State and Local Government Law Outline

I. Introduction –
Centrality of states and local governments to our federal system has been underscored by 3 dramatic events:
i. 2000 Presidential election
1. Illustrates the delegation of critical issues by states to local officials
2. Also shows there are federal constitutional rules that constrain state & local decision-making
ii. September 11 attacks
1. Domestic response involved local governments
2. Local officials are likely to have far greater knowledge of local conditions and dangers.
iii. Hurricane Katrina
In recent years, the centralized trend has plateaued, and the federal system has witnessed tilt back to states and localities
iv. Can be seen in enhanced state and local public spending, in greater discretion lower levels have in spending federally funded programs, and in policy initiatives springing from states and localities.

Local governments – key players in the state-local system and provide most of the public services that the American people receive.
– rules that structure civil society: contract law, tort, property and land use, criminal law, family law, incorporation of businesses, the regulation of the professions – developed and implemented and primarily enforced by people at the local levels
– public schools, policing and incarceration, public safety and provision of clean water, removal of solid wastes, maintenence of roads, parks, hospitals, emergency medical services

States – inherent law making autonomy. In no sense arms of the federal government, have residual power over all aspects of government not granted to the federal government and not constrained by the Constitution or by the fed gov acting pursuant to the constitution
– possess broad police power over their territory and their citizens

Local governments –
– key role in actually delivering the basic services as education, policing, fire protection, mass transit, etc…
– dominant actors in intergovernmental system of regulating land use and in community development
o Top down:
o Local governments creatures of the state, established to discharge state functions locally
§ County: classic form of top-down government, traditionally provided basic state services at the local level.
· Relatively stable, rarely created or destroyed
· Traditionally regulatory and service-providing not law- or policy making.
· Recently and in more urban areas, taking on broader policy making role. Well situated to provide area-wide services in metro areas (and therefore increasingly more bottom up as well as top down)
o Bottom up:
§ Local governments structured in such a way as to give local constituents a critical role in directing their performance. May inlolve:
· Local popular election
· Appointment of some local officials by other locally elected officials
· Or a requirement that the state appoint only local residents to the governance of the local unit
o City or Municipal Corporation: Classic bottom up local political unit
§ City closely related to urbanness, greater population and density creates needs for more regulation and more services
§ Incorporation: municipality is incorporated when local people seek a new local entity to provide services à local creation, or state creation in response to local demands
§ Typically, includes legislative or policy making body and elected executive or appointed manager
· Types of Cities
o Charter City – power to do this granted by California Constitution Article XI, §3(a). City may adopt its own charter by majority vote
o General Law City – California Govt. Code §36501; California instructions on how to assemble a city

o Town or Townships:
§ Combines top-down and bottom-up elements of counties and cities.
o General purpose:
§ Counties, cities and townships
§ Relatively broad powers over a significant number of ares: public safety, public health, land use, streets, transportation, etc..
§ Often given general authority to exercise police power and pass legislation à Charter cities à Home rule
o Special purpose:
§ Very narrowly defined authority and are authorized to undertake only one or a very limited number of functions
§ The most common form of local gov in US today à the most common special district is the school school district
§ Combine top down and bottom up elements. They may be created by the state, by local constituents pursuant to state enabling legislation, or by other local governments
· Advantages:
o Tailoring the territorial scope of government to the proper dimensions of its function or activity (more efficient, can extend over broader ranges)
o Avoid certain state constitutional restrictions on city and counties
o Infrastructure and service benefits of local gov without having to incure full costs of general purpose gov (reduced cost)
o Can remove from partisan politics
o Created as a condition of receipt of fed funds to assure aid channeled to targeted program
The Vertical Distribution of Power
Theories of Local Govt
– Central issue for American federalism is the determination of criteria for deciding which level of govt is to be given what powers/responsibilities
– Six theories addressing the different benefits/costs of placing power at different levels of government:
o Madison (centralized): two reasons for concentration of power at a higher level of gov
§ upper level of govt likely to enjoy better leadership: bigger pool to choose from + more people to appeal means officials will be better
§ more difficult for the tyrannical majority, or any majority, to coalesce and dominate in a larger govt than in a smaller one (structural bulwark against national tyranny) à things happen more slowly give time to deliberate and think
· But Madison argues there is a need for govt levels, but its doesn’t show why so many are needed
o Alexis de Tocqueville (local govt):
§ Local govts in America give ppl power but thinks small elite is best equipped to get it right
§ giving citizens an interest and an opportunity to participate in self-government – and thus a “habit and taste” for working together concerning public matters – local govt strengthens American’s commitment to their own freedom, local govt a sort of “primary school” of democracy
§ problem is aren’t some govts too large to be considered “school of democracy” and to foster community
o Charles Tiebout (economic justification for local govt): jurisdictional competition is economically efficient. Focus is not on participation within local government but movement between local governments or “exit”. A local resident participates not by “voicing” preferences concerning local issues or local representatives but by remaining in a locality or exiting from one locality to another, depending on her preferences concerning different packages of services, regulations and taxes offered by different local communities.
§ local govt less a polity and more a firm
§ benefit of decentralization is not political participation but economic efficiency, matching consumer voters preferences for the mix of gov services, regulations and taxes maximized when able to choose from local govts than be limited to the offerings of one national gov or a small number of state governments
· Assumptions of Tiebout’s Model:
o Consumer voters are fully mobile
o Consumer voters have full knowledge of differences among revenue and expenditure patterns
o There are a large number of communities in which cosumer-voters may choose to live
o Restrictions due to employment opportunities are not considered, assumed all persons are living on dividend income
o Public services supplied exhibit no external economies or diseconomies between communities
o For every pattern of community services set by, say a city manger who follows the preferences of the older residents of the community, there is an optimal community size
o Communities below the optimum seek to attract new residents to lower average costs. Those above optimum seek to attract lower residents to lower average costs. Those above the optimum size do just the opposite.
· Criticisms of the Tiebout model:
o Are people really fully mobile?
o Race and class can limit –
§ People stuck with bad/no services
o Assumes consumers know the difference between revenue and expenditure patterns
o Assumes there is a large number of communities to choose from
o Doesn’t consider employment opportunities and the restrictions they create on voting with your feet
o Gerald Frug (city advocate): the practice of citizenship is central to a full human life.
§ redefining poltical democracy as popular involvement in the decisionmaking process, rather than as merely providing a choice of candidates at an election is only possible at the local level
§ must be a genuine transfer of power to decentralized units, no one is likely to participate in the decisionmaking of an entity of any size unless that participation will make a difference.
§ State control has prevented cities from becoming experiments in participatory democracy while simultaneously making them unlikely targets for attempts at local control

BUT… wha