State And Local Government
Professor Jud Mathews
Spring 2016
Introduction
1. General Purpose:
a. Relatively broad responsibilities over a significant number of areas
b. States, counties, cities, and townships are all considered to be General Purpose
2. Special Purpose:
a. Local governments are given very narrowly defined authority and are authorized to undertake only one or a very limited number of functions (e.g. most common – school district)
b. Narrowly defined authority and limited number of functions
i. E.g. housing authority, Business Improvement Districts (“BID”), water and sewage authority, etc.
c. Fastest growing form of government:
i. A way to have a number of different entities facilitate area-wide services while preserving the independence of smaller general purpose local govs by superimposing a special district
ii. Evasion of state constitutional restrictions on local gov tax and debt
d. May be created to provide physical improvements, basic services, or some of the regulatory benefits of municipal gov.
e. Factors to determine whether special purpose:
i. Limited purpose
ii. Lack of sovereign power
iii. Limited role and responsibility
State Constitutions
1. Similar to US Constitution in two fundamental ways:
a. Establish a structural framework
b. Establish fundamental rights that limit the scope of government authority
2. Different from US:
a. Theory
b. Form
c. Substance
3. Theory of State Constitutions:
a. The US Constitution is a grant of power, for the federal gov to have power, the US.C. must explicitly say so.
b. State Constitutions are limits of power, the states have plenary power.
i. States are granted all powers not explicitly or implicitly provided by the US.C. to the fed gov.
c. Rule: State Constitution (S.C.) is not a grant, but a limitation of the exercise of the sovereign power inherent in the people.
i. No negative inferences apply to state power
ii. Statutory constructions rule of expressio unius est exclusio alteritus (the mention of one thins implies the exclusion of another) does not apply
4. Form of S.C.
a. Length: S.C. are much longer.
i. Reflects on the nature and scope of state responsibility à state govs have primary, frontline responsibility for:
1. Defining basic rights and rules of civil society
2. Protecting life, liberty, and property
3. Providing education
4. Administering justice
5. Regulating business activity
b. Frequency of amendments
i. Overhauled regularly and often amended
c. Detail
i. Have more of a statutory feel that address non-fundamental matters (e.g. gambling, lotteries, etc.)
ii. Far more enmeshed in the conflicts of state politics
5. Substance Differences
a. Elected judiciary which can provide advisory opinions
b. Structure of government
i. All 50 states have adopted three branches of government
ii. All have independently elected governors, an independent judiciary, and engage in judicial review
c. Legislative Procedure
i. Single subject rule – no omnibus bills, one subject per law
ii. No special laws (i.e. laws directed towards one municipality or one person)
iii. Item veto allowed
Local Government in the American Constitutional Order
1. Fed courts generally place local govs in one of three categories:
a. Local government as an agent of the state
b. Local government as an instrument of the state (creature)
c. Local government as a delegate of the state
2. Local government as an agent of the state
a. Local govs are treated as state instrumentalities
i. Localities have no federal constitutional rights against their states
ii. States have plenary power with respect to the organization and power of local units.
b. States are supreme and a state’s legislative body may do as it will unrestrained by the US.C.
c. Local govs are a mere political subdivision of the state
3. Local government as an instrument, created for a purpose
a. The power of the state to alter local govs is not impacted by the presence of a charter
b. When a state exercises power wholly within its domain of state interest, it is insulated from federal judicial review. However, such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.
4. Delegate of the state
5. Federal laws regarding cities cannot trump state laws about those same cities.
6. One Person One Vote
a. Every qualified resident has a right to a ballot for election of state legislators of equal weight to the vote of every other resident and that right in infringed when legislators are elected from districts of substantially unequal population.
b. One person one vote rule applies to general government at the local level, but not necessarily to special districts
c. The 14th A forbids election of local gov officials from districts of disparate population.
d. Must ensure that those qualified to vote have the right to an equally effective voice in the election process.
e. The Equal Protection Clause (“EPC”) does not require that the state never distinguish between citizens, but only that the distinctions that are made are not arbitrary or invidious.
f. US.C. forbids a st
, a municipality has no duty to continue to supply W/S to extraterritorial customers.
ii. Consider legitimate basis for annexation
d. City has not duty to provide service beyond local boundaries and when municipality does so, it has wide latitude in establishing the terms under which such extraterritorial service is provided.
5. Municipal Incorporation
a. No incorporation when social discrimination is the motive, but other motives are OK
i. Can escape local zoning
ii. Can escape local tax
iii. Unless touches a constitutional concern, motive for incorporating is largely not relevant
b. If body follows the correct procedure, courts shouldn’t deny incorporation
c. Bodies deciding incorporation have broad powers and often look beyond the strict wording of statutes.
6. Annexation and Boundary Change
a. Annexation
i. Most common form of boundary change
ii. Five principle method:
1. By state legislative act
2. By municipal action
3. By petition of the residents or landowners in the area to be annexed
4. By judicial determination
5. By regional or statewide boundary review commissions
iii. Annexation may be initiated by a city or by petition of landowners in an area outside the city, and then be subject to review by a court or boundary commission, a referendum in the are to be annexed may also be required.
iv. Any enumerated factors looked at by the court on annexation cases are “mere indicia of reasonableness”
1. Court must look to totality of circumstances viewed from both city’s and landowner’s perspective
v. Contiguity Requirement
vi. Role of courts in annexation varies. Some have ministerial power, others have broad discretion.
1. For states with discretion, different standards exist. Consider:
a. Reasonable standard – looks to necessity for an expediency of annexation
b. Rule of reason – 1. Reasonable boundaries 2. Demonstrable need for property 3. No indication that city otherwise abused discretion
c. Fairly debatable standard
