Local Control Detailed

Must Local Governments Always Go Hat in Hand to Albany?

 The 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.

The 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.

Fast Facts

  • “Rest easy, humans of New York City, for your overlords in the Legislature in Albany have voted to protect you from your own City Council and mayor and that irritating thing you call “democracy.” They have taken steps to keep the city safe for plastic shopping bags…Can Albany do that? Yes, but not without abusing its power by upending the principle that citizens, through their elected representatives in local government, should be able to decide for themselves issues that affect only their communities.” — The Editorial Board, The New York Times, “Albany Smothers a Plastic Bags Law,” February 9, 2017.
  • In 2013, Mayor Bloomberg wanted to install speed cameras in New York City, but the Legislature turned him down: http://www.nytimes.com/2013/03/28/nyregion/bloomberg-expresses-rage-over-failed-plan-for-speed-tracking-cameras.html.
  • The Urstadt Law is a 1971 state law that eliminated New York City rent regulation from the City’s control and gave it to the State Legislature. Given the power of real estate interests in Albany, it’s no wonder that rent regulations have become weaker and weaker over the years.
  • 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.  http://www.chalkbeat.org/posts/ny/2016/06/17/its-a-deal-lawmakers-agree-to-extend-mayoral-control-of-new-york-city-schools-by-one-year/
  • 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.
  • In 1965, the Mayor of New York City, Robert Wagner, introduced his own home rule package authorizing local governments to raise local debt limits and to exercise all legislative and taxing powers not specifically barred to them by law or the courts. His proposal did not become law. https://books.google.com/books/about/Charter_Revision_in_the_Empire_State.html?id=BE8bCtnwYVkC
  • In People v. DeJesus, the Court of Appeals ruled that local governments couldn’t control the hours of operation of taverns and bars.
  • “In People v. Del Gardo, the New York Court of Appeals invalidated a New York City ordinance banning any toy or imitation handgun which “substantially duplicates” an actual handgun (unless certain requirements were met), because the ordinance did not exempt cap guns, which state law permits the sale and use of “at all times.”” http://smartgunlaws.org/local-authority-to-regulate-firearms-in-new-york/
  • “Despite being [New York] described as a home rule state, and the protections that the Constitution purports to grant local governments, localities actually have very little immunity from state intervention….Under the current system, local governments are left to guess whether or not the local law they wish to implement is authorized or preempted by the State “occupying the field.”” — NYS Local Government Commission on Efficiency and Competitiveness: Strengthening Home Rule.
  • “New York’s constitutional and statutory provisions regarding home rule are more extensive than those in many states. At the same time, paradoxically, Albany imposes its will and the cost of its decisions on localities more than most other state governments.” New York State Government, The State-Local Paradox: Home Rule and State Mandates.
  • In the 2010 case Matter of Chwick v Mulvey, the New York State Court of Appeals held that state law implicitly preempted a Nassau County ordinance prohibiting the possession of “deceptively colored” handguns. These colored handguns looked like toys, so Nassau County wanted to ban them. But the court held that the ordinance interfered with the licensing provisions of New York law. Further, the court held that state law demonstrated the legislature’s intent to preempt the field of firearm regulation, so the County couldn’t pass any law on the subject: http://smartgunlaws.org/local-authority-to-regulate-firearms-in-new-york/. 

History

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.” 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)

Other States

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.

Eight states employ the rule for only certain municipalities: Alabama, California, Colorado, Illinois, Indiana, Louisiana and Tennessee.

There are ten states that employ home rule: Alaska, Iowa, Massachusetts, Montana, New Jersey, New Mexico, Ohio, Oregon, South Carolina and Utah.

Let’s look at the constitutional amendments of a few of the home rule states.

New Jersey

New Jersey is a home rule state.  It’s key provision, Section VII, Article 11 reads:

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. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.

Massachusetts

Massachusetts has home rule, but only for localities that have charters:

Article II. Section 1. Right of Local Self-Government. – It is the intention of this article to reaffirm the customary and traditional liberties of the people with respect to the conduct of their local government, and to grant and confirm to the people of every city and town the right of self-government in local matters, subject to the provisions of this article and to such standards and requirements as the general court may establish by law in accordance with the provisions of this article.

Section 2. Local Power to adopt, revise or amend Charters. – Any city or town shall have the power to adopt or revise a charter or to amend its existing charter through the procedures set forth in sections three and four. The provisions of any adopted or revised charter or any charter amendment shall not be inconsistent with the constitution or any laws enacted by the general court in conformity with the powers reserved to the general court by section eight.

Section 6. Governmental Powers of Cities and Towns. – Any city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court in conformity with powers reserved to the general court by section eight, and which is not denied, either expressly or by clear implication, to the city or town by its charter. This section shall apply to every city and town, whether or not it has adopted a charter pursuant to section three.

