable.5~Many The Relationship scholars believe that the dominant political culture in co- between Colony and locality lonial America was localist and decentralized.%However, these practices took place within an overarching frame- Variety rather than uniformity characterized the rela- work that required some kind of royal warrant from the tionship between provincial and local government in colo- colony or benign neglect allowing local power to develop nial America.& An examination of this relationship and be exercised. between colonial government and its localities runs the Sometimes, local government was mandated, as in the risk of failing to distinguish between a juridical autonomy 1669 Fundamental Constitutions of Carolina, drafted by in local government and the construction and achieve- John Locke, which contained a detailed blueprint for local ment of a corporate sense of local identity.50Juridical au- government, including incorporated towns?’ A propri- tonomy involves the extent to which a locality can make etary charter sometimes expressly granted the compe- decisions over a variety of local matters that are presumed tence to incorporate cities, towns, and boroughs, as did the to be within its prerogative. 1681 charter to William Penn.58 Sometimes, a local gov- The crucial question was whether or not a colony was ernment unit was created directly by royal charter, as was empowered, in its relation to Great Britain, to establish the borough of Westchester, New York, in 1696.59 subgovernments and, if so, what kinds. The lack of express powers, however, did not prevent Much has been made of the Town Law of 1636 passed colonial assemblies from enacting legislation recognizing by the General Court of the Massachusetts Bay Colony?’ and empowering local communities to act in town meet- A perusal of its text, however, indicates “the strictly and ings for purely local matters, as the Massachusetts Town traditionally circumscribed nature of town powers:”52 Act shows. Nevertheless, colonial legislation was increasingly subject to oversight by the Board of Trade and Plan- Whereas particular townes have many tatiowm That board began to monitor the legislative things, which concerne only themselves, and the output of colonial assemblies and, in so doing, sought the ordering of their owne affaires, and disposeing of advice of the king’s counsel on questions of law?’ business in their owne towne, it is therefore or- an example of the imperial government’s attitude dered, that the Freemen of every towne, or the As toward the powers of colonial legislatures, the first special major parte of them, shall onely have power to counsel to the Board of Trade was asked in 1723 to decide dispose of their owne lands, and woods, with all whether an act of the South Carolina Assembly purport- the previlidges and appurtenances of said townes, ing to incorporate Charlestown should be sustained to graunt lotts, and make such orders as may con- against objections by local inhabitants>*He had no objec- cerne the well ordering of their owne townes, not tion to the grant of privileges and powers “usually granted repugnant to the lawes and orders here estab- to new erected corporations.” Nevertheless, he recom- lished by the General1 Court; as also to lay mulks mended disapproval of the enactment both because it and penaltyes for breach of theis orders, and to levy and distreine the same, not exceeding the created a closed oligarchic municipal government and because it was approved by the colonial legislature in appar- some of. . . [20 shillings]; also to chuse their owne ent defiance of the majority of the inhabitants of particular officers, as constables, surveyors for Charle~town.6~This opinion is an example of the willing- the highwayes, and the like; and because much business is like to ensue to the constables of sev- ness Great Britain had to pay deference in the colonies to era11 townes, by reason they are to make dis- the wishes of local consent and respect broad participation in local elections. tresses, and gather Fynes, therefore that every towne shall have two constables, where there is Two institutional devices for assuring the integration local polities and the colony become significant. The neede, that soe their office may not be a burthen of unto them, and they may attend more carefully first was the practice of affording local governments the upon the discharge of their office, for which they corporate right to elect a representative to the colonial shalbe lyeable to give their accompts to this Court legislature. In Massachusetts, for example, each town had when they shalbe called thereunt~.~~ the right to elect its own representative to the General Co~rt.~Each Virginia county became a constituency of The General Court was legally circumspect in creat- the House of Burges~es.6~In Maryland, the countydelega-

28 U.S. Advisory Commission on Intergovernmental Relations tions to the provincial assembly gained power to pass laws part in regular training exercises, and to elect for individual counties.66This conception of local govern- their own officers, subject to confirmation by ment privilege is at the base of what is commonly de- the state; and scribed today as “home rule.” (4) Town meetings in which inhabitants who The second device was the right of local electors to in- were neither freeman nor proprietors also struct their delegates to the colonial 1egi~latut-e.~~A dele - had a gate was bound to abide by the decisions of his own community in Pennsylvania and Virginia, as well as in the In addition, local congregational societies were sepa- New England rately established in a defined territory often coextensive with the town. They were empowered to levy and collect local Self-Government in Colonial America taxes for the support of the minister, the meetinghouse, and the scho01.’~Because these societies were the politi- Whatever the legal status of local government, the cal arm of the local church congregation, eligibility for custom and practice of local self-governance was strong participation in society’s affairs depended on whether one and pervasive.69Three distinctive types of local govern- had been admitted as a member of the church. ment emerged in the colonies: County government in New York and Pennsylvania exhibited an intricate structure in which some officials (1) A mercantile community mirroring the struc- were elected locally, some were nominated locally but ap- ture and function of the English borough;7” pointed by the governor, some were appointed by the gov- (2) A covenanted community founded on moral ernor with the advice and consent of his council, and some principles and devoted to the tasks of social were appointed by locally elected officials.7B control and civic betterment;71and The nature and extent of actual local autonomy de- (3) The predominantly agricultural county gov- pended on both formal authority and local circumstance. erned by an enlightened, property-owning During the course of the eighteenth century, duly consti- elite formally appointed by the colonial gov- tuted municipal corporations, like Philadelphia and New ernor but self-governing and self-perpetuat- York, exhibited a tendency toward exercising the specifi- ing in practice.72 cally enumerated rather than the broad general powers granted in their chartersmAs Hendrik Hartog observes: A narrow focus on that which is typical, however, ne- glects the inevitable irregularities. For example, Philadel- chartered power was implicitly viewed not as a phia’s municipal corporation was governed by a closed, source of innovation but as a restraint against ex- self-perpetuating elite preoccupied with matters of trade ternally imposed change. Regulations and other and commerce.73Public demands for increased municipal invocations of public power were valid only inso- services were rejected by the corporation. The provincial far as they rested on the consent of a local public assembly sometimes responded to these demands by es- or on absolute property rights.8O tablishing separate statutory authorities to perform such functions as laying out and maintaining In areas As a practical matter, the autonomy available under where the assembly failed to establish a statutory author- the Massachusetts Town Law to “make such orders as may ity, voluntary associations, such as fire fighters, emerged.7S concerne the well ordering of their owne townes, not re- Although the Connecticut town was undoubtedly a pugnant to the laws and orders here established by the covenanted community, it also was far from being a simple General Court” may well have exceeded that at the dis- consolidated local government. By 1733, all towns in Con- posal of the mayor and council of an incorporated munici- necticut held; pJi!fuV of dkrenfen dfi& ko chaflenge crf‘y ha& 8/ Colonial legislatures often responded to local claims for Proprietors’ meetings, which had jurisdiction more autonomy by granting exemptions from general law or over the use of town land and unreviewable by delegating greater discretionarypowers to town officials.** discretion as to whether or not to confer the There were instances, also, of laws regulating munici- status of proprietor on newcomers; pal affairs and imposing obligations on municipal offi- Freemen’s meetings at which deputies to the cial~?~No protected sphere of local autonomy can be General Assembly and statewide officers were discerned from a detailed examination of the hodgepodge elected (the town selectmen possessed formal of provincial legislati~n.~~Rather, there is a repetition of power to admit to the status of freemen); the uneasy relationship between the central government Militia meetings mandating all men between and localities, translated into the competing claims of the ages of 16 and 60 to bear arms, to take province and local government.

U.S. Advisory Commission on Intergovernmental Relations 29 As such, the early state constitutions curtailed the executive’s powers to “only such limited powers as were expressly conferred on him; while the legislature became the repository of all powers not expressly or impliedly denied.’e2 Even so, the question of the incorporation of mu- Local Autonomy nicipalities was politically controversial in some states, in the First State Constitutions particularly with regard to representation in the state legislature. The Massachusetts Constitution of 1780 was ex- Local government was clearly in the minds of the pressly amended to make clear that the “general court leading figures of the day when they formulated the first shall have full power and authority to erect and constitute state constitutions. municipal and city governments” and “to grant to the in- For example, a publication issued in Philadelphia con- habitants thereof such powers, privileges, and immunities taining the first printing of the Declaration of Independence .. .as the general court shall deem necessary or expedient in book form included an extensive set of recommenda- for the regulation and government thereof.’w3During the tions for an intergovernmental separation of powersbased nineteenth century, the absence of such an express consti- on a model provided by the free Saxon communities of an- tutional provision led to the judicial invalidation of laws tiq~ity.’~The author urged that the first care of the ap- delegating broad powers to cities in several proaching state constitutional convention ought to be “to As to local charters already granted, the states were incorporate every society of a convenient extent into a usually content to continue their validity. The Declaration Township, which shall be a body politic and corporate by of Rights of the Maryland Constitution confirmed Anna- itself. . . .”86 Massachusetts, in its constitution of 1780, dealt polis’ charter rights, privileges, and benefits subject to future specifically with the issue of towns and their incorporation. alteration by the legi~lature.9~New York’s Constitution Many framers of the state and federal constitutions confirmed the continuing validity of royal charters?6 were adherents of a theory that local self-government had Finally, and probably the most important aspect of its origins in the Teutonic polities described by lhcitus in state-local relations to emerge from the first constitutions the first century A.D.87Though scholars have discounted in many states, local government units were given a corpo- its validity with regard to the American experience of local rate right of representation in the legislature?’ For exam- government, the Teutonic theory was revived in the late ple, the 1776 North Carolina Constitution gave each nineteenth century in the United States and influenced county equal representation in the Senate and allocated Judge Thomas Cooley of Michigan, who advocated a two seats in the lower house to each county and one to theory of the inherent right to local self-government in an each town?’ Similar schemes existed in Georgia, Mary- 1871 concurring opinion of the Michigan Supreme Court. land, South Carolina, and VirginhWTown representation Thomas Jefferson, for instance, believed that “there in the lower house of the legislature was entrenched in the ought to be four centers of republican government in the constitutions of Massachusetts and New Hampshire.’Oo country: the general federal republic for all foreign and Connecticut and Rhode Island also used towns as the basis federal concerns; the state republics for matters which re- of apportionment.lol late to the citizens of each state exclusively; the county re- The Declaration of Rights provisions of the Massa- publics for the duties and concerns of the counties; and chusetts, New Hampshire, and North Carolina constitu- ‘ward republics, for the small, and yet numerous and inter- tions institutionalized an even more far-reaching esting concerns of the neighborhood’.”s8 prerogative of localism, with the right of the locality to Thus, careful scrutiny of early state constitutions shows give binding instructions to its corporate representative to that they were not silent on the subject of local government. the state legislature.102Eight of the eleven original colo- The state constitutions (and, subsequently, the feder- nies, creating constitutions between 1776 and 1780, pro- al) emphasized the predominance of the legislativebranch vided for the election of local officials. of government.89At the time of the American Revolution, In addition, the sharp distinctionbetween private and “municipal charters were almost invariably granted by the public corporations did not exist during this period.lo3 executive rather than the legislature,” following the Brit- Hence, the North Carolina Supreme Court held that a ish custom of royal prerogative in granting such charters?O corporation erected for a public purpose qualified forpro- Under the new state constitutions, however, this power tection against an uncompensated state legislative taking was transferred to the legislative branch. For example, Penn- of its “property,” “privileges,” and “libertie~.”’~~Strong sylvania expressly granted its General Assembly the power dicta in three U.S. Supreme Court cases indicated that to grant charters and to constitute towns, boroughs, cities, public corporations could possess property and even con- and counties.q1The executive’s role was confined more spe- tractual interests, which the state legislature could not di- cifically to the administration of the state. vest without local consent.1os

30 U.S. Advisory Commission on Intergovernmental Relations ~~

Thus, as corporate entities, local governments had a ernment. . . .The people of Trempealeau seem to fhn existence in the structure of early state constitutions. have governed themselves contentedly within a Clearly, they had a role to play in the unfolding drama of county “constitution” they had neither drafted American state government. nor ratified.”” In states previously settled under the aegis of the Northwest Ordinance, state legislative omnipotence over the activities and affairs of local government was an historical, juridical, and practical reality. In the older states, historical and practical impediments to state legislative omnipotence muddied state-local relations. In these states, four elements of local government privileges and responsibilities came into play: Northwest Ordinance (1) Local custom and practice; (2) Community autonomy, particularly in New In a manner similar to the state legislatures, the Con- England; gress, under the Articles of Confederation, addressed the (3) Corporate status; and complicated issue of the “temtories” through the North- west Ordinance of 1787. The ordinance established a (4) Subordination to the legislative sovereign.”’ method for dealing with territorial administration.Io6 Section 7 of the ordinance authorized the territorial Dillon’s Rule governor to “appoint such magistrates, and other civil offi- Some observers believe that the legal doctrine that cities cers, in each county or township, as he shall find necessary are subordinate to the state was developed only after the for the preservation of the peace and good order in the Civil War.112Joan Williams’ careful reconstruction of case same.”lo7The presence of 5,000 free male inhabitants in law in the leading jurisdictions of New York and Massa- the temtory triggered a right “to elect representatives chusetts in the early nineteenth century, however, offers from their counties or townships to represent them in the persuasive evidence to the contrary.l13 This early case law general assembly” which, when organized, was empow- displays the subjection of royally chartered municipalities ered to regulate and define the “powers and duties” of lo- to the will of the legislature in Maryland, Pennsylvania, cal officials.lo8 Rrritorial legislatures soon created “a and Virginia.l14 Much of what became Dillon’s Rule ap- fabric of local governrnent.”lw parently derives from a line of Massachusetts cases de- The impact of the Northwest Ordinance on local cided before 1820. It stems from a theory concerning the self-government was extensive. Merle Curti points to this juridical subordination of corporate entities to the sover- impact from the following description of Trempealeau eign, which is rooted in medieval law.115 County, Wisconsin: In some respects, however, it is possible to argue that Self-government did not have to be created or local governments were less subject to the state per se recreated on the Trempealeau frontier-because than to the state constitution. From this argument, the it existed there already. We are confronted with state itself was subject to the constitution, though autho- the semantic absurdity . . . of the frontier being rized by it to set rules and regulations for local government. self-governing before it was settled. We find that The leading case that supports the view that Dillon’s the apparatus of county and township govern- Rule is embedded in early state legal thinking was Stetson ment was readily available when the firstcomers v. k2mpton.116This case concerned the corporate capacity arrived, and that the county fathers promptly of towns under a 1785 Massachusetts statute, which had made good use of it. conferred the status of “a body politic and corporate” on every town in the Cornmon~ea1th.l’~This statute vested Wisconsin law regulating the kinds and du- towns with the power to legislate for managing and order- ties of local officers, the collection of numerous ing the “prudential” affairs of the town and to make “nec- taxes, and the expenditure of funds was (and still essary” charges.118 is) most specific. Trempealeau’s various officers The plaintiff was a citizen of Fairhaven, Massachu- spent nine-tenths of their time in meeting the re- setts. The case arose during the War of 1812 when the quirements of a code emanating from Madison. . . town, it appeared, was in imminent danger of enemy at- Trempealeau carefully conformed. One looks in tack. A town meeting was held on August 2, 1814, during vain in Trempealeau for a frontier effort to cir- which residents voted to raise funds to pay the town militia cumvent a law defining county or township gov- and make other expenditures related to the immediate

U.S. Advisory Commission on Intergovernmental Relations 31 protection and defense of the town and its inhabitants. ration-against the existence of the power.1z7 The plaintiff, who did not attend the town meeting, re- Dillon further refined his views in subsequent edi- fused to pay. Consequently, the town’s assessors seized his tions of his treatise on the law of municipal corporations. property to collect his portion of the charges. The claim- He later wrote: ant then sued the town’s assessors for trespass, question- ing whether the town had a “lawful right and authority, in The extent of the power of municipalities, their corporate capacity, to raise money, and to cause it to whether express, implied, or indispensable, is one be assessed upon the polls and estates within the town, for of construction. And here the fundamental and the purpose ~tated.””~ universal rule, which is as reasonable as it is nec- Chief Justice Isaac Parker, speaking for the Massa- essary, is, that while the construction is to be just, chusetts Supreme Judicial Court, cut through thecomplex seeking fmt of all for the legislative intent in order colonial legacy of historical and political localism by as- to give it fair effect,yet any ambiguity or fair, rea- serting that towns are “the creatures of legislation,” which sonable, substantial doubt as to the extent of the enjoy “only the powers expressly granted to them.”120 In so power is to be determined in favor of the State or doing, Parker showed his concern to preserve not only the general public, and against the State’s grantee. The sovereign prerogatives of the legislature but also “to pre- rule of strict construction of corporate powers is not vent the minority from being at the disposal of the major- so directly applicable to the ordinary clauses in the ity” in the town.121 As a result, Parker denied that “a charter or incorporating acts of municipalities as it corporation of limited powers” could take upon itself a is to the charters of private corporations; but it is duty to defend against “an enemy in time of war” because equally applicable to grants of powers to municipal that duty “is devolved upon the national government” by and public bodies which are out of the usual range, the Constitution of the United States.’22 or which grant franchises, or rights of that nature, This rule of interpretation ultimately came to be or which may result in public burdens, or which, in known as Dillon’s Rule; named for Judge John Dillon of their exercise, touch the rights to liberty or proper- the Iowa Supreme Court, who established it firmly in a ty, or, as it may be compendiously expressed, any landmark 1868 case. This rule was refined in later Massa- common-law right of citizen or inhabitant. . . . The chusetts caseslZ3and was adopted in many states.124 rule of strict construction does not apply to the Chancellor James Kent formulated his version of the mode adopted by the municipality to carry into ef- rule in his 1827 treatise on American law: fect powers expressly or plainly granted, where the mode k not limited or prescribed by the legislature, As corporations are the mere creatures of and is left to the discretion of the municipal autho- law, established for special purposes, and derive rities. In such a case the usual test of the validity of all their powers from the acts creating them, it is the act of a municipal body is, whether it is reason- perfectly just and proper that they should be able? and there is no presumption against the mu- obliged strictly to show their authority for the nicipal action in such cases.lZB business they assume, and be confined in their There is no support in Dillon’s formulation for the operations to the mode, and manner, and subject mistaken supposition that it is a rule of strict construction, matter pre~cribed.’~~ therefore, that a locality can do nothing for which a war- Kent’s formulation was cited as controlling in an 1863 rant cannot be found in the language of applicable law. In- decision of the Iowa Supreme Court,lZ6which Judge Dil- deed, Dillon stated that a local government “may exercise lon was bound to follow when he first enunciated the rule all powers within the fair intent and purpose of their cre- as Chief Justice of the Iowa Supreme Court: ation which are reasonably proper to give effect to powers expressly granted.”l= In that respect, Dillon’s Rule is bet- In determining the question now made, it ter characterized as one calling for fair or reasonable con- must be taken for settled law, that a municipal struction of grants of power to localities, taking into corporation possesses and can exercise the fol- account all relevant factors bearing on legislative intent, lowing powers and no others: First, those granted including the entire context of legislation pertinent to the in express words; second, those necessarily im- asserted grant of power.130 plied or necessarily incident to the powers ex- Should the search for the fair and reasonable intent of pressly granted; third, those absolutely essential the legislature fail to resolve the matter, the next step is to to the declared objects and purposes of the corpo- determine whether the language of the grant is ambiguous ration-not simply convenient, but indispens- or gives rise to a fair, reasonable, substantial doubt as to able; fourth, any fair doubt as to the existence of a the extent of powers granted. When an ambiguity or sub- power is resolved by the courts against the corpo- stantial doubt is present, then the nature of the power

