I. INTRODUCTION TO LOCAL GOVERNMENT
A. Generally – Local government is the study of decentralization of power. However, whether there should be a decentralization of power in the United States has been debated since its inception.
1. Constitutional Background – The argument over the ratification of the Constitution of the United States was itself largely an argument over its impact on state and local power. Proponents of the Constitution, the federalists, argued that the Constitution properly strengthened the authority of the national government, while its opponents, he anti-federalists, argued that the Constitution threatened the primacy of the states and, as a consequence, endangered the preservation of individual liberties.
2. Alex de Tocqueville: “Democracy in America” – A defense of the decentralization of power to local governments. De Tocqueville claims a few of the greatest advantages of democracy include…
i) Political Pride and Action – Every citizen is as warmly attached to the interests of the country as if they were his own. He takes pride in the glory of his nation and boasts of its success because he conceives himself to have contributed at the local level. Every American takes an active part in the government of society, whether by office or by exercise in elective franchise.
ii) Political Obedience and Respect – Every American has respect for the law because he views it as a contract to which he is a party. Even if he is in the minority now, his principles soon may become that of the majority, and thus it is better not to revolt because he has a vested interest in the future.
3. James Madison: “Federalist 10” – Highly influential argument against decentralization of power. Believed in the tyranny of the majority and that because the passions of the day will control the law, the majority will enslave the rest of the people.
i) Higher Level means Greater Competency – If there are more people to choose from when picking who will represent the people, this will result in greater competency and only those who can see the big picture will be elected.
City of Richmond v. J.A. Croson Co.(1989) – Richmond City Council passed a law requiring at least 30% of sub-contracting contracts be given to minority business enterprises. Basing their argument on Fullilove, an earlier case, the City claimed it didn’t need to make specific findings of discrimination to engage in race-conscious relief similar to Congress. Held: A city must present a compelling interest (i.e. make a determination of racial discrimination) before they implement remedial action in the form of public contracting opportunities on the basis of race. Congress has a specific constitutional mandate to enforce the 14th Amendment. The power to “enforce” includes the power to define, but does not mean that the States and local government are free to create new remedies as well. Section 1 of the 14th Amendment is a constraint on state power and states must undertake any remedial efforts in accordance with the provision.
Framers of 14th Amendment wanted to place clear limits on the states ability to use race as a criterion for legislative action. State and local gov’t have the authority to eradicate effects of private discrimination, if it identifies that discrimination with the particularity required by the 14th Amendment. District court relied on five facts in determining there was an adequate basis for the 30% quota, none of which provide the City with a “strong basis in evidence for its conclusion that remedial action was necessary.”
Concurrence, Scalia: Racially-motivated conduct is permissible for the federal government because it is sanctioned by the 14th Amendment, in fact mandated. However, it is quite another thing to permit it by the precise entities against whose conduct in matters of race that Amendment was specifically directed. Scalia says this is exactly what Madison was worried about.
Dissent, Marshall: City has supported its determination that minorities have been wrongly excluded from local construction contracting.
II. LOCAL GOVERNMENTS V. PRIVATE ENTITIES
A. Local Governments as Corporations – The corporate charters that first produced municipal governments were a grant of power from the state to the local government unit. In deciding the breadth of power given to the local governments, the question of the appropriate extent of the state’s powers over the cities was decided as a part of the larger issue of the desired extent of legislative power over all corporations.
1. Underlying Theoretical Conflict – The corporation represented an anomaly to political thinkers who envisioned the word as sharply divided between individual right-holders and state power. This is because the corporation exhibited traits of both poles: it was both an association of individuals and an entity with state-granted power. Thus, to resolve this conflict, a distinction was necessary.
2. Private v. Public Corporations – Corporate doctrine came to distinguish between the property-necessitated protection of “private” corporations and the strong state relationship with “public” corporations. The very purpose of the distinction was to ensure that some entities, private corporations, would be protected against domination by the state, and others, public corporations, would be subject to such domination.
i) Problems with Distinction – American courts in the early 19th century had great difficulty in establishing the public/private distinction for corporations because all corporations continued to have similar conflicting characteristics: all corporations wielded power and all corporations protected rights.
a. Proposed Solution: Property Rights – In Trustees of Dartmouth College v. Woodward (1819) the Supreme Court stated that the scope of the property rights divided private from public corporations. Private corporations were those founded by individual contributions of property and public corporations were those founded by the government without such individual contributions.
3. Changing View – Throughout time, this distinction based on property became more tenuous. Cities, like other corporations, had never based their resistance to state control simply on the protection of property. Rather, freedom of association and the exercise of self-government had always been values sought to be protected by the defense of the corporation. It did not follow from the need to protect property that property alone needed protection and that these other values could be sacrificed to state domination.
i) Gerald Frug: “City Making: Building Communities without Building Walls” – Argues that the state control of cities was a defense, rather than a restriction, of freedom. The independent rights of cities were synonymous with the people within them, and thus, cities could be seen as “factions” dangerous both to a centralization of authority as well as the rights of the individuals within them. Consequently, cities were exactly what theorists were trying to deny, a combination of both private and public rights.
