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Municipal Attorneys Winter Conference. March 16, 2006 Frayda S. Bluestein Institute of Government. Do North Carolina Local Governments Need Home Rule?. Or How I Spent My Spring 2005 Research Leave. Overview. Home rule systems Form of delegation Judicial interpretation

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municipal attorneys winter conference

Municipal Attorneys Winter Conference

March 16, 2006

Frayda S. Bluestein

Institute of Government

do north carolina local governments need home rule

Do North Carolina Local Governments Need Home Rule?

Or

How I Spent My Spring 2005 Research Leave

overview
Overview
  • Home rule systems
    • Form of delegation
    • Judicial interpretation
  • North Carolina system
    • Form of delegation
    • Judicial interpretation
  • Comparison
  • Recommendations
home rule
Home Rule
  • All but three states have some form of home rule delegation
  • Constitutional
    • Self-executing
    • Non self-executing (most common)
  • Legislative
effects of home rule
Effects of Home Rule
  • Provides broad authority to govern local affairs without need for specific grants of authority from the state; and
  • Limits interference by state legislation in matters of local concern.
  • Commentary and case law indicate that second effect is overstated; experience with home rule in many states is disappointment.
elements of home rule
Elements of Home Rule
  • Definition: Power of local self-government; power to deal with matters of local concern without state legislative approval as long as actions do not conflict with defined state policies.

Source: Home Rule in America: A Fifty-State Handbook

home rule delegation
Home Rule Delegation
  • Typical language:
    • …make and enforce local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.
    • …determine local affairs and government not inconsistent with the laws of the General Assembly.
    • …authority over all local matters not expressly denied by general law or charter
    • …powers conferred, subject to such limitations as may be prescribed by the legislature.
interpretation issues
Interpretation Issues
  • How broad is state preemptive authority?
    • State general laws limited to statewide issues or may legislature preempt on local issues?
    • Some limitations on local acts preserve ability to preempt by general laws.
    • Implicit preemption (occupies the field) allowed in some states.
    • What constitute local vs. statewide issues?
    • Standard of review.
statewide local issues
Statewide/Local Issues
  • Aniteau: “There is no clear or workable test separating local from general concerns.”
  • Local: No extraterritorial effects
  • State: Need for statewide uniformity; extraterritorial impact; traditional/historical state or local role.
  • Test case: Red-light cameras
standard of review
Standard of Review
  • Some constitutions/statutes call for home rule authority to be liberally construed for maximum local self-government
  • Legislative home rule provisions and some constitutions enumerate specific powers granted
  • Courts have applied Dillon’s rule in home-rule states; state legislation necessary to override
  • Other courts hold that Dillon’s rule is inherently inconsistent with home rule
north carolina system
North Carolina System
  • Broad authority granted through specific delegations
  • Structural “home-rule” powers delegated
  • Delegations contain substantive and procedural limitations
  • Dillon’s-rule state?
dillon s rule home rule
Dillon’s rule/Home rule
  • Home rule: form of delegation of local authority
  • Dillon’s rule: rule of judicial interpretation of scope of authority delegated
  • North Carolina: non home-rule, non Dillon’s-rule state
broad construction statute
Broad Construction Statute
  • Adequate authority to exercise powers, rights, duties, functions, privileges and immunities conferred…this chapter and city charters shall be broadly construed and grants of power shall be construed to include any additional and supplementary powers that are reasonably necessary or expedient to carry them into execution and effect.
    • G.S. 160A-4.
bellsouth v laurinburg
BellSouth v. Laurinburg
  • Broad construction has replaced Dillon’s rule where statute is ambiguous.
  • Dillon’s rule applies where the plain meaning of the statute is “without ambiguity.”
  • Still confused? Subsequent case cites both Dillon’s rule and broad construction language as basic standard.

Campbell v. Laurinburg, 608 S.E.2d 98 (N.C. App.2005)

which is better
Which is better?
  • “Where you stand depends on where you sit.”
  • Politically difficult to succeed in creating new home rule authority.
  • Views on effect of home rule on policy issues vary.
  • Effect of home rule influenced by economic, political, historical factors.
comparison
Comparison
  • Common elements:
  • Broad authority granted
    • North Carolina greater extraterritorial, fiscal authority than some home-rule states
  • Substantial state preemptive authority
    • Some victories on important policy issues under interpretation of local concern in home-rule states
  • Judicial interpretations tend to limit scope of authority
recommendations
Recommendations
  • Avoid politically unimportant detail in enabling statutes
  • Clarify scope of broad construction
    • Statutes beyond Chapter 153A, 160A; consider all powers except those excluded
    • Clarify meaning; presumption in favor of authority unless explicitly excluded
  • Authorize local ordinances to conform charter provisions to general law
recommendations18
Recommendations
  • Improve efficiency, flexibility, predictability for exercise of authority granted
  • Not a proposal for more authority
  • Plain meaning not restrictive if supplemental powers are reasonably necessary to carry out delegated authority under broad construction formulation