32 U.S. Advisory Commission on Intergovernmental Relations granted is subject to scrutiny. If that power is out of the Judicial Constraints range of those normally or customarily devolved upon lo- on State Interference with local Autonomy calities, or operates to confer a franchise or other monop- olistic restraint on competition, or imposesburdens on the During this period, American courts became active in public (e.g., debt or taxation), or infringeson the liberty or both a positive and a negative manner regarding local gov- property interests of individuals, then and only then is the ernment autonomy. Some judges sought to restrain state grant of power to be construed strictly. interference with local government powers; others re- btinyof every case cited by Dillon in support of his stricted home rule authority. discussion reveals that his formulation is less restrictive Noteworthy in its positive impact on local govern- than that which prevailed in most states, including his own ments was Justice Joseph Story’s dictum in Dartmouth Iowa decisions.131For example, his discussion does not College v. Woodward,arguing that state legislative power support the tactic adopted by judges in several states of did not encompass taking the private property of such cor- narrow construction of broad legislative grants of power to porations as “towns, cities, and 10calities.l~~Furthermore, Dillon adopted and extended Later, that view was adopted in Kent’s Commen- the individual rights focus of Stetsan v. fimpton. In so do- taries. Kent stated that such entities “may also be empow- ing, he artfully joined discourse about the attributes of ered to take and hold private property for municipal uses, sovereignty to discourse about individual rights character- and such property is invested with the security of otherpri- istic of the liberal traditi~n.”~ vate rights.”137Accordingly, state supreme courts invalidated state statutes purporting to divest municipalities of property held in their private or proprietary character An Increasing Role for the Judiciary without their At this time, several state supreme courts invalidated The emergence of a rule of interpretation aimed as state statutes obligating municipalities to levy local taxes much at the state legislature as at local governments is or to make expenditures for “purposes not of a municipal characteristic of the transition in this period of state con- ~haracter.”’~~This line of cases invoked a variety of ratio- stitutional law from legislative dominance or omnipo- nales based on creative readings of a miscellany of state tence to an increased role for the judicial branch of constitutional provisions. In 1858, one court seized on the government.134 An activist concept of judicial review, governmental-proprietary distinction in holding that a coupled with various state constitutional amendments municipal corporation is not subject to the absolute con- placing procedural and substantive restraints on the legis- trol of the legislature when acting in its private capacity.’@ lat~re,l~~accounted for: In another case, the Michigan Supreme Court em- (1) Judicial protection of municipal property phasized that the state could require a municipality to levy rights under the state constitution; taxes only for a local purpose, that is, a purpose in which the people of the political subdivision have “special and (2) Judicial protection of the local treasury from peculiar interests’’ such that “they should bear the burden some state-mandated expenditures; rather than the state at large.”’41In resolving another dis- (3) Judicial development of the delegation doc- pute, the Wisconsin Supreme Court found in 1872 that the trine to block broad grants of state legislative taxing power could not be exercised &‘forpurposes not of a power to localities; municipal character without the consent of the (4) Judicial creation of the public purpose doc- Eventually, this judicially crafted restraint on state trine as a restraint on the power of state and legislative prerogatives was entrenched in the constitu- local government to tax and spend; tions of one-fifth of the states in the form of a provision forbidding the imposition of state taxes for local or munici- (5) Emergence of the doctrine of an inherent pal purposes.143 right to local self-government; (6) State constitutional prohibitions on special Judicial Restraints on Home Rule local laws affecting one jurisdiction only; Another set of cases from this period demonstrates (7) Insertion of the “ripper clause” (prohibiting that the same judicial activism also was employed to strike the imposition of state-created organizations down efforts of the state legislature to empower local gov- over the power of municipalities without ac- . ernment~.’~~Thus, “Free Trade and the Bible walking countability to the people of those munici- hand-in-hand together’’ inspired the Georgia Supreme palities) in state constitutions; and Court in 1853 to deny the legislature the capacity to confer (8) Express state constitutional limits on the on a “subordinate authority” the power to enact ordi- power to tax and to incur debt. nances that repeal state statutes.*45The Missouri Su-

U.S. Advisory Commission on Intergovernmental Relations 33 preme Court held that the provision of the state light of the writings of Alexis deTocqueville, Francis Lieb- constitution vesting the state General Assembly with leg- er, and Thomas Jefferson, as well as the colonial struggle islative power rendered unconstitutional a statutoq clause for the right of self-government against centralization.15g delegating to the county governing body local choice as to Cooley’s discussion next drew on the notion that assets held whether to suspend the statute’s operation.’46Lawyerly cau- by a municipal corporation to provide local necessities and tion deriving from these and similar led to the view conveniences for its own citizens qualify as constitutionally that a broad grant of home rule or charter-making power to protected property interests.’@’ The judge then invoked a local governments could be safely effectuated only by “living and breathing spirit” of “mutual responsibility in amending the state constitution to permit it.’” neighborhood interests” and sentiments of “independence Another restraint on the powers of the state legisla- and as guides to the interpretation of the fol- ture emerged out of the willingness of state and, eventual- lowing section of the Michigan Constitution: “Judicial offi- ly, federal courts to review state legislation authorizing cers of cities and villages shall be elected; and all other taxation, borrowing, or the taking of property, to deter- officers shall be elected or appointed, at any such time and in mine whether the governmental action was for a valid such manner as the legislature may direct.”162 public purpose.149The public-purpose doctrine was predi- Cooley viewed this language as establishing the civil and cated on “implied reservations of individual rights.”1M political rights to vote and to hold 0ff1ce.l~~He concluded: In the leading case, Loan Association v. Topeka (1874),15’the power of the Iowalegislature toauthorizelo- [Llocal government is a matter of absolute right; cal governments to incur debt to aid in the establishment and the state cannot take it away. It would be of a privately owned manufacturing facility was denied by boldest mockery to speak of a city as possessing the court. Contemporaneously, state courts held unconstitu- municipal liberty where the state not only shaped tional efforts of the legislature to empower local govem- its government, but at discretion sent in its own ments to provide services traditionally performed by the agents to administer it; or to call the system one private State constitutional provisions expressly of constitutional freedom under which it should permitting state and local borrowing for the purpose of in- be equally admissible to allow the people full control in their local affairs, or no control at all.lM dustrial development lS3 or empowering local governments to operate public utilitieP4 are a tribute to the tenacity of Rebuking the legislature for introducing “into its legisla- the judicial doctrine. This doctrine became so entrenched tion the centralizing ideas of continental Europe” and for ig- that it could be rooted out onlyby amending the state consti- noring the message of the framers of the 1850 Michigan tution to overturn state supreme court decisions. Constitution, who were “intent on localizing and populariz- ing authority,” Cooley struck down the statute, which re- An Inherent Right to local Self-Government? minded him of the worst practices of the English Stuarts, The Cooley Doctrine “antagonisticto liberty and subversive of corporate rights.”165 Although Cooley’s views were unequivocally adopted Debate over local home rule was enlivened by judicial only in Indiana, Nebraska, Iowa, Kentucky, and Texas,lM interest in the doctrine of an inherent right to local they articulated a resurgence of values that would soon be self-government. This doctrine stems from an 1871 con- embodied in institutional reforms designed to widen the curring opinion of Michigan Supreme Court Judge Tho- scope of local ~h0ice.l~~ mas Cooley in People v. H~rlbut.’~~The statute under attack had created a board of public works for the city of State Constitutions Detroit, appointed by the state legislature. This legislation and Restrictions on State Supremacy removed the city and its elected leaders from responsibility for and control of public sewer and water services as well as Regardless of judicial interest in the subject, the public properly, including buildings, streets, and parks.156 states themselves began to be subject to constitutional Cooley had recently writtenA Treatiseon the Consritu- limitations on the exercise of power over local govern- tional Limitations Which Rest upon the Legislative Power of ment, by constitutional amendment. the States ofthe America He framed the question The Indiana Constitution of 1851 apparently contained presented for decision “broadly and nakedly,” asking the first state constitutional provision prohibiting local or “whether local self-government in this state is or is not a special legislation.168Although the provision did nor exclu- mere privilege, conceded by the legislature at its discretion, sively address the relationship between the legislature and and which may be withdrawn at any time at pleasure?’lS local government, the Indiana document enumerated sever- Viewing the state of Michigan as a “polity,” Cooley ex- al categories involving local government.’@The broadest of amined the context of “traditions, practices, and expecta- these prohibitions was aimed at local or special laws “regu- tions” surrounding the framing of the state constitution in lating county and township business.”170Prohibitions in this

34 U.S. Advisory Comniission on Intergovernmental Relations and many other state constitutions on special and local legis- Notes lation were viewed as aiding “local self-government to this ‘See Daniel J. Elazar, ‘Xre We a Nation of Cities?” in Robert A. extent, that whatever rights of government or power of regu- Goldwin, ed., A Nation of Cities: Essays on America’s Udan Problems (Chicago: Rand McNally, 1968), pp. 89-114. lating its own a€€& a community may have can be neither C. Dallas Sands, Michael E. Libonati, and John Martinez, Lo- increased nor diminished without affecting in the same way cal Government Law (Wilmette, Illinois Callaghan and Com- the power or rights of all similar co~nmunities.”~~~ pany, 1981)Vol.l, ch. 3. Law books are a useful source because Another state constitutional innovation affecting the of the tendency of lawyers to incorporate into their work “the commonplaces of the political thought of their time,” R. W sovereign prerogative of the legislature was the ripper and A. J. Carlyle, A History of Medieval Political 7heory in the ~1ause.l~~Aripper clause was inserted by the 1872Pennsyl- West (London: William Blackwood and Sons, 19091, Vol. 2, pp. vania constitutional convention in response to the legisla- 34-35, n-78. ture’s creation of the Philadelphia Building Commission. 3Gordon S. Wood, 77re Creation of the American Republic, 1776-1787 (New York W. W. Norton, 1972) pp. 48-53; Meyer That commission was a state-appointed body charged with Reinhold, Classica Americana (Detroit Wayne State University building city hall. It had been vested with nearly unlimited Press, 1984) pp. 94-115; Paul A. Rahe, Republics Ancient and authority to exact local taxes to fund its 0perati0ns.l~~The Modem (Chapel Hill: University of North Carolina Press, 1992) first ripper clause read as follows: See Max Farrand, ed., 77ie Recordsof the Fedeml Convention of I787 (New Haven: Yale University Press, 1937). The General Assembly shall not delegate to any ’Martin Ostwald, Autonomia: Its Genesis and Early History special commission, private corporation or asso- (New York American Philological Association, 1982), p. 1. ciation, any power to make, supervise or interfere For example, the Charter of the Second Athenian Confedera- cy of 377 B.C. imposed the following restrictions on Athens in with any municipal improvement, money, proper- its dealings with confederacy members. It could not (1)impose ty or effects, whether held in trust or otherwise, a form of government; (2) assert military or political control or levy taxes or perform any municipal function over an allied state by dispatch of troops or of governors; or (3) exact tribute from its allies. Ostwald, Autonomia: Its Genesis what~oever.”~ and Early History, p. 48. Documentary evidence for this can be found in Frank E Abbott Like the language of provisions concerning local or and Alan C. Johnson, Municipal Administration in the Roman special legislation, the ripper clause is significant because Enrpire (New York Russell and Russell, 1926, reissued 1968) these provisions are evidence of a conscious attempt to * Ibid., pp. 39,247-571. make a crucial distinction between purely local, internal, Ibid., pp. 4,9. or municipal matters and those of statewide concern. “Ibid., p. 8. The ripper clause soon found its way into the constitu- ’’ Ibid., p. 10. tions of seven other states, normally as part of a policy pack- Napoleon used this format in creating administrative regions age that included restrictions on special or local legislation of France, which exist to this day. concerning the internal affairs of local gove~nments.’~~ l3 Ibid., p. 17. State and local borrowing was another area in which l4 Ibid., pp. 43-45. the public restricted state-local action, particularly on be- Ibid., p. 41. half of private enterprise.176In the Ohio Constitution of 161bid.,p. 46. 1851, for example, the General Assembly was forbidden ”Ibid., p. 57. from authorizing any county, city, town, or township from Ibid., p. 54. either investing in, or borrowing on behalf of, private en- ’’ Ibid., pp. 177-196. “The secret of government without bureau- terpri~e.’~~By 1880, 28 of the 38 states had incorporated cracy was the Roman system of cities which were self-govern- similar restrictions in their constitution^.'^' ing and could provide for the needs of empire.” Peter Garnsey and Richard Saller, Z7je Roman Empire: Economy, Society, and Culture (Berkeley: University of California Press, 1987) p. 26. 2o Ibid., p. 197. An extended study of the social and cultural climate created by political pluralism is found in Paul Veyne, Bread and Circuses (Harmondsworth, Middlesex: Penguin Press, 1990). 2’ John Procope, “Greek and Roman Political Theory,” in James The position of the states vis-a-vis their relationship to H. Bums, ed., The Cambridge History of Medim& Political Ilrought, c.350-c.1450 (New York Cambridge University local government had moved from legislative supremacy- Press, 1988), p. 33. itself gained as the result of independence from Great 22 Abbott and Johnson, Municipal Administration in the Roman Britain-to an increasing circumscription of state legisla- Empire, p. 194. tive powers with respect to local governments. There was 231bid., p. 209. a growing recognition by the courts, through prescriptive 241?D. King, “The Barbarian Kingdoms,” in Burns, ed., The judicial interpretation, and by the people, through consti- Canrbndge History of Medieval Political Thought, pp. 124-125. tutional amendment, that local government, once 25 R. Van Caenegem, “Government, Law and Society,’’ in Ibid., p. created, had to have a persona and viability of its own. 179.

U.S. Advisory Commission on Intergovernmental Relations 35 ~~~

26See generally, J. G. A. Pocock, The Machiavellian Moment 42 See, for example, the legal actions brought by the king against (Pnnceton, New Jersey: Princeton University Press, 1975). local government in the Proceedingsbetween the King and the City of London, State Trials, Volume 8, pp. 1040-1358 (1682). 27 Walter Ullmann, Principlar of Government and Politics in the The controversy between king and Parliament affected the Middle Ages, 2d ed. (London: Methuen and Company, 1966), colonies also. See Hall, Leder and Kammen, The GloriousRev- pp. 20 21. olution in America, pp. 24-25. 2g Alan Watson, ed., The Digest of Justinian (Philadelphia: Uni- 43 See, E. Neville Williams, The Eighteenth Century Constitution: versity of Pennsylvania Press, 1985), Vol. 1, p. 96. Thus, the 1688-1815 (Cambridge: Cambridge University Press, lm), p. 4. Emperor Trojan quashed a request by the inhabitants of Ni- chomedia in the province of Bithynia in Asia Minor to form a 4.1 See generally, Jack I! Greene, Peripheries and Center (Athens: communal fire brigade. See Arnold H. M. Jones, A History of University of Georgia Press, 1986). Much of the subsequent Rome through the Fifh Century (New York Walker and Com- discussion of this topic summarizes Greene’s work. pany, 1970), Vol. 2, pp. 244-245. 451bid.,p. 20. 29 Bartolus’ teaching is summarized in Joseph I! Canning, “Law, 46 Ibid., pp. 29-30. Sovereignty, and Corporation Theory,” in Burns, ed., Die 47 Evenaslate as 1Tl4,XcsqhGall~way,whQ\ate.r \UxnC&QUttO Cambridge History of Medieval Political Thought, QQ. 470-471. ‘w. abi&&, oKes..asi<3as p\i%\sic C,mkiits+A%i- 30 C.N.S. Woolf, Bartolus of Sassofemto (Cambridge: Cambridge gress of divided responsibilities between Great Britain and the University Press, 1913). pp. 113-114. American colonies. Though it had no chance of success by then, it had suggested an American Parliament, responsible 31 Joseph I! Canning, “Law, Sovereignty, and Corporation for all internal matters and leaving international trade to Theory,” p 473. For a fuller discussion, see Joseph E Canning, Great Britain. The Political Thought of Baldus de Ubaldis (Cambridge: Cambridge University Press, 1987), pp. 93-158, 185-208. Ibid., p. 76. 321bid.,pp. 138-139, 152. 49See Bruce C. Daniels, ed., Town and Country (Middletown, Connecticut: Wesleyan University Press, 1977). This book con- 33 Sidney and Beatrice Webb, English Local Governmentfrom the tains essays on local government in colonial Massachusetts, Revolution to the Municipal CorporationsAct (London: Long- Connecticut, Maryland, Virginia, South Carolina, and Penn- mans Green, 1906-1922). sylvania. 34 W.J.M. Mackenzie, Theories of Local Government (London: Jack I? Greene, “Changing Identity in the British Caribbean: London School of Economics, 1961), pp. 9-12. Barbados as a Case Study,” in Nicholas Canny and Anthony Pagden, eds., Colonial Identity in the Atlantic World, 1500-1800 35 Frederick W. Maitland, Township and Borough (Cambridge: Cambridge University Press, 1898). (Princeton, New Jersey: Princeton University Press, 1987), pp. 214-215. 36 Susan Reynolds, An Introduction to the History of English Me- Donald S. Lutz, Popular Consent and Popular Control (Baton dieval Towns (Oxford: Clarendon Press, 1977). Rouge: Louisiana State University Press, 1980), p. 156. 37 Ibid., p. 102. 52 David T. Konig, “Origins of Local Government inNorthern 38 Ibid., pp. 103-108. Massachusetts,” in Bruce C. Daniels, ed., Town and Country, p. 29. 39 See J. C. Holt, Magna Charta (Cambridge: Cambridge Univer- sity Press, 2d edition, 1992), pp. 61-67,274,279-280; John E. 53 Ibid. Bebout, An Ancient Parttienhip: Local Govemnient, Magna 54 Ibid., pp. 29-30. Charla, and the National Interest (Charlottesville: University 55 Donald S. Lutz, Dre Origins of American Constitutionalism Press of Virginia, 1966). Localities were able to select purely (Baton Rouge: Louisiana State University Press, 1988), pp. local officials,such as “mayors.” See Susan Reynolds,An Ziitm- 42-48; Bruce C. Daniels, The Connecticut Town (Middletown, duction to the Hktoty of English Medieval Towns, p. 109. Urban Connecticut Wesleyan University Pres, 1979), pp. 11-0 Amasa places were able to receive status as independent counties, consolidated local court jurisdictions and incorporation. See, Eaton, “The Right to Local Self-Government,”Harvard Law Re- Reynolds, pp. 113-114. Further privileges ensued in the fif- view U (April lWO> 570-588;and Michael Zuckerman, Peaceable teenth century, including perpetual succession, a common Kingdoms (New York Alfred A. Knopf, 1970). seal, the right to sue and be sued, to hold lands and to issue by- 56 Lutz, Popular Consent and Popular Control,pp. 150-171;Joshua laws. Urban courts asserted jurisdiction over merchant law, town 1. Miller, Local Autonomy in Early American Politics: Decent&- property deeds, wills and nuisance cases. See ibid. Also, urban ist Ideas and Pmctices 1630-1789 (Ph.D. Dissertation, Prince- legislative bodies issued by-laws regulating trade and public ton University, Department of Politics, 1984); Timothy H. health and exacted tolls for a variefy of public works including Breen, “Persistent Localism: English Social Change and the paving, bridge building, and wall building. See ibid., p. 126. Shaping of New England Institutions,” William and Mary Quarterly 32 (3d ser. 1975): 3-28. 40 The works of Christopher Hill ably discuss seventeenth century England and the development of its political system. In par- 57FrancisN. Thorpe, ed., The Federal and State Constitutions, ticular, for a broad overall view, see The Century of Revolution: Colonial Charters, and Other ORanic Laws ofthe United States 1603-1714,2nd ed. (New York W. W. Norton, 1982), passim. (Washington, DC U.S. Govemment Printing Office, 1909), Vol. 5, p. 2712. 41 Otto Gierke, Natural Law arid the Theory of Society (Boston: 58 Ibid., p. 3040. Beacon Press, 1960), p. 67. It is interesting to note that this period of English history saw an attempt on the part of central 59Robert Bolton, Jr., History of the County of Westchester (New government to direct and control local governments both in York A. S. Gold, 184S), Vol. 2, pp. 184-195. England and in the emerging colonies. See J. H. Sacret, “The George Chalmers, Opinions of Eminent Lawyers on Vmous Restoration Government and Municipal Corporations,” En- Points of English Jurispnrdence (Buffalo, New York William S. glish HistoricalReview 45 (April 1930): 232; James R. Jones, Die Hein Company, 1989, p. 10. Revolution of 1688 in England (New York W.W. Norton, 1972), p. 43; Michael G. Hall, Lawrence H. Leder, and Michael G. 61 Greene, Peripheries and Center, pp. 13-18. Kammen, eds., Tlte GIoriousRevolution in Ainerica (New York 62Chalmers, Opinions of Eminent Lawyers on Vbious Points of W. W. Norton, 1972), pp. 14-18. English Jurisprudence, p. 10.

