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State and Local Government Law
South Texas College of Law Houston
Festa, Matthew J.

State and Local Government – Festa – Fall 2009

QUESTIONS to consider:
· Most important level of government in the federal system?
· What kinds of things do we think each level of government should do?
· How many state and local governments are there in the US? More than 87,500 – includes states, counties, municipal governments, townships, school districts and special districts.
· Governmental vs. Proprietary
· Ministerial vs. Discretionary
· Tension between Responsiveness & Parochialism

I. Overview of State and Local Govt in a Federal System
A. Federal Govt – Fed govt is central govt in our govt system, but not central source of auth for state and local govt. It has NO constitutional auth to intervene in state or local govt matters. Congress has power to adopt laws to implement 14th amendment.
1. US Constitution – think about what’s not in it
a. Fed govt – LIMITED power as defined by Const; power granted to fed govt by states
b. Feds can act only on powers given
i. enumerated in const
ii. Any authority Congress can exercise over state or local matters comes from spending power (spending clause) or power to regulate interstate commerce (Inst Com Clause)
c. Fed statute may preempt a state or local law
B. State Govt
1. Original US govts – states delegated powers up to fed govt in fed const and can delegate down to local govts thru state constitutions and statutes.
2. State Govt Today – mirror image of fed govt w similar tripartite division of authority and separation of powers doctrine applies.
3. Differences between state and fed govts:
a. State govts have plenary power – not ltd auth, unless pwr delegated up to fed govt or ltd by state const; states have police power and can do what want if for general welfare unless something strictly prohibits it.
4. Structure – state govts are decentralized (governors, many elected officials, independent agencies); state consts are limitations on otherwise plenary pwr of leg; Bc state legs have plenary power, dont need to draw auth from state const, but state consts can specify how delegated auth can be exercised (EX: Home Rule Prov – state const may specify pwrs of local govts thru this provision which confers home rule auth on local govts that adopt charters)
5. Legislative Power: Grant vs. Limitation
a. Leg has plenary power to act unless ltd by const Expressio unius rule (mention of one thing implies exclusion of another). This rule not applied to state constitutions.
b. Delegation of Power and Special Legislation – 2 const limitations on state legislation are delegation of pwr (prohibits delegation of leg pwr to non leg agencies) and special legislation (cts uphold special leg only if reasonable basis for classifying local govts differently)
C. Local Govt
1. Local Govt types and Organization
a. Counties – importance varies by region; “first of all local units for state purposes”; NOT incorporated; weak and dont have home rule provision…no genl delegation of police power.
b. Municipalities – dominant form of local govt below county level; political subdivision w/in which municipal corp established to provide genl local govt for specific pop concentration in defined area; incorp status distinguished them from counties; chartered by states; exercise local functions. 2 std organizational forms for municipalities:
i. Mayor-council form – elected leg body & mayor (political cities)
ii. Council-manager form – about 60% of all cities; retains mayor & council but confers admin responsibilities on city mgr (admin cities)
c. Quasi-Muncipal – counties and townships fall under this category bc carry out state functions at local level as well as exercising local govt powers.
d. Townships – not incorporated
e. Special Districts – specific functions, MUDs, water districts; are either independent (governed by appointed or elected boards) or dependent (organized by parent municipality); most rapidly expanding local govt unit.
f. School Districts – a form of special district
g. Local govt trends
h. How municipalities are governed – elected mayors who have veto, have greatest executive authority
2. Sources of Local govt authority –any powers local govts have must be delegated by state, either by statute or constitutional HRP (package of police powers)
· Home Rule Prov – provisions in state const that delegate auth directly to local govts & statutory intervention not necessary if auth included w/in HR grant.
3. Constitutional limitations on authority of states over local govts – local govts must get their legal authority from state legislature.
a. Hunter – state leg control over local govt not restrained by fed const. State has absolute pwr over property of municipal corps; blocks litigation by local govts that challenge state leg under fed const, but some state cts recognize an exception when fundamental right involved; municipalities cant assert privileges or immunities against creating state.
b. State leg protected from const attack under Hunter, but IS subject to challenge under fed & state const limits when apply 2 private entities & individs.
D. Constitutional Limits on State and Local Govt Legislation: EP and Substantive DP – equal protection requires equal treatment and prohibits unreasonable classifications and substantive element of dp requires legislation to advance a legitimate governmental interest.
1. Equal Protection – Judicial review standards
a. Federal Constitution – Judicial review standards
i. Strict Scrutiny – when statute regulates “fundamental right” or “suspect class”; under ss, ct will strike down legislation unless govt can show it is narrowly tailored to serve a compelling govt interest
ii. Intermediate Scrutiny – statute regulates “semi-suspect class” or substantially but indirectly affects “fundmntl right”; applied only to classifications based on gender, alienage & illegitimacy; under is, ct will strike down leg unless govt can show classification substantially related to important govt interest.
iii. Rational Basis – statute must be rationally related to achievmnt of legit state interest; presumption of constitutionality
b. State
i. not necessarily co-extensiv

t seeks to expand by adding land; Annexation proposal is defensive if annexing govt moves to annex land to forestall annexation by neighboring city.
b. Methods and Mechanics – annex statutes may authorize initiation of proceedings by annexing municipality, by adjacent prop owners, or both mthds. Voter approval may be required in annexing municipality, in area to be annexed, in both or none.
C. Special Districts – a special district/authority is a govt corp, usually created to provide single function or service. Unlike genl purpose govt (county, town, village or city) which uses delegated auth to protect welfare of residents, these govt corps have features of private and public sectors. Similar to private corp bc free of many of restrictions placed on public corps, yet are at least indirectly accountable to public.
1. Nature and Functions of Special Districts – owned by govt, yet governed and managed in manner of private corp; designed to separate politics from administration; likely to form when states limit local fiscal pwrs & municipal ops to annex land, when need to meet demands for services arises or when entrepreneurs see need to form one to provide services for new developments.
a. Accountability – advantage of enabling functions to be distanced from political arena & performed in manner that meets technical reqs, but democracy weakened and accountability reduced
2. Types of districts and authorities – labels given to diff types of govt corps:
a. Special District – must have elected governing boards & financed thru special tax assessments; typically comprises local govt entities w pwr to tax and levy special assessments
b. Authority – usually have appointed boards, no taxing authority and often supported by user fees, grants and tax exempt revenue bonds; known as “public authorities” and comprise govt corps wo property taxing powers.
3. Organization of Special Districts – municipalities MAY annex territory w/in special districts; JR of formation of special districts may be more aggressive if ct believes law used improperly; special districts may also annex land
· Business Improvement District (BID) – territorial subdivision of city in which prop owners or businesses subject to additional taxes. Created primarily to foster improved commercial atmosphere in area. If merchants willing to pay additional tax for improved envt in which to conduct business, special district may be created to provide govt structure to accomplish urban imprvmnts.