Home Rule Presentation Speaker: Hugh Spitzer, Foster Pepper - PowerPoint Presentation

Slide1

Home Rule Presentation

Speaker: Hugh Spitzer, Foster Pepper

Facilitator: Todd Cutts, Water Street Consulting, Inc.

Slide2

Session Overview

Today’s session

Intro to home rule

Hugh Spitzer presentation on home rule

Breakout group discussions regarding home rule

Slide3

Intro to

Home Rule

Presentations made to date

October 2, 2015 – Washington State Assoc. of Municipal Attorneys fall conference

Jan. 27, 2016 – AWC Ad Hoc Comm. on Fiscal Sustainability

April 20, 2016 – AWC Ad Hoc Comm. on Fiscal Sustainability

June 22, 2016 – AWC Annual Conference

June 28, 2016 – MRSC Legal Staff

Slide4

Achieving Real Home Rule

for Washington Cities

Hugh Spitzer

U.W. School of Law

Foster Pepper PLLC

Slide5

Why Home Rule is Important:

Local authority

2. Local control

3. Getting the job done

Slide6

Making Sense of Home Rule Doctrine in Washington State

1. Washington’s constitution vests strong Home Rule powers in all cities in the area of police power

(regulatory power)

subject to ultimate legislative control

.

2. The constitution gives great flexibility to charter cities in how they structure themselves.

Slide7

Making Sense of Home Rule Doctrine in Washington State

3. The Optional Municipal Code (Title 35A RCW) on its face gives very broad authority to code cities to deliver a wide variety of local services. It also gives strong taxing powers.

4. But the courts have been remarkably

inconsistent

in allowing Washington cities to exercise their Home Rule powers.

Slide8

Big Questions re City Powers:

1. If the statutes say that code cities and charter cities have broad powers, why do we have to keep asking the legislature for express permission to do so many things?

2. How can we get to real Home Rule (without amending the State Constitution)?

Slide9

Why is Home Rule even a Question in Washington State?

Washington has one of the earliest home rule constitutional provisions for first class charter cities (Art. XI, §10)…

Washington has a

strong

home rule law for code cities (RCW 35A.11.020)…

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BUT…

The State Supreme Court has issued many opinions about the limited powers of municipal corporations, including cities, and the restrictive “

Dillon’s Rule”

keeps crawling up out of the ground like a

ZOMBIE !!

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Dillon’s Rule

“A public municipal corporation, created for public purposes only…can exercise no powers but such as are expressly granted by law, or such as are incidental to those expressly granted, and is always subject to legislative control.”

--

City of Clinton v. Cedar Rapids & Mo. River R.R. Co. (1868)

Slide12

Washington: Conflicting Doctrine

in just one year (1983)…

Citizens v. City of Spokane

:

“grants of power to first class cities are to be liberally construed.”

-- Justice Robert Brachtenbach, April 21, 1983

Chemical Bank v. Washington Public Power Supply System

:

“In Washington, the courts have interpreted the home rule powers of first class cities…narrowly.”

-- Justice Robert Brachtenbach, June 15, 1983

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What’s going on here?

Why the Confusion?

(Let’s go back in history…)

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John Forrest Dillon

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Dillon and many contemporaries were worried about:

*over-regulation of the nation’s economy and business by governments

* the “socialistic attack…upon the rightfulness of private ownership of land”

* wanted to keep all levels of government under control

Slide16

Progressivism and Home Rule

* 1875 Missouri home rule provision for St. Louis

* 1879 California home rule provision for San Francisco

*1889 Wash. home rule provision for

any

large city

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Why Home Rule?

“[R]emoving corrupt, special influence from government; modifying the structure of government so as to make it easier for the people to control; and using the government so restored to the people to relieve social and economic distress.”

-- Benjamin Parke DeWitt,

The Progressive Movement: A Non-Partisan, Comprehensive Discussion of Current Tendencies in American Politics (1915)

Slide18

Washington’s Home Rule Provisions

Strong Home Rule re

Structure

(Art. XI, §10):

Allows any larger city “to frame a charter for its own government, consistent with and

subject to the Constitution and laws

of this state.”

