Must Local Governments Always Go Hat in Hand to Albany?

problem

Although the concept of “Home Rule” is enshrined in an over fifty-year-old amendment to the State Constitution (1963), the powers granted local governments are vague and easily overruled by the State Legislature. Voters, and even the politicians themselves, don’t know how to institute change, resulting in a stultifying political culture where the people’s business doesn’t get done. The rights of local government need to be clarified.

solution
The principal should be that localities’ have power unless specifically restricted by the State Constitution.  This principal is exemplified in other state constitutions.  For example, the New Jersey State Constitution states that, “The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor.” Another excellent example is New Mexico’s Constitution on Home Rule, which states, “The purpose of this section is to provide for maximum local self-government. A liberal construction shall be given to the powers of municipalities.”There also needs to be a simplification of the Amendment.  Consideration should be given to the 1967 Constitutional amendment recommendation, which cut the Home Rule provision from the existing nearly 1400 words to less than 400.

What do you think?

• In 2013, Mayor Bloomberg wanted to install speed cameras in New York City, but the Legislature turned him down.

• In 2016, the Mayor of New York City had to ask the State Legislature for continued control over his city’s own school district. The Legislature only gave him a one-year extension.

• Cuomo pulled the plug on Mayor Bill de Blasio’s affordable housing plan, refusing to amend a state program giving developers generous tax breaks in exchange for creating low-cost housing. http://www.nytimes.com/2015/06/11/nyregion/cuomo-shuts-door-on-part-of-mayor-de-blasios-affordable-housing-plan.html?_r=0.

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Article IX
 Local Governments
Bill of Rights for Local Governments

Section 1.   Effective local self-government and intergovernmental cooperation are purposes of the people of the state. In furtherance thereof, local governments shall have the following rights, powers, privileges and immunities in addition to those granted by other provisions of this constitution:
(a) Every local government, except a county wholly included within a city, shall have a legislative body elective by the people thereof. Every local government shall have power to adopt local laws as provided by this article.
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The limits of state and local authority have long been contested in the courts.  The prevailing concept was known as Dillion’s rule, named after two decisions from Judge John F. Dillon of Iowa in 1868. It states that local government can only engage in an activity if it is specifically sanctioned by the state government. According to the National League of Cities, thirty-nine states still employ Dillon’s Rule to all municipalities.

The concept of “Home Rule” began in the 19th century as a way for local governments to try to gain control of their own affairs and be free from decisions by the legislature.

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New York is one of nine states that constitutionally specifies a method for election administration. The others are Arkansas, California, Louisiana, Mississippi, Texas, Vermont, West Virginia and Virginia.  Of these, Arkansas, California, Louisiana, Mississippi, Vermont and West Virginia give this duty to an elected Secretary of State; in Texas a Secretary of State appointed by the Governor (with no legislative advice and consent) is responsible.
According to the National League of Cities, thirty-nine states employ Dillon’s Rule to all municipalities: Arizona, Arkansas, Connecticut, Delaware, Georgia, Hawaii, Idaho, Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Vermont, Virginia, West Virginia, Washington, Wisconsin and Wyoming.

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learn
Albany Smothers a Plastic Bags Law,” The Editorial Board, The New York Times, February 9, 2017.

Charter Revision in the Empire State: The Politics of New York’s 1967 Constitutional Convention, Henrik N. Dullea, SUNY Press, 1997.

“Constitutional Home Rule in New York: “The Ghost of Home Rule,” St. John’s Law Review Volume 59 Issue 4 Volume 59, Summer 1985, Number 4 Article 2 June 2012, James D. Cole.

Decision 1997: Constitutional Change in New York, by Gerald Benjamin and Henrik Dullea, Rockefeller Institute Press, 1997.

“Giving Life to Home Rule: The Case for the Local Law Powers of New York Local Governments 2004,” Edwin L. Crawford Memorial Lecture on Municipal Law, Government Law Center of Albany Law School.

“Home Rule and the New York Constitution,” Columbia Law Review, Vol. 66, No. 6 (Jun., 1966).

“Local Authority to Regulate Firearms in New York,” Law Center to Prevent Gun Violence.

“Report and Recommendations Concerning Constitutional Home Rule,” The New York State Bar Association, 2016.

“The State-Local Paradox: Home Rule and State Mandates,New York State Government, The Nelson A. Rockefeller Institute of Government.

“Strengthening Home Rule,” NYS Local Government Commission on Efficiency and Competitiveness.

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