36 U.S. Advisory Commission on lntergovernmental Relations 63 Ibid., p. 395. Demophilus, The Genuine Principles of the Ancient Sawn or English Constitution (Philadelphia: Robert Bell, 1776), re- 64 Ibid., pp. 396-397. printed in Charles S. Hyneman and Donald S. Lutz,American JackR. Pole, PoliticalRepmentation in Englandand the Origins Political Writings duringthe Founding Em 1760-1805 (Indiana- of the American Republic (Berkeley: University of California polis: Liberty Press, 1983)) Vol. 1, pp. 340-367. Press, 1971), pp. 38-50. Ibid., p. 350. 66LoisGreen Can; “The Foundations of Social Order. Local 87 H. Trevor Colboum, The Lump of eerience: Whig History and Government in Colonial Maryland,” in Daniels, ed., Townand the Intellectual Origins of theAmerican Revolution (Chapel Hill: Country, p. 99. University of North Carolina Press, 1965), pp. 26, 110-111, 67Lut~,Popular Consent and Popular Control, p. 162. 126-128,190-192. The Teutonist thesis is that democracy is neither the product of revolution nor derived from abstract doc- ba Jack R. Pole,PoliticalRepresentationin England and the Origins trines concerning the rights of man. Instead, democracy was of the American Republic, pp. 72,80,94,162-163; Popular Lutz, viewed as the distinctive ethnic heritage of people who had Consent and Popular control, p. 163. learned self-government by running their own affairs and by @Pole,Political Repmentation in England and the Origins of the defending local liberties against centralized power. The Teu- American Republic, p. 38.; Lutz, Popular Consent and Popular tonist thesis revived in intellectual circles in the 1870s and pro- Control,pp. 150-151;Breen, “Persistent Localism: English So- duced several books on local government, the mast notableof cial Change and the Shaping of New England Institutions”; which is George Howard‘s An Introduction to the Local Consti- Miller, Local Autonomy in Early American politics: ¢ralist tutional History of the United States. John Higham, “Herbert Ideas and Pmctices, 1630-1 789;and George E. Howard, An Zn- Baxter Adams and the Study of Local History,” American His- troduction to the Local Constitutional History of the United toricalReview 89 (December 1980): 1225 It also influenced the States (Baltimore: Johns Hopkins University Press, 1889). view expressed by Judge Thomas Cooley in People v. Hurlbut 22 Mich 44 (1871) that American citizens have an inherent 70 Ernest S. Griffith, History ofAmerican City Government-The Colonial Period (New York: Oxford University Press, 1938) pp. right to local self-government. Both Colbourn and Higham 58,65,69, 100-102; Jon Teaford, Tlre Municipal Revolution in take the position that the Teutonist thesis is a myth. A brief Amen’ca (Chicago: University of Chicago Press, 1965). discussion of the thesis proponents (Gneist, Redlich, and Josh- uaToulmin Smith) in English historiography is found in Mack- 71Stephen L Schechter, “The Founding of American Local enzie, Theories of Local Government,pp. 9-12. Communities: AStudy of Covenantal and Other Forms of& Anwar Syed, The Political Theory American Local Govem- sociation,” Publius: The Journal of Fedemlism 10 (Fall 1980): of 165; George Lee Haskins, Law and Authority in Early Massa- nient (New York Random House, 1966), p. 40. chusetts (New York The Macmillan Company, 1960). 89Gordon S. Wood, The Creation of the American Republic, (New York: W Norton, 1972), pp. 150-161. Robert Wheeler, “The County Court in Colonial Virginia,” in 1776-1 787 W Daniels, ed., Town and Countty, pp. 111-133; Richard Water- 90 McBain, “The Legal Status of the American Colonial City,” p. house, “The Responsible Gentry of Colonial South Carolina: 187. A Study in Local Government, 1670-1770,” ibid., pp. 160-185; 91 Thorpe, ed., The Fedemland State Constitutions,Vol. 5, p. 3085. Jack I? Greene, The Quest forPower(New York W. W. Norton, (1776 Pennsylvania Constitution, §9) 1972), pp. 251 65. 92 Ibid., p. u30. 73 Judith Diamondstone, “Philadelphia’s Municipal Corpora- 93 Thorpe, ed., 7heFedemland State Constitutions,Vol. 3,p. 1911. tion, 1701-1776,” Pennsylvania Magazine of History and Biogm- (1780 Massachusetts Constitution, Am. 11) phy 90 (April 1966): pp. 183-201. 94HowardLee McBain, “The Delegation of Legislative Powers 74 Judith Diamondstone, “The Government of Eighteenth Cen- to Cities,” Political Science Quarterly 32 (March and June, tury Philadelphia,” in Daniels, ed., Town and Country, pp. 1917): 276,391. 249-253. 95 Thorpe, ed., The Fedemland State Constitutions,Vol. 3, p. 1690. 751bid., pp. 253-256. (1776 Maryland Constitution, Article XXXVII) 76Daniels,The Connecticut Town,pp. 119-139. 961bid.,Vol. 5, p. 2636 (1777 New York Constitution, Art. XXXVI) 771bid.,pp. 94-118. See also Joan C. Williams, “The Invention of the Municipal Cor- poration: A Case Study in Legal Change,” American univemify 78NicholasVarga, “The Development and Structure of Local Law Review 34 (Winter 1985): 369,394397. Government in Colonial New York,” in Daniels, ed., Town and 97 Wood, The Creation of the American Republic, 1776-1 787,pp. Country, pp. 186-215; Wayne L. Bockelman, “Local Govern- 184-188. ment in Colonial Pennsylvania,” ibid., pp. 216-237. 98 Thorpe, ed., The Fedemland State Constitutions,Vol. 5, 2790. 79 Judith Diamondstone, “The Government of Eighteenth Cen- (1776 North Carolina Constitution, Articles I1 and 115 tury Philadelphia”; Hendrik Hartog, Public Prop@ and Pri- vate Power (Chapel Hill: The University of North Carolina 99 Fletcher M. Green, Constitutional Development in the South At- Press, 1983). lantic Stater, 1776-1860 (New Yok W W Norton, 1966) p. 83. 19. loo Thorpe, ed., T7ie Federal and State Consiitutions,Vol. 3, p. 1898 Hartog, Public Prop@ and Private Power, p. (1780 Massachusetts Constitution,pt. 11, ch. 1,§3, Art. 11); Vol. Zuckerman, Peaceable Kingdoms, pp. 36-45; See, for example, 4, p. 2461 (1784 New Hampshire Constitution, pt. 11). the 1714 protests against a proposed incorporation of Boston Iol Lutz, Popular Consent and Popular Control, p. 167. reprinted in Publications of the Colonial Society of Mmsmhu- setts, Vol. 10, April 1906, pp. 345-352. lo2 Thorpe, ed., Die Fedemland Stafe Constitutions,Vol. 3, p. 1892 (1780 Massachusetts Constitution, pt. I, art. XIX); Vol. 4, p. 82 Zuckerman, Peaceable Kingdonu, and Daniels, Tlte Connecfi- 2457 (1784 New Hampshire Constitution, pt. I, art. XXXII); cut Town, pp. 87-91. Vol. 5, p. 2788 (1776 North Carolina Constitution, pt. I, art. Daniels, Town and Country, p. 200. XVIII); Wood, The Creation of the American Republic, 1776-1787, pp. 188-196. 84 Howard Lee McBain, “The Legal Status of the American Co- lonial City,” Political Science Quarterly 40 (June 1925) 17, Io3 Williams, “The Invention of the Municipal Corporation: A 192-197. Case Study in Legal Change,” n. 95; Gerald Frug, “The City as

US. Advisory Commission on Intergovernmental Relations 37 a Legal Concept,” Hmard Law Review 93 (April 1980): 1059; 131 For example, Commissioners of Gallia County v. Holcomb, 7 Hartog, Public Propeny and Private Power, pp. 185-186. Ohio Part I232 at 233 (1835) (Corporations are “limited to exercise of powers specifically conferred on them by lag);Leonard lo4Den on demise of Trustees of the University of North Carolina v. Foy and Bishop, North Carolina v. City of Canton, 35 Mw. 189,191 (1858) (a municipal corpora- 5 58,87 (1805). tion’s mrs must be strictly construed and confined to thase 105Terrettv.Taylor, 13 U.S.43,52(1815)(9Cranch);TownofPaw- subjects “specially enumerated”); Louisiana State Bank v. The let v. Clark, 13 U.S. 292 (1818) (9 Cranch); Dartmouth College Orleans Navigation Co., 3 La Ann. 294 at 314 (1848) (the means v. Woodward, 17 U.S. 518,694(1819) (4 Wheat.). adopted to effectuate an express prmust be authorized ex- lo6Francis S. Philbrick, The Rise of the New Wat (New York Harp- pressly or be essential to the exercise of that powr). er and Row, 1965), pp. 120-133. 13’Ex parte Burnett, 30 Ala. 461, at 467,468(1857) (Narrow construction of statutory grant of “power and authority to make lo7Philip B. KurIand and Ralph Lerner, eds., 77te Founders’ Consti- tution (Chicago: University of Chicago Press, Vol. p. 27. and establish all such rules, bylaws, and ordinances respecting 19&7), 1, the . . . police of said town that shall appear to them required logIbid. and necessary for the security, welfare, and convenience of log Earl S. Pomeroy, The Territories and the United Stares (Seattle: said town or for preserving health, peace, order, and good gov- University of Washington Press, 1969), p. 98. ernment within the same”); Commonwealth v. Turner, 55 Mass. 493 (1848) (Narrow construction of statute permitting Merle Curti, The Making of an American Communily (Stan- towns to make all bylaws necessary “to preserve the peace, ford, California: Stanford University Press, 1959), p. 261. good order and internal police”). ‘11 Michael E. Libonati, “Intergovernmental Relations in State 133 See, in particular, Louis Hartz, The Libeml Tmdition in Ameri- Constitutional Law A Historical Overview,” Annals of rhe ca (New York: Harcourt, Brace and World, 1955). American Academy of Political Science 496 (March 1988): 107. 134 Robert E Williams, State Constitutional Law: Cases and Mate- 112 Frug, “The City as a Legal Concept,” p. 1109. See also Edward rials (Washington, DC US. Advisory Commission on Inter- A. Gere, Jr., “Dillon’s Rule and the Cooley Doctrine,” Journal governmental Relations, 1988), p. 10. of Urban History 8 (May 1982): 271. 13’ J. Willard Hurst, TIie Growth OfAmericanLaw (Boston: Little, ‘13 Williams, “The Invention of the Municipal Corporation: A Brown and Company, 1950). pp. 228229,232234. Case Study in Legal Change,” n. 95. 136 17 U.S. (4 Wheat) 518,694 (1819). ‘I4 Henry Wade Rogers, “Municipal Corporations,” Two Centu- ries* Growth of American Law (New York Charles Scribners’ 13’ lames Kent, Commentaria on American Law, p. 275. Sons, 1901). DD. 214, 239; ResDublica v. Duauet. 2 Yates Re- 13’ Benson v. The Mayor of New York, 10 Barb. 233 (1850) (ferry PO& 493 @a: Supreme Ct. 1799); 1776 Maryland constitution, franchise); Town of Milwaukee v. City of Milwaukee, 12 Wis. Art. XXXVII. 103 (1860)Qandpurchased for town use); Grogan v. City of San Francisco, 18 Cal. 590 (1861) (city slip property) (per Field, ‘” Paul Vinogradoff, “Juridical Persons,” Columbia Law Review C.J.); People ex rel. Board of Park Commissioners of Detroit v. 24 (6, 1924): 594, 600401. Common Council of Detroit, 28 Mich. 228 (1873) (public park) ‘16 13 Mass. 272 (1816). (per Cooley, I.). See Frank J. Goodnow, Municipal Home Rule ‘17Mass. Stat. 1785, c. 75, $8. -AStudy in Administrution (New York Macmillan Company, 1897), pp. 184-208,for a discussion of other cases concerning ’” Ibid., $7. what municipal property is protected by constitutional provi- ‘Ig 13 Mass. 272,278 (1816). sions protecting private property. ‘*O Stetson v. Kempton, 13 Mass. 272,284(1816). State ex rel. McCurdy v. Tappan, 29 Wis. 664 (1872) (bounty for enlisting in U.S. military service); People v. Batchellor, 53 N.Y. Ibid. 128, 144 (1873) (maintenance of private railroad). 122 Ibid., pp. 278-280. “Atkins and Co. v. Town of Randolph, 31 Vt. 226,237 (1858). 123 Bangs v. Snow, 1 Mass. 181 (1804); Willard v. Newburyport, 29 141 People v. Township Board of Salem, 20 Mich. 452,474(1870) Mass. 227 (1831); Spaulding v. Lowell, 40 Mass. 71 (1839). (Cooley, I.); Mercer County Court v. Kentucky River Naviga- 124Statev. Mayor and Alderman Mobile, 5 Ala. 279, 310 (1837); tion Co., 71 Ky. 300,318 (1871) (concurring opinion). Willard v. Warden, Burgesses, and Freemen of the Borough of l4’State ex rel. McCurdy v. Tappan, 29 Wis. 664,680(1872). Killingworth, 8 Conn. 247,254 (1830); City of New London v. 143Sh0Sat0 and AIVOvan Alstyne, State and Local Government Brainard, 22 Conn. 553,555 (1853) (Stetson v. Kem ton cited Law, 2d ed. (Boston: Little, Brown and Company, p. 132 as leading case); Fitch v. Pinckard, 4 Ill. 69, (1842) 8ity of La- 1977) fayette v. Cox, 5 Ind. 38,39 (1854); Louisiana State Bankv. The 144 McBain, “The Delegation of Legislative Powers to Cities,” n. 93. Orleans Navigation Co., 3 La. Ann. 294,309 (1848) (Stetson v. 145Haywardv. The Mayor and Aldermen of Savannah, 12 Ga Kempton cited); Leonard v. City of Canton, 35 Miss. 189,191 404,410,412(1853) (Lumpkin, J.). (1858); Hodges v. City of Buffalo, 2 Denio. 110 (N.Y.,1846); Commissioners of Gallia County v. Holcomb, 7 Ohio Part I ‘&State v. Field, 17 Mo. 529, 532-533 (1853). 232,233 (1835). 147Elliottv. City of Detroit, 121 Mich. 611 (1899); State ex. rel. Mueller v. Thompson, Wis. 12’ James Kent, Commentaries on American Law (New York 0. 149 488 (1912). Halsted, 1827), Vol. 1, p. 240. 148 McBain, “The Delegation of Legislative Powm to Cities,” p. 409. lZ6 Clark, Dodge and Co. v. Davenport, 14 Iowa 494,498(1863). Clyde E. Jacobs, Law Writers and the Courts (Berkeley: Univer- sity of California Press, pp. ‘27Memamv. Moody’s Executor, 25 Iowa 164, 170 (1868). 1954), 98-159. Loan Association v. Topeka, 87 US. 655,663(1874)(20 Wall.). 12’ John E Dillon, Commentaries on the Law of Municipal Corpom- tionr, 5th ed. @aton: Little, Brown and Company, 1911) 239. Ibid. 129 Ibid., 9238. (Emphasis in original.) lS2Opinion of the Justices, 58 Me. 590 (1871); Jacobs, Law Writers and the Courts, pp. 144-152. 130 Sands, Libonati, and Martinez, Local Govemtnent Law,Vol. 3, 13.05. Ohio Constitution, Art. VIII, $13.

