Local Government Autonomy

• Author: Michael E. Libonati
• Position: Laura H. Carnell Professor, Temple University

Laura H. Carnell Professor, Temple University, James E. Beasley School of Law. Mr. Libonati is coauthor of Local Government Law (1982); State and Local Government Law-A Transactional Approach (2000); and Legislative Law and Statutory Interpretation (3d ed. Forthcoming 2001). This essay is based on remarks delivered at the State of State Constitutions Conference sponsored by Rutgers University Camden School of Law and the Ford Foundation on May 5 and 6, 2000 in Philadelphia.

Three major distribution of powers decisions confront the framers of a state constitution.¹ The first has to do with the distribution of powers between the people and the sovereign. Typically, as in Louisiana, this issue is dealt with in a Declaration of Rights article entrenching concepts of limited government.² The second decision involves the establishment and distribution of powers among the executive, legislative, and judicial branches of state government.³ The third, most important issue for the purposes of this article, involves the distribution of powers between state and local government.⁴

The United States Advisory Commission on Intergovernmental Relations ("A.C.I.R.") recognized, "two concepts of local government have contended for ascendancy in the American federal system: home rule and creatures of the state."⁵ The home rule concept emphasizes local government autonomy while the creature theory emphasizes local government subordination to the state.⁶ The A.C.I.R. report offered the following definition of the scope of local autonomy:

Local government autonomy consists of degrees of discretionary authority separately established for cities and counties in four basic areas: (1) structure-determining their form of government and internal organization; (2) function-choosing the functions they perform; (3) fiscal-raising revenue, borrowing, and spending; and (4) personnel-fixing the numbers, types, and employment conditions of their employees.⁷

The A.C.I.R. further defined the meaning of local autonomy as encompassing the power of local governments to initiate policy as well as their immunity from state legislation.⁸ This distinction between initiative and immunity has been recognized and applied by the Louisiana Supreme Court in the leading decision City of New Orleans v. Board of Commissioners of the Orleans Levee District.⁹In this decision, the court defined initiative as "a local government's ability to initiate legislation and regulation in the absence of express state legislative authorization."¹⁰ Alternatively, immunity involves "the power of localities to act without fear of the supervisory authority of the state government."¹¹ Accordingly, initiative and immunity serve as complementary theories in the arena of local government autonomy.

In addition, the A.C.I.R. made the following recommendation as a benchmark for appraising the local government article in the constitutions of the several states:

The Commission finds that the provisions for local home rule and discretionary authority in many states are being eroded by increases in regulatory and statutory control of local government functioning through enactment of federal and state mandates and preemption of local decisionmaking. The state courts have increasingly asserted their power to adjudicate state-local relations, supplying their own solutions in the absence of clear constitutional and/or statutory direction. Thus, ambiguity in state-local relations places substantial political decisionmaking authority in the hands of the judiciary.

The Commission recommends, therefore, that the states review the local government articles in their constitutions and/or statutes governing the powers of local governments, and consider amending them as appropriate to clarify:

(a) The extent of local power intended to initiate structural,...