B. Modern Times
1. Distinguishing – Factors distinguishing local government from a private corporation…
– Involuntariness of Accountability to General Public
– Levy Taxes
– Police Powers
– Eminent Domain
– Working for Common Good (v. Private Interest)
– Elected Officials
– Guarantor of Individual Rights
– Binding Authority
– “Facilitative” Role
– Restriction/Regulation of Individual Rights
– Resolution of Competing Interests (Neutral Arbiter)
– Provider of Public Services (e.g. Education, Sewer)
– Defined by Geography
2. Circumstances Distinguishing Between Privately-Owned Land and Public Municipalities
i) Religious Organizations – Private communities that founded by religious organizations are often denied the ability to become a legitimate municipal city.
a. Criticism – Most of the state governments (e.g. PA, UT, MD, etc.) were all established by and created to encourage religious groups
b. Other Possible Rationale – The government could have also based its decision on other arguments, including: slippery slope (creating an environment where many religious groups would come), prohibiting access (Once a government is established, it cannot deny access to the area; however, this religious group was denying access to the land to people who were not part of religion); or property ownership (all the land was owned by a single, small group of citizens rather than in a city where the property is divided)
Oregon v. City of Rajneeshpuram (1984) – The city of Rajneeshpuram was a municipal corporation located in Oregon on three parcels of land entirely within the confines of Rancho Rajneesh, a 64,000 acre parcel controlled by Rajneesh Foundation International (RFI). RFI is a nonprofit religious corporation organized to advance the teaching of the Bhagwan Shree Rajneesh, an asserted religious master. The Rajneesh Investment Corporation was a non-for-profit corporation created when RFI transferred
ights of the city of New York were undefined; it would have been almost impossible for the city to have funded and built the hundreds of wharfs; privatization enabled this to happen; thus, privatization enabled a better situation than would have been possible w/out it
III.VARIOUS FORMS OF LOCAL GOVERNMENT
A. Generally – When analyzing various forms of local government, issues of voting rights often become at issue. The general framework provided by the Supreme Court is that elective bodies performing governmental functions that “are general enough to have sufficient impact throughout the district” must have equal voting, but entities with a “special limited purpose and a disproportional effect” on certain constituents are exempt.
1. Analysis – Thus, when facing a question concerning a pseudo-form of local government, ask the following:
i) Is the underlying PURPOSE of the organization limited or general in nature?
ii) Is the organization performing TRADITIONAL GOVERNMENTAL FUNCTIONS?
iii) Is there a DISPROPORTIONATE IMPACT on a definable and discrete voting constituency?
iv) If yes to above, does the voting scheme bear a REASONABLE RELATIONSHIP to the purposes?
B. Common Interest Developments (CID’s) – In a CID, everybody who buys a unit automatically becomes a member of the community association. Thus, although the decision to purchase may be voluntary, membership is mandatory. The association is founded upon and governed by a set of covenants that run with the land and re legally binding on present and future owners. They may be only altered by a supermajority of the members.
1. Reasoning: Economies to Scale – CID’s allowed large-scale corporate developers to mass produce housing and build more unites per acre while satisfying middle-class consumer preference for such amenities as swimming pools, golf courses, parks, private beaches, recreation rooms, security gates, and guards that would be prohibitively expensive for individual middle-class owners. Also preserves property values.
2. Four Types– Condominiums, planned developments (e.g. homeowners associations), stock cooperatives, and community apartments
3. Voting Rights– Only property owners are eligible to vote in elections, so renters are disenfranchised. This ownership qualification for voting raises constitutional questions, especially concerning the large number of rented units in many developments.
4. Robert Ellickson: “Cities and Homeowners Associations”
i) Similarities btw Cities & Homeowners Associations – Like a city, an association enables households that have clustered their activities in a territorially defined area to enforce rules of conduct, to provide “public goods” (such as open space), and to pursue other common goals they could not achieve without some form of potentially coercive central authority
ii) Difference: Voluntary v. Involuntary Membership – There is voluntary membership in an association. Cities, on the other hand, are distinguished by their lawful authority not dependant on property ownership. Public entities, like cities, have involuntary members when they are first formed.
5. Criticism – Evan McKenzie: “Privatopia” – Argued that a CID is the prefabricated framework for civil society in search of a population. The population may come and go, but the property and the rules will remain. By doing this, CID’s elevate rules above society and the law dictates, rather than serves, society. Furthermore, it is often doubtful that there was meaningful voluntary consent at all considering that it is becoming increasingly difficult to find non-CID housing options.