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.  The traditional definition of Home Rule is:

Local governments must have the power to act in the areas entrusted to them; they must have no doubt about their powers to act, and they ought to be able to take action without having to get specific permission from the state.

The purpose of Home Rule then, is to provide a proper division of responsibility between local government and the state, so voters know which government is responsible to them on that issue. In addition, when local governments doubt their power to act because the limits of state power are unclear, localities will stop trying to innovate or even attempt to solve local problems. Instead they will go, hat in hand, to the governor and the state legislature and ask them to pass a law to solve their local problem.  This only increases the time it takes for decisions to be made.

In New York, Home Rule started around the turn of the twentieth century, with a restriction on state legislation affecting the “property, affairs or government” of cities. http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=2143&context=lawreview The phrase “property, affairs or government,” is still in our constitution today.

In Article XII, section 2 of the state constitution adopted in 1923, the legislature was required to act in relation to the “property, affairs or government” of any city only by general laws, defined as laws that in terms and in effect applied alike to all cities.

The landmark New York case of Adler v. Deegan (1929) determined that “matters of state concern” could be carved out of the “property, affairs or government” of cities by showing a “substantial” state interest in the subject.  This decision enabled the growth of state power over local authority ever since.

The first step toward the granting of home rule to county governments was the Fearon amendment to the state constitution, adopted in 1935, where the legislature is required to authorize counties to adopt, amend or repeal alternative forms of county government.

The existing Article IX of the Constitution, adopted in 1963, is very similar to the previous version. It does, however, add a Bill of Rights for Local Governments, and home rule power is now granted to all counties outside New York City, and all cities, towns and villages (Prior to 1963 no towns and only some villages had constitutional home rule power.)

However, in New York, “Home Rule in practice has produced only a modest degree of local autonomy.” http://www.nysba.org/homerulereport/ The powers of local governments have been restricted by two legal doctrines developed through decades of litigation, “preemption” and “State concern”:

Preemption occurs when a local government adopts a law that conflicts with a State statute; or when a local government legislates in a field the State legislature has assumed full regulatory responsibility.  However, the courts have developed the concept of “implied preemption,” based on the judge’s determination of what the legislature meant to cover in a statue.  This concept has dramatically limited the local government’s power and put the determination of authority completely in the hands of the courts, on a case-by-case basis: “…because the dispositive inquiry turns on interpreting the State Legislature’s intent, it is often difficult to predict whether a given local law will or will not withstand judicial scrutiny.” http://www.nysba.org/homerulereport 

 

Typically, any ambiguity is determined in favor of the State, since the State is the sovereign power. In addition, numerous unfunded mandates have further hamstrung localities.  In fact, “New York imposes more unfunded mandates on localities than any other state in the nation.” http://www.nysba.org/homerulereport/

The results of the existing amendment in the Constitution are that “local governments have relatively limited autonomy, limited fiscal resources, and precious little protection from state interference or impositions.” (Decision 1997: Constitutional Change in New York, Gerald Benjamin and Henrik Dullea)