State and Local
Chapter 1 – Intro
Power Dimensions
Bottom-up vs Top-down (authority is derived from above or from the locality itself)
Bottom up – locality controls itself
Top down – state dictates
General Purpose v Special purpose (municipal functions)
LGU
TD
BU
Origin
Powers( gp/sp)
Example
County
X
Trend to move toward to BU
State forms
General purpose
Campbell County.
Cities / Municipal corporation
X
Local Govt. Action defined by the state, in VA – file a charter with state, mayb by popular action such as a referendum to vote all people in area decide to create a city… etc.
Lynchburg, Town of Appomattox.
Townships
*
X
N/A
N/A
Not a Governmental Unit
None
Wide spot in the road.
Police powers, defined as making laws as to Health, Safety Welfare , Morals, States have police powers
Types of Local Gov’ts (Localities)
Cities / Municipal corporation (more bottom-up)
Village (another municipal corporation)
County (more top-down)
Townships (varies)
Special Purpose Governments.
So Fla Water management Authority, Regional Transpiration Authority,
Match size of government to size of problem.
Removes the onerous of politics the sewer authority can’t promise enormous thing s to people so there is not a lot of ability to make back room deals etc.
Vertical Distribution of Power
1. Descriptive, who has the right to says what the laws are, is it the state government, who shoul have the pwer to make the decision
Madison Federalism #10. – concentrate at top
Stop tyrannical factions(special interests), says we can’t stop factions, but they must be controlled. In a free society, causes of factions can not be removed
We are fallable, so we shall always have problems,
Issues of property. He says that that Govt. should protect the faculties of man that allow him to gain property – protects the fruits of people’s labor.
De Tocqueville – more at local level
Each man is the best judge to determine his own interests.
Local leaders know more about the people that are in the .
Tiebout(pg 24)– consumer-voter moces to the location that satisfies his preference patern.
Frug – power and participation problem (premise of city powerlessness)
Good points on the topic of “the limited ability of individuals to control their own lives” pg. 30.
Biffault – local participation not preferred over central gov’t
Gilbert – consolidation is the wave of the future
State Constitutions
Gangemi v. Berry
The form of the State Constitution: Length, Frequency of revision, and statutory detail.
Referendum
People ratify actions of a legislature
Initiative
People propose and adopt.
Chapter 2 – Local government in the American Constitutional Order (NOT ON EXAM) except for minor references to cases that don’t exceed scope of Ch 3.
3 views of Local Gov’t Auth
Local Gov’ts as Agents of the State
Municipal corps are political subdivisions of the state…and powers conferred upon them rests in the absolute discretion of the state. States have that ability to acquire, hold, and manage personal and real property. – Hunter v City of Pittsburg
Distinction btw governmental and proprietary property of local gov’ts approved by some courts, and state power over proprietary prop is not omnipotent. Hunter
A private owned water works might have a right under the contracts clause while a city owned water works would not…agent of the state. Trenton v NJ.
State power/authority is insulated from federal review unless the power is used as an instrument for circumventing a federally protected right. Gomillion v Lightfoot – PG 96
STANDING – Traditionally – local gov’ts lack standing to raise a fed const claim against the state…BUT some cir’s don’t adhere
Local gov’t as Autonomous, Democratic Polity PG 81
By and large, local governments are subject to the one person, one vote rule. Indirect representation doesn’t fly. (at least for general governmental units) Avery v Midland County
Basically, a locality can’t exclude nonproperty owners from voting on a bond issue that is paid for by property taxes…while interests may be different, differences are not substantially different to justify exclusion. Phoenix v Kolodiejski **** PG 91
A restriction on the local franchise (voting rt) would be subject to strict judicial scrutiny and would be sustained only if narrowly drawn to advance a compelling state interest. Kramer
A gov’t unit may legitimately restrict the right to participate in its political processes to those who reside within its borders. Holt ************* PG 96
Courts are generally deferential to state legislative decisions to grant some municipalities’ extraterritorial authority. Holt
Courts typically hold that the extension of the franchise to those who do not have a constitutional right to vote is subject only to the rational basis test, not strict scrutiny.
No state law is above the Constitution. School district lines and the present laws with respect to local control, are not sacrosanct and if they conflict with the 14th Amendment federal courts have a duty to prescribe appropriate remedies.
Without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy. Milliken
(Basically, a local district’s authority can’t be compromised b/c of another district’s violation…there must be a violation in that district.)
Milliken v Bradley
· Desegregation of the Detroit school system
· Issue – address the validity of a remedy mandating cross district or inter district consolidation to remedy a condition of segregation found to exist in only one district.
· Holding – State is responsibility for the segregated conditions within the city of Detroit it does not follow that an inter district remedy is constitutionally justified or required.
Legislatures have historically drawn lines which we respect against the charge of Equal Protection Clause if the law is “reasonable and not arbitrary” and bears a “rational relationship to a permissible state objective.” Village of Belle Terre
Local Government as Quasi-Proprietary Firm
EP voting rights other than per capita – General government functions = strict scrutiny; and then special-purpose units = rational b
er service to people outside their jurisdiction with an agreement that negotiates future annexation into the deal.
Holding – A city holding itself out as the sole provider of sewer services in a given locale will be considered a public utility and allowed to deny sewer hook-ups to property within its service area only for such utility related reasons as lack of capacity. The annexation agreement was upheld as per the right to contract.
Scope of Regulation
In the absence of express delegation of extraterritorial authority by the state, local powers are generally confined within local boundaries.
Many states have legislatively granted some local governments some powers I discrete zones of unincorporated territory immediately outside borders. (zoning, licensing, regulation, crime enforcement, safety)
Section B – Municipal Incorporation
White v Lorings
1. Petition to incorporate a town is rejected twice.
2. Holding – Reversed and incorporation is allowed.
3. Courts have discretion to determine whether the statutory requirements for incorporation have been met.
Statutory Conditions of Incorporation (on the final we will be given the statute)
· Boroughs ability to obtain or provide adequate and reasonable community support services and other community services.
· The existing and potential commercial residential and industrial development of the proposed borough and
· The financial or tax effect on the proposed borough and existing governmental unit or units.
A central question all municipal incorporation laws seek to answer is whether the potential benefits of local collective action outweigh and thereby justify the dangers.
Need
Capacity of services
Local preference
Boundaries (optimal size vs. avoiding potential conflicts)
Generally the creation of a special county or state commission to review the formation of new local governments reflects a state policy to assure the new government is in the interest of the region
Section C – Annexation and Boundary Changes
Annexation – (territorial expansion of a municipal corporation through addition of new land
Annexation can take place only when the minds of the city and the owners of the land contiguous to the city agree that the property shall be annexed and upon the terms upon which such annexation can be accomplished.
Common methods of annexation
State legislative acts (special legislation or general annexation statutes)
Municipal action (ordinance or resolution)
Petition of landowners/residents
Judicial determination
