Local Government
Sarah Schindler
Fall 2013
Theories of Local Government
· Two steps
o 1. Top Down vs Bottom up
o 2. General vs Specific
· Centralized vs Decentralized
o Madison (centralization)
§ Feared local governments; argued in favor of a strong central government because 1) controlled faction by having a diversity of views and competing special interests; and 2) fit characters rise to the top
§ Modern interpretation is that with a broader/more regional context, less NIMBYism
o Detoqueville (Decentralization)
§ Local Government trades efficiency of central government for local government that is independent/power and thus truly free: 1) incubator of citizenship by encouraging participation; 2) Centralized power cannot see to the details of local needs; 3) strong local government protect from despotism
o Tiebut (decentralization)
§ People are consumers and Local governments are service providers; departure is the central mechanism for managing citizen/government relations
o Frug (decentralization)
§ Argues for decentralization of power because encourages participation and communal decision making which is good.
o Briffault (centralization)
§ Briffault says too much local autonomy gives power to wealth majorities and shift externalities to the people living outside the borders. So he proposes more power be shifted to the state
o Ford (reconciles centralization and decentralization)
§ Integration and separation: Ford relates race theory to localism, arguing tradition local government encourage racial segregation, and proposes that allowing expanded borders and voting to non-residents can address this.
State Differs From Federal
· State Constitution vs Federal Constitution
o Grant (feds) vs Limitation (state)
o Unlike COTUS limited specifically enumnerated powers, state governments have inherent broad authority and so unless the constituton says it can’t it can, assuming not in violation of COTUS
§ See also GanGemi v Berry: because of this principle state legislature ahs inherent broad power
o Other substantive Differences
§ Elected judiciary
§ Legislative procedure
§ Legislative term limits
§ Plural elected executives
§ Line item veto
§ Direct democracy
· Initiative Process
o 1) Popular Referendum (peoples veto)
§ some states allow people to collect signatures to put this on the ballot
o 2) Legislature Referendum
§ every state has this; legislature can choose to have issue put to vote of people
§ Fundamental Rights
o
Theories of Local Government: 3 hats
· Underlying Question: tension between COTUS silence on local governmental power and the de facto existanece of local government power. Therefore, local governemnts and their powers are treated differently based on what function they are performing
· Hat # 1: Agent of the State
o The basis idea is the locality has no constitutional protected rights; Local governments are powerless and are merely agents of the state, who has full autonomy
§ Hunter v Pittsburg
· RULE: local governments are agents of the state on not autonomous and powerful; people do not have a right to local government beucase the state has absolute power over local government
· CASE: in the Pittsburgh-Allegheny consolidation, Allegheny citizens claim that the action was a violation of the Contracts Clause (impairing an alleged contract between the city and its taxpayers) and due process (because their property is subjected to more tax now). The Court rejects both claims, on the due process claim reasoning that cities are entirely creations of the state and so the state can do whatever it wants with cities, no matter what the people say.
o But The court notes that their could be, possibly, a due process violation if property held
o There are limits because of the federal constitution
§ Constitutional Limits
· Gomillion
o RULE: Even though the local government has no power, the state cannot violate federally protected rights
o CASE: unconstitutional for a state to redefine the boundaries of a city into a 28-sided figure that cut out all blacks– this ran up against am15
· Kiryas
o Gomillion limitations apply to the establishment clause.
§ Local Governments can have standing
· Rogers v Brockette
o Hunter does not apply to limit standing because that was on substantive issue and not standing
§ Split on whether federal governments can empower local government over state objections
· (Majority): Nixon: federal government cannot preempt state government by empowering local entities
· (Minority) Lawrence: Federal law preempts because congress can grant power to a locality over the objections of the state.
· Hat # 2: Local Governments as Autonomous Polities
o Equal Protection Clause/One person one vote applies to local governments when local government actions has “reasonably significant impact” within their jurisdiction on their residents
§ Reynolds v Simms
· State Legislatures must elected with OPOV
§ Avery v Midland
· FACTS commissioners court approprtiated in a way that meant 95% of the population had only ¼ of the vote, P sued under EPC.
· ISSUE was whether this was a special purpose (when it does not apply) and when it is a general purpose (when it does apply)
· HELD/RULE: OPOV/EPC applies when the local governments power has a “reasonably significant impact” within their jurisdiction on their residents.
o Lack of lawmaking power is not dispositive
o Leaves open issue of OPOV application to special purpose government, see hat 3.
· DISSENT; this count government was specific in purpose because it was designed to address rural issues. Everyone is represented in the state, see Hunter.
§ Imp
land and buildings and promot business activity.
o **assessment can be for specific purpose vs a tax that is on property but for any general service (redistributive)
· Originally intended to supplement, but not overtaking role of local government
o Teibutàgood, service provider
o Social Justiceà bad, gov services becomes based on ability to the pay, this is regressive/less redistributive
o Cases
§ OPOV does not apply to a special limited purpose district
· Sayer
o FACTS a district with some limited governmental powers restricted vote to landowners because disproportionate effect on landowners
o HOLDING court found that OPOV (Reynolds/Kramer) does not apply to a special limited purpose district
· Ball v James
o FACTS single purpose district creatd by state law to provide water to farmers which it funded by selling electricity to city of phoenix, but vote restricted to landowers; landless voters sued under EPC
o HOLDING OPOV does not apply, Sayler does, because this is a special purpose district
§ “essentially a business enterprose” so if the gov unit functions like a biz ok to treat ppl like biz
§ the nature was not general, it was narrow purpose AND disproportiate effect
§ Provision of electricity was not a traditional function of government and it is merely incidental
§ Size does not matter
o DISSENT
§ This has a substantial effect on all people regardless of property ownership and the size is much bigger than sayler
· Kessler v Grand Central BID (majority)
o FACTS state authorized BID for grand central, owners had majority vote, tenants wanted equal vote; BID provided many normally city functions; funded primarily by assessment within the district
o ANALYIS 2 step
§ 1. Limited purpose
§ 2. Voting system bears reasonable relationship to this limited purpose
o HOLDING no OPOV, applies ball and sayler
§ BID responsibility is so circumscribed that it cannot exercise core powers of sovereignty typical of a general purpose government AND
§ Both the benefits and burdens disproportionately affect property owners AND
§ Voting system reasonably related to the goals
o DISSENT
§ Using avery and Kramer —this performs a tradaitonal government function with a significant impct on the lives of people within the district; slippery slope/social justice
