The Georgia Home Rule System - R. Perry Sentell, Jr.

• Publication year: 1998

SPECIAL CONTRIBUTION

The Georgia Home Rule Systemby R. Perry Sentell, Jr.^*

I. Introduction

Few doctrines attract more universal acclaim than local government "home rule"; even fewer possess a more convoluted heritage or content.¹

As for heritage, difficulty inheres in locating a point of origin, for "home rule has roots deep in Anglo-American political history."² As for content, imprecision begins with terminology itself, for "in point of fact the term has never been given legal definition and can scarcely be regarded as a term of our law at all."³

Despite these preliminary obstacles, scholars generally perceive the home rule concept as a product of the eternal tension between local governments and the state.⁴ Historically, that tension manifested itself in a doctrinal stand-off of epic proportions championed by American legal giants. Leading one charge Thomas M. Cooley proclaimed for municipalities an "inherent right" of local self-government, an "absolute right" beyond the control of the state legislature.⁵ In counterattack John Dillon strongly denied the existence of any local autonomy, insisting that all municipal power derived solely from the state legislature.⁶ Moreover, as Dillon's famous "rule" mandated, "any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the [municipal] corporation, and the power is denied."⁷

Dillon's eventual triumph over Cooley's inherent right theory solidified the American doctrine of "plenary" state legislative power.⁸ Under the plenary precept, or the doctrine of legislative supremacy, the local government exists as a mere creature of the state, dependent upon the state legislature for any powers possessed or exercised.⁹ It was from this subservient status that local governments sought alternatives: "[I]s there any other doctrine in our legal system that gives municipalities independence and control as to their own affairs?"¹⁰ In response, "[y]es, there is the doctrine of municipal home rule, not perceived as an inherent right, but granted by constitution and/or statute in well over half the states."¹¹ Indeed, "[h]ome rule ... is seen as a full delegation of autonomy to local government that can overcome Dillon Rule restrictions."¹² Finally, "[f]rom its inception municipal home rule has been primarily directed at freeing cities from irksome legislative control."¹³

America dates its modern home rule development from 1875, the year in which Missouri included a home rule provision in its state constitution.¹⁴ From that point of origin, many states have since infused their constitutions with home rule systems—systems structured in one guise or another, falling into one category or another, and operating to one extent or another. Thus, the official home rule hallmark boasts the absence of an official home rule hallmark.¹⁵

Students of the subject commonly define home rule systems as authorizing local governments to legislatively frame and adopt their own organizational structures.¹⁶ If the state constitution directly vests that power in the local government, observers categorize the system as one of "constitutional home rule."¹⁷ If, contrarily, the constitution empowers the state legislature to effect the authorization, the system falls into the "legislative home rule" category.¹⁸ Even within those respective classifications, moreover, the systems may assume a variety of shaping characteristics.

Typical evaluations of a home rule system, whatever its category, focus upon an assortment of facets. Illustratively, some systems expressly purport to reverse the "strict construction" mandate of Dillon's Rule by providing that grants of home rule powers are to be liberally interpreted.¹⁹ Additionally, many systems direct their home rule delegations to counties as well as municipalities.²⁰ Finally, the system may formulate its authorization in any number of descriptions: as conveying powers relating to "local affairs," powers of "local self-government," or powers over "local matters."²¹

Whatever the system's category and features, a two-pronged ramification inevitably emerges from its operation over a period of time in a given jurisdiction. Ironically, reflection upon that ramification reverts to the fundamental tension of origin: (1) to what extent the home rule system serves as a source of power for local governments; and (2) to what extent the home rule system serves as a source of limitation upon the state.²²

II. Formulation of the Georgia System

Few jurisdictions equaled Georgia's adamant resistance to the home rule movement. The state's historic devotion to legislative supremacy held strong for many centuries. Eventually, however (some ninety years following Missouri's bold experiment), a rather unique home rule system took its place in the corpus of Georgia local government law. That system, and its operation now for more than three decades, reflects a substantial transition in both legal and political philosophy. It is a transition worthy of account and analysis.

