"home Rule" vs. "dillon's Rule" for Washington Cities

• Publication year: 2015

SEATTLE UNIVERSITY LAW REVIEW Volume 38, No. 3, SPRING 2015

"Home Rule" vs. "Dillon's Rule" for Washington Cities

Hugh Spitzer(fn*)

ABSTRACT

This Article focuses on the tension between the late-nineteenth-century "Dillon's Rule" limiting city powers, and the "home rule" approach that gained traction in the early and mid-twentieth century. Washington's constitution allows cities to exercise all the police powers possessed by the state government, so long as local regulations do not conflict with general laws. The constitution also vests charter cities with control over their form of government. But all city powers are subject to "general laws" adopted by the legislature. Further, judicial rulings on city powers to provide public services have fluctuated, ranging from decisions citing the "Dillon's Rule" doctrine that local governments have only those powers clearly granted to them by the legislature, to the "home rule" view that charter and optional code cities have broad unspecified powers. Despite actions by lawmakers to expand city home rule powers, recent court decisions have puzzled practitioners by alternately voicing these two approaches in a seemingly random fashion. This Article describes the origin of Dillon's Rule, places it in a national context, and explains its longevity in Washington despite the legislature's clear intent to eliminate the rule's application to most cities. The Article suggests that the zombie-like reappearance of Dillon's Rule is explained by (1) the vitality of the rule as a doctrine applicable to special purpose districts; (2) appellate judges' insistence on picking and choosing from doctrines (including ostensibly dead doctrines) to support a case's outcome; and (3) a combination of doctrinal forgetfulness and carelessness. The Article repeats a recommendation made five decades ago by former University of Washington law professor Philip Trautman that the Supreme Court of Washington should adopt a more consistent approach, one that follows the legislature's clear intent to make Dillon's Rule inapplicable to most cities.

I. INTRODUCTION

Home rule is a way of structuring the relationship between state governments and cities so that the cities are empowered "to administer [their] own affairs to the maximum degree" with "the right to determine the form of government" and "to define the nature and scope of municipal services involving matters of purely local concern."(fn1) Home rule is an approach to structuring government meant to push as much power down to the local level as is practicable, reducing interference by the legislature or other agencies of state government.(fn2) Home rule is also supported by a legal doctrine relating to the formal distribution of power between states and their local governments.(fn3) Former University of Washington professor Philip Trautman observed that home rule is often sustained by constitutional provisions designed to limit legislative control of certain municipalities so that they may "frame their own charters and thereby determine their own powers with respect to local or municipal affairs."(fn4)

Washington State adopted a trio of home rule constitutional provisions in 1889,(fn5) but commentators, including Trautman, have criticized the state's courts for applying a more restrictive approach to local governance than the constitution and statutes require(fn6)-sometimes following the narrow Dillon's Rule, which limits local government powers to those expressly granted by statute or those necessarily implied.(fn7) This was first pointed out in 1916 by Columbia University professor Howard McBain, who published a detailed treatise on home rule in the several states (including Washington) that had adopted it in the late nineteenth and early twentieth centuries.(fn8) Despite legislative efforts to clarify and strengthen home rule powers, the Supreme Court of Washington has been notably inconsistent in its pronouncements on city authority, and this has been confusing both to municipal lawyers and to the city leaders who guide policies and programs.

Apart from McBain's treatise and a supplemental study by Columbia University's Joseph D. McGoldrick in 1933,(fn9) no account of Washington State's experience with home rule has analyzed its history within a national context. The concept and its inconsistent handling by the judiciary are better understood by reviewing populist and progressive reform politics in the late nineteenth and early twentieth centuries, as well as the next wave of home rule advocacy after World War II.

This Article, in Part II, reviews Dillon's Rule in relation to post-Civil War American jurisprudence that was heavily influenced by legal academics. It then discusses the municipal home rule provisions that were adopted across the country at the turn of the twentieth century. The Article shows how the framers of Washington's 1889 constitution-one of the earliest in the nation with a home rule provision(fn10)-intended to confer broad local powers on cities by enacting a local government provision that was very progressive for that point in history. But there were a variety of understandings of what "home rule" meant, and the Supreme Court of Washington initially interpreted the constitution's municipal powers provision restrictively, particularly with respect to municipal authority outside of "police" (i.e., regulatory) powers. In the Progressive Era at the beginning of the twentieth century, the court shifted to a broader view of city powers. Later, after World War II, rapid urban and suburban growth and increasing demand for city services led the legislature to extend the robust local powers enjoyed by the larger charter cities to virtually all the cities in the state.

The net result, as described in Part III, was a hybrid type of home rule based both on the state constitution and on statutes. Under the constitution, Washington cities, as well as counties,(fn11) have substantial inherent police powers. By a combination of constitutional provisions and statutes, most cities have also gained a variety of options with respect to their form of government. Part IV then outlines how the legislature's expansion of city powers and the lawmakers' explicit rejection of Dillon's Rule still met some judicial resistance in the mid-twentieth century, particularly in the sphere of general municipal services and utility ("proprietary") activities, i.e., city activities outside the realm of police powers. Courts on occasion ignored rather clear statutory language in rendering decisions limiting local powers. The legislature responded with an explicit statutory expansion of city powers through enactment of the Optional Municipal Code in 1967.

Part V of this Article analyzes a number of Washington court opinions on home rule during the past five decades. It suggests three reasons for the sporadic, zombie-like resurrection of the narrow Dillon's Rule doctrine concerning city powers in Washington State. First, Dillon's Rule has consistently been applied to Washington's special purpose districts, although not consistently applied to cities. It is easy for lawyers and judges to misunderstand the difference between cities and special purpose municipalities and to ignore the doctrinal difference between the law relating to city powers and special purpose district powers. Second, when judges desire particular outcomes, they pick and choose among legal rationales suggested by the lawyers before them, occasionally reviving doctrines that ostensibly have been rendered obsolete by statutory enactments or previous court rulings. Third, American common law judges are so used to making law that they sometimes bend or altogether ignore statutory law.

This Article, in Part VI, concludes that the Supreme Court of Washington would do well to follow the rather clear legislative direction regarding charter city and code city powers, and as Professor Trautman recommended fifty years ago, to strengthen judicial interpretations recognizing the powers of cities.

II. THE ORIGINS OF "DILLON'S RULE" AND "HOME RULE"

A. "Dillon's Rule" and the Late-Nineteenth-Century Legal Academics

To understand the development of modern local government law in the United States, it is helpful to understand the origin and nature of "Dillon's Rule," named after John Forrest Dillon.(fn12) Dillon was elected to the Iowa Supreme Court in 1852, and was appointed by President Grant to the United States Circuit Court in 1869.(fn13) He resigned in 1879 and moved to New York to pursue a dual career as a law professor at Columbia and as a lead lawyer for the Union Pacific Railroad.(fn14) Dillon's influential view of local government powers was first announced in City of Clinton v. The Cedar Rapids and the Missouri River Railroad Co.,(fn15) a case in which the Iowa Supreme Court ruled that a city's powers were limited by the charter granted by the legislature and that the city could not block construction of a state-authorized railway on its streets. Dillon wrote: "The corporation of Clinton is a public municipal corporation, created for public purposes only, and 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."(fn16) This doctrine was repeated in Dillon's comprehensive and widely cited treatise, Commentaries on the Law of Municipal Corporations,(fn17) in which he emphasized...