Local Government Outline(Professor -Rick Su Fall 2008)P. 1

Local Government Outline(Professor -Rick Su Fall 2008)p. 1

Text: Gerald E. Frug, Richard T. Ford & David J. Barron, Local Government Law: Cases and Materials (West Group: 4th ed. 2006)

Ch. 1 INTRODUCTION TO THE PROBLEMS OF DECENTRALIZATION

A. Decentralization of Power to Local Government: The Pros and Cons (p. 1-22) (Class 1)

Italo Calvino, Invisible Cities (p 3)

Alexis de Tocqueville, Democracy in America (p 4)

(Is this a “Locke-ian” perspective? Liberal vs. Communitarian – Antifederalist influences?)

• Inefficient
- Reform/Mistake – Change
• Participation
- Ownership
- Dynamism/Constructive
- Legitimacy
• Greed

The Federalist No. 10 (Madison) (p 12)

• Factions

- Individualism/Zero sum

- Delegation/Scale

- Local/National

- Spread

Romer v. Evans, 517 U.S. 620 (1996) (p 17) *

The city and County of Denver, and the cities of Aspen and Boulder, all enacted ordinances that banned discrimination in many transactions and activities, including housing, employment, education, public accommodations and health and welfare services, for reason of their sexual orientation. In response, a statewide referendum (Amendment #2) to amend the Constitution of the State of Colorado was adopted. Amendment repeals the local ordinances and prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named classes of homosexuals, lesbians or bisexuals. (State trying to preempt local) Challenged on 14th Amendment (equal protection) grounds.

SOR: Rational Basis – “If a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.”

Court (Kennedy): “It identifies persons by a single trait, and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented … We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. “ Unconstitutional

Dissent (Scalia with Chief Justice Rehnquist and Thomas): The only denial of equal treatment homosexuals have suffered is that they may not obtain preferential treatment without amending the State Constitution. Amendment 2 sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single-issue contest for both sides. It put directly to all the citizens of the State, the question: Should homosexuality be given special protection? They answered no.

• 14th Amendment

- government & individual

• Locality/individual (right to petition for redress)

- faction – gays- minority – concentrated/political

- faction – gov’t – oppression.

B. The City as a Public or Private Entity (p 22-56) (class 2)

Competing theories of decentralization with regards to public v. private.

What is the difference between public and private?

Public/Private

1. Restriction of rights … access v. exclusion

Private propertyGov’t

2. Government involvement in 1.

Rights/power corporation

Origin/creation

3. purposes/goals Individual

Gerald Frug, City Making: Building Communities Without Building Walls (1999) (p 24)

The exercise of legislative power was perceived as a threat to corporate rights, the exercise of corporate rights risked the curtailment of legislative powere thought necessary to protect the welfare of the people.

Where to draw the line between public and private for corporations? In Trustees of Dartmouth College v. Woodward, decided in 1819, the US Supreme Court gave its response to this question, an answer that came straight from Locke: what needed protection was property.

• Dartmouth (property)//Associational Rights

• Arguments

- Formalism – Rajneeshpuram

- Functionist – Marsh

- Historic/Tradition – Lee

• Oregon v. City of Rajneeshpuram, - holds that a private religious community cannot legitimately become a city; (p 30)

-property ownership  creation  exclusion/access

• Marsh v. Alabama, treats a privately owned company town as a city over its objections

- Act like a town then can’t exclude (p 34)

• International Society for Krishna Consciousness v. Lee, - treats a government-owned airport as if it were a private entity, thereby upholding its ability to limit the freedom of speech (p 39)

- forum based

- public v. proprietary

- 3 kinds of public property

• New Jersey Coalition Against the War in the Middle East v. J.M.B. Reality – provides at least some protection for freedom of speech at a private shopping mall (p 45)

1. normal use

2. public invitation

3. purpose in relation to public/private use

• Council of Organizations v. Engler (1997) (p51)

Is a charter school a “public” school?

Purposes and goals (not historic/traditional)

* state issues and can revoke charter, so state has ultimate control

• No requirement that state have exclusive control

• No requirement that school be under control of voters.

All arguments are leaned toward concept that charter school is public, however, purpose of creation is to make it seem more private.

Similar to port authority?

What about administrative law approach, like an agency?

Does not conform to historical models of schools.

