Local Government Autonomy Needs for State Constitutional Statutory, and Judicial Clarification . I. g: .: - -. 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 lo- cal response to empirical conditions. As such, they are the cal priorities-effectively reducing local autonomy. cornerstones on which any sound theory of local govern- ment 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-determin- ing 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