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Home Rule: Powers and Protection

Home Rule: Powers and Protection. Key question: distribution of power between state and localities Source of local government powers? Inherent? (no; per tradition, need for uniformity) Alternatives Specific statutes or charter provisions (but questions of interpretation per Dillon’s rule?)

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Home Rule: Powers and Protection

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  1. Home Rule: Powers and Protection Key question: distribution of power between state and localities • Source of local government powers? • Inherent? (no; per tradition, need for uniformity) • Alternatives • Specific statutes or charter provisions (but questions of interpretation per Dillon’s rule?) • “General welfare” statutes (but how mesh with specific?) • “Home Rule” provisions (generally option if choose) • Protection v. state intrusion? • “special commission”/ “special legislation? • certain forms of “home rule” • Preemption (state role in curtailing local options)

  2. Home Rule: Basics • Why “home rule”? • Mapping out local government power in clear terms and with clearer process of interpretation • Supplements statutory powers • May address issues of judicial interpretation • More comprehensive range of power • Often prerequisites • If constitutional, may not be self-executing • If available, still need to opt in (per charter)?

  3. Home Rule: Type 1 (“Imperio”) • Conceptually = state within a state (with comprehensive designated powers) • Terms may vary • Typically, power over “municipal affairs” or “powers of local self-government” • Examples: NY, CT, Ohio, WA, CA • Power and protection with regard to “local”/”municipal” affairs, but state still has role with respect to “state” or “mixed” arenas • Courts therefore still required to interpret

  4. Home Rule: “Imperio” Applied • Denver (Colo. 1990) municipal residency requirement for city employees; state later sought to preempt • Certain cities vested with power to “make charter” “which shall …extend to all its local and municipal matters”…”including power to legislate upon… creation and terms of officers, agencies, and employments; the…regulation …powers, duties, qualifications and terms or tenure of all municipal officers, agents and employees” • Question: Local? State? Or shared interest? • Analyze: need for statewide uniformity, extraterritorial impact, historical considerations, need for cooperation, constitutional text and legislative declarations, other state interests, local interests

  5. Home Rule: Imperio Applied • Other examples • Firefighters’ pensions? • Local tax on financial corporations? • Elections (districts/single member v. at large?) • Billboard regulation? • Civil service requirements re teachers? • Affordable housing & rent control? • Better tests? • Interpretive role of courts? (Fleetwood Hotel)—”grant” or “limitation”; underlying constitutional concerns; “who decides”?

  6. Legislative Home Rule • Concept: • all power that legislature can convey except if denied (and often explicitly, except for “private or civil law governing civil relationships” • Applied: • Cape Girardeau (city and university to build multi-use facility; approved by referendum; ordinance to fund through license tax on hotels, restaurants; tax approved by populace) • Question: interpretation given separate constitutional provision and statute re cooperation between govts.

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