Localist statutory interpretation.

• Author: Leib, Ethan J.

INTRODUCTION I. WHAT IS A LOCAL COURT AND WHAT CASES DOES IT HEAR? II. ARE LOCAL COURTS "LOCALIST" IN THEIR STATUTORY INTERPRETATION? SHOULD THEY BE? A. "Localist" Judging: What Is It? Does It Occur? B. The Case for Localist Readings of Local Law C. Is There a Case for Localist Readings of State Law? 1. Judicial Federalism 2. Judicial Federalism All the Way Down? D. Questions for Further Study CONCLUSION APPENDIX: STATE JUDICIAL ORGANIZATIONAL CHARTS INTRODUCTION

The average citizen's point of contact with the judicial system as a litigant is, most likely, in the nation's municipal, county, or local courts. (1) Whether she is contesting a traffic infraction, being charged with a misdemeanor, being cited for a violation of a local ordinance, or in a dispute with a neighbor or landlord, the average citizen is probably more likely to find herself in what might be called a "local court" than in a federal or high-level state court. Setting aside the controversy surrounding staffing village and town courts (which too often have nonlawyers with almost no legal training or knowledge serving as adjudicators), (2) legal scholars have almost universally ignored the law in local courts, favoring the study of federal courts and state appellate courts. (3) Much like the drunk man who looks under the lamppost for his lost keys at night because it is the only place he has the light to see, so too the legal scholar often studies published cases because they are available from databases at her fingertips. (4) It is also likely that the sheer diversity of local courts, the limitations on their subject matter jurisdiction, and the complexity of their organization nationwide render it hard to study these courts as a unitary class. (5) The diversity and the lack of easily accessible decisions, however, cannot justify the lack of attention to how local judges should behave when faced with statutory questions, a task that comprises the day-to-day work of our local courts. These public officials are the face of law and justice to citizens in our democracy. What they do in their courtrooms when applying statutes is probably more relevant to citizens' sense of the legitimacy of our legal system and the rule of law than the vast majority of the Supreme Court's business at One First Street.

As an initial step in thinking about these courts' role in the administration of our legal system, the inquiry here focuses on two problems of statutory interpretation in local state courts. First, how should local courts interpret local ordinances? Second, may local courts bring local agendas to bear on the state statutes they implement? Previous scholarship in local government law has mined questions surrounding localities' rights and limitations in promoting federal constitutional visions,6 and their relationships with and responsibilities to their home states and regions.7 But virtually all of this work, which is engaged in foundational debates surrounding the role of local governments within our state and federal constitutional structures, focuses on local governments' legislative and administrative powers, and the ability of state and federal judiciaries to constrain or foster these powers. (8) What has not been widely noticed is that the judges that serve in local courts are routinely selected locally and apply both local and state law. As a result, they occupy a complex position within the mosaic of local government. Indeed, local courts are quite often credibly part of the local government even though some local judges receive their salaries directly from the state. (9)

If many local courts are (at least in important ways) parts of local governments, this is yet another map on which we could, in theory, explore the debates between those in the "pro-localism" camp--interested in more local autonomy and vital democratic participation at the local level (10)--and those who are more skeptical--concerned about the dangers of homogeneity and exclusion at the local level. These skeptical scholars focus on the ways localism can impair the resolution of interlocal problems, prevent more equitable and less captured policies from taking hold at the state level, and fail to be sufficiently sensitive to citizens' multijurisdictional commitments. (11) That debate, regarding how much power and authority local governments should have, is unavoidable, but it is not one I will be able to resolve completely here.

Instead, I want to use the discovery of local courts as instrumentalities of local governments to analyze some practical problems of statutory interpretation in these institutions. Although the fount of so much local government law is actually a canon of statutory construction (known as "Dillon's Rule"), (12) almost no attention has been paid to statutory interpretation at the lowest levels of the judicial hierarchy. (13) Notwithstanding recent calls for "federalism all the way down," (14) "intersystemic statutory interpretation," (15) and more attention to "hierarchy and heterogeneity" in our nation's judiciaries, (16) no one is considering how local courts are interpreting statutes--whether the statutes are passed in state or local legislatures--or how they ought to do so. And these local courts perform the bulk of statutory implementation. I focus here on what approach local courts should take when interpreting local statutory law and state statutory law. The latter inquiry might be called an "intrastate reverse-Erie" problem. (17) Specifically, just as state courts need guidelines in order to apply substantive federal law in the typical reverse-Erie scenario, [18] local courts need similar guidelines in order to apply state law.

Part I of this Article defines the category of local courts for analysis, as well as the types of cases those courts typically hear. Part II then explores what it could mean for such local courts to pursue a "localist" agenda and analyzes its desirability under certain conditions. This analysis considers the kinds of elections that routinely place local judges into their offices and the manner in which local courts are embedded within state and local institutional structures. I conclude by asserting that the (concededly modest) accountability available for local judicial performance, combined with the possibility for careful state supervision of "localist" judicial action, supports giving local courts more discretion in interpreting both local ordinances and state statutes. On the whole, the argument aims to reveal the benefits of a type of "intrastate judicial federalism" that promotes dialogue and experimentation in the development of statewide policy. My conclusion draws from the perspectives of both "pro-localism" views as well as those more enamored of state power, highlighting some ways to settle that debate in at least this one understudied context.

1. WHAT IS A LOCAL COURT AND WHAT CASES DOES IT HEAR?

   Given the great variety in state court systems, demarcating a category of "local courts" requires some specificity. The heterogeneity of these courts has likely been partially responsible for the academic community's unwillingness to study or theorize about them as a class in the past, so it is worth getting a more refined definition clear to begin that process. Here are a few common characteristics of the kinds of courts I focus upon: local courts, as discussed here, (1) are at nearly the lowest rung within state judicial hierarchies, but render decisions appealable to higher-level state courts; (2) have limited subject matter jurisdiction; (3) have decisionmakers who are formally trained, licensed attorneys; (19) (4) have judges who are seated through election by the population of a local government or a set of local government units; and (5) apply and enforce local and state law within their territorial jurisdiction. Who funds local courts--state or locality--is not decisive in this typology, since it is possible for a state to pay judicial salaries but still expect the judge to be serving primarily a local community and applying local law. In some local courts, the local government itself provides funding to pay the judges.

   Admittedly, this classification leaves out some judicial institutions that might colloquially be viewed as local courts. Some justice courts, for example, are staffed by nonlawyers--and many magistrate, mayor's, and municipal courts are appointive institutions. (20) Some classes of lower trial courts of general jurisdiction might also "feel" local to residents within their reach who have elected their judges; but these courts are, for my typological purposes, considered part of the state, rather than the local, political system. (21) All of these institutions fall outside the ambit of my analysis here by definition; since "local courts" are not a natural category, I start with an archetype. Still, a large range of municipal, county, and district courts possess the listed criteria identified here--and millions of civil and criminal matters are adjudicated in these kinds of courts each year. (22)

   The transsubstantive scope of cases local courts hear also makes it difficult to theorize about them as a singular category. For example, local courts can handle probate matters, family law matters (such as custody, divorce, and adoption), traffic infractions, small civil claims, juvenile matters, misdemeanor criminal offenses, landlord-tenant disputes, and violations of local ordinances. Yet, the diversity of subject matter notwithstanding, these local courts act within a circumscribed sphere, often being the first line of enforcement in a local legal culture. Let me describe two examples of local courts to provide a taste of the local flavor.

   Charleston is West Virginia's capital and largest city. It has a population of about 51,000, which is 78% white and 16% black. (23) The municipal court judgeship in Charleston is an elective office with a four-year term. (24) Although West Virginia...