Review (1st two classes)

Decentralllization v. centralization – class 1

class 2

State

corporations

Individuals

Models  formal, function, historic/traditional

C. The Forms of Local Power (p 56-92) (class 3)

Robert Ellicson, Cities and Homeowner Associations (1982) (p 57) (CID)

Homeowners Associations – powers of a city, but all voluntary residency

public/

private  voluntary constituted

Frug – Cities lack power, because of fear of state power, and apathy

thinks city should be more private – city power comes from individual which reduces individual power.

Contrasts with Frug – thinking CID’s solve problems alluded to by Frug.

State

Romer

v/ 

EvamsLocal

People

Evan Mckenzie, Privatopia (1994) (p 60)

Voluntary constituted?  1. Is creation the right measure?

2. In fact voluntary? For who? Developer created.

Gary J. Miller, Cities by Contract (1981) (p 68)

Rolling Hills – Public or Private?

Public for public good – just smaller public

Private – restricted access like Rajeeshpurem.

______

Segmented society

outward looking – ghetto – being forced to stay in

Inward looking – Rolling Hills

• Tocqueville – great involvement of citizens in gov’t

• Frug – cities lack power, people give up rights plus have apathy

• Ellickson - CID’s voluntary – All participate in gov’t

• Mckenzie – Apathy takes away voluntariness

Municipal Building Authority v. Lowder, (Utah 1985) (p 69)

Community needed new jail. Taxpayers were unwilling to pay for it, kept voting it down. Board of Commissioners created Iron County Building Authority, to build jail, and lease it to county.

1. Public Authority

2. Debt doesn’t track to tax increase. (leased)

Court – Does not violate express terms of state constitution. (is lawful)

Ball v. James, (U.S. 1981) (p 74)

System for electing the directors of a large water reclamation district (Salt River Project) challenged. Produces electricity for ½ Arizona, but at creation, primary business was to store and deliver water.

Court (Stewart):

• functional – limited power

• historic/traditional – electric not gov’t / public (like Lee)

• size doesn’t matter

• formal – created for land use – water for land owners.

Kessler v. Grand Central District Management Association, Inc. (2nd Cir. 1998) (p 83)

Grand Central Business Improvement District (BID) challenged on EP grounds that it denied 1 man 1 vote. (Like Reynolds v. Sims and Ball v. James) The point of a public authority is to act like a business.

• BID

- State enabled , City created.  Still ultimately responsible

Threshold

______

- Limited Purpose

• Residential/Commercial Area

Input  “value” Output  Quality of Life Renters/Tenants v Owners

D. The City and Democratic Theory: Part One (p 92-112) (class 4)

Italo Calvino, Invisible Cities (p 93)

Charles Tiebout, A Pure Theory of Local Expenditures (1956) (p 93)

Market System

1. Choice through mobility (assumes perfect mobility)Subjective Preferences

2. Services/costs  Optimal size

3. Individuals Choose because of servicesFocus on the individual

1. Choice/mobility

2. Economic “goods”

3. Optimal

Robert Nozick, Anarchy, State and Utopia (1974) (p 96)

1. No single community that is right for everyoneSubjective Preferences

2. Cultural (as well as services)

3. Leaving would have costs/benefits for both individual and community

1 Choice/Mobility

2. Non-economicFocus on the individual

James M. Buchanan, Principles of Urban Fiscal Strategy (1971) (p 101)

Assumes wealthy pay more, so should get more.

1. Attractions (Assumes restricted mobility)Subjective Preferences

Art/Culture

Differentiation of servicesfree riders and externalities

2. Increased cost of leaving

1. Choice/Mobility

2. Economic/Non-economic

3. Attract Focus on the individual

4. Close off

Frank I. Michelman, Political Markets and Community Self-Determination: Local Government Legitimacy (1978) (p 104)

1. Models

1. Public Choice

2. Public InterestObjective Preferences

Two sub-theories to make public interest work –

“big bribe” and “market failure”

2. Objective – Searching for an objective norm –- not attainable by public choice.

Individuals will settle slightly, to gain “individualistic public interest”

Focus on the Community

1. Choice/Participation

2. Preference discovery

Option expanding

Big Bribe/Market Failure

Iris Young, Justice and the Politics of Difference (1990) (p 106)