A. Origin

Following a history of failure in attempting to bring legislative home rule to fruition for local governments,²³ the 1954 General Assembly proposed (and the people ratified) an amendment to the Georgia Constitution:

The General Assembly is authorized to provide by law for the self-government of municipalities and to that end is hereby expressly given the authority to delegate its powers so that matters pertaining to municipalities upon which, prior to the ratification of this amendment, it was necessary for the General Assembly to act, may be dealt with without the necessity of action by the General Assembly. Any powers

granted as provided herein shall be exercised subject only to statutes of general application pertaining to municipalities.²⁴

Eleven years later,²⁵ the General Assembly put the amendment's authority in play by enacting "The Municipal Home Rule Act of 1965" ("the Act").²⁶ Simultaneously, the legislature proposed yet another amendment to the constitution, a provision setting out a similar home rule system for Georgia counties.²⁷ The ratification of that amendment in 1966 completed an intriguing local government formulation: a system of indirect ("legislative") home rule for municipalities and a system of direct ("constitutional") home rule for counties. These are the Georgia systems presently in place.²⁸

B. Content

1. The Municipal Home Rule Act. The Home Rule Act expressly delegates a number of specific powers to municipalities. These include the power to fix salary and expenses of employees and members of the governing authority²⁹ and the power to provide insurance, retirement and pension benefits, federal program benefits, hospitalization benefits, and workers' compensation benefits for employees and their dependents.³⁰ Additionally, the Act empowers the governing authority to reapportion municipal election districts following each decennial census³¹ and requires reapportionment to provide newly annexed electors substantially equal voting power.³²

The Home Rule Act is also emphatic in reserving to the General Assembly the power over incorporation, dissolution, merger, consolidation, and other municipal boundary changes.³³ Additionally, the statute expressly excludes from its home rule delegations power over any matters which the General Assembly preempts by general statute,³⁴ and power over the following "matters":³⁵ (1) composition, form, and procedures for electing or appointing members of the municipal governing authority;³⁶ (2) state criminal offenses;³⁷ (3) taxation;³⁸ (4) eminent domain;³⁹ (5) businesses regulated by the Public Service Commission;⁴⁰ (6) court jurisdictions;⁴¹ (7) independent school systems;⁴² and (8) civil laws governing private or civil relationships.⁴³

The foundational essence of the Home Rule Act consists of two "legislating" delegations. First, the governing authority may "adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which are not inconsistent with the Constitution or any charter provision . . . .'^,44 On the one hand, this delegation does not restrict the General Assembly's power, by general law, to refine, broaden, limit, or otherwise regulate the municipal power exercise.⁴⁵ On the other hand, the legislature cannot, by local statute, "repeal, modify, or supersede" municipal action under the delegation.⁴⁶

The Act's most dramatic delegation⁴⁷ authorizes the municipality, "as an incident of its home rule power, [to] amend its charter by following either of . . . [two] procedures."⁴⁸ First, the governing authority may accomplish the charter amendment "by ordinances duly adopted at two regular consecutive meetings"⁴⁹ following specified notice of the ordinance⁵⁰ and its availability to the public.⁵¹

The second procedure is initiated by a petition filed with the governing authority by a requisite percentage of the municipality's population⁵² and stating the proposed charter amendment's "exact language."⁵³ The governing authority must determine the petition's validity within fifty days and either call for an election⁵⁴ or publish "reasons why such petition is not valid."⁵⁵ The governing authority must publish notice of the election in the available local newspaper "once a week for two weeks immediately preceding such date."⁵⁶ The notice must also provide a synopsis of the proposed amendment and state a copy is on file for public examination.⁵⁷ In the election, the charter amendment prevails upon approval of "more than one-half of the votes cast";⁵⁸ in the event of failure, no referendum may be held on the amendment "more often than once each year."⁵⁹

Whether accomplished by the governing authority or via voter petition, the municipal charter amendment is not effective until filed with the Secretary of State and in the office of the clerk of the superior court.⁶⁰

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