66 J. Kan. Bar Assn. January, 26 (1997). HOME RULE POWER FOR CITIES AND COUNTIES IN KANSAS.

• Author: Michael R. Heim [FNa1]

Kansas Bar Journals

Volume 66.

66 J. Kan. Bar Assn. January, 26 (1997).

HOME RULE POWER FOR CITIES AND COUNTIES IN KANSAS

Journal of the Kansas Bar AssociationJanuary, 1997HOME RULE POWER FOR CITIES AND COUNTIES IN KANSASMichael R. Heim [FNa1]Copyright (c) 1997 by the Kansas Bar Association; Michael R. Heim

Introduction

Few topics generate more enthusiasm by city and county officials of Kansas than the subject of home rule. In recent years, it has been the rallying point for local officials as they have decried the evils of state and federal mandates, which they argue have placed straitjackets on local government decision-making in general and local budget-making decisions in particular. Local officials have espoused a renewed federalism, more local decision making, and ultimately stronger home rule power as an anecdote for the overdose of state and federal mandates. [FN1]

Unfortunately, few topics also generate the confusion that home rule has sparked, including with those most directly involved in decision-making regarding home rule. The confusion relates to the overall parameters of home rule power, as well as the nuts and bolts of how this power is exercised in specific situations. The confusion is not limited to one level of government. Very recently, a city governing body passed a charter ordinance that proposed to exempt the city not from a nonuniform state law, but rather from a provision of the Kansas Constitution. [FN2] A few years earlier, an opinion of the Kansas Supreme Court contained language that the court was creating "an exception to the constitutional home rule powers of cities by judicial decision." [FN3] How can the court create an exception to a constitutional power?

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This article will provide an overview of Kansas city and county home rule powers, and discuss certain key concepts of these powers, including legislative pre-emption and the related subject of conflict between a state law and a local law enacted under home rule. It also will provide a framework for understanding home rule and a suggestion for how certain recent home rule court decisions should be understood.

I. Home Rule: What Is It?

Home rule can be defined in a broad sense as the power of local governments to determine their local affairs and government without having to rely upon a statute to specifically authorize the exercise of a particular power or action. It is a spirit of self-government as well as a legal mechanism for distributing power between state and local governments. [FN4]

Home rule powers generally are conferred by state constitutional provision. Cities in 37 states and counties in 23 states have constitutional home rule power. Home rule power is conferred by statutory enactment in 11 states for cities and 13 states for counties. Note that 24 states confer home rule power on cities and 12 states on counties by both a constitutional and by a statutory grant of power. [FN5] Home rule has been granted to cities by the Kansas Constitution for 35 years, [FN6] while counties have enjoyed statutory home rule powers for 22 years. [FN7]

City and county home rule powers, despite important differences, are in significant ways substantially the same. [FN8] The key distinction between county and city home rule is that county home rule is granted by statute whereas city home rule is granted in the Kansas Constitution. The Legislature can only restrict city home rule powers consistent with the constitutional grant. By contrast, the Legislature has a much freer hand to restrict or even repeal county home rule. Because of its constitutional origins, only the voters of Kansas have the ability to repeal city home rule and voters may do this only after two-thirds of both houses of the Kansas Legislature have adopted a concurrent resolution calling for the amendment or repeal of the home rule provision. [FN9] Another obvious distinction between city and county home rule is the numerous exceptions to county home rule powers that are found in the statutory grant of power. The distinctions between city and county home rule are further developed in different sections of this article.

In order to understand the concept of home rule power, the relationship of local governments to state government must be understood. All local units of government must look to the state constitution or state statutes for the source of their powers. Under our system of federalism, states are sovereign, not local governments. For the most part, courts have rejected the theory that local governments enjoy any inherent right to self-government. [FN10] Local governments are considered as subdivisions of the state and as such are dependent upon the state for their existence, structure and scope of powers. [FN11] State legislatures generally have plenary power over the local units of government they create, limited only by such restrictions they have imposed upon themselves and by provisions of state constitutions, most notably home rule provisions. [FN12] Dillon's Rule, although originally formulated by the courts when discussing cities, is a reflection of the general dependency of all local governments upon state legislatures absent a home rule grant of authority and is often quoted by the courts in reference to local units of government. Dillon's Rule states:

It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation--not simply convenient,

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but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. . . . These principles are of transcendent importance, and lie at the foundation of the law of municipal corporations. . . . [FN13] In contrast, home rule power constitutes both a grant of power to the local unit of government as well as a real limitation on state legislative power over those local units that hold home rule powers. [FN14] Home rule, in effect, reverses Dillon's Rule because a local unit of government may exercise power over its own affairs despite the lack of specific statutory enabling authority. But, this power of cities and counties may be narrowed by legislative action, by court decisions, and even by an unwillingness of local governments to exercise these powers.

In Kansas, the City Home Rule Amendment serves a twofold purpose: as a direct source for local legislative power and as a constitutional limit on state legislative control over the affairs of cities. Both aspects of the amendment must be understood to fully appreciate how the relationship between cities and the state and, more specifically, the state Legislature, has changed. Because county home rule is granted by statute, the limiting aspect of home rule on the power of the state Legislature is greatly diminished since it relies heavily on the continued self-imposed restraint of the state Legislature in not restricting county home rule powers.

Briefly stated, because of home rule, cities and counties may enact local laws: (1) on subjects that are not addressed by state law; (2) on subjects where a state law exists but where that law does not apply uniformly to all cities or counties; and (3) on subjects where there is a uniform state law but local action has not been pre-empted by that law and the city or county wants to enact additional or supplemental (i.e., nonconflicting) local laws. [FN15] Conversely, the state Legislature, with certain constitutional exceptions, may completely bind cities only if it enacts state laws that apply uniformly in the exact same way to all cities and the law contains a clear statement of pre-emption of any further local action. [FN16] As noted above, the Legislature is limited only by self-imposed restraint in passing nonuniform laws and making these laws binding on the counties involved.

The home rule provisions adopted in various states have been classified by some scholars into two basic types: (1) "initiative" or legislative type, under which a city may initiate legislation subject to ultimate state control (Kansas fits this model); and (2) "autonomy" type, in which a city remains free of all control of the legislature in matters of "local concern." In the initiative or legislative model, all power that the legislature would be capable of delegating to cities is delegated to cities by the home rule constitutional amendment. The legislature, however, is given the power to withdraw or limit home rule powers as provided in the constitutional grant. Under the initiative or legislative model, it is the state legislature primarily that defines the parameters of city home rule since cities are free to initiate laws on most areas subject to pre-emptive action by the state legislature. [FN17] In Kansas, the general rule for pre-emption by the Legislature is the passage of a uniform state law applicable to all cities, which expressly prohibits local legislation by cities on the same subject. Statutory county home rule follows the legislative model as well.

The City Home Rule Amendment applies to all cities regardless of size. Further, the Home Rule Amendment is self-executing in that there is no requirement that the...