1. Diversity of Communities

Diverse Community  Boundary lines

2. Conflict Voice/Exit

3. Preference

1. Choice/Participation+ MobilityFocus on the Individual

2. Critizue of ideal of communityLiberal

3. Preference Diversity/tensionLiberal

Normative ideal “city”

Ch. 2 THE RELATIONSHI0P BETWEEN CITIES AND STATES AND BETWEEN CITIES AND THE FEDERAL GOVERNMENT

A. The Relationship Between Cities and States

1. The City-State Relationship as a Matter of Federal Constitutional Law (p 113-138) (class 5)

(#1)Hunter v. City of Pittsburgh, (U.S. 1907) (p 115)

City of Pittsburgh sought to consolidate with city of Alleghany. Majority of proposed consolidated city residents (Pittsburgh and Alleghany) voted for consolidation. Majority of Alleghany voted against. Pittsburgh’s larger population, who voted yes, outweighed negative vote of Alleghany.

1. voting scheme

2. “city” property

Associational right

Private property rights

3. Takings

Decision known for concept that city is merely a part of the state.

Millicen v. Bradley (U.S ) (p 120)

Busing across school district lines? No.

Court – State must recognize district boundaries

(#2) Hunter v. City of Pittsburgh

Amendment to city charter by state forbidding housing preferences? No

Court – Right to petition would be violated.

Washington v. Seattle School District No. 1, (U.S. ) (p 121)

State initiative aimed at banning the use of mandatory busing as a means of promoting integration? No.

Court- Acknowledged the State’s formal authority over local school districts, but it can’t interfere with the locality.

Romer v. Evans, 517 U.S. 620 (1996) (p 17)

City of New York v. State of New York, (NY Ct. of Appeals 1995) (p 118)

State changed funding scheme for public schools. City and school board sued alleging 3 claims. (1) funding scheme denies NYC kids educational rights guaranteed by the Education Article of the State Constitution; (2)funding provides separate and unequal treatment for the NYC schools in violation of the EP Clauses of state & federal constitution; (3) the disparate impact of the funding scheme for public education on minority groups in the city violates title VI of the Fed. Civil Rights Act of 1964.

Court: No legal capacity to sue. (Hunter 1)

Dissent: case falls under exception that if school district follows state rule, will be violating state constitution. Invokes Milliken, Seattle, and other state court cases.

Coalition for Economic Equity v. Wilson, (9th Cir. 1997) (p 122)

State of California adopted initiative amending constitution that prohibits discrimination against or preferential treatment to individuals or groups on basis of race sec, color, ethnicity or national origin, in the operation of public employment, education or contracting. Challenged by groups of minorities and women, on equal protection grounds. (Affirmative action which this removes, provides equal protection.) Plaintiff cites Hunter v. Erickson (US 1969).

Court: cites Romer, but distinguishes because affirmative action is not equal protection. Comes down to preferential vs. antidiscrimination. State amendment is okay.

Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, (6th Cir. 1997) (p 128)

City of Cincinnati passed ordinance prohibiting City government agents from enacting any special class or preferential treatment for homosexuals, bisexuals or lesbians. Lower court invalidated ordinance.

Court: Cincinnati ordinance less restrictive state initiative in Romer. Cincinnati rule only prevents preferential treatment, does not deny equal protection.

Individual right - - <preferential treatment (above baseline)

anti-discrimination (baseline protection)

Associational rights - -< delegation & autonomy

(Romer, Wilson) Instrumentality

How argued determines outcome/prong of attack.

2. Dillon’s Rule (p 138-168) (class 6)

John Dillon, Municepal Corporations (1911) (p 140)

Dillon’s Rule – Municipal powers

1. express delegation

2. necessarily and fairly implied and incidental

3. essential to objective/purpose

4. any fair, reasonable doubt is resolved against corporation and power denied.

Construction

1. Strict reading of the text

2. Ambiguities resolved in favor of State.

Compare Dillon/State creature

Olesen v. Town (City) of Hurley, (SD 2004) (p 146)

Restaurant owner sues City for operating full service restaurant, after years of only serving drinks and snacks. (As a bar)

Court: Express language of charter allows for operation of bar.

Incidentals of allowed function is okay.

Food sales revenue is larger than alcohol sales, and is not incidental.

Arlington County v. White, (Va 2000) (p 148)

County gives benefits to domestic partners as part of self-funded insurance plan. The state statute authorized benefits to “dependents.” County says dependents included unmarried couples and same sex couples.