Section 7. Limitations on Local Powers. – Nothing in this article shall be deemed to grant to any city or town the power to (1) regulate elections other than those prescribed by sections three and four; (2) to levy, assess and collect taxes; (3) to borrow money or pledge the credit of the city or town; (4) to dispose of park land; (5) to enact private or civil law governing civil relationships except as an incident to an exercise of an independent municipal power; or (6) to define and provide for the punishment of a felony or to impose imprisonment as a punishment for any violation of law; provided, however, that the foregoing enumerated powers may be granted by the general court in conformity with the constitution and with the powers reserved to the general court by section eight; nor shall the provisions of this article be deemed to diminish the powers of the judicial department of the commonwealth.

https://malegislature.gov/Laws/Constitution

Oregon

 Section 10. County home rule under county charter. The Legislative Assembly shall provide by law a method whereby the legal voters of any county, by majority vote of such voters voting thereon at any legally called election, may adopt, amend, revise or repeal a county charter. A county charter may provide for the exercise by the county of authority over matters of county concern. Local improvements shall be financed only by taxes, assessments or charges imposed on benefited property, unless otherwise provided by law or charter. A county charter shall prescribe the organization of the county government and shall provide directly, or by its authority, for the number, election or appointment, qualifications, tenure, compensation, powers and duties of such officers as the county deems necessary. Such officers shall among them exercise all the powers and perform all the duties, as distributed by the county charter or by its authority, now or hereafter, by the Constitution or laws of this state, granted to or imposed upon any county officer. Except as expressly provided by general law, a county charter shall not affect the selection, tenure, compensation, powers or duties prescribed by law for judges in their judicial capacity, for justices of the peace or for district attorneys. The initiative and referendum powers reserved to the people by this Constitution hereby are further reserved to the legal voters of every county relative to the adoption, amendment, revision or repeal of a county charter and to legislation passed by counties which have adopted such a charter; and no county shall require that referendum petitions be filed less than 90 days after the provisions of the charter or the legislation proposed for referral is adopted by the county governing body. To be circulated, referendum or initiative petitions shall set forth in full the charter or legislative provisions proposed for adoption or referral. Referendum petitions shall not be required to include a ballot title to be circulated. In a county a number of signatures of qualified voters equal to but not greater than four percent of the total number of all votes cast in the county for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition shall be required for a petition to order a referendum on county legislation or a part thereof. A number of signatures equal to but not greater than six percent of the total number of votes cast in the county for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition shall be required for a petition to propose an initiative ordinance. A number of signatures equal to but not greater than eight percent of the total number of votes cast in the county for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition shall be required for a petition to propose a charter amendment. [Created through H.J.R. 22, 1957, and adopted by the people Nov. 4, 1958; Amendment proposed by S.J.R. 48, 1959, and adopted by the people Nov. 8, 1960; Amendment proposed by H.J.R. 21, 1977, and adopted by the people May 23, 1978]

New Mexico

  1. A municipality which adopts a charter may exercise all legislative powers and perform all functions not expressly denied by general law or charter. This grant of powers shall not include the power to enact private or civil laws governing civil relationships except as incident to the exercise of an independent municipal power, nor shall it include the power to provide for a penalty greater than the penalty provided for a petty misdemeanor. No tax imposed by the governing body of a charter municipality, except a tax authorized by general law, shall become effective until approved by a majority vote in the charter municipality.
  2. The purpose of this section is to provide for maximum local self-government. A liberal construction shall be given to the powers of municipalities.

Iowa

Municipal home rule. SEC. 38A. Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the general assembly. The rule or proposition of law that a municipal corporation possesses and can exercise only those powers granted in express words is not a part of the law of this state.

Our Existing Constitutional Amendment

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.

(b) All officers of every local government whose election or appointment is not provided for by this constitution shall be elected by the people of the local government, or of some division thereof, or appointed by such officers of the local government as may be provided by law.

(c) Local governments shall have power to agree, as authorized by act of the legislature, with the federal government, a state or one or more other governments within or without the state, to provide cooperatively, jointly or by contract any facility, service, activity or undertaking which each participating local government has the power to provide separately. Each such local government shall have power to apportion its share of the cost thereof upon such portion of its area as may be authorized by act of the legislature.

(d) No local government or any part of the territory thereof shall be annexed to another until the people, if any, of the territory proposed to be annexed shall have consented thereto by majority vote on a referendum and until the governing board of each local government, the area of which is affected, shall have consented thereto upon the basis of a determination that the annexation is in the over-all public interest. The consent of the governing board of a county shall be required only where a boundary of the county is affected. On or before July first, nineteen hundred sixty-four, the legislature shall provide, where such consent of a governing board is not granted, for adjudication and determination, on the law and the facts, in a proceeding initiated in the supreme court, of the issue of whether the annexation is in the over-all public interest.

(e) Local governments shall have power to take by eminent domain private property within their boundaries for public use together with excess land or property but no more than is sufficient to provide for appropriate disposition or use of land or property which abuts on that necessary for such public use, and to sell or lease that not devoted to such use. The legislature may authorize and regulate the exercise of the power of eminent domain and excess condemnation by a local government outside its boundaries.

