DILLON RULE: Implications for Local Drought Ordinances

1. DILLON RULE: Implications for Local Drought Ordinances Anthony C. Williams, City Attorney CITY OF WINCHESTER, VIRGINIA 15 N. Cameron Street Winchester, VA 22601 Phone: 540-667-1815 x 1433 Facsimile: 540-667-2259

2. Who is in Charge of What? • CONSTITUTION OF THE UNITED STATES OF AMERICA does not expressly address the authority of municipal governments • Amendment 10 - Powers of the States and People. Ratified 12/15/1791. • The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

3. Who Governs the Municipality? • State constitutions authorize state actions in conformance with the Tenth Amendment to the U.S. Constitution • State constitutions may define powers of local governments and special districts • VA’s Constitution contains no provision analogous to the Tenth Amendment in prescribing power relationships between the state and its localities.

4. Virginia’s Constitution • Under Article VII, the Virginia Constitution expressly gives the General Assembly power to pass general and special laws to set forth the organization of powers of local governments. • Accordingly, Virginia is a Dillon Rule state.

5. Dillon Rule vs. Home Rule • What is a Dillon Rule state? • Have no provisions under their state Constitutions analogous to the Tenth Amendment • Generally require enabling legislation from the State to authorize the exercise of powers by a municipal government

6. Dillon Rule vs. Home Rule • What is a Home Rule State? • Have specific provisions within their state constitution which provides for self-government • Generally, powers not prohibited or inconsistent with state or federal law are presumed to be inherently possessed by municipalities

7. Dillon Rule vs. Home Rule • Today, there are forty-three states that have provisions either in law or within the body of their Constitutions acknowledging the right of citizens, through their municipal governments, to exercise local decision-making power with the weight of law

8. Dillon Rule vs. Home Rule • However, municipal home rule powers vary widely from state to state. • In some, the authority is extended only to certain classes of cities, counties, and towns. • Some states that retain "Dillon's Rule." continuing to subordinate municipalities to the state legislature, offer some form of municipal chartering. • Others are "Home Rule" states, with fewer local constraints. • Overall, state legislatures have consistently limited home rule prerogatives.

9. Dillon Rule vs. Home Rule • States can be “Home Rule States”, “Dillon Rule States”, or a hybrid • Currently, 37 states have approved some form of home rule. • Dillon Rule is in effect in many states, according to one survey, 40 states are currently considered “Dillon Rule” states.

10. So What Exactly is the Dillon Rule? • Analogous to the national struggle regarding Federalism v. States Rights • In the 1860’s, Thomas Cooley, a Michigan Supreme Court Justice and the first head of the Interstate Commerce Commission, argued for the rights of municipalities to govern themselves, free from corrupt meddling at the state level. The people in their communities, he argued, had not surrendered their sovereignty to the state.

11. So What Exactly is the Dillon Rule? • Then, in 1868, a railroad lawyer turned Iowa Supreme Court Justice, John F Dillon, wrote an opinion that became the Corporate Magna Carta over municipal soverignty.  • The opinion was transformed within a few decades into a cornerstone of American municipal law when corporate lawyers then sitting on the U.S. Supreme Court adopted Dillon’s Rule as the default legal code for municipalities across America (Hunter v. Pittsburgh, 1907).

12. So What Exactly is the Dillon Rule? • It maintains that a political subdivision of a state is connected to the state as a child is connected to a parent.  • Dillon’s Rule is used to interpret state law when there is a question of whether or not a local government has a certain power.  • Dillon’s Rule is employed to narrowly define the power of local governments.

13. What Does it Say?

14. What Does it Mean? • The first part of Dillon’s Rule states that local governments have only three types of powers: • those granted in express words, • those necessarily or fairly implied in or incident to the powers expressly granted, and • those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.

15. What Does It Mean? • The second part of Dillon’s Rule states that if there is any reasonable doubt whether a power has been conferred on a local government, then the power has NOT been conferred. This is the rule of strict construction of local government powers.

16. How is it Applied? • Is there enabling legislation contained in the Code of Virginia? • Is it implied or incident to expressly granted powers? • Is it essential and indispensible?

17. How Has it Been Interpreted in VA? • The "Dillon Rule" is generally described as a strict construction control of the powers of local government. The Supreme Court has on any number of occasions said . . . "municipal corporations have only those powers that are expressly granted, those necessary or fairly implied from expressly granted powers, and those that are essential and indispensable." City Council of Alexandria v. Lindsey Trust, 258 Va. 424, 427, 520 S.E.2d 181 (1999) (internal citation omitted); Arlington County v. White, 259 Va. 708, 712, 528 S.E.2d 706 (2000); City of Virginia Beach v. Hay, 258 Va. 217, 221, 518 S.E.2d 314 (1999).

18. What are the Consequences of Violation of the Dillon Rule? • Injunction • Civil Action • Ordinance struck as unauthorized under Dillon Rule • Award of Compensatory Damages • Punitive Damages

19. How Does This Relate to Drought Ordinances? • § 15.2-923. Local water-saving ordinances. Notwithstanding any contrary provision of law, as shall be necessary to protect the public health, safety and welfare, any locality may by ordinance (i) require the installation of water conservation devices in the case of the retrofitting of buildings constructed prior to July 1, 1978, and (ii) restrict the nonessential use of ground water during declared water shortages or water emergencies. For purposes of this section "nonessential use" shall not include agricultural use.

20. How Does This Relate to Drought Ordinances? • § 15.2-924. Water supply emergency ordinances. A. Whenever the governing body of any locality finds that a water supply emergency exists or is reasonably likely to occur if water conservation measures are not taken, it may adopt an ordinance restricting the use of water by the citizens of such locality for the duration of such emergency or for a period of time necessary to prevent the occurrence of a water supply emergency. However, such ordinance shall apply only to water supplied by a locality, authority, or company distributing water for a fee or charge. Such ordinance may include appropriate penalties designed to prevent excessive use of water, including, but not limited to, a surcharge on excessive amounts used.

21. Precautions to Avoid Violating Dillon Rule • Code is fluid, be prepared for possible revisions to Code that could affect your Ordinances • Ordinance may be LESS restrictive than enabling legislation provides • Utilize available resources (DEQ Guidelines, Model Ordinance, etc.) • Consult DEQ, NSVRC, etc. • Consult your Local Government Attorney

22. THE END Thank you!!!