38 U.S. Advisory Commission on Intergovernmental Relations 154 Ohio Constitution, Art. XVIII, $4. 169 Thorpe, ed., 77ie Federaland Slate Constitutions,Vol. 2, p. 1080. ‘”24 Mich. 44,95 (1871); Howard Lee McBain, “The Doctrine of (Indiana Constitution, Art. IV, 22) (1851) an Inherent Right of Local Self-Government,” Colunzbia Lm 170 Ibid. Review 16 (2 and 3, 1916): 190,299. ’” Binney, Restrictions upon Localand Special Legislation in State ‘56See,generally, David 0. Porter, “The Ripper Clause in State Constitutions,p. 108. A recent article detailing the colorful cir- Constitutional Law-An Early Urban Experiment,” Utah cumstances which occasioned the ban on local or special legis- Law Review 69 (April and June 1969): 287,450. lation “locating or changing county seats” is James R. Chiles, “County Seats Were a Burning Issue in the Wild West,”Smith- 157BOSton:Little, Brown and Company, 1868. sorzian 20 (March 1990): 100. 15’ 24 Mich. 44, 96. 172 Porter, “The Ripper Clause in State Constitutional Law-An ‘IIbid., pp. 98-103. Early Urban Experiment,” n. 156. lmIbid., pp. 104-106. 173 Ibid., p. 307. 174Thorpe,ed.,TheFederalandState Consfitutions,Vol. 5, p. 3128. 16’ Ibid., p. 107. (Pennsylvania Constitution 1873, Art. 111, $20) Michigan Constitution, Art. XV, $14 (1850). ’’’ Porter, “The Ripper Clause in State Constitutional Law-An 16324Mich. 44, 108. Early Urban Experiment,” n. 156, p. 311 (California, Colorado, Montana, New Jersey, South Dakota, Utah, and Wyoming) Ibid. 176A.James Heins, Constitutional &strictions against State Debt 16’Ibid., pp. 109-110. (Madison: University of Wisconsin Press, 1963), pp. 8-9; Harry ‘%McBain, “The Doctrine of an Inherent Right of Local Self- N. Scheiber, Ohio Canal Em: A Case Study of Government and the Economy 1820-1861 (Athens: The Ohio University Press, Government,” pp. 198-208. 1969). 16’ See R. Jackson Wilson, In Quest of Community (London: Ox- 177Thorpe,ed., 77ie Fedemland State Constitutions, Vol. 5, p. 2926 ford University Press, 1970); Frederick C. How, 77ie City Vie (Ohio Constitution 1851, Art. VIII, $4, $6). For good measure, Hope of Democmcy (Seattle: University of Washington Press, the state was barred from assuming local government debts. 1967) Ibid. (Ohio Constitution 1851, Art. VIII, $5) Chauncey C. Binney, RestrictionsuponLocal and Special Legis- 17’ U.S. Department of the Interior, Census Office,&pHon Val- lation in State Constitutions (Philadelphia: Kay and Brother, uation, Tmtion and Public Indebtedness in the United States 1894), p.7. (Washington, DC, 1884), p. 649.

U.S. Advisory Commission on Intergovernmental Relations 39 40 U.S. Advisory Commission on Intergovernmental Relations Chapter 4 THE DEVELOPING CONCEPT OF HOME RULE IN TWENTIETH CENTURY AMERICA

Americans, during the twentieth century, have sought The generalized remedy for state legislative mischief to define a workable model for providing local govern- provided by the convention consisted of a substantive pro- ments with a modicum of local autonomy. From 1875 on- hibition of local or special laws changing the charters of wards, debate and deliberation in the states began to shift cities, towns, or villages, and a procedural provision re- from placing restraints on their legislatures to empower- quiringa three-month notice to the inhabitants of acounty ing local citizens with the ability to articulate their prefer- or city prior to the passage of any local laws.’ These rules ences over institutional forms and functional powers were designed to curb the legislature’s propensity “to within their local communities. make changes in the charter and organization of that city Some of the best examples of the early development of [St. Louis], which were not endorsed by the people of the home rule ideas can be seen in the Missouri Constitution of city.”* 1875 and, then, in the models for devolving powers on local The innovative part of the package was a provision government created by California, New York, the American delegating “to the people of St. Louis a power that has Municipal Association (MA), New Jersey, and Illinois. heretofore been possessed alone by the Legislature,” namely, the power to make a charter? This delegation, however, was replete with conditions to be met by the city in framing and adopting the charter and any subsequent amendments.’” It also mandated the type of local government organization that could be adopted in the home rule charter: “[A] chief executive and two houses of legislation, The shift from constitutional restraints on the state leg- one of which shall be elected by general ticket.”” islature to constitutional local empowerment began with the That the state had not chosen to relax its grip on St. home rule provisions of the Missouri Constitution of 1875. Louis is demonstrated by two clauses. First, charter provi- Use of the label home rule is questionable here, how- sions had to be “in harmony with and subject to the Consti- ever, because the debates of the Missouri Constitutional tution and laws” of Missouri.12Thatis, whatever principle Convention, which expressly conferred charter-making of local self-government was embodied in the constitu- power on the city of St. Louis, do not use that term.’ Ap- tional text had neither the scope nor the dignity accorded parently coined about 1870 in connection with the move- other constitutional provisions. Local initiativeswere subject ment to obtain local autonomy for Ireland,* the term to challenge and, thereby, judicial scrutiny not only on con- home rule was used to refer to proposals affording greater stitutional grounds but also on the ground that they were not autonomy for London by 1890,3 before later becoming a in harmony with general laws. The charter clearly was subor- general phrase applying to “all forms of local or regional dinate, also, to any general law, including those laws that self-determination.”4 classified cities by population. As one delegate remarked: When the Missouri Constitution was adopted in 1875, corruption and favoritism by the state legislature in the The General Assembly is the only law making management of the affairs of the city of St. Louis was as power of the state & if they find that this scheme pervasive a theme in the debates as was recourse to the does not work well all they need to do is to pass a principle of local self-g~vernment.~Indeed, the principle general law that in all cities or counties having of home rule did not carry much influence because the over 100,000 inhabitants the law shall be so & so; proposed and adopted text applied only to a single, named & it will operate directly upon the city & county of cjp-st, Lou! St. Louis.f3

U.S. Advisory Commission on Intergovernmental Relations 41 Tb remove any doubts about legislative supremacy, the localities which it is intended to affect.”= To resolve this convention adopted a second saving clause: “Notwithstand- dispute, the convention adopted a provision that gave any ing the provisions of this article, the General Assembly shall city the option of framing a charter “consistent with and have the same power over the city and county of St. Louis subject to the Constitution and laws of this state.”29 that it has over other cities and counties of this State.”I4 When the validity of this provision was challenged, the Missouri Supreme Court held that home rule cities constituted a class concerning which the legislature was free to enact legislation without violating constitutional prohibitions against local or special legislation.” Despite the ruling, a leading commentator, Howard Lee McBain, adjudged the Missouri experiment to be a failure because Moving into the twentieth century, states struggled Missouri cities under home rule charters did not “enjoy with decisions about the structure of their relationships to even the constitutional guarantee that is extended to all local governments and the powers that should be granted other cities.” “It is manifest,” he said, “that in any strict to those political communities. Ultimately, states adopted interpretation of terms, the provisions of the Missouri one of three versions of home rule powers: (1) the city re- constitution upon this subject are so utterly contradictory public; (2) a local bill of rights; or (3) devolution of powers. as to be practically meaningless.”16 Nevertheless, it should be stressed that the Missouri The City Republic Constitution was the first to contain a separate article de- The complex task of creating a framework to express voted to local government and its relationship to the state the demand for differentiating between state and local legislature. Although the constitution did not shield char- spheres of influence can be traced to a series of amend- ter cities from state legislative interventi~n,’~it generally ments to the California Constitution. Between 1894 and succeeded in providing charter cities with “the power to 1902, amendments were enacted regarding city-county act without prior authorization by the state legislature” consolidation (1894); county boards of education (1894); such that from its adoption until 1905 “the Missouri Su- county organization (1894); organization of municipal cor- preme Court approved every exercise of municipal initia- porations (1896); the contents of corporate charters tive. . . which was authorized by charter, did not conflict (1896); local government debt limits (1900); establishment with a statute, and did not run afoul of a constitutional of a decentralized, fiscally autonomous public school sys- prohibition,”18 including the power to tax.lg tem (1902); tax exempt status of state and local govern- Finally, the principle of local diversity embodied in the ment bonds (1902); tenure of municipal officials (1902); 1875 constitution defeated a challenge predicated on the and empowering each city of more than 3,500 inhabitants equal protection and republican form of government clauses to frame a charter for its own government, subject to ap- of the federal Constitution.2oA unanimous U.S. Supreme proval by the state legislature, the provisions of which Court affirmed in 1879 that “each State has the right to make shall become the “organic law thereof and supersede . . . political subdivisions of its territoq for municipal purposes all laws inconsistent with such charter” (1902).30 and to regulate their local government” and that “diversities The combination of language in the 18% amendment to . . . are allowable in different parts of the same State.”21 the California Constitution stating that “all charters thereof Missouri’s actions sparked debate about institutional framed or adopted by authority of this constitution, except in policy in other states, which broadened and deepened re- municipal affairs, shall be subject to and controlled by gener- flection about local home rule. In 1879, for example, the al laws,”31with the 1905 provision eliminating the require- California Constitutional Convention debated a proposal ment of legislative approval of charters,32gave California’s delegating charter-making powers to the City and County local governments a limited but definite autonomy.33Such a of San Francisco. Its drafter copied the provision from sense of autonomy has been in common currency in Ameri- Missouri.” Proponents of the provision argued that an ex- can political discourse since colonial times.34The colonies press text was necessary to resolve “avery serious question demanded, at least after 1774, possession of an “exclusive with regard to the power of the Legislature to delegate its right of internal legislation” while leaving external affairs (or authority.”23Opponents, dubbed sycophants of centralism trade matters) to the English Parliament.35 by their adversarie~?~invoked the specter of ~ecession~~ As explained in the previous chapter, however, the and the flagrant corruption of big city government.26 states resisted adopting a similar attitude toward their own These charges widened the debate from the particular sta- political subdivisions. Little by little, the importance of lo- tus of San Francisco to the principles of localism as ex- cal government for its own and the state’s sake began to be pounded by de To~queville’~and the theory and spirit of recognized. Thus, the provisions of the California, Colo- the principle that “local legislation ought to be left to the rado (1902), Oregon (1906), and Ohio (1912) constitutions,

42 US. Advisory Commission on Intergovernmental Relations adopted during a period when the Progressive movement them by the constitution and, “subject to the bill of rights emphasized autonomy for urban cornmunitie~,~~can be of local government,” to enact legislation “granting to lo- viewed as a major step forward in establishing localauton- cal government powers including but not limited to those omy, however limited. These provisions allowed for two of local legislation and administration in addition to the basic grants of power: powers vested in them by this article.” (1) Widen the scope of local choice over munici- Those powers, once granted, “may be repealed, dimin- pal affairs, local and municipal matters, or all ished, impaired or suspended only by” a statute enacted powers of local self-government; and twice in successive years. The constitution required that legislative action ‘‘in relation to the property, affairs, or govern- (2) Immunize local charter provisions within the ment of any local government” must be general law, protected sphere of local autonomy from by state legislative intervention. subject to certain exception^.^^ Another prt of that section gave local governments power to adopt and amend local laws not inconsistent with the provisions of the constitution or any A local Bill of Rights general law relating to its property, affairs, or government. New York. New York went one step further than Mis- They also may legislate on any of the following subjects: souri and pursued in greater detail an effort to delineate (1) The powers, duties, qualifications, number, the respective spheres of responsibility for the state gov- mode of selection and removal, terms of of- ernment and its local g0vernments.3~ fice, compensation, hours of work, protec- The state constitution combined a bill of rights for lo- tion, welfare, and safety of its officers and cal governments with explicit definitions of the respective employees, except that cities and towns shall roles and duties of the legislature and local governments not have such power with respect to mem- with regard to local government matters. The bill of rights, bers of the legislative body of the county in for example, guaranteed: their capacities as county officers; (1) Popular participation in the selection of local (2) In the case of a city, town, or village, the mem- officials; bership and composition of its legislative body; (2) County option in regard to forms of county (3) The transaction of its business; government; (4) The incurring of its obligations, except that (3) Allocations of local government functions as local laws relating to financing by the is- between counties and cities, towns, villages, suance of evidences of indebtedness by such districts, or other units of government; and local government shall be consistent with laws enacted by the legislature; (4) The right of people in an affected area to veto annexation by a neighboring local gov- (5) The presentation, ascertainment, and dis- ernment by withholding majority approval in charge of claims against it; a referend~m.’~ (6) The acquisition, care, management, and use of its highways, roads, streets, avenues, and The bill set limits, also, on the legislature’s power to reg- property; ulate public utility operations conducted by local govern- The acquisition of its transit facilities and the ments. Then, it conferred power on local governments to: (7) ownership and operation thereof; (1) ‘‘Adopt local laws as provided by this article” (8) The levy, collection, and administration of [Article 1x1; local taxes authorized by the legislature and (2) Enter into contracts with other local, state, of assessments for local improvements, con- and federal government agencies; sistent with laws enacted by the legislature; (3) Exercise eminent domain, subject to legisla- (9) The wages or salaries, the hours of work or tive regulations of its exercise outside the lo- labor, and the protection, welfare, and safety cal government’s boundaries; and of persons employed by any contractor or (4) Apportion the “cost of a governmental ser- subcontractor performing work, labor, or vice or function upon any portion of its area, services for it; and as authorized by act of the legislature.’” (10)The government, protection, order, conduct safety, health, and well-being of persons or The next section of the constitution required the leg- property therein.41 islature to provide for the creation and organization of local governments in such manner as shall secure to them Ihe D$Ku& of conshuing Local Autonomy. Implement- the rights, powers, privileges, and immunities granted to ing and adjudicating disputes over the division of powers that

U.S. Advisory Commission on lnteqovernmental Relations 43 local governments had gained in the early twentieth centuly inherent in delineating a constitutional division of powers in New York and several states presented some difficulties. between the state and local government. This devolved In one Caliiornia case, for example, Justice McFarland of power provided local government with an area in which to the California Supreme Court said, ‘The section of the con- operate freely, subject to the ultimate puniew of the state stitution in question uses the loose, indefinable wild words legislature. Sometimes referred to as legislative home rule, ‘municipal affairs‘ and imposes upon the courts the almost the devolution of powers is most commonly associated with impossible duty of saying what they mean.”42 the model constitutional provision for home rule formulated Problems emerged even when the constitutional lan- in 1953 by Jefferson B. Fordham on behalf of the American guage spoke only to the empowerment question as, for ex- Municipal Association’s Committee on Home Rule.” The ample, the provision of the Washington Constitution operative language of the provision states: conferring on “any county, city, town, or township” power to “make and enforce within its limits all such local police, A municipal corporation which adopts a home sanitary, and other regulations as are not in conflict with charter rule may exercise any power or perform general laws.”43In a series of cases between 1901 and 1914, any function which the legislature has power to the Washington Supreme Court applied Dillon’s Rule to devolve upon a non-home rule charter municipal this constitutional grant of powers. It announced that it corporation and which is not denied to that mu- would review charter provisions for their reasonableness; nicipal corporation by its home rule charter, is not held that state regulation of a policy arena preempted lo- denied to all home rule charter municipal corpo- cal regulation; and refused to recognize that powers tradi- rationsby statute and is within such limitations as tionally associated with sovereignty, such as eminent may be established by statute. This devolution of domain and taxation, were granted to localities.44 power does not include the power to enact private Insofar as state constitutional provisions sought to or civil law governing civil relationships except as shield charter cities from legislative interference, Judge incident to an exercise of an independent munici- Timlin of the Wisconsin Supreme Court made the follow- pal power, nor does it include power to define and ing observation in 1912 provide for the punishment of a felony.49 [I]f the legislature could be constantly prohibited This model provision for a general grant of powers from any interference with the so-called home subject to enumerated restrictions had been sketched out rule charter adopted by the city so far as the same by Frank J. Goodnow in 1895.5’ Goodnow, in turn, had at- related to municipal affairs, this would substitute tributed the devolution-of-powers approach to English the interference of the judicial department of and continental sources, including the Prussian Municipal government for that of the legislative depart- Corporations Act of 1808.51The home rule model repre- ment, and every section of the charter and every sented a turning away from “the cross-checks and inter- ordinance must in time come before the courts in secting lines of divided responsibility” of the federal idea order to ascertain whether it related to a munici- in favor of “a simple pyramid” of efficient, rationalized pal affair only and if so whether subject to repeal functional or amendment by the state legislature.4’ The 1953 American Municipal Association formulation did not represent a complete abandonment of the Simply put, charter cities would be freed from the tu- search for a protected sphere of local autonomy. It did telage of the state legislature only to find themselves sub- provide, however, that “charter provisions with respect to ject to the guardianship of the state judiciary. That municipal executive, legislative, and administrative struc- guardianship produced one of two results. In the first in- ture, organization, personnel and procedure are of superior stance, judicially sanctioned home rule resulted, as in authority to stat~te.”’~Moreover, it squarely addressed the Ohio, where courts, on a case-by-case basis, exercised a problem of state-mandated expenditures or programs by legislative function of determining what was or was not a proposing that legislation requiring increased municipal ex- permissible power for local governments to exercise, leav- penditures would take effect, absent municipal consent, only ing home rule cities in doubt as to the extent of theirpow- on a two-thirds vote of the legislature or if the legislature ers? Secondly, it resulted in a presumption of state funded the mandated increa~e.5~These protective provisions responsibility that led to “a precipitous contraction of are absent from the recommended local government article home rule powers,” as in New York.4’ in the 1963 edition of the National Municipal League’s Mod- el State Constitution, indicating an even sharper retreat The Devolution-of-Powers Approach from a strong commitment to local auton0my.5~ The devolution-of-powers model has unquestionably The third approach to local home rule, setting out an met with success in the marketplace of ideas. For example, area of devolved powers, seemed to avoid the difficulties both Missouri and Pennsylvania streamlined their consti-

