STATE AND LOCAL GOVT LAW
OUTLINE
I. State and Local Govt Introduction
A. Local Govt – Arms of the State?
I. Vertical Distribution of Power
a) Top Down – carry out State functions at the more local level
a) often used in Co. Govt
(i)NOT in NE
(b) often use commissioner form of govt
(i)May be elected Ofcs, BUT just carry admin duties prescribed by State vs. Elected Ofcs making Policy
b) townships also tend to be this
(a) counties can adopts a township form of govt
b) Bottom up – govt have more Autonomy
a) Municipal Corp (cities)
(a) 5 types of classes in city in NE – metro class, primary class, 1st class, 2nd class, villages
(i)differ dependent on population
(ii)Enabling statutes are different for them
II. General purpose v. Special purpose
a) general purpose – cities
b) special purpose – specific purpose for their being
(a) ex – port authority, school district, NRD
b) Can get funding on their own – not thru/from municipality
c) has different and proper boundaries to deal with these (better than munic)
III. centralization v. autonomy
a) questions of scale and size as well as autonomy
B. Local Govt Theory
I. Madison – wrote federalist #10 to persuade for national govt
a) Favored centralized govt bc
a) Need enough fit characters for govt – so must make the area we choose from bigger
b) AND – ppl are motivated by self-interest (factions)
(i)He worried more: about majority faction than minority (ex. majoritarian factions – slavery, civ rts), maintenance of republic
(a) Remedies for this: – Remove causes (which can’t be done – cant equalize everyone, take away liberty, or rely on enlightened statesmen) OR – Control effects – this is done in the Republic
(i) by making govt bigger
(b) SO – In Republic – Govt should be bigger to control factions
(a) this is often the criticism – that its hard to get things done, BUT he thought inefficiency may stop factions from doing anything radical
(ii)AND Fewer ppl ruling à more oversight and more fit characters
(a) still lots of oversight today, BUT also may be more fit characters in state and local govts now
II. de Tocqueville
a) People must be engaged
b) Strength of free ppl resides in local community
a) SO – seems to agree w/ Madison that ppl are intrinsically bad
(a) Worried about Tyranny and passive ppl who haven’t learned to think outside themselves
(i)SO – Combat Tyranny thru education
(ii)AND – “political partic is primary school for civic life”
(b) AND says we don’t have to worry about Aristocracies
(i)bc they will do just enough to keep the have-nots mollified
ROMER V. EVANS: city in CO passed an ordinance protecting gays à CO passed a law saying that no govt w/in the state can pass laws to protect one class of people
SCOTUS found that the CO law (prohibiting the ordinance) is Unconstitutional
· Presents a Conflict about who should have the power
o Scalia and Kennedy differ on who was the factious majority (what you choose may depend on outcome you want)
§ Kennedy – St is the factious majority and wants empowerment at the local level (but this was unlike him bc he tended to be liberal)
§ Scalia – City is the factious majority and wants a more centralized govt (unlike him)
o Brandies – said “States are laboratories for Invention”
§ SO – could mean the states can make the law suppressing the ordinance OR could mean local govts should have autonomy to try innovative policy making
III. Tiebout
a) Economic apprch
b) Says that variety in communities is great bc ppl can decide what they want in their community and go there
a) Concerned with having a diversity of packages to choose from and the citizens’ ability to choose the package they prefer
b) The impact of this – may encourage communities to just cater to higher tax base
(a) BUT – he is only concerned with the fact that this is efficient
c) Assumptions
a) Mobility is a key to this apprch – for this to work, ppl must be able to move
(a) Not always an option
(b) And often there are things having nothing to do with the services offered in a community that keep people there: jobs, family, etc
b) That people don’t worry about money
c) Perfect information – that people know what each place offers
d) That ppl can move anywhere
d) Role for bigger govt
a) Not everything is felt at the local level SO those things that affect the state should be controlled by the state
(a) BUT – if one community passes certain ordinances and provides certain things, it will impact other communities – SO are certain things better dealt with by the states?
(b) Like if one city passes a sex offender registration
(c) Ppl are losing at the local level for property tax relief so they are going to the state level, BUT the state cant even use the property taxes
(i)Govn can allocate general revenue to go to property tax relief in certain cities
IV. Frug
a) Supports decentralization and em
law
(ii)initiatives
(a) hard to tell the legisl history and intent when it comes to initiatives
(b) gay marriage ban, anti-affirm action
b) Form
a) St consts are much longer
c) Substance
a) Much more detail in the St constit – more statutory
b) St Consts – may provide for an elected judiciary in st crts
(a) And st crts may issue advisory opinions
c) State Consts often have term limits, but Fed Const doesn’t
(a) May push more people into lobbying
d) Plural executive
(a) Many sts (incl NE) have an elected attny general – so who wins when the govn and the attny general disagree
GANGEMI V. BERRY: the state constit authorized absentee ballots for military. The legislature then authorizes absentee ballots for civilians. The loser of an elections sues, saying that the state consist only allowed for absentee voting for military so the legislature can’t allow it.
Crt Found: that the st constit is limiting (says what the st can’t do) – so the theory that the inclusion of one thing means the exclusion of another (expressio unis) does not apply when dealing with this state constitution. SO the state legislature can provide for civilian absentee ballots even thought the State Const only provides for military absentee ballots
· The reason they didn’t just amend the constit is bc it could be amended later
II. Local Govt
I. 3 approaches
a) Arms of the state
a) Local govt is carrying out st functions
b) The democratic polis
c) Quasi-proprietary firm
a) City is more of a service provider
b) Can structure voting different than 1 man, 1 vote
B. Arm of the State
I. Difference b/t whether local govt is treated as Arm of the St. or not depends on whether citz’s constitutional rights are implicated at the local, or only the state level
a) Hunter – bc the state has power over the local govts – state can determine citzs’ rights at the local level
a) Note – Citz didn’t argue they were being denied const right, but merely Contractual right
