The case for fiscal home rule.

• Author: Coffey, Joni Armstrong
• Position: Florida

For the local governments of Florida, greater fiscal autonomy might seem an elusive, even pointless prize to pursue in the constitutional revision process.(1) One of Florida's largest municipalities; the City of Miami, grapples now with a long-brewing fiscal crisis, a crisis that compelled the state's intervention under the Local Government Financial Emergencies Act,(2) and that spawned a dissolution movement in the city's centennial year. Like Miami but in varying degrees, many of Florida's other local governments face the double bind of cramped financial resources and deteriorating responsiveness on one hand, and ostensible anti-tax, anti-government voter sentiment on the other. With citizen confidence tested in this climate, one might wonder what city and county commissioners could do with broader fiscal power if a magic wand bestowed it.

Yet obtaining constitutional fiscal home rule, and then wielding it under sensible principles of accountability, may be local government's narrow route out of an escalating predicament. Indeed, the predicament itself is arguably due in large part to a gradual constricting of fiscal powers that has weakened local government's natural creativity and responsiveness.

Home Rule Under the 1968 Constitution

The 30 years since the last constitutional revision have witnessed an inauspicious confluence of assaults on local taxing powers, "downsizing" of federal and state financial resources, a diversifying statewide economic base, and proliferating population demands.

In this light, the fractured financial tools provided by the 1968 Constitution seem a poor selection to equip Florida's cities and counties for the variety and breadth of the next 20 years' challenges. Thus, while even the briefest analysis of Florida's overall constitutional tax and finance structure is well beyond the scope of this vehicle, a short but compelling case can be made for constitutionally vesting greater fiscal power and flexibility in local governments.

Nearly a century has passed since Dillon's treatise first crystallized the common law of state and local government relations in this country. A municipality, under Dillon's rule, wields only those powers expressly delegated to it from the sovereign state, those necessarily implied from the express grant, or those implied from the municipality's very existence.(3) Among its merits, this view stabilized the contest of power between state and local governments within the individual states, and further assured that under U.S. Constitution principles of federalism, only two sovereigns would be recognized, the federal and the state.(4) Within individual states, however, Dillon's rule generated an uneasiness that was hard to put to rest. Fundamental democratic principles, as well as the U.S. Constitution itself, guarantee citizens the right to petition their government for redress of grievances, and local government is the government closest and potentially most responsive to the people.(5) As Florida courts have recognized, the people have a deep-rooted expectation that they will resolve many matters among themselves at the most accessible level of government. In the land use context, for example, the court in Cross Key Waterways v. Askew, 351 So. 2d 1062 (Fla. 1st DCA 1977), aff'd, 372 So. 2d 913 (Fla. 1978) (footnote omitted), concluded a shift in regulatory authority away from local government to the state:

[T]ouches upon sensibilities as old as the Revolution itself, because it affects the right of access to government--the right of the people effectively "to instruct their representatives and to petition for redress of grievances"--on which other cherished rights ultimately depend. The primacy of local government jurisdiction in land development regulation has traditionally been, in this country, a corollary of the people's right of access to government. In a sense, therefore, the jurisdictional claim of local governments in these matters is based on historical preferences stronger than law.(6)

Id. at 1065.

From these and similar concepts, a national home rule movement developed during the course of this century. Through various means, most states have now granted home rule powers to their cities, counties, and other local governments, either by direct grants of power, by limitations on state legislative interference in local affairs, or by a modified combination of both.(7)

Dillon's rule prevailed in Florida, with limited and notable exception,(8) until Art. VIII of the 1968 Constitution dramatically reallocated constitutional power by expressly vesting in municipalities and charter counties full power of self-determination in local affairs.(9) For municipalities and for counties that have availed themselves of home rule rights, the constitutional grant generally is a grant of residual power over local affairs, subject only to the state legislature's authority to preempt or deny the power by enacting general laws or special laws approved by referendum.(10) The constitutional change was a bold and potent step forward from piecemeal, ad hoc grants of authority to Florida's local governments by special acts.(11)

Perhaps the severest limit on that broad transfer of power, however, arose from Art. VII. Although [sections] 9 of Art. VII mandated that the legislature authorize the local levy of ad valorem taxes, and allowed the legislature to authorize other local taxes as well, [sections] 1(a) preempts all forms of tax except ad valorem taxes to the state, and further provides that no tax can be levied "except in pursuance of law."(12) Combined with the state legislature's power under Art. VIII to preempt or deny home rule by general law, Art. VII's fiscal...