Slide19

Washington’s Home Rule Provisions

Strong

Home Rule re

Police Powers

(Art. XI,

§

11):

“Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations

as are not in conflict with general laws

.”

Slide20

But Home Rule re

Taxing powers?

…that’s something different

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Off to a rocky start…

The 1889-90 Legislature provided detailed express authority to first class cities to: erect parks, libraries, hospitals, streets and sidewalks, restrain and punish vagrants and prostitutes, regulate disorderly conduct and activities endangering public health and safety, and to declare and abate nuisances.

Was this really necessary?

(Nope)

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Off to a rocky start…

“[Charter cities] are not in any sense erected into independent governments; their existence as municipal governments depends upon the legislative will . . . . A charter framed under the constitutional provision

. . .

can lawfully treat only of matters relating to the internal management and control of municipal affairs, subject to constitutional and legislative regulations.”

-- WA Supreme Court Justice Theodore Stiles,

In re

Cloherty

(1891)

Slide23

Progressive Movement Boosts

City Home Rule

“Growing cities should be empowered to determine for themselves . . . the many important and complex questions of local policy.” –

Hilzinger

v. Gillman

(1909)

“The constitution grants cities complete local self-government in municipal affairs.” –

Bussell

v. Gill (1910)

“The spirit of the Constitution . . . is to grant the fullest measure of self-government to cities of the first class, subject to the general law.” –

State ex rel.

Hindley

v.

Sup’r Ct. (1912)

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Progressive Movement Boosts

City Home Rule

“

[Dillon’s

rule]…

to the effect that ‘any fair or reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied,’

should not be followed in determining a question involving the powers of a city of the first class

, under its charter, as subject to and controlled by general laws.”

--

Ennis v.

Sup’r

Court

(1929)

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Some Caveats:

Caveat #1

: Courts kept using Dillon’s Rule in cases about

taxes

,

borrowing money

, and

eminent domain

.

Caveat #2

: Dillon’s Rule continued re

special purpose districts

.

Caveat #3

: Dillon’s Rule just kept popping up again whenever the Courts wanted it to

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The 1960s: Another Reform Movement

Continuing court reticence about city powers leads to the “Second Wave of Home Rule Reform” in the late 1950s and the 1960s

Slide27

Home Rule Energized

1948 - Home rule county charters allowed

1957 - Municipal metro corporations allowed

1963 - Charter city threshold drops to 10k

1965 - Legislators

Brachtenbach

and

Gorton

propose const.

amdt

. for strong city powers

1965 – Legislature forms “Municipal Code Committee” chaired by Sen

Martin

Durkan

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The Smoking Gun:

Report of the Legislature’s Municipal Code Committee (1966):

T

he draft legislation on city powers (Chap. 35A.11): “expresses the state legislature’s intent to confer the greatest power of local self-government consistent with the State Constitution, upon the cities and directs that the laws be liberally construed in favor of the city

as a clear mandate to abandon the so-called ‘Dillon’s Rule’ of construction

.”

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Report of the Legislature’s Municipal Code Committee (1966):

“The broad grant of home rule authority [is made]

to municipalities without a specified enumeration of powers, thus avoiding continuously burdening the state legislature with a multiplicity of municipal housekeeping bills at each session….”

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Report of the Legislature’s Municipal Code Committee (1966):

“The chapter makes clear that existing laws relating to

eminent domain

,

borrowing

,

taxation

, and a variety of other powers, where not inconsistent with the provisions of the optional municipal code, shall be available to the code cities.”

(Keep this sentence in the back of your mind.

)

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Strong Home Rule Language:

(RCW 35A.01.010)

”

The purpose and policy of this title is to confer upon two optional classes of cities . . .

the broadest powers of local self-government

consistent with the Constitution of this state.

Any specific enumeration of municipal powers

contained in this title or in any other general law

shall not be construed in any way to limit

the general description of power contained in this title, and any such specifically enumerated powers shall be construed as in addition and supplementary to the powers conferred in general terms by this title….”