44 U.S. Advisory Commission on Intergovernmental Relations tutional home rule provisions (e.g., “a municipality which Second, New Jersey’s constitution provides guidance has a home rule charter may exercise any power or per- to policymakeIs on the reading of constitutional provisions form any function not denied by this Constitution, by its empowering local govemments. For example, it states: home rule charter, or by the General Assembly at any time”56).The North Dakota provision tracks the language The provisions of this Constitution and of any law of the Model State Constitution cited above?’ concerning municipal corporations formed for lo- The home rule model makes clear that the state legis- cal government, or concerning counties, shall be lature has the authority to confer broad powers on local liberally construed in their favor. The powers of government units, thus precluding a challenge based on counties and such municipal corporations shall nineteenth century delegation of power doctrines. Lan- include not only those granted in express terns guage empowering home rule cities is drafted to leave “a but also those of necessary or fair implication, or charter municipality free to exercise any appropriate pow- incident to the powers expressly conferred, or es- er or function except as expressly limited by charter or sential thereto, and not inconsistent with or pro- general Two objectives are attempted here. hibited by this Constitution or by law?* First, the text eliminates the “strict constructionist pre- It is the stated “liberal construction” of local govern- sumption against the existence of municipal power” asso- ment powers that counteracts the effect of Dillon’s Rule ciated with Dillon’s Rule.59 Second, state judges are and may produce a greater degree of functional autonomy stripped of the doctrine of implied preemption because a than a more conventional constitutional grant of home home rule entity’s powers can be impeded only by express rule. In 1973, for example, the New Jersey Supreme Court charter or statutory limits. The devolution-of-powers sustained a municipal rent control scheme under a statu- model seems designed almost exclusively with an eye to tory grant of authority to adopt such ordinances as the lo- reducing the role that courts have played in mediating the cal governing body “may deem necessary and proper for division of power between state and local government. the good government, order, and protection of persons and property, and for the preservation of the public health, safety, and welfare of the municipality and its inhabitant~.”~~The courts even upheld the municipal creation of a rent control board as a power necessary to carry out the regulatory purpose of a rent control ordinance, even where no statute existed authorizing municipalities to establish one. By contrast, ayear earlier, the Florida Su- New Jersey and Home Rule preme Court strictly construed a home rule municipality’s constitutional authority to “exercise any power for munici- The devolution-of-powers approach, however, has pal purposes” when it overturned a similar ordinance.64 brought forth its own difficulties in state-local relations. A third key constitutional provision is found in the Questions concerning administrative flexibility and en- New Jersey taxation and finance article, in addition to the trenched rights in a state constitution are not fully devel- matters normally found in such articles. It contains a pro- oped. The New Jersey Constitution, for example, has vision that makes the delivery of certain services, notably a attempted to cope with some of these problems. That con- “thorough and efficient system of free public schools,” a stitution has no local government article. Instead, provi- state responsibility.6s This paragraph is read to mandate sions pertaining to local government are found in the that the state create a funding scheme for public educa- articles dealing with the legislative branch and taxation tion that does not shift its financial burdens exclusively to and finance.@Three provisions help explain the difficul- local taxing jurisdictions.66 ties of a devolution-of-powersapproach. First, a prohibition against local or special legislation Local or Special Legislation regulating the internal affairs of individual municipalities and counties is qualified by an exception that allows such leg- Local or special legislation, a mainstay of the state islation to be enacted on petition by the affected governing legislature’s policy repertoire during the nineteenth cen- body and by a two-thirds vote of the state legislature.61This tury, has received much negative consideration during the provision relaxes the rigidity inherent in the distinction be- twentieth century. Nonetheless, it may be time to review tween internal affairs and matters of statewide concern. that opinion. For instance, although the recent elimina- Flexibility, therefore, is permitted in the constitutionally pre- tion of local or special legislation from the South Carolina scribed division of powers by having both a concurrent ma- Constitution has been hailed as part of “the journey to- jority of the local governing body and the state legislature ward local self-g~vernment,”~’others have viewed special participate in passing special acts of the legislature. legislation as “conducive to greater independence and ex-

U.S. Advisory Commission on intergovernmental Relations 45 panded self-rule” and as an “essential means for ensuring Illinois and the Devolution-of-Powers flexibility and adaptability.”@The framers of the Constitu- Approach tion of Virginia apparently thought so when they rejected the constitutional revision commission’s recommenda- The text of the local government article of the 1970 tions to restrict the General Assembly’s authority to de- Illinois Constitution provides a particularly interesting devolve powers on local governments by special act.w The parture from the devolution-of-powers model. The dis- Virginia system apparently does deliver. In ACIRs index tinction is, perhaps, not so much of content but the placing of city discretionary authority, Virginia cities ranked of specific local government authority within a constitu- seventh overall. By comparison, such traditional bastions tional framework. In Illinois, the powers are addressed in of home rule as Ohio and California placed eleventh and the constitution as opposed to being addressed in statute seventeenth, respe~tively.~~ as the result of more general constitutional provisions. Article VII of the Illinois Constitution illustrates the complex kind of decision rules that must be supplied if the goal Interlocal Collaboration of entrenching the rights of local governments and local citizens is to be realized. These decision rules include: Another significant response to the difficulties with the devolution-of-powers model is represented by the (1) The definition of entities eligible for home emergence of state constitutional and statutory rules gov- rule status; erning interlocal collaboration. A recent ACIR report has (2) The scope of powers afforded home rule en- identified enabling rules that determine the choices that tities; local citizens may use to create and modify local govern- (3) The interpretation of granted powers; ment~.~~In that report, the notion of a local government (4) Interlocal conflict and collaboration; and constitution is not limited, as it is in lawyer’s discourse, to (5) The problem of state legislative control over state constitutional provisions. These enabling rules are the scope of home rule powers. sorted out into four types: Woven throughout the fabric of the article are require- (1) Rulesof association (ie., those that establish ments for local citizen choice. processes, such as municipal incorporation, The complexity of these rules reflects not only the dif- that enable local citizens to create municipal- ficulty of coming to terms with the multifaceted roles that ities or other entities endowed with certain governmental powers); local governments play in the division of governmental responsibilities in a modem society but also the differen- (2) Boundary adjustment rules that enable local tiated political culture that flourishes in Illin~is.’~Neglect citizens and officials to alter the boundaries of the political truism that “all politics is local” undoubted- of existing units; ly contributed to the failure of a constitutional reform (3) Fiscal rules that determine local revenue- package in Maryland that sought to streamline the institu- raising authority; and tions of local g~vernance.~~ (4) Contracting rules that enable local units to Counties, cities, villages, and incorporated towns in enter into a variety of mutually agreeable re- Illinois are eligible for home rule tatu us.'^ A self-executing lationshipswith one another and with private grant of home rule powers to certain counties and to mu- fms.72 nicipalities with a population of more than 25,000 is subject to repeal by referendum. Otherwise, home rule status The departure from conventional thinking called for can be acquired only by referendum.79 by these categories casts new light on the significance of In contrast to devolution-of-powers constitutions, the inserting into state constitutions such matters as dissolu- Illinois article distinguishes between several kinds of local tion and annexation, consolidation and separation, joint autonomy: form of government and office holding, func- participation in common enterprises, interlocal coopera- tions, and fiscal matters. A home rule unit can adopt, al- tion, and intergovernmental relations, as is done in Mis- ter, or repeal its currently prescribed form of government ~ouri.’~It also clarifies rules concerning the formation, subject to referendum approval.8O Home rule municipali- operation, and dissolution of special districts, which are ties and home rule counties possess diverse powers with embedded in the local government article of the 1974 respect to the creation, manner of selection, and terms of Louisiana Constit~tion.~~Finally, this approach shifts the office of local officials.Sl focus of attention from a preoccupation with conflict to a “A home rule unit may exercise any power or perform recognition of the pervasive collaboration through con- any function pertaining to its government and affairs,”82 tractual arrangements that obtains in modem state and lo- the article states. What is pertinent to its government and cal go~ernment.~~ affairs is defined expressly to include a copious grant of

46 U.S. Advisory Commission on Intergovernmental Relations the police power “to regulate for the protection of the Greater Fiscal Autonomy public health, safety, morals, and welfare” and “to li- cen~e.”~~This grant of power expressly includes the power A tilt toward local fiscal autonomy, proposed in the to tax and to incur debt, attributes of fiscal autonomy with- 1953 AMA proposal and highlighted in ACIR’s studies, has out which home rule would be straitjacketed in come to fruition in recent amendments to several state con- The Illinois Constitution also addresses and resolves stitutions concerning the proliferation of state mandatesw the problem created by Dillon’s Rule: How are decision- The 1975 California provision requires the state to re- makers to read the empowering text? The blunt answer is imburse local governments if any new program or higher that ‘‘[plowers and functions of home rule units shall be level of service cost is mandated.‘OOTakenin the context of construed liberally.”85 Counties and municipalities that the taxpayer rebellion of the 197Os, the provision’s primary arenot home rule units “shall have onlypowers granted to objective is to guard against a potential “smoke and mirrors” them by law” plus expressly granted constitutional powers device that would enable the state legislature to evade tax over form of government and officeholding, fiscal mat- and spending limits by shifting costs to local governments. ters, and providing for local improvements and services.86 Nevertheless, an arguably unintended consequence Limited purpose units of local government, such as townof the reform creates a protected sphere of local fiscal au- ships, school districts, and special districts, “shall have tonomy. For example, the Missouri Constitution requires only powers granted by law.””’ not only that the state fund “any new activity or service or In addition, the article prescribes rules for resolving any increase in the level of any activity or service beyond that conflicts between legislative enactments of home rule cities required by existing law” but also that “the state cannot re- and home rule counties!” It also is sprinkled with provi- duce the state financial proportion of the costs of any existing sions aimed at facilitating interlocal cooperation by con- activity or service required of. . . political subdivisions.”1o1 tract and power ~haring.8~ The Missouri language substantially affects two com- Finally, the article speaks to the neglected but perva- mon dogmas of state constitutional law: (1) the state pos- sive question of state preemption of home rule sesses virtually untrammelled power to impose duties and Courts customarily have used rules of statutory construction obligations on local governments; and (2) state funding of to resolve alleged conflicts between state and local laws, existing programs is a matter of legislative grace.’O* largely in favor of the state?] Experts in local government Free-standing provisions of the Hawaii and Tennessee law have pointed out the destructive impact of doctrines of implied preemption and preemption by occupation of the constitutions direct the state to share in the costs of legis- field on the reach of home rule powers?z Even in jurisdic- lation imposing increased expenditures on cities and coun- tions like Alaska, which adopt the devolution-of-powers ties.Io3 Several states have created statutory rules approach, the constitution speaks to the preemption issue directing either that the state reimburse mandates or that by stating that a home rule entity may exercise “all legisla- the fiscal impact of proposed legislation on local govern- tive powers not prohibited by law.’N3 ment be estimated and made known to legislators before A fair reading of this language would seem to require they take final action on the legi~lation.’~~ some clear statement of state legislative desire to displace a home rule 0rdinance.9~Lest such subtlety be as lost on the courts of Illinois as it was in Alaska, the Illinois home rule provision makes crystal clear that “home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit As local government has developed and become more the concurrent exercise or specifically declare the state’s important to the states, which have seen their responsibili- exercise to be excl~sive.’~~There is no room for a doctrine ties balloon in the twentieth century, the states have inte- of implied preemption in this language. grated local government into the complex provision of The express preemption question is dealt with gener- services to their citizens. To do this, the constitutional really as follows: “[Tlhe General Assembly may provide spe- lationship between the state and its localities has under- cifically by law for the exclusive exercise by the State of any gone significant change. These changes have included: power or function of a home rule unit.’@‘When the state chooses not to assert a monopoly, a three-fifths superma- The 1875 Missouri constitutional provision jority is required to deny or limit a home rule entity’sfiscal that broadly empowered one city, St. Louis, and other powers.97Significantly, only two areas of home but created no meaningful bamer to state leg- rule autonomy are protected against legislative limitation islative interference with municipal matters; or denial: the power to add to the stock of local capital im- California‘s constitutional revision, on citizen provements by special assessment and the power to fi- initiative, to bar state legislative meddling nance the provision of special services?” with municipal affairs;

U.S. Advisory Commission on Intergovernmental Relations 47 b New York’s bill of rights on local governments; l7 James E. Westbrook, “Municipal Home Rule: An Evaluation of the Missouri Expenence,”Mksoun’Lm Review 33 (1,1968): b The American Municipal Association’s mod- 45. el state constitution making the state legisla- ‘8Vanlandingham’s assertion notwithstanding, it is simply not ture the ultimate arbiter of the scope of so, and is expressly contradicted by the cases which he cites. Compare, for instance, Kenneth E. Vanlandingham, “Munici- home rule; pal Home Rule in the United States,” Williamand Mary Law The Illinois constitution marking the reemer- Review 10 (Winter 1968): 278,284-285, with State ex rel. Kansas gence of complex rules for outlining the rela- City v. Field, 99 Mo. 352, 355 (1889). tionship between state and local government; l9 James E. Westbrook, “Municipal Home Rule: An Evaluation of the Missouri Experience,” pp. 46-47,51. and ”St. Louis v. Sternberg, 69 Mo. 289 (1879). The New Jersey statutoq home rule approach. 21 Missouri v. Lewis, 101 U.S. 22 (1879). 22 Debates and Proceedings of the Constitutional Convention of the These changes in law promoting local government au- Stateof Calvomia (Sacramento, 1881), Vol. 2, p. 1059-1060 (re- tonomy make it important to look at the increasing judicial marks of Delegate Hager), p. 1063 (remarks of Delegates review of state-local relations that has taken place during Brown and Reynolds). the last decade. Ibid., p. 1060 (remarks of Delegate Barbour). Ibid., p. 1063 (remarks of Delegate Howard of Los Angeles). Notes =Ibid., p. 1061 (remarks of Delegate Hale). Isidor Loeb and Floyd C. Shoemaker, eds., Debatesof the Mis- 261bid.,p. 1062 (remarks of Delegate Freeman). souri ConstitutionConvention of 1875 (Columbia: State Histor- 271bid.(remarks of Delegate Howard of Angeles). ical Society of Missouri, 1944), Vol. 12, pp. 444-499. Los Hereinafter, DEBATES. 28 Ibid., p. 1063 (remarks of Delegate Winans). ’Oxford English Dictionw,2d edition (Oxford Oxford Univer- 29 Ibid., p. 1064. sity Press, 1989), Vol. 7, p. 330. 3oMissouriv. Lewis, 101 U.S. 22, at 30,32 33. Ibid. 31 Francis H. Thorpe, ed., The Fedeml and State Constitutions, Colonial Charters, and Other Oeanic Laws of the United States William B. Munro, “Home Rule,” Encyclopedia of the Social (Washington, DC: U.S. Government Printing Office, 1909), Sciences(New York Macmillan Company, 1930), Vol. 4, p. 434. Vol. 1, p. 456. (California Constitution, Art. XI, $6, adopted ’As Delegate Todd floridly observed: 1896) What we are asking for a place in the Constitution is 32 Ibid., p. 459. (California Constitution, Art. XI, $8, adopted stability. It is for the purpose of establishing one local 1905) government upon a rock & not upon quicksand as it has 33 Vanlandingham, “Municipal Home Rule in the United been for the last twenty years, to be blown over by every States,” p. 279. wind & of bummerism, high fraud and rascally flood 34 Bernard Bailyn, The Ideological Origins of the American Revo- speculators. lution (Cambridge, Massachusetts: Belknap Press, 1967), p. DEBATES, pp. 470-471; see also pp. 445,468. It should be 223. noted that this concern appeared to quite general across the 351bid. nation. Compare, for example, the constitutional amendment in New Jersey of the same year. %Michael H. Frisch, “Urban Theorists, Urban Reform, and American Political Culture in the Progressive Period,” Political 6Missouri Constitution of 1875, Art. IX, B$u1-25. These provi- Science Quarterly 97 (Summer 1982): 295. sions were drafted, sponsored and debated largely on the ini- 37NewYorkConstitution,Art. IX,511-3;Peter J. Galie, TheNew tiative of the St. Louis delegation to the Convention. Yo& State Constitution (Westport, Connecticut: Greenwood DEBATES, pp. 473,476. Press, 1991), pp. 210-211. Missouri Constitution of 1875, Art. IV, $53. ”New York Constitution, Art. IX, $1. ‘DEBATES, p. 477 (remarks of Delegate Gottschalk). 39 Ibid. bid., pp. 449-450 (remarks of Delegate Hale). Ibid., Art. IX, $2(a) and @). lo bid., p. 467 (remarks of Delegate Taylor of St. Louis); see also 41 Ibid., 52(c). pp. 459-460 (remarks of Delegate Gantt). 42 Ex parte Braun, 141 Cal. 204,213-214 (1903). Missouri Constitution of 1875, Art. IX, 5620-22. Local imple- 43 Thorp, ed., The Fedemland State Constitutions,vol. 7,p. 3995. mentation of the charter process is described in Thomas S. (Washington Constitution, Art. XI, 511, 1889) Barclay, The St. Louis Home Rule Charter of 1876 (Columbia: “State exrel. Navinv. Weir, 26 Wash. 501 (1901);Durban v. Spo- University of Missouri Press, 1902). kane, 27 Wash. 615 (1902); Seattle Electric Company v. City of ”bid., Art. IX, $20, 522, $23. Seattle,78 Wash.203(1914). SeeMcBain, TheLawandPractice of Municipal Home Rule, pp. 429-436. l3DEBATES, p. 476 (remarks of Delegate Fyan). “State ex rel. Mueller v. Thompson, 149 Wis. 488, 517-518 l4 Missouri Constitution of 1875, Art. IX, $25 (19 12). 15KansasCity v, Stegmiller, 151 Mo. 189, 52 S.W. 723 (1899). 46 Jefferson B. Fordham and Joe E Asher, “Home Rule Powers 16Howard Lee McBain, 77ie Law and Practice of Municipal in Theory and Practice,” Ohio State Law Journal 9 (1,1948): 18. Home Rule (New York: Columbia University Press, 1916), p. 47 James D. Cole, “Constitutional Home Rule in New York: The 125. Gist of Home Rule,” St. John’s Law Review 59 (Summer 1985):