Court: Since state didn’t recognize common law or same sex marriage, county can’t expand definition and give status to those partners.

1. Atty. Gen. definition – nowhere suggests domestic party

2. State defines dependent as “totally dependent (more than ½)

3. County defines dependent as “financially interdependent” and listed on income tax as dependent.

Dillon --- Mode / Power

defer to localitydefer to state

How to decide which is mode issue and which is power issue?

Power is invested in these local entities, but virtually no legal authority.

What is a bar? What is a dependent? Is this micromanaging?

What is Arlington Co. were a private corporation?

Contractual? Private?

Proprietary aspect of gov’t? Is Dillon’s rule more expansive than previously thought?

State v. Hutchinson, (Utah 1980) (p 153)

Defendant, a candidate for the office of Salt Lade County Commissioner, was charged with having violated § 1-10-4, Revised Ordinances of Salt Lake County, which requires the filing of campaign statements and the disclosure of campaign contributions. Defendant contends that because state did not expressly grant the county the power to enact such legislation, it cannot do so.

Court: Strict construction and Dillon’s rule are archaic. Ultimate limitation of abuses is the people. County delegated authority.

3. Constitutional Prohibitions Against Local or Special Legislation (p 159-168) (class 6 cont.)

Chicago National League Ball Club, Inc. v. Thompson, (Ill. 1985) (p 160)

Baseball club challenged new county ordinance (EPA and noise pollution) that would prohibit night games at Wrigley field. Ordinance carefully crafted, so that Wrigley field was the only stadium affected.

Court: Each part of the ordinance, passes rational review standard, and “The creation of classifications is for the judgment of the legislature, and its amending or modifying is not for courts to decide.

Morial v. Smith & Wesson Corporation, (La 2001) (p 164)

Mayor and City of New Orleans files suit against gun manufacturers, to recover costs associated with firearms. State passes legislation banning suits by government entities against firearms manufacturers, including suits already filed (retroactive).

Court: Municipal corporations not due protections that are reason against retroactive legislations. Legislation is within realm of state authority.

4. Home Rule Initiative (p 168-207) (class 7 – 2 days)

Home Rule Movement

Give power back to localities

Give discretion back that a lot viewed Dillon as taken away

Has to be a realm in which localities can act independently

Against special legislation

David J. Barron, Reclaiming Home Rule (2003) (p 171)

Too stark a difference between local and state

Too many opinions in what a community is under Home Rule

old conservative

administrative

social variants

Home Rule is not anti-regionalism

A different vision of local power v. state power

City of Ocala v. Nye , (Fla, 1992) (p 177)

City wants to exercise eminent domain over an entire tract of land, not just the portion needed to widen a street, to save money. Argues that under Home Rule, can do so, since county and DOT can do so.

Court: If a state or county can save money by acquisition, then a locality can too.

McCrory Corporation v. Fowler, (Md. Ct. of Appeals 1990) (p 178)

Did enactment of Montgomery County Code, which creates a private cause of action for employment discrimination entitling a claimant to sue for damages, injunctive or other civil relief, exceed the authority delegated to chartered home rule counties?

Court: State has addressed this issue in Article 49B of MD Code. County goes too far, this is not just a local problem; there is a statewide interest.

TypeIssueStandard

HR InitiativeMunicipal AffairsAny local Any state

HR Immunitypublic interestinterest

(Nye)(Bradley

Fowler)

-- Balancing –

La Grand Dissent &

N.O. Living wage

Civil/PrivateConstitutional Limits

(MarshalHouse)(MarshalHouse)

(New Orleans Living Wage)

Structural/Substantive

(LaGrandeSchweiker)

Interfering w/ state police power

(New Orleans Living Wage)

FactorsWho DecidesRational

Scope of ImpactCourts (Bradley)Competency

Scope of IssueLocality (Nye,N.O. Dissent)Uniformity

History/TraditionState (Schweiker)Efficiency

Marshal House, Inc. v. Rent Review and Grievance Board of Brookline, (Mass. 1970) (p 183)

Rent control ordinance challenged. State constitution expressly limits power to enact law governing civil relationships to that which is incidental. Town argues that it is an economic relationship, not civil. Landlords (Marshal House) argues that it is a civil, landlord/tenant relationship. Is rent control a local concern? Yes, but not only local concern. Statewide concern.