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The Optional Municipal Code’s

Strong Home Rule Language:

(RCW 35A.01.020)

“

The legislative body of each code city shall have power to organize and regulate its internal affairs within the provisions of this title and its charter, if any;

and to define the

functions,

powers, and duties of its officers and employees

…

“…Such body may adopt and enforce ordinances of all kinds relating to and regulating its

local or municipal affairs

and appropriate to the good government of the city….”

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The Optional Municipal Code’s

Strong Home Rule Language:

(RCW 35A.11.020)

The legislative body of each code city

shall have all powers

possible for a city or town to have under the Constitution of this state, and

not specifically denied

to code cities by law. By way of illustration and not in limitation, such powers may be exercised in regard to the acquisition, sale, ownership, improvement, maintenance, protection, restoration, regulation, use, leasing, disposition, vacation, abandonment or beautification of public ways, real property of all kinds…

[corporate powers]

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The Optional Municipal Code’s

Strong Home Rule Language:

(RCW 35A.11.020)

… and in the rendering of local

social

,

cultural

,

recreational

,

educational

,

governmental

, or

corporate services, including operating and supplying of utilities and municipal services commonly or conveniently rendered by cities.(Services powers)

Slide35

The Optional Municipal Code’s

Strong Home Rule Language:

(RCW 35A.11.050)

“

The general grant of municipal power conferred by this chapter and this title

is intended to confer the greatest power of local self-government

consistent with the Constitution of this state

and shall be construed liberally in favor of such cities

. Specific mention of a particular municipal power or authority contained in this title or in the general law shall be construed as in addition and supplementary to, or explanatory of the powers conferred in general terms by this chapter.”

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The Optional Municipal Code’s

Strong Home Rule Language:

(RCW 35A.11.050)

“Within constitutional limitations, legislative bodies of code cities shall have within their territorial limits

all powers of taxation

for local purposes except those which are expressly preempted by the state …

.”

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So…Is that clear, or what?

(…in law, nothing much is clear

)

Slide38

Between 1958 and 2011:

Home Rule Opinions

Dillon’s Rule Opinions

Winkenwerder v. Yakima

(1958)

 

 

Bowen v. Kruegel

(1965)

 

Lutz v. City of Longvie

w (1974)

 

Massie v. Brown

(1974)

 

Spokane v. J-R Distributors

(1978)

Issaquah v. Teleprompter

(1980)

 

U. S. v. Bonneville

(1980)

 

Citizens v. Spokane

(1983)

Chemical Bank v.

WPPSS

(1983)

 

Tacoma v. Taxpayers

(1987)

City of Bellevue v. Painter

(1990)

 

 

Employco Inc. v. Seattle

(1991)

Heinsma v. Vancouver (2001)

 

 

Arborwood v. Kennewick

(2004)

 

Okeson v. City of Seattle

(2007)

Biggers v. Bainbridge Island

(2007)*

Biggers v. Bainbridge Island

(2007)*

Port Angeles v. Our Water

(2010)

 

Rohrbach

v. Edmonds

(2011)

 

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Making Sense of Home Rule Doctrine in Washington State

Simply put, the Pro-Home Rule cases are consistent and the Anti-Home Rule cases aren’t (but we can explain them)

Slide40

Explaining the recurrence of

Dillon’s Rule

rhetoric

*

The unstable understanding of what Home Rule is.

*

Dillon’s Rule

does

apply to special purpose districts, so the doctrine slops over into cases involving cities.

*Lawyers argue whatever works, and

judges are prone to ignore statutes when they don’t like them.

Slide41

The Bottom Line

*Code & first class cities still have to look to

statutes

for clear authority relating to eminent domain,

taxes

, borrowing, granting franchises, public records, accounting, audits.

* Code & first class cities have robust independent powers:

** In choosing a form of government

** In exercising regulatory authority (constitutional grant)

** In providing municipal services (general & utilities)

** In the nuts & bolts of administration (

e.g.,

electronic signatures and lots of other details of corporate power)

…

unless those powers are expressly denied.