(f) No local government shall be prohibited by the legislature (1) from making a fair return on the value of the property used and useful in its operation of a gas, electric or water public utility service, over and above costs of operation and maintenance and necessary and proper reserves, in addition to an amount equivalent to taxes which such service, if privately owned, would pay to such local government, or (2) from using such profits for payment of refunds to consumers or for any other lawful purpose.

(g) A local government shall have power to apportion its cost of a governmental service or function upon any portion of its area, as authorized by act of the legislature.

(h) (1) Counties, other than those wholly included within a city, shall be empowered by general law, or by special law enacted upon county request pursuant to section two of this article, to adopt, amend or repeal alternative forms of county government provided by the legislature or to prepare, adopt, amend or repeal alternative formsof their own. Any such form of government or any amendment thereof, by act of the legislature or by local law, may transfer one or more functions or duties of the county or of the cities, towns, villages, districts or other units of government wholly contained in such county to each other or when authorized by the legislature to the state, or may abolish one or more offices, departments, agencies or units of government provided, however, that no such form or amendment, except as provided in paragraph (2) of this subdivision, shall become effective unless approved on a referendum by a majority of the votes cast thereon in the area of the county outside of cities, and in the cities of the county, if any, considered as one unit. Where an alternative form of county government or any amendment thereof, by act of the legislature or by local law, provides for the transfer of any function or duty to or from any village or the abolition of any office, department, agency or unit of government of a village wholly contained in such county, such form or amendment shall not become effective unless it shall also be approved on the referendum by a majority of the votes cast thereon in all the villages so affected considered as one unit.

(2) After the adoption of an alternative form of county government by a county, any amendment thereof by act of the legislature or by local law which abolishes or creates an elective county office, changes the voting or veto power of or the method of removing an elective county officer during his or her term of office, abolishes, curtails or transfers to another county officer or agency any power of an elective county officer or changes the form or composition of the county legislative body shall be subject to a permissive referendum as provided by the legislature. (Amended by vote of the people November 7, 2001.)

Powers and duties of legislature; home rule powers of local governments; statute of local governments.

  • 2. (a)The legislature shall provide for the creation and organization of local governments in such manner as shall secure to them the rights, powers, privileges and immunities granted to them by this constitution.

(b) Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature:

(l) Shall enact, and may from time to time amend, a statute of local governments granting to local governments powers including but not limited to those of local legislation and administration in addition to the powers vested in them by this article. A power granted in such statute may be repealed, diminished, impaired or suspended only by enactment of a statute by the legislature with the approval of the governor at its regular session in one calendar year and the re-enactment and approval of such statute in the following calendar year.

(2) Shall have the power to act in relation to the property, affairs or government of any local government only by general law, or by special law only (a) on request of two-thirds of the total membership of its legislative body or on request of its chief executive officer concurred in by a majority of such membership, or (b) except in the case of the city of New York, on certificate of necessity from the governor reciting facts which in the judgment of the governor constitute an emergency requiring enactment of such law and, in such latter case, with the concurrence of two-thirds of the members elected to each house of the legislature.

(3) Shall have the power to confer on local governments powers not relating to their property, affairs or government including but not limited to those of local legislation and administration, in addition to those otherwise granted by or pursuant to this article, and to withdraw or restrict such additional powers.

(c) In addition to powers granted in the statute of local governments or any other law, (i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government and, (ii) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government:

(l) The powers, duties, qualifications, number, mode of selection and removal, terms of office, compensation, hours of work, protection, welfare and safety of its officers and employees, except that cities and towns shall not have such power with respect to members of the legislative body of the county in their capacities as county officers.

(2) In the case of a city, town or village, the membership and composition of its legislative body.

(3) The transaction of its business.

(4) The incurring of its obligations, except that local laws relating to financing by the issuance of evidences of indebtedness by such local government shall be consistent with laws enacted by the legislature.

(5) The presentation, ascertainment and discharge of claims against it.

(6) The acquisition, care, management and use of its highways, roads, streets, avenues and property.

(7) The acquisition of its transit facilities and the ownership and operation thereof.

(8) The levy, collection and administration of local taxes authorized by the legislature and of assessments for local improvements, consistent with laws enacted by the legislature.

(9) The wages or salaries, the hours of work or labor, and the protection, welfare and safety of persons employed by any contractor or sub-contractor performing work, labor or services for it.

(10) The government, protection, order, conduct, safety, health and well-being of persons or property therein.

(d) Except in the case of a transfer of functions under an alternative form of county government, a local government shall not have power to adopt local laws which impair the powers of any other local government.

(e) The rights and powers of local governments specified in this section insofar as applicable to any county within the city of New York shall be vested in such city.

 Resources

Albany Smothers a Plastic Bags Law,” by 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.