Author:Briffault, Richard
Position:Response to article in this issue, p. 1107

Introduction 1175 I. Family Law Localism: The Legal Framework 1176 A. Local Initiative 1176 B. Preemption 1181 II. The Place of Local Legislatures in Resolving Family Law Disputes 1183 INTRODUCTION

In his Article "Sex in the City," Professor Sean Hannon Williams addresses the problems of enormous trial court discretion and concomitant unpredictable and inconsistent decisions found in divorce cases by proposing that local governments adopt nonbinding "rules of thumb" that would guide judges in exercising that discretion with respect to issues such as child custody, property division, and income support. (1) He contends that this proposal would fit within the existing legal framework of state-local relations and would advance the goals of both family law reform and local empowerment with respect to family issues. (2) Specifically, he urges that local legislative action could be a significant step towards the "rulification" reform that state legislatures have so far been unable to achieve, while also serving as a springboard for greater local government participation in a range of issues relevant to family welfare. (3) It is an intriguing proposal. My comment focuses on two issues: (i) local power to act on family law matters, specifically the consequences of divorce; and (ii) the appropriate role for local legislative bodies in addressing these issues.


    As Professor Williams explains, family law localism presents two distinct but overlapping questions--whether there is local power to act in the first place, and whether, even if in theory a local government has power to legislate on the subject, it has the further power to prevent state preemption of the local measure. (4) These are sometimes referred to as the powers of initiative and immunity, or the sword and the shield. (5) The two issues overlap because, as is often the case, if the relevant state constitutional or statutory provisions are unclear, courts tend to turn to similar criteria--the costs and benefits of statewide uniformity versus local variation; external effects of local actions; history; and relative institutional capacity--for both questions. (6) The two issues are different, though, because there are many matters that are "local enough" that a local government may have power to address them in the first instance, but that are also "state enough" that the state can displace local action.

    1. Local Initiative

      Starting with local power to act, the general background norm in the United States is Dillon's Rule, which provides that a local government possesses only those powers (i) expressly delegated to it by the state, (ii) necessarily implied in or incident to the express delegation, or (iii) essential to accomplish the expressly delegated powers. (7) Although Dillon's Rule has been supplanted by home rule for most cities and some counties in many states, (8) it remains the governing principle wherever home rule has not been provided. (9) Virginia, for example, remains a Dillon's Rule state, and, as a result, tends to read local regulatory powers narrowly, (10) and Dillon's Rule continues to be invoked in many other states, including recent examples in Illinois, (11) South Dakota, (12) and Vermont. (13) For a Dillon's Rule city or county, any local powers with respect to family law are likely to be closely cabined to the authority expressly granted by the state. Thus, in Virginia, the state supreme court concluded that the state law authorizing counties to provide the dependents of county employees with health benefits did not give the county authority to provide dependent benefits to the unmarried domestic partners of county employees, even

      though the benefits were funded solely by the county. (14)

      Many states provide some cities and counties with a broader grant of power to act over a range of issues without having to obtain specific state authorization. This is known as home rule. (15) Home rule can result from a state constitutional amendment, state legislation, or even from expansive state judicial interpretation of legislative grants. (16) Home rule classically takes two forms. Early versions of home rule, dating back to the late nineteenth century, sought to provide municipalities with both authority to take action and protection from state displacement in the area of "local" or "municipal" affairs. (17) In other words, this type of home rule combined initiative with immunity. Building off a United States Supreme Court reference to such an early home rule measure as creating an "imperium in imperio," (18) this is known as imperio home rule. (19) Although providing locally-initiated measures with immunity from state displacement should have created a powerful foundation for local autonomy, in practice state courts were reluctant to immunize local actions from state regulation. (20) As a result, the notion of "local" or "municipal" affairs often received narrow interpretations in both the initiative and immunity settings. In response, in the mid-twentieth century local autonomy advocates developed a new home rule form that sought to strengthen local initiative power at the price of relinquishing local immunity claims. Known as "legislative home rule," this type of home rule provides that a home rule local government can exercise all legislative powers that the state could delegate unless and until a power is taken back by the state. (21) Most modern home rule enactments have been of the legislative form, although in practice some state constitutions blur these theoretically sharp distinctions and use a mix of both imperio and legislative language. (22)

      Under legislative home rule, most contested issues are preemption questions rather than local-power-to-act-in-the-first-place issues, which would provide some support for family law localism, at least in the first instance. However, some legislative home rule provisions contain a further qualification, based on a proviso in the National Municipal League's model home rule amendment, that the broad delegation of powers "shall not include the power to enact private or civil laws governing civil relationships except as incident to the exercise of an independent power." (23) This idea that regulating "private or civil law governing civil law relationships" is inherently beyond the scope of local power is an old one, and was part of the analysis of local or municipal affairs in imperio states. (24) Although an obviously vague concept, it almost surely encompasses family law, including the consequences of divorce. The two most quoted dicta concerning this phrase were uttered by Benjamin Cardozo...

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