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But Title 35A.11.030 left a little bit of

Dillon’s Rule

in place:

Powers of

eminent domain

,

borrowing

,

taxation

,

and the granting of franchises

may be exercised…in the manner provided in this title or by the general law of the state where not inconsistent with this title…..

(This gives courts a hook on which to limit those city powers to the ways expressly outlined by the legislature.)

Slide43

What’s the Right Strategy?

*

USE

the strong Home Rule statutes

!

*Encourage judges (and the State Auditor) to follow the law and to recognize our strong Home Rule statutes and tradition

* Eventually, get the legislature to repeal surplus, unnecessary language in city statutes

(

One more: convert all 2

nd

class cities to code status)

Slide44

Specifically, how to get to “real” Home Rule for our cities

First,

emphasize and educate state and local officials, and the public, about strong Home Rule, and

act

like you have the powers you have.

Second,

educate and encourage judges, the Auditor, and others to apply our strong Home Rule laws.

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Specifically, how to get to “real” Home Rule for our cities

Third,

eventually repeal much of Chapters 35.21 (all cities) and 35.22 RCW (first class charter cities), and various other parts of Title 35, to eliminate unnecessary express grants of authority to cities.

Fourth,

in RCW 35.22 RCW, provide first class charter cities with the same expressly-stated robust powers that code cities have in RCW 35A.11.020 and .030.

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Specifically, how to get to “real” Home Rule for our cities

Fifth,

amend RCW 35A.11.020-.030 and RCW 35A.82.020 and Chap. 35.21 RCW to underscore the independent taxing powers the Legislature meant to give cities back in 1967.

Sixth,

have the Legislature state (

again!

) that they really, really mean to give cities

all

powers not expressly denied by statute

. (That means going to a much simpler Oregon/Alaska statutory framework.)

Slide47

Background on work of AWC

Finance Committee and additional members gathered on April 20 to discuss home rule

Elected officials, finance directors, lobbyists and partner agencies

Received presentation from Hugh Spitzer on home rule

Discussed a path forward

Slide48

Background on work of AWC

Gained consensus around four outcome areas

Education

Judicial

Legislative

Added “Exercise Authority”

Slide49

Background on work of AWC

Participants then broke out into groups to brainstorm next steps/tasks for each outcome area

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Background on work of AWC

Education-Emphasize and educate state and local officials, and the public, about strong home rule

Educate ourselves and seek consensus around what our home rule authorities are

Develop a concerted education campaign for AWC stakeholders

AWC provide ongoing training sessions to cities on home rule authority

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Background on work of AWC

Exercise authority- Educate ourselves on the authority we already have and exercise this authority aggressively

Provide legal support to cities on the issue of home rule

Identify list of issues to test

Contemplate establishing a legal defense fund for agreed upon tests to home rule authority

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Background on work of AWC

Judicial- Educate and encourage judges to apply our strong home rule laws

Learn more about judicial training opportunities and consider AWC offering them

Engage, educate and seek input and buy-in from city attorneys regarding home rule

Educate ourselves regarding appropriate legal interactions and advocacy efforts with judges

Slide53

Background on work of AWC

Legislative-Get the legislature to repeal surplus, unnecessary language that clarifies city home rule authority regarding a wide range of issues including taxation, regulation and unfunded mandates

Research, educate and vet current home rule authorities with the AWC legislative committee

Develop a 5-10 year legislative strategy

Slide54

Table Exercises

Select a scribe to record the groups conclusions

Information will be transmitted to AWC as they consider next steps on home rule

AWC staff is here today listening and getting feedback

Slide55

Table Exercise #1

10 minutes

Discuss whether the 4 outcome areas hit the mark in terms of achieving more local government autonomy (i.e. home rule)…add/delete/revise?

Educate

Exercise Authority

Judicial

Legislative

Slide56

Table Exercise #2

15 minutes

Quickly prioritize the outcome areas as group

Discuss what next steps/tasks should be prioritized within top priority outcome area in order to realize success

Same exercise for next priority as time allows

Slide57

Table Exercise #3

5 minutes

Report out on notable table conversations-voluntary