Home Rule: Powers and Protection

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 Dillons 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 mattersincluding power to
  legislate upon creation and terms of officers,
  agencies, and employments theregulation
  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.