48 U.S. Advisory Commission on Intergovernmental Relations 713,716. See Connecticut Advisory Commission on Intergov- 73 Missouri Constitution, Art. VI, $5, $14,$16, $30(a). See ACIR, ernmental Relations, Defining Statewide vs. Local Concerns: Metropolitan Organization: Tile St. Louis Case (Washington, Can It Be Done and Is It Necessary? (Hartford, 1989). DC, 1988). Kenneth E. Vanlandingham, “Constitutional Municipal 74LOuisianaConstitution. Art. VI, $15, $16, 918,119, 838,843. Home Rule Since the AMA (NLC) Model,’’ Williamand Mary See Lee Hargrove, The Louisiana State Constitution (Westport, Law Review 17 (Fall 1975): 1. Connecticut: Greenwood Press, 1991); Robert B. Hawkins, Jr., Self Government by District: Myth and Reality (Stanford, Cali- 49 American Municipal Association, Model Constitutional Provi- fornia: Hoover Institution Press, 1976). sions for Municipal Home Rule (Chicago, 1953), p. 19. 75M~rtonGrodzins, The American System (Chicago: Rand Goodnow, Municipal Home Rule, p. 253. McNally and Company, 1966); Gary J. Miller, Cities by Con- 51 Ibid., pp. 252 4. The Prussian enactment was the creation of tract (Cambridge, Massachusetts: The MIT Press, 1981); Wil- Baron von Stein. W. Hardy Wickwar, The Political Theory of liam G. Colman, State and Local Government and Public- Local Government (Columbia: University of South Carolina Private Partneidiips (Westport,Connecticut: Greenwood Press, Press, 1970), pp. 32-37. See Guy Stanton Ford, Sfernand the Em 1990); Joseph E Zimmerman, State-Local Relations:A Partner- ofRefom in Prussia (Princeton, New Jersey: Princeton Univer- ship Approach (New York Praeger Publishers, 1983) pp. 34-37. sity Press, 1922). 76ElmerGertz and Joseph F? Pisciotte, CharterforaNew Age:An 52 Kenneth Fox, Better City Government (Philadelphia: Temple Inside View of the Skth Illinois Constitutional Convention (vr- University Press, 1977), pp. 39-41; Robert H. Wiebe, The ban= University of Illinois Press, 1980)) pp. 244261; Daniel J. Search for Order 1877-1920 (New York Hill and Wang, 1967), Elm, “The Principles and Traditions Underlying State Consti- p. 170; Samuel F? Hays, “The Politics of Reform in Municipal tutions,” Publius: 77ieJournal of Federalism 12 (Winter 1982): 18. Government in the Progressive Era,” Pacific Northwest Quar- 77 John I? Wheeler, Jr. and Melissa Kinsey, Magnificent Failure: tedy 55 (October 1964): 157 and “The Changing Political Struc- The Maryland Constitutional Convention of 1967-1968 (New ture of the City in Industrial America,” Jozrrnal of Urban York National Municipal League, 1970), pp. 210-212. History 1 (November 1974): 6. 78111inoisConstitution, Art. VII, 1, $4(a), $6(a). 53 American Municipal Association, Model Constitutional Provi- sions for Municipal Home Rule, pp. 19-20. 791bid.,Art. VII, $@a), (b). Ibid., Art. VII, $6(f). 54 Ibid., pp. 23-24. 55NationalMunicipal League, Model State Constitution, 6th ed., 81 Ibid. (New York, 1963), pp. 94-100. 82 Ibid., Art. VII, $6(a). 56 Missouri Constitution, Art. VI, $ 19(a); Pennsylvania Constitu- 83 Ibid. tion, Art. IX, $2. 84 Ibid. and Rubin G. Cohn, “Municipal Revenue Powers in the 57N~rthDakota Constitution, Art. VII, $1. Context of Constitutional Home Rule,” NorfltwestemUniversi - ty Law Review 51 (1, 1957): 27. 58 American Municipal Association, Model Constitutional Provi- sions for Municipal Home Rule, p. 20. 85 Illinois Constitution, Art. VII, $6(m). 59 Ibid. 861bid., Art. VII, $7, boNewJersey Constitution, Art. IV, $7, para. 2@); para. 7-12; 87 Ibid., Art. VII, $8. Art. VII, $3,$4.For commentary, see Robert E Williams, The 88 Ibid., Art. VII, $6(c). New Jersey State Constitution (Westport, Connecticut: Green- 891bid., VII, $6(1Xl), $7(1), $10. wood Press, 1990). Art. Janice C. Griffith, “Connecticut’s Home Rule: The Judicial 61NewJersey Constitution, Art. IV, $7, para. 9(13); para. 10. Resolution of State and Local Conflicts,” University of Bridge- 62NewJersey Constitution, Art. IV, $7, para. 11. port Law Review 4 (2, 1983): 177, 212247; Richard Briffault, “Taking Home Rule Seriously: The Case of Campaign Re- 631nganamortv. Borough of Fort Lee, 62 N.J. 521 (1973). form,” Proceedings of the Academy of Political Science 37 (3, 64Cityof Miami Beach v. Fleetwood Hotel, Inc, 261 So. 2d 801 1989): 35,38-45. (1972) (Florida Constitution, Art. VIII, $2(b)). 91 Griffith, “Connecticut’s Home Rule,” p. 213. 65NewJersey Constitution, Art. VIII, $4, para. 1. 92Che~terJ. Antieau, Municipal Cotporntion Law (New York &Abbott v. Burke, 100 N.J. 269 (1985). Matthew Bender and Company, 1968), Vol. 1,292.38;Stewart Dalzell, “The State Preemption Doctrine: Lessons from the 67 James L Underwood, The Constifufionof South Carolina (Co- Pennsylvania Experience,” University of Pittsburgll Law Review lumbia: University of South Carolina Press, 1989), Vol. 2,77ie 33 (2, 1971): 205; Millard H. Ruud, “Legislative Jurisdiction of Journey Toward Local SelfGovemment. Texas Home Rule Cities,” TamLaw Review 37 (June 1959) 682 Don C. Tea ford, The Unhemlded Triumph: City Goveniment in 93 Alaska Constitution, Art. X, 111 (emphasis added). America, 1870-1900 (Baltimore: Johns Hopkins University Press, 1984), p. 94. 94C.Dallas Sands, Michael E. Libonati, and John Martinez, Lo- cal Government Law (Wilmette, Illinois: Callaghan and Com- 69 See “Report of the Commission on Constitutional Revision,” pany, 198l), Vol. 1, $4.10.50. But see Chugach Electric 77ie Cotistitiition of Ktginia (Charlottesville,Virginia: The Mi- Association v. City of Anchorage, 478 2d 115 (Alaska, 1970). chie Company, 1969). p. 228. Compare that with the Virginia I! Constitution, Art. VII, $3. 95 Illinois Constitution, Art. VII, $6(i). 70 U.S. Advisory Commission on Intergovernmental Relations 961bid.,Art. VII, $6(h). (ACIR), Measuring Local Discretionary Autliorify (Washington, 97 Ibid., Art. VII, $6(g), (j). DC, 1981) p. 59. 98 Ibid., Art. VII, $6(1). 71 ACIR, rite Organization of Local Public Economies (Washing- 99 American Municipal Association, Model Constitutional Provi- ton, DC, 1987), p. 39. sions for Municipal Home Rule; ACIR, State Mandating of Lo- 72 Ibid. cal Expenditures (Washington, DC, 1978).

U.S. Advisory Commission on Intergovernmental Relations 49 looCalifornia Constitution, Art. XIII, B16. Art 11, $24, discussed in Lewis L Laska, The Tennessee State Constitution (Westport, Connecticut: Greenwood Press, 1990), lol Missouri Constitution, Art. X, 21; Art. XII, $2(b). pp. 82-83. lo* Sands, Ldbonati, and Martinez, Local Government Law, Vol. 1, 3.12 lo4 US. General Accounting Office, Legislative Mandates (Wash- lo3Hawaii Constitution, Art. VIII, 55;TennesseeConstitution, ington, DC, September 1988).

50 U.S. Advisory Commission on intergovernmental Relations Chapter 5 RECENT TRENDS IN JUDICIAL DECISIONS AFFECTING LOCAL AUTONOMY: 1978-1992

The 1978-1992 period did not produce the sweeping at least a minimal attribute of structural autonomy (i.e., changes in local initiative that were seen in the moderniza- the capacity to have constitutional rights and to invoke tion of state constitutions in 16 states between 1956 and them against infringing state agencies and instrumentali- 1978.' State courts in this later period came to grips with ties). New York's highest court broke with precedent in more mundane problems of applying revised state constitu- 1976 when it heard a town's challenge to a statute that al- tional provisions to a wide variety of significant issues in legedly stripped the jurisdiction of authority guaranteed state-local relations. This chapter examines cases decided by the state constitution's bill of rights for local govern- between 198-1992 concerning local government autonomy ment~.~The Colorado Supreme Court held in 1987 that a in determining general issues as well as issues of governmen- home rule city could stand in the shoes of its citizens to tal structures, functions, fiscal matters, and personnel. question whether a state statute violated state constitutional prohibitions against local and ripper legislation? In a carefully reasoned decision in 1985, the Utah Supreme Court ruled that a local government may invoke the state constitution against the state if it meets the traditional tests applied to private parties claiming standing to sue; namely, a sufficiently adverse interest and a legally pro- Significant state supreme court decisions have been tected interest in the controver~y.~ rendered during this period concerning: Utah (1985) and Massachusetts (1988) now recognize (1) Local government capacity to sue the state; that a local government unit has the capacity to vindicate claims on issues of great public importance lest the matter (2) Constitutionality of local or special legislation; otherwise be effectively insulated from constitutional (3) The scope of protection afforded by the rip- scrutiny.6 The scope of potential state constitutional per clause; and claims now subject to judicial review at the behest of local (4) Interlocal cooperation. government units includes taking of property without compensati~n,~deprivation of procedural due process,8 and A brief review of recent trends in these decisions fol- state failure to meet constitutional funding obligations? lows. Constitutionality of local Capacity to Sue or Special Legislation State constitutional texts apparently grant powers of The subject of local or special legislation is a vexing both initiative and immunity to local governments, just as one. In states that prohibit local or special laws that affect they provide the same to individuals. Yet, in 1978, the doc- individual jurisdictions only, state supreme courts have trine concerning the juridical status of local government tended historically to defer to the state legislature's judg- units centered on the belief that the state constitution ment in determining whether a statute is general (and, conferred no rights on a local government unit as against therefore, constitutionally valid) or local (and, probably, the sovereign state. Consequently, a local government constitutionally invalid).'O Indeed, some state constitu- had no capacity to assert state constitutional claims tions have had to be amended to require courts to exercise against the state sovereign.z the power of judicial review over the validity of classifica- Several state supreme courts, however, have begun to tions adopted by the state legislature." take a new look at whether local government units possess Some jurisdictions continue to follow the rule that the

U.S. Advisory Commission on Intergovernmental Relations 51 prohibition against local legislation does not reach legislation er, the court substituted a balancing approach that re- dealing with a matter of statewide concern, even though it nounced its previous efforts to erect “mechanical applies to only one community.12 Others apply a rational- conceptual categories that, without serving any substantial basis test, under which the statute is deemed general if the interest, may hobble the effective government which the classification principle limiting its application relates to the state constitution as a whole was designed to permit.”22 objective of the statute. Thus, the Tennessee Supreme Court In another case, the Pennsylvania Supreme Court (in 1985) sustained a statute mandating that the largest (1980) ruled that legislative powers were improperly dele- county in the state establish a civil service system because of gated if a state agency or instrumentality compelled a local the size and complexity of its personnel 0rganizati0n.l~ government to legislate, to levy taxes, or to appropriate Nevertheless, during 1978-1992, there was a discern- funds.23 ible trend toward a more searching judicial scrutiny of legislation challenged as local or special. The Arkansas Interlocal Agreements -Service Transfers Supreme Court in 1984 began to enforce that state’s constitutional prohibition after a long period of judicial indif- A state constitutional provision setting forth rules for ference.14C~n~tit~tionalrevision in South Carolina thrust interlocal collaboration undoubtedly facilitates such ar- its Supreme Court into the fray in 1982 after nearly two rangement~.~~Local consent may be called for, as in Flori- centuries as a jurisdiction permitting local or special legis- da, where the Supreme Court interpreted the pertinent 1ati0n.l~The Ohio Supreme Court held in 1986 that stat- constitutional provision to require dual referenda to ap- utes treating one local government unit differently from prove a proposed transfer of service provision powers or similar localities in the state are subject to invalidation on functions from municipality to county.25 state equal protection grounds.16 In addition, the Wiscon- Where a statutory policy requiring interlocal coopera- sin Supreme Court in 1988 replaced its formerly slack re- tion is inserted into a state constitution that has not been view of legislative classification challenged as local with a carefully reviewed for conformity with a policy encourag- more stringent test, while the Illinois Supreme Court did ing such activities, the results are often unpredictable. Ac- exactly the reverse.” cordingly, a statute transferring regulatory powers from a In 1985, Washington, Colorado, and Pennsylvania, county to a town was judged in 1989 to be an unconstitu- which nonnally sustain classificationsbased on population as tional local law regulating county business in rational without further debate, made it clear that some stat- attempt in Rxas to transfer functions to the county was utes could and did flunk the rationality test.’” In 1989, the held in 1989 to be an unconstitutional deprivation of the Rhode Island Supreme Court applied provisions of its con- right of school district voters to withhold local consent to a stitution that are specifically worded to protect home rule proposed consolidation of governmental functions.27 entities against state legislative incursions into local matters when those incursions do not bind all cities and towns in the state.19The Commonwealth of Massachusetts’highest court (in 1981) protected Boston’s autonomy from state legislation, which applied to Boston alone, in accordance with the home rule amendment to the state constitution.” That amendment limits the legislature’s power to act in relation to In the area of governmental structure, the state su- cities and towns by creating a class of fewer than two. preme courts have made some important decisions on (1) delegations of power by the state legislature to local governments and (2) home rule. Ripper Clauses What follows is a short description of the judicial trends in these areas. The ripper clause, like the prohibition against local or special legislation, confers immunity but not initiative on Delegations of Power local governments by bamng state legislation that delegates municipal functions to a special commission. The North Carolina Constitution states, “The General During 1978-1992, the Utah Supreme Court softened Assembly . . . may give such powers and duties to counties, its previously robust construction of this clause. Original- cities, and towns, and other governmental subdivisions as ly, in 1957, it had struck down a statute authorizing a state it may deem advisable.”280newould suppose such a provi- agency to regulate municipal sewer systemson the ground sion to be superfluous in view of the normal interpretation that the provision was “intended to assure the city free- that a state constitution is a document limiting the other- dom from outside supervision and control ‘over’ any activ- wise plenary powers of the legislature.r) This assumption, ity properly engaged in by the city or municipality whether however, fails to take into account the strength and per- governmental or proprietary.”*lIn a 1988 decision, howev- sistence of the delegation doctrine in the states.

52 U.S. Advisory Commission on Intergovernmental Relations For example, the Kentucky Supreme Court held in When it is determined that a particular subject falls 1977 that the state legislature did not have the authority to within the scope of home rule powers, courts must still de- delegate broad home rule powers to co~nties.’~In addi- cide if the local action should be preempted by state law. tion, the Nebraska (1988) and Rhode Island (1987) su- That is, “to what extent are local home rule powers lim- preme courts invalidated a grant of legislative power over ited, in dealing with a particular subject, by the existence licensing that did not impose adequate standards to guide of state statutes relating to the same In making a local government body’s exercise of discretion.” Con- this judgment, some state courts, in jurisdictions that employ necticut’s Supreme Court in 1989 intimated that a broad terminology like local or municipal to distinguish the types of grant of police powers to local government would be consti- activities over which local governments may exercise control, tutionally problematic were it not for a provision in the state fail to distinguish two severable issues, namely, constitution expressly permitting the legislature to do so.32In (1) Whether or not the matter is of local or mu- Kansas, the legislature is permitted by a 1985 decision to vest nicipal concern and is, therefore, appropriate general purpose units of local government with legislative for home rule action, and powers only as to “matters of local concern.”33 (2) Whether or not the matter, even if within the scope of home rule initiative, ispreemptedby Home Rule state law?4

A canvass of recent cases reveals that courts are more State courts may limit sharply the scope of home rule likely to read constitutional grants of home rule power as initiative over procedural matters by finding that a tangen- confemng the initiative on local governments to arrange tially related state law implies preemption of a home rule their own structures and procedures locally. Indeed, the charter or ordinance. For example, the Hawaii Supreme Oregon Supreme Court in 1978 reinterpreted its home Court ruled in 1988 that a charter provision authorizing rule provisions in this manner.’4 the local prosecutor to issue investigative subpoenas with- Along the same lines, a court in Louisiana in 1988 de- out the procedural restrictions conditioning a similar stat- clared that a home rule county could create a department utory grant to the state attorney general was inconsistent of juvenile services without permission of the legisla- with and, therefore, by implication preempted by the more t~re.’~Furthermore, New York in 1987 and Colorado in stringent state law ~tandards.4~ 1988 sustained local measures designed to facilitate the effective performance of administrative tasks, such as tax collection and the provision of service^.'^ In the late 198Os, the Illinois, Kansas, Louisiana, and Ohio Supreme Courts upheld home rule ordinances and charter provisions regulating local legislative procedure^.^' Pennsylvania’s Su- preme Court (1986) ruled that a two-term limit for mayor Autonomy of function embraces every regulatory and was within a city’s home rule service aspect of local government. A comprehensive The Louisiana Supreme Court in 1984 invalidated a treatment of every development in this area is, therefore, state statute for infringing on a home rule government’s unworkable. One may, however, focus on a specific trend constitutionally protected initiative to organize itself with discernible in the case law during this period: the tendency respect to matters of structure and procedure.M of courts to rethink their position on the doctrine of regu- Courts in two other jurisdictions, however, rejected la tory preempt ion. similar home rule claims on the basis of a purported state In order to understand what is taking place, following interest. The California Supreme Court held in 1988 that a is a brief review of provisions pertinent to preemption and statute empowering city councils to impose development of some significant preemption decisions. When it de- fees dealt with a matter of statewide concern. According is to the court, that statute carried with it the “authority to termined that a particular subject falls within the scope of impose procedural restrictions on the exercise of the pow- home rule powers, policymakers often confront the er granted, including the authority to bar the exercise of preemption question. the initiative and referend~m.”~”In the second instance, Preemption encompasses both express and implied in 1980, the Oregon Supreme Court did not allow the preemption?6 As to express preemption, legislative home home rule provisions of the state constitution to prohibit rule provisions do not protect home rule entities from general laws from imposing procedural constraints on state statutes expressly limiting their powers and func- home rule In 1988, the court also held that home tions. In states that confer home rule over municipal af- rule units cannot impose duties on county and state elec- fairs, a statute expressly limiting home rule functions tion officials regarding procedures for conducting an advi- raises a state constitutional law issue. That issue is wheth- sory vote on proposed ordinances.“* er or not the home rule unit has the exclusive right toregu-

