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Local Government
West Virginia University School of Law
Bastress, Robert M.

Local Gov’t Outline
I.       Chapter 2: Local Government in the American Constitutional Order
A.    Intro
1.      Stuff on themes of course and state constitutions- see bastress’ notes
a.       Two themes in book
(i)     Defining constituencies
(ii)   Allocating power
2.      3 Themes of the role of local gov’t in constitutional order
a.       (1) Local gov’ts are state instrumentalities.  Mere agents of the states with no federal constitutional rights against their states. 
b.      (2) Local governments are polities that enable communities of local people to articulate and implement a local vision of the public interest
c.       (3) treats local gov’t as a quasi-proprietary firm, like a business corporations.  Local constituents are seen as consumers or investors than members of democratic community
B.     Local Gov’t as Agent of the State
1.      Hunter v. City of Pittsburgh
a.       No K exists between city and citizens when taxes are paid
b.      Cities are political subdivisions of the state (agents). And state has absolute discretion to the #, nature, duration, and power of all cities
(i)     Citizens cannot bring a claim of loss of prop. w/o due process.
c.       Limited: state cannot take city land if it is owned privately by the city
(i)     Not private= parks, ferry, sewage system, transportation, (almost nothing). Courts try to avoid attempting to find priv. prop.
2.      Lockport- States can set up voting system, so long as rational basis
3.      Cities Usually cannot sue states
4.      Gomillion v. Lightfoot
a.       Limit: States cannot reform cities in violation of Constitution. 
(i)     No forming 28-sided city to keep blacks from voting (violates 15th Amend.).  Can’t be racially motivated.
(a)    Contra (Whittaker): No 15th Amend. Violation b/c no right to vote in Div. A instead of B so long as still can vote in a division. 
(ii)   (Whittaker concurring): Equal protection, no fencing black by state, which is an unlawful segregation.
5.      Washington v. Seattle School District No. 1 (1982): state cannot prohibit local school boards from busing children to promote desegregation.  State’s can reorder educational decision-making process with respect to a racially significant matter.  See also Romer v. Evans: can’t pass laws prohibits branches of state gov’t from protecting suspect classes (gays), no legitimate purpose in this law.
6.      Rogers v. Brockette (5th Cir.)- Generally, municipalities may have standing to sue the state
7.      Nixon v. Missouri Municipal League
a.       Facts: Missouri law prohibited local subdivisions from selling services.  Did fed law allowing sell of services preempt state law
b.      Courts makes 3 points
(i)     Local gov’t only has power state gives.  If state doesn’t authorize, then city can’t do it.
(ii)   One-way ratchet argument doesn’t work: once in market, city can’t get out, but if you want to get in then you can.  Court says this makes no sense
(iii)  If congress is going to structure a relationship between state + local gov’t, must say so explicitly.  If not explicit, Fed will keep out of the State’s regulating its municipalities.
8.      11th Amendment does not protect municipalities/local gov’ts, unlike states (i.e. can be sued by citizens of a different state).
9.      States are not “person” under civil right law and cannot be sued for damages for civil rights violations, but local governments are persons and can be sued for damages.
10.  Congress may have limits to step in between states and local gov’t. but if it does then it must be clear that it is doing that.
C.     American Polis: Local Gov’t as Autonomous, Democratic Polity
1.      Avery v. Midland County
a.       Equal protection applies for general purpose elections.  Maybe not for special purpose.
b.      County commissioners make too many choices affecting the whole population to be special purpose/administrative
c.       Question to ask:  does elected person have general gov’t powers over the entire area
d.      Examine whether office is a special or a general purpose office (how broad are the powers and how many people does it effect).
2.      Ways around voting requirements
a.       Have officials appointed
3.      Deviation from perfect equality
a.       Congressional redistricting requires close to perfect (1.7% too much)
b.      State can be 10% or even up to 14%.
4.      City of Phoenix v. Kolodziejski
a.       Facts: excluded non-property tax holders from voting in general obligation bond. 
b.      Standard: state must have a compelling state interest
c.       Bad law for 3 reasons
(i)     Other sources of revenue must pay the bill other than property owners (1/2 of bond debt by everyone)
(ii)   Property taxes can be passed on too tenants and customers
(iii) Nonprop. + property owners are mutually affected by the results of issuing  bonds.
5.      Holt Civic Club v. City of Tuscaloosa
a.       City can extend its police jurisdiction 3 miles out w/o giv

st. b/c it bears a reasonable relationship to its statutory objective (supplying water to landowners).
d.      Ball two-part analysis
(i)     1) Is polity subject to a 1-person, 1-vote.  If yes, use Reynolds analysis.
(1)   Factors to consider whether 1-=person, 1-vote is required
1.      Scope of powers
2.      Traditionally element of gov’t
3.      Taxing power, eminent domain, law enforcement, zoning power, practical affects and impact on residents
(ii)   2) If No, use a rational basis analysis (reasonable relationship to leg. goal)
2.      Bolen: Property owners voting on an assessment project, not up or down on whole project, just if they will allow the assessments.
3.      Kessler v. Grand Central District Management Assoc.
a.       BID program to bring businesses into the area- gives property owners more voting power than tenants. 
b.      Purpose of BID is to attract business owners, reasonable relationship to voting power and goals of BID.
c.       BID has minimum powers and limited purpose and is totally under the City.
(i)     No power to impose Y taxes or sales taxes
(ii)   No ability to enact or enforce laws
(iii) Performs no health and safety inspections
(iv) Guards lack authority to perform typical law enforcement functions (unarmed).
(v)   No duty to perform security, sanitation, or social services (traditional functions of gov’t)
(vi) City has a lot of control: Controls the $$$ that goes to the BID, spending must be approved by city council, disclosure to city, services inspected by city, city can deny renewal of BID K.
d.      Standard: b/c disproportionate voting for prop. Owners= need a reasonable relationship to the purposes of the GCBID. (notes have many reasons why reasonable pg.13).
e.       Weinstein Dissent
(i)     Afraid cities may create to many BIDs and will make it harder to redistribute income. 
(ii)   Analogy: once parents send their kids to private schools, the black public schools have a decrease in Y, quality, and support.