US. Advisory Commission on Intergovernmental Relations 53 late the function. That is to say, can the function serve as a Constitution of this State, or of the general laws “municipal affair,” free from legislative interferen~e?~~ enacted by the legislature of this State. . . ?4 No decisions were issued between 1978-1992 in which the home rule unit successfully claimed that a regulatory In 1979 and 1984, the Illinois Supreme Court issued matter was of exclusively municipal concern. The Colora- two significant decisions recognizing concurrent regulato- do Supreme Court, however, muddied the waters of state ry jurisdiction of the state and a home rulecounty over en- predominance in regulatory affairs by ruling in 1988 that vironmental the control of outdoor advertising signs within a home rule In addition, the Pennsylvania Supreme Court in 1984 municipality was of mixed state and local concern. Never- characterized an alleged conflict between a state agency theless, the state enactment prevailed over the local ordi- and a local government as “not a contest between superior nan~e.~~This case dovetails with the trend found in cases and inferior governmental entities, but instead a contest involving claims of immunity from state legislative inter- between two instrumentalities of the state.”56The court ference as to personnel and structural matters, where the rejected the balancing approach adopted by other state protected sphere of freedom for home rule entities has courts as “an ad hoc judicial legislation of authority to the been eroded. In cases involving implied preemption, the courts are governmental unit which, in the circumstances, seems to have the most compelling case.”57Rather, the court chose, more unwilling to displace assertions of local regulatory in the absence of “more certain legislative direction,” to initiative. Implied preemption analysis comes into play give effect to the legislative powers conferred on both the when the state legislature enacts a regulatory statute that home rule city and the state by recognizing the municipali- is silent as to whether political subdivisions are or are not ty’s concurrent regulatory jurisdiction even over the site permitted to create supplementary local legislation or to enter into the field covered by state law.49 location decisions of a state agency.s8 The California Supreme Court in 1989 also reframed Many state constitutional grants of home rule authority the preemption issue in terms that mark a significant are consciously phrased to exclude the application of implied change in judicial thinking. The court was faced with an preemption to home rule entities. For example, the Mon- asserted preemption of local regulatory authority by a tana Constitution says that “a local government unit adopt- state ~tatute.5~Thecourt rejected the assumption that uni- ing a self-government charter may exercise any power not tary, centralized regulation should prevail over multiple prohibited by this constitution, law, or charter.”50The Illinois regulation. Instead, it viewed the matter as one involving a Constitution, as has been mentioned already, states that: conflict between two equally legitimate assertions of regulatory authority. Accordingly, the court ruled that the ap- Home rule units may exercise and perform con- propriate mode of analysis between the provisions of two currently with the state any power or function of a valid statutes, particularly where there is a purported con- home rule unit to the exlent that the General Assem- flict between them, is that both are presumed valid and ef- bly does not by law spec#cally limit the concurrent fective unless the conflict is irreconcilable.60 exercise or specifically declare the States’ exercise to A lesson in the nuances of state constitutional inter- be concl~sive.~~ pretation emerged in the states with respect to the controversial subject of regulating relationships between In other states, pertinent constitutional language in- landlords and tenants. The Illinois Supreme Court in 1981 vites the judiciary to establish a doctrine of preemption recognized that home rule status rendered obsolete a pre- along the lines indicated by the language employed. Thus, in vious decision denying local regulatory initiative over Iowa, “municipal corporations are granted home rule power landlord-tenant relationships.61The California Supreme and authority, not inconsistent with the laws of the general Court in 1984 sustained a home rule rent control ordi- assembly, to determine their local affairs and g~vernment.”~~ nance against a preemption claim based on the criterion Washington’s constitution states, “any county, city, town or that the legislation intended to “occupy the field,” while township may make and enforce within its limits all such invalidating those parts of the local administrative scheme local police, sanitary and other regulations as are not in that conflicted with state law.62 On the other hand, courts conflict with general have found limits to such concurrent jurisdiction, as when In Texas, judicial interpretation has turned every em- the Massachusetts Supreme Court ruled in 1984 that a home powerment question into a preemption problem: rule city’s condominium conversion ordinance affected “private or civil law relationships”; a power excepted by the state Cities. . . may.. . adopt or amend their Charters, constitution from the reach of home r~le.6~ subject to such limitations as maybe prescribed by The Illinois Supreme Court has provided the stron- the State legislature, and providing that no Char- gest claim yet to immunity from preemption in its 1984 deter or any ordinance passed under said Charter cision that a home rule village’s regulation of hand guns shall contain any provision inconsistent with the was not only within the scope of its powers but also that

54 i .a. Advisory Commission on Intergovernmental Relations local regulation was not preempted by state law.64In dis- lar tax and spending limitation provisions of the Arizona, missing the challenge to the ordinance, Justice Seymour Michigan, or Missouri constitution^.^^ The fact that other Simon, who formerly headed the law department of the states did not adopt inflexible criteria suggests that this as- City of Chicago, observed that: pect of the California experiment runs against the grain of encouraging diverse local fiscal responses to divergent lo- Home rule . . is predicated on the assumption . cal conditions. that problems in which local governments have a It is, therefore, not surprising that the California Su- legitimate and substantial interest should be preme Court has adopted what would otherwise seem to open to local solution and reasonable experimen- be a paradoxical reading of Article XIII. That court has tation to meet local needs, free from veto by vot- ruled that some provisions of Article XI11 are to be con- ers and elected representatives of other parts of strued strictly, whereas others are to be construed liberal- the state who might disagree with the particular ly.72These holdings are consistent if one assumes that the approach advanced by the representatives of the court is pursuing a policy of liberal interpretation of locality involved or fail to appreciate the local Ar- ticle exemptionsand narrow interpretation of that ar- perception of the problem.6J XI11 ticle’s scope. These decisions reinforce the lesson that the The language of this widely publicized decision shows that judiciary’s role in implementing state constitutional policy the Illinois court recognizes, as fully embedded in the innovations must be taken into account at the drafting home rule article of the state constitution, a policy of au- stage-a precautionary step not taken by those who for- tonomy of function, however ill-defined it may have been. mulated the Jarvis-Gann proposition (Proposition 13).73 Local Voter Choice The kind of exactions that are subject to voter approval vary according to the constitutional language and its interpretation. In California, only local government entities vested with the power to impose taxes on real property are The popular image of this period is encapsulated in the subject to the constraints imposed by Article XI11 A phrase “tax revolt.” Indeed, changes in state constitutions following the 1978 enactment of California’s Proposition 13 local payroll and receipts tax for general use by local gov- did affect municipal revenue behavior.66Constitutional re- ernments was not classed as a special tax requiring approv- forms engendered between 1978 and 1992, symbolized by the al by a two-thirds majority of those voting.” property tax revolt, tended toward the diminution mther The Missouri Supreme Court held in 1982 that the than the enhancement of local fiscal aut0nomy.6~ prohibition against “increasing the current levy of an exist- The 1978 property tax limitations, now found in Ar- ing tax, license or fee. . . without the approval of the re- ticle XI11 A of the California Constitution, are familiar. quired majority of the qualified voters,” applied not only Less attention has been paid to the Article XI11 B spend- to levies generating general revenue but also to regulatory ing limits imposed in 1979. Taken together, Article XI11 A and user charges for service~.~~TheMissouri court’s broad and B produced three distinctive changes: construction of this constitutional prohibition created nei- Substitution of objective indices to govern ther chaos at the polls nor paralysis of government opera- the amount of real property tax, the valua- tions. Voters successfully negotiated long ballots “with as tion of real property, and the amount of local many as 100 local fee increases, including leaf pickup and government spending for both local voter ice skate choice and official discretion;a Expansion of local voter choice and the con- Restrictions on Mandates comitant diminution of local official discre- During the 1978-1992 period, the number of state tion over local policy concerning objects of constitutions containing provisions dealing with state taxation other than real property;69and mandates jumped from three to ten. Hawaii (1978), Michi- Creation of a protected sphere of local fiscal gan (1978), California (1979)’ Missouri (1980), New Mexi- autonomy from state-mandated expenditure co (1980), New Hampshire (1984), and Florida (1990) increases.7o joined Alaska, Louisiana, and Tennessee in this class.78 The Hawaii provision simply provides that the state Tax Indices must share in the cost of any new program or increased level of service imposed on political subdivisions.n The first aspect of the California approach, which California’s constitution requires that whenever the supplants local voter choice, has not been adopted in simi- state mandatesa new program or higher level of service,

U.S. Advisory Commission on Intergovernmental Relations 55 the state shall reimburse these expenditures unless: (1) benefits to local governments, provided there is a reason- the locality requests the mandate; (2) the legislature is able quid pro quo. definingacrime; or(3) the mandate was enactedpriorto In 1988, the California Supreme Court ruled that an January 1, 1975.*O attempt by the state legislature to shift funding of an exist- The Missouri Constitution not only requires that the ing program from the state treasury to local governments state fund “any new activity or service or any increase in subverted the policy underlying Article XI11 B, Section 6, the level of any activity or service beyond that required by and, thus, imposed an impermissible newprogram on local existing law” but also that “the state cannot reduce the school districts?’ state financial portion of the costs of any existing activity or service required of. political subdivisions.”s1 . . Home Rule and Tax Capacity The emerging case law concerning mandate provisions has begun to diverge, as illustrated by the following cases: Several noteworthy cases have dealt with the problem In interpreting the California constitutional of a home rule unit’s capacity to tax. Justice Frank Rich- provision requiring the state to reimburse lo- ardson of the California Supreme Court wrote an influential cal government units for new programs, the concurring opinion in a 1978 case discussing the scope of tax- California Supreme Court in 1987 held that ing power as incidental to perover municipal affairs.= He the term “new programs” refers to those carry- indicated that a home rule unit possesses more power in the ing out governmental functions or imposing revenue sphere than in the regulatoIy arena. He further ob- unique requirements on local government served that the constitutional grant of home rule powers units.82 Accordingly, legislation increasing conferred an independent power of taxation mncurrent workers’ compensation benefits, which af- with, but not dependent on, state legislative grants. fected both public and private employers, As to preemption, Richardson balanced the state’s in- need not be funded by the state pursuant to terest in uniformity and the minimizing of a local govern- Article XI11 B, Section 6 of the California ment’s extraterritorial impact against the city’s interest in Constitution. increasing its revenues. In Justice Richardson’s formulation, An opposing view was taken by the Missouri the constitutional home rule policy trumped countervailing Supreme Court in 1987, which held that Mis- preemption considerations that would have invalidated the souri’s constitutional provision concerning tax had it been enacted by a city without home rule. restrictions on state mandates to local gov- In a 1991 case, however, the California Supreme ernments maybe applicable toa statute regu- Court specifically rejected a balancing approach. Charac- lating solid waste landfills even though that terizing the home rule provision as “deeply marked from statute was not aimed solely at local govern- the beginning by conceptual uncertainty,” the court sus- ment~?~ tained a statute expressly preempting home rule taxing In addition, Michigan courts in 1988 inter- authority over savings and loan associations.89 preted the state constitution to apply only to Other cases decided during 1978-1992 have addressed state requirements exempting local option this issue as well. The Oregon Supreme Court in 1980 and legislation from its p~Mew.8~ 1983 emphasized a similarly expansive construction of the b Similarly, in California in 1988, the courts ad- revenue-raising authority implied in constitutional grants dressed a crucial question over whether the of home rule powers over county affairs and the power to statutory program was mandated or merely enact charters?O In 1989, the Louisiana Supreme Court 0ptional.8~ sustained New Orleans’ imposition of a municipal inheri- tance tax?’ Home rule status, however, does not normally Not all required increases in costs run afoul of the confer initiative with respect to borrowingP2The Pennsyl- constitutional provision. For example, a Missouri county vania Supreme Court (1988) held that the ripper clause in challenged a statute requiring it to contribute additional its constitution barred the legislature from delegating to a funds to the state retirement system for past service cred- state agency or instrumentality the power to compel a lo- its of certain county employees newly enrolled in that sys- cal government to levy taxes or to appropriate fundsP3 tem. The Missouri Supreme Court in 1987 sustained the Overall, the trend of decisions during the period contin- statute on the ground that the challenged legislative ued to weaken reliance on the public purpose doctrine to de- scheme, taken as a whole, relieved the county of an exist- termine the mpe of a home rule municipality’s ability to ing burden of compensating circuit court clerks, although spend and to b0rr0wP4In that vein, in 1983, the Washington it obligated the county to pay for the past service benefits Supreme Court sustained a home rule city’s scheme to pro- of the transfer.86Thiscase suggests that courts will be slow vide campaign finance funds for candidates in local elections to strike down a statute that mixes fiscal burdens with against public purpose and preemption challenges.”

56 U.S. Advisory Commission on Intergovernmental Relations ployment relations between police officers and their employers,” the court categorized the matter as one of statewide concern because:

Autonomy as Immunity The consequences of a breakdown in such relations are not confined to a city’s borders. These The difficulties that state and local governmentshave employees provide an essential service. Its ab- invoking the 2nth Amendment to shield them against sence would create a clear and present threat not federal statutes governing the terms and conditions of only to the health, safety and welfare of the citizens public employment are mirrored in the difficulties that lo- of the city, but also to the hundreds, if not thou- cal governments have invoking home rule to block similar sands, of nonresidents who daily visit there. Its ef- state enactments.g6 fect would also be felt by the many nonresident In 1962, Oregon offered home rule units the most owners of property and businesses located within protection against state legislative incursions. State ex rel. the city’s borders. Our society is no longer one of Heinig v. City of Milwaukie held that a statute mandating insular local communities. Communities today are that the city council establish a civil service commission for highly interdependent. The inevitable result is that fire personnel unconstitutionally intruded into a home labor unrest and strikes produce consequences rule city’s protected realm of municipal affairs?’ In so do- which extend far beyond local boundaries. lo6 ing, the Oregon Supreme Court enunciated a test that tilted toward local immunity. It held that a general state It is hard to discern from the California court’s language statute predominated over local sovereignty only when how a claim to immunity for local government personnel the state showed that “the subject matter of the enact- matters can prevail over a legislative determination that the ment is of general concern to the state as a whole.’@* matter in question is of statewide concern. The decision was regarded as establishing a high-water Two other state decisions denied local claims to im- mark for local autonomy.w In 1988, the Oregon Supreme munity over personnel matters. The Montana Supreme Court reconsidered its stance and limited the earlier case Court in 1985 held that a statute establishing standardsfor fire department personnel did not infringe that state’s to its facts.loOThe court, in a pair of opinions authored by constitutional shield against interference with local gov- Hans Linde, also sustained a general statute requiring re- ernment structure and organization.lo7Utah’s Supreme tirement system membership for city police and fire per- Court in 1988 ruled that the ripper clause of the state con- sonnel and mandating life insurance policies for such stitution was not violated by a statute compelling munici- pemnnel.’O1 The court ruled that a proper interpretation of palities to enter a state-administered retirement system the home rule provision of the Oregon Constitution con- for municipal employees.1o8 ferred only a drastically narrowed immunity from state laws The limited protection afforded local government purporting to control a home rule city’s choice of its form of units by home rule immunity is well illustrated by the Ohio government or its governmental processes.lo2In limiting lo- Supreme Court’s difficulties in ruling on a case involving a cal immunity to “structural and organizational arrange- statute mandating home rule cities to enter into binding ments,” Linde rejected the notion that courts could ever arbitration agreements with public safety workers. The create a workable division of power between competing court struck down the statute in 1988 and then, on rehear- claims to sovereignty over matters of substance.lo3 ing in 1989, reversed itself and sustained it.lWBy contrast, The fragility of the distinction between substance and the Pennsylvania Supreme Court in 1988 applied the ripper procedure becomes apparent in a 1982 California Supreme clause to preclude labor arbitration orders that compel local Court ruling involving the application to charter cities of a governments to levy taxes or appropriate funds.lio state statute affording procedural protection to police per- The California Supreme Court in 1979 upheld a 1970 sonnel facing disciplinary action.lo4The court said that: amendment to the state constitution expressly giving charter cities plenary authority over compensation paid their There must always be doubt whether a matter employees, thereby overruling a statute that would have which is of concern to both municipalities and the capped the cost of living increases to municipal em- state is of sufficient statewide concern to justify a ployees.’ll Ohio’s Supreme Court ruled in 1986 that a new legislative intrusion into an area traditionally state agency is barred from investigating the operations of regarded as “strictly a municipal affair.” Such a city civil service commission on the grounds that the mat- doubt, however, must be resolved in favor of the ter was not of statewide concern, and in 1988 that a city is legislative authority of the state.los privileged to limit its civil service commission’s jurisdiction to city employees only.ll*The latter decision was Labeling the procedural protection embodied in the predicated on a finding that the city’s action had no extra- statute as conducive to “the maintenance of stable em- territorial effects.

U.S. Advisoly Commission on Intergovernmental Relations 57 Autonomy as Initiative Notes Albert L. Sturm, ”The Development of American State Con- stitutions,”Publius: The Journal of Fedemlism 12 (Winter 1982): Autonomy in the sense of initiative was supported in 57. Proposals succeeded in Alaska, Connecticut, Florida, California and Ohio cases (1988) dealing with police offi- Georgia, Hawaii, Illinois, Louisiana, Michigan, Montana, cers’ off-duty employment and with filling ~acancies.”~ North Carolina, Pennsylvania, South Carolina (article by article) and Virginia. Maryland, New York, and Texas rejected But where there was an alleged conflict between state proposed documents. Albert L. Sturm, 77iirty Ears of State statutes and a local enactment, local government initiative Cotistitutioti-M~ing:1938 -1968 (New York National Munici- was generally preempted. The Florida lower courts found pal League, 1970), pp. 138-155. in 1989 that the state workers’ compensation law 2Michael E. Libonati, ”Local Government in State Courts: A New Chapter in Constitutional Law,” Intergovernmental Per- preempted a home rule city’s ordinance deducting those spective 13 (Summer/Falll987): 15; Perry E. Sentel1,Additional benefits from the amount of disability benefits payable by Studies in Georgia Local Govemntent Law (Athens: University the city.l14 The Wisconsin Supreme Court in 1989 over- of Georgia Press, 1983), pp. 1-16. turned a home rule city’s attempt to combine its fire and Town of Black Brook v. State, 41 N.Y. 2d 486,362 N.E. 2d 579 police departments on the grounds that it conflicted with (1976). City of Montrose v. Public Utilities Commission of State of state legislation separating these function^.^'^ In addition, Colorado, 732 €! 2d 1181 (Colo. 1987). the Ohio Supreme Court (1988) now requires an express Kennecott Copv. Salt Lake County, 702 I! 2d 451 (Utah 1985). statement in a home rule city’s charter to enable a home ‘Ibid.; La Grant v. Boston Housing Authority, 403 Mass. 328, rule city to exercise powers of local self-government in a 530 N.E. 2d 149 (1988). manner contrary to state civil service laws.116 City of Chester v. Commonwealth Department of Transporta- Assertions of home rule initiative on personnel mat- tion, 495 Pa. 382,434 A. 2d 695 (1981). ters are usually sustained against preemption attacks only Scott County v. Iowa District Court, 397 N.W 2d 754 (Iowa 1986). in Illinois, where the state constitution requires a ’Helena Elementary School District No. 1v. State, 769P 2d 684 three-fifths legislative majority to assert, expressly, the (Mont. 1989). lo John M. Winters, ”Classification of Municipalities,” Nottli- state’s sovereign pred~minance.”~ westem University Law Review 57 (2, 1962): 279. For instance, Anderson v. Board of County Commissionersof Cloud County, 77 Kan. 721,95 €! 583 (1908). l2 For example, Kelly v. State, 724 S.W. 2d 42 (Tex. Crim. 1987); Town of Islip v. Cuomo, 64 N.Y. 2d 50,473 N.E. 2d 756 (1984). l3Shelby County Civil Service Merit Board v. Lively, 692 S.W. 2d 15 (Tenn. 1985). 14Littletonv. Blanton, 281 Ark. 395,665 S.W. 2d 239 (1984). State constitutional decisions do not, of course, give Richardson v. McCutcheon, 278 S.C. 117,292 S.E. 26 787 (1982). the whole picture of state-local relations from 1978-1992. I5 16Stateex rel. Dayton Fraternal Order of Police Lodge No. 44v. When considered from the viewpoint of the policies attrib- State Employment Relations Board, 22 Ohio St. 3d 1,488N.E. utable to statutory law, for example, it may well be that the 2d 181 (1986). decade of the 1980s represented a “decade of devolution.”118 l7City of Brookfield v. Milwaukee Metropolitan Sewerage Dis- A recent guide to the reform of state-local relations, for ex- trict, 144 Wis. 2d 896,426 N.W. 2d 591 (1988); Bilyk v. Chicago Transit Authority, 125 Ill. 2d 230, 531 N.E. 2d l(1988). ample, focuses two-thirds of its policy checklist for improving I* Allegheny County v. Monzo, 509 Pa. 26,500 A. 2d 1096 (1985); the state-local system on fiscal matters and stresses statutoty City of Seattle v. State, 103 Wash. 2d 663,694 l? 2d 641 (1985); rather than constitutional change.”’ Branson v. City and County of Denver, 707 l? 2d 338 (1985). Even so, the survey of judicial decisions in this chapter Bruckshaw v. Paolino, 557 A. 2d 1221 (R.I. 1989); (Rhode Is- is of value for several reasons. First, state supreme courts land Constitution, Art. XIII, $4). maintain an important policymaking role as arbiters of 2o Mayor of Boston v. Treasurer and Receiver General, 384Mass. 718,429 N.E. 2d 691 (1981). state-local relations.120 Second, the patterns of state su- 21 State Water Pollution Control Board v. Salt Lake City, 6 Utah preme court opinions exhibit a striking continuity with the 2d 247,311 €? 2d 370 (1957). historical ambivalence toward the policy of local self-gov- **Cityof West Jordan v. Utah State Retirement Board, 767 I? 2d ernment outlined in Chapters 3 and 4. Finally, state su- 530 (Utah 1988). preme court interpretations of constitutional home rule 23 Franklin County Prison Board v. Pennsylvania Labor Rela- policies may be significantly affected by carefully crafted tions Board, 491 Pa. 50,417 A. 2d 1138 (1980). provisions in the state constitution. 24 For instance, Roberts v. City of Maryville, 750 S.W. 2d 69 (Mo. 1989). These concerns indicate that a policy analysis of 25BrowardCounty v. City of Fort Lauderdale, 480 So. 26 631 state-local relations is a necessary prerequisite for provid- (Fla. 1985). ing sound advice to states and local governments on the 26Townof Pahrump v. County of Nye, 773 F? 2d 1224 (Nev. 1989). structure and implementation of constitutional language 27 Parker County v. Weatherford Independent School District, dealing with local autonomy. 775 S.W. 2d 881 vex. App. 1989).

58 U.S. Advisory Commission on Intergovernmental Relations Z8NorthCarolina Constitution, Art. VII, $1. 59 Western Oil and Gas Association v. Monterey Bay Unified Air Pollution Control District, 49 Cal. 3d 408,777 I? 2d 157 (1989). 29 U.S. Advisory Commission on Intergovernmental Relations (ACIR), Stale Constitutions in lhe Federal Syxtern (Washington, 6o Ibid. DC, 1989), p. 11. 61 Compare City of Evanston v. Create, Inc., 85 Ill. 26 101, 421 30 Fiscal Court of Jefferson County v. City of Louisville, 559 S.W. N.E. 2d 196(1981)withAmbassadorEast, Inc. v. CityofChica- 2d 478 @y. 1977). go, 399 Ill. 359,77 N.E. 2d 803 (1948).

31 Bosselman, Inc. v. State, 230 Nels. 471,432 N.W. 2d 226 (Neb. 62Fisherv. City of Berkeley, 37 Cal. 3d 644,693 l? 26 261 (1984). 1988); Metals Recycling Co. v. Maccarone, 527 A. 2d 1127m.I. 63 Bannerman v. City of Fall River, 391 Mass. 461,461 N.E. 2d 1987). 793 (1984); see, Massachusetts Constitution, Art. 11, 37(5). 32BOttonev. Town of Westport, 209 Conn. 652, 553 A. 2d 576 64Kalodimo~v. Village of Morton Grove, 103 Ill. 2d 483, 470 (1989) N.E. 2d 266 (1984). 33 Cogswell v. Sherman County, 238 Kan. 438,710 I! 2d l331(1985). 65 Ibid., p. 502. 34 City of La Grande v. Public Employees Retirement Board, 281 66 M. David Gelfand, ”Seeking Local Government Financial In- Or. 137,576 I? 2d 1204 (1978). tegrity through Debt Ceilings, Tax Limits, and Expenditure Limits: The New York City Fiscal Crisis, the Taxpayer Revolt 35 Konrad v. Jefferson Parish Council, 520 So. 2d 393 (La. 1988). and Beyond,” Minnesota Law Review 63 (4,1979): 545; Robert 36 41 Kew Gardens Road Associates v. Tybunki, 70 N.Y. 2d 325,514 J. Cline and John Shannon, ”Municipal Revenue Behavior af- N.E. 2d 1114 (1987); Sant v. Stephens, 753 l? 2d 752 (Colo. 1988). ter Proposition 13,” Intergovernmental Perspective 8 (Summer 37 Landmarks Preservation Council of Illinois v. City of Chicago, 1982): 22. Proposition 13 was upheld by the US. Supreme 125 Ill. 2d 164,531 N.E. 2d 9 (1988); State v. Board of County Court in Nordlinger v. Hahn, 112 S Ct 2326 (1992). Commissioners of County of Sedgwick, 244 Kan. 536,770 F! 2d 67TerrySchwadron and Paul Richter, California and the Ameri- 455 (1989); Hildebrand v. City of New Orleans, 549 So. 2d 1218 can Tax Revolt-Pnposition 13 Five EarsLater(Berke1ey: Uni- (La. 1989); Fox v. City of Lakewood, 39 Ohio St. 3d 19,528N.E. versity of California Press, 1984). 2d 1254 (1988). bSCaliforniaConstitution, Art. XI11 A, $31-2, Art. XI11 B, $1. 3SCityCouncil of City of Bethlehem v. Marcincin, 512 Pa. 1,515 69 Ibid., Art. XI11 A, $4. A.2d 1321 (1986). 70 Ibid., Art. XI11 B, 36. 39 Francis v. Morial, 455 So. 2d 1168 (La. 1984). 71 Arizona Constitution, Art. IX, $19,(5), §20(2)(b)(ii), (C); Mich- 40 Committee of Seven Thousand v. Superior Court, 45 Cal. 3d igan Constitution, Art. IX, II(c), 52s; Missouri Constitution, 491,754 I? 2d 708 (1988). Art. X, $22. 41 Reilly v. Paulus, 288 Or. 573,607 I? 2d 162 (1980). 72 City and County of San Francis00 v. Fmll, 32 Cal. 3d 47,648 I! 935 (1982); Carman v. Alvord, 31 Cal. 3d 318, 2d 192 42 City of Eugene v. Roberts, 505 Or. 641,756 l? 2d 630 (1988). 2d 644 l? (1982) 43 Sho Sat0 and Arvo van Alstyne, State and Local Government Law, 2d (Boston: Little, Brown and Company, 1!V7), p. l3Schwadron and Richter, California and the American Tax Re- ed. l36. volt, p. 101-103. 44 For example, Anchor Savings and Loan Association v. Equal Opportunit Commission, 120 Wis. 2d 391 at 397,355 N.W. 2d 74 Los Angeles County Transportation Commission v. Rich- 234 at 238 &is. 1984). mond, 31 Cal. 3d 197,634 F! 2d 941 (1982). 75 City and County of San Francisco v. Farrell, 32 Cal. 3d 47,648 P 45 Marsland v. First Hawaii Bank, 764 I? 2d 1228 (Haw. 1988). 2d 935 (1982). 46 C. Dallas Sands, Michael E. Libonati, and John Martinez, Lo- 76 Roberts v. McNary, 636 S.W. 2d 332 (1982). cal Government Law (Wilmette, Illinois: Callaghan and Com- pany, 1982), Vol. 1, 4.06. 77 Daniel R. Mandelker, Dawn Clark Netsch, Peter W. Salsich, Jr., and Judith Welch Wegner, State and Local Government 47 “Report and Recommendations of the California Commission Law in a Fedeml System, 3d ed. (Charlottesville, Virginia: The on the Law of Preemption,” Urban Law Annual, 1969, p. 131. Michie Company, 1990), p. 361. 48 National Advertising Co. v. Department of Highways of State 78 See, chapter 4, note 109. of Colorado, 751 I! 2d 632 (Colo. 1988). 19 Hawaii Constitution, Art. VIII, $5. 49 Western Pennsylvania Restaurant Association v. City of Pitts- burgh, 366 Pa. 374,77 A. 2d 616 (1951). soCalifornia Constitution, Art. XI11 B, $6. Missouri Constitution, Art. X, $21. 50 Montana Constitution, Art. XI, 56 (emphasis supplied). 82 County of LaAngeles v. State, 43 Cal. 3d 46,729 F! 2d 202 (1987). 51 Illinois Constitution, Art. VII, 36 (i) (emphasis supplied). 83 Missouri Municipal League v. Brunner, 740 S.W. 2d 957 (Mo. 52 Iowa Constitution, Art. 3, $40 (emphasis supplied). 1987). 53 Washington Constitution, Art. XI, 311 (emphasis supplied). 84 Livingston County v. Department of Management and Bud- 54TexasConstitution, Art. 11, $5; Millard H. Ruud, ”Legislative get, 430 Mich. 635,425 N.W. 2d 65 (1988). Jurisdiction of Texas Home Rule Cities,” Term Law Review 37 85LuciaMar Unified School District v. Honig, 44 Cal. 3d 380,750 (June 1959): 682. P. 2d 318 (1988). 55 Cook County v. John Sexton Contractors Co., 75 Ill. 2d 494, 86 Missouri State Employees Retirement System v. Jackson 389 N.E. 2d 553 (1979); Cosmopolitan National Bank v. Cook County, 738 S.W. 2d 118 (Mo. 1987). County, 103 Ill. 2d 302,469 N.E. 26 183 (1984). 87 Lucia Mar Unified School District v. Honig, 44 Cal. 3d 380,750 56 Commonwealth Department of General Services v. Ogontz Area P. 2d 318 (1988). Neighbon Association, 505 Pa. 614, at 622,483 A. 2d 448 (1984) Weener v. City of Oakland, 21 Cal. 3d 386,579 I? 2d 449 (1978). 57 Ibid., p. 626. 89 California Federal Savings and Loan Association v. City of Los 58 Ibid., p. 628. Angeles, 53 Cal3d 1,812 F!2d 916 (1991).

U.S. Advisory Commission on Intergovernmental Relations 59 90 Multnomah Kennel Club v. Department of Revenue, 295 Or. lo8City of West Jordan v. Utah State Retirement Board, 767 I? 2d 279,666 P. 2d 1327 (1983); Jarvill v. City of Eugene, 289 Or. 157, 530 (Utah 1988). 613 I? 2d l(1980). City of Rocky River v. State Emplo ent Relations Board, 39 91 Hildebrand v. City of New Orleans, 549 So. 2d 1218 (La. 1989), Ohio St. 3d 196,530 N.E. 2d 1(1988ceversed on rehearing 43 cert. denied. Ohio St. 3d 1,539 N.E. 2d 103 (1989). 92 Blevins v. Hiebert, 247 Kan 1,795 P.2d 325 (1990). Allegheny County v. Allegheny Court Association of Profes- 93 Allegheny County v. Allegheny Court Association of Profes- sional Employees. sional Employees, 517 Pa. 505,539 A. 2d 348 (1988). Sonoma County Organization of Public Employees v. County 94M.David Gelfand, ed., State and Local Government Debt Fi- of Sonoma, 23 Cal. 3d 296,591 P. 2d 1 (1979). nance (Wilmette, Illinois: Callaghan and Company, 1985), Vol. 2, 39.10. State Personnel Board of Review v. City of Bay Village Civil Ser- vice Commission, 28 Ohio St. 3d 214, 503 N.E. 2d 518 (1986); 95 City of Seattle v. State, 100 Wash. 2d 232,668 P. 2d 1266 (1983). Ohio Association of Public School Employees, Chapter 471 v. 96See, in particular, the arguments in Garcia v. San Antonio City of Twinsburg, 30 Ohio St. 3d 180,522 N.E. 2d 532 (1988). Metropolitan Transit Authority, 469 US. 528 (1985). Long Beach Police Officers Association v. City of Long Beach, 97231Or. 473,373 F! 2d 680 (1962). 46 Cal. 3d 736,759 P. 2d 504 (1988); State ex rel. Bardo v. City of Lyndhurst, 37 Ohio St. 3d 106,524 N.E. 26 447 (1988). 98 Ibid., p. 279. 99 Sat0 and van Alstyne, State and Local Government Law, pp. ‘I4 Barragan v. City of Miami, 545 So. 2d 252 @a. 1989). 134-155. 115LOcalUnion No. 487, IAFl-CIO v. City of Eau Claire, 147 looCity of La Grande v. Public Employee Retirement Board, 281 Wis. 26 519,433 N.W. 2d 578 (1989). Or. 137,576 P. 2d 1204 (1988). l16State ex rel. Bardo v. City of Lyndhurst. Ibid., affirmed on rehearing, 284 Or. 173,586 I! 2d 765 (1988). 117 Dineen v. City of Chicago, 125 Ill. 26 248,531 N.E. 2d 347 (1988). lo’ Ibid. E. Blaine Liner, ed., A Decade of Devolution: Peapectives on lo3Ibid. State-Local Relations (Washington, DC: Urban Institute Press, lo4Baggett v. Gates, 32 Cal. 3d 128, 649 P. 2d 874 (1982). 1989) lo’ Ibid., p. 881. 119 Steven D. Gold, Reforming State-Local Relations: A Practical lo6Ibid., p. 880. Guide (Denver: National Conference of State Legislatures, 1989). 107Billin~Fire Fighters Local 521 v. City of Billings, 694 P. 26 See,generally, Mary Cornelia Porter and G. Alan Tan; State Su- 1335 (Mont. 1985). preme Courts (Westport, Connecticut: Greenwlood Press, 1982)

60 U.S. Advisory Commission on Intergovernmental Relations

I I Recent ACIR Publications RTS 1991: State Revenue Capacity aad Effort. M.187. 1493 ...... $20.00 &.ate Laws Governing Local Government Structurd and Administration. M.186, 1993 ...... $10.00 XgnKit Features of Fiscal Federalism. 1993 Editlou. Volume II..M.185.n. 1993 ...... $22.50 ' :iijgnficant Features of Fiscal Federalism. 1993 Edition. Volume I. M.185.1993 ...... $20.00 I Pded Regulation of State and I;ocal Cov-nk The Mixed Record of the 19808. A.126.1993 ...... $U.W ROIQof General Government Elected Ot?!icials in Criminal Justice. A.124. 1993 Y The ...... $25.00 The National Guard Defending the Natiou and the States. A- 393 ...... 515.w ! Guide to the Criminal Justice System for General Governm ed Orncisrlr. M.184. 1993 ...... $8.00 1 State Solvency Regulation of Property-Casualty and Ufe Ins es. A.125. 1992 ...... $2tm0 ' ' Intergovernmental Decisionmaking far Eavhnment and Public A.122, 1992 ...... ' F;Ederal Statutory Preemption of State and Local +lu Tmrd a Federal Infrastructure Strategy: Issues and @ ...... $8.00 Medicaid: Intergoveramental Trends and Options. A.119. lW2., ...... $10.00 budBoundary Commimions: St and Roles in Fomtn&Adfwting and Dissalving Low1 Government Bounda .la. 1952 ...... $8.00 amctedstics of Federal Cranth-Aid Frognuns tate and Local Governell& Grants Ftmded FY 1981. M.182, 1992 ...... $10.00 MetPapolitan Organizatian: The Allegheny Comty c;aSe, M.181...... $lO.rn State Taration of Interstate Mail Order Sales. M.179.1 992...... $10.00 The Changing Ppblic Sector: Shifts in Covemmeatal Speuding amd l?m@lq'ment. 1 ...... $15.00 Coordinating Water Resources in the Fderal System: The Croumhvater-SMaw A.118. 1991 ...... $15.00 Snterjurisdidonrrl Tax and Policy Competitiaa: Good or Bad for the ?M.In. 1391 .... $10.00 State.Loca1 Relations Organfzations: The ACIIR Counterparts. A.117...... $10.~ The Structure of State Aid to Elementary and Secondary Education, M.175. 1990 ...... $10.00 %presentative Expenditures: Addressing the Neglected Dlmedn of Fkcrrl Capatits M.174. 1990 ...... $20.00 Mandates: Cases in State-Local Relations. M.ln. 1990 ...... $10.00 State Constitutional taw: Cases and Materials. M.159S. 1990 ...... $30.00 Intergovernmental Regulation af Telecommudcations. A.115. 1990 ...... $lkOO 1988 Fiscal Capacity and Effort. M.170. 1990 ...... $20.60 ' heal Revenue Diversification: Rural Economies. SR.13, 1990 ...... $8.00 L-1 SdaTax&. SR-12. 1989...... hlIncome Taxes. SR.10. 1988...... User Charges, SR-6.1987...... Sbte Taxation of BadIssues and Options. M.lgB.1989 ...... $lO.flO gtate Regulation of Banks in an Era of Demgulatioa, A.110.1988 ...... $10.00 $#ate Constitutions in the Fedd System: Selected Issues and Opportunities for State IdtiativeS. I A-113. 1989 ...... $15.00 I *- Residential Community Asachtions Private Governments in the Intergovernmental System? A.112, 1989 ...... $10.00 I1 Questions and Answers for Public Offcisls, M.166, 1989 ...... $5.00 .if. Uisability Rights Mandates: Federal and State Compliance with Employment Protections I and Architectural Barrier Removal. A.111. 1989 ...... $lO.Ocl .... histing the Homeless: State and Local Responses in an Era of Limited Resources. M.161. 1988 ..... $10. 00 '! I Qevolving Selected Federal-Aid Highway Programs and Revenue Bws: A Critical Appraisal. I .. A.108. 1987...... 1 510.w 'me Ownization of Local Public Economies. A.109.1987 ...... $5.00 ACIR

The U.S. Advisory Commission on Intergovernmental Relations (ACIR) was created by the Congress in 1959 to monitor the operation of the American federal system and to recommend improvements. ACIR is an independent, bipartisan of 26 members-nine representing the federal government, 14 local government, and three representing the general public. The President appoints 20 members-three private ci executive officiaIs directly, and four governors, three state and three elected county officials from slates nominated by Association, National Conference of State Legislatures, National League of Cities, US. Conference of Mayors, and National Association of Counties. The three Senators are chosen by the President of the Sen the three Represent the Speaker of the House of Representatives. ommission member two-year term and may be reappointed. As a continuing body, the Commission addresses specific issues and problems the resolution of which would produce improved moperation among federal, state, and local governments and more effective functioning of the federal to examining important functional and policy relationships among the various governments, the Commission extensively studies critical governmental finance issues. One of the long-range efforts of the Commission has been to seek ways to improve federal, state, and local governmental practices and policies to achieve equitable allocation of resources, increased efficiency and equity, and better coordination and cooperation. In selecting items for research, the Cornmission considers the relative importance and urgency of the problem, its manageability from the point of view of finances and staff available to ACIR, and the extent to which the Commission can make a fruitful contribution toward the solution of the problem. After selecting intergovernmental issues for investigation, ACIR follows a multistep procedure that assures review and comment by representativesof all points of view, all affected governments, technical experts, and interested groups. The Commission then debates each issue and formulates its policy position.