Constitutional home rule and judicial scrutiny

Denver University Law Review

Volumn 86, Issue 4, 2009, Pages 1337-1424

  Baker, Lynn A ^a   Rodriguez, Daniel B ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 70349635981     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (288)

1. Stephen L. Elkin, City and Regime in the American republic 176 (1987).
2. Terrance Sandalow, The limits of Municipal Power Under Home Rule: A Role for the Courts, 48 MINN. L. REV. 643, 661 (1964).
3. Hunter v. City of Pittsburgh, 207 U. S. 161, 178 (1907);
4. see also WILLIAM BENNETT Munro, The Government of American Cities 80 (3d ed. 1920) ("[The] municipal corporation, is the creature of the state, like all other corporations, it owes its existence to a statute, and it has no powers save those which may be conveyed to it thereby.");
5. Howard Lee McBain, the Doctrine of an Inherent Right of Local Self-Govemment (pt. 1), 16 COLUM. L. REV. 190, 214 (1916).
6. See e.g., Richard Briffault, Our Localism: Part I-The Structure of Local Government Law, 90 COLUM. L. REV. 1, 85-86 (1990) [hereinafter Briffault, Our Localism];
7. Richard Briffault, Town of Telluride v. San Miguel Valley Corp: Extraterritoriality and Local Autonomy, 86 DENV. U. L. REV. 1311, 1317 (2009) [hereinafter Briffault, Extraterrioriality and Local Autonomy].
8. See, e.g., David J. Barron, Reclaiming Home Rule, 116 Harv. L. REV. 2255, 2260 (2003);
9. Gerald E. Frug, Decentering Decentralization, 60 U. Cm. L. Rev. 253, 256 (1993);
10. Gerald E. Frug, The City as a Legal Concept, 93 Harv. L. REV. 1057, 1062-63 (1980) [hereinafter Frug, Legal Concept].
11. See Sandalow, supra note 2, at 660;
12. Sho Sato, "Municipal Affairs" in California, 60 Cal. L. Rev. 1055, 1058 (1972). In nine of the imperio home rule states, the home rule provision of the state constitution lists matters that are deemed to be of local concern, though the list is not exclusive.
13. See infra Appendix (listing Arkansas, California, Colorado, Connecticut, Kansas, New York, North Dakota, South Carolina, and Utah as those nine states). Even in those states, however, it is ultimately the job of the courts to determine whether a particular exercise of municipal power falls within one of the categories listed in the constitution.
14. See Dale Krane, Platon N. Rigos & Melvin B. Hill, Jr., Home Rule in America 11 (2001);
15. Howard Lee McBain, The Law and the Practice of Municipal Home Rule 112-13 (1916).
16. See infra p. 1349.
17. See Frug, Legal Concept, supra note 5, at 1078;
18. Sato, supra note 6, at 1059-60.
19. Five states have no municipal home rule at all: Alabama, Hawaii, Nevada, North Carolina, and Vermont. See infra Appendix; see also KRANE ET al., supra note 7, at 24-25 (Alabama), 269-70 (Nevada); 312-13 (North Carolina); 417-19 (Vermont). Hawaii has no municipal governments, but has home rule counties. Id. at 112-14; see infra Appendix. See generally KRANE ET AL., supra note 7, at 476-78.
20. Twenty-three states currently have this form of home rule. The states include Alaska, Arizona, Delaware, Illinois, Indiana, Kentucky, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, and Washington. See infra Appendix.
21. Twenty-three states currently have imperio home rule. In addition to the nine states listed in note 6, supra, the states include Florida, Georgia, Idaho, Iowa, Louisiana, Maine, Maryland, Michigan, Ohio, Rhode Island, Virginia, Wisconsin, and Wyoming. See infra Appendix.
22. The phrase means "government within a government," and is thought to have been coined in the local government context by the U. S. Supreme Court in 1893. In City of St. Louis v. Western Union Tel Co., the Court observed regarding the City of St Louis: It does not, like most cities, derive its powers by grant from the legislature, but it framed its own charter under express authority from the people of the state, given in the constitution....
23. [A]nd the powers granted by [the charter], so far as they are in harmony with the constitution and laws of me state, and have not been set aside by any act of the general assembly, are the powers vested in the city.... The city is in a very just sense an "imperium in imperio." Its powers are self-appointed, and the reserved control existing in the general assembly does not take away this peculiar feature of its character. 149 U. S. 465, 467-68 (1893) (emphasis added).
24. See, e.g., Town of Telluride v. San Miguel Valley Corp., 185 P.3d 161, 170-71 (Colo. 2008) (holding that the "legislature cannot prohibit the exercise of constitutional home rule powers, regardless of the state interest which may be implicated by the exercise of those powers," and invalidating, as inconsistent with the constitution's home rule provision, a statute that would prohibit extraterritorial condemnations of property by home rule municipalities);
25. see also, e.g., Lynn A. Baker & Clayton P. Gillette, Local Government Law 298-311 (3d ed. 2004);
26. Richard Briffault & Laurie Reynolds, Cases and Materials on State and Local Government Law 278-314 (7th ed. 2009);
27. Osborne M. Reynolds, Jr., Local Government Law 111-46 (3rd ed. 2009).
28. For earlier efforts along similar lines, see generally Gordon L. Clark, Judges and the CITIES: INTERPRETING Local AUTONOMY (1985);
29. Harold H. Bruff, Judicial Review in Local Government Law: A Reappraisal, 60 MINN. L., Rev. 669 (1976);
30. Frank J. Macchiarola, Local Government Home Rule and the Judiciary, 48 J. URB. L. 335 (1971);
31. Sandalow, supra note 2. For the most part, these important analyses emphasized normative considerations; that is, they considered whether and to what extent judicial scrutiny of state/local conflicts was coherent and sensible (usually the answer offered was "no") - While normative considerations are inescapable, the signal contribution of this Article is to consider more carefully, and with the benefit of recent caselaw, how the courts go about analyzing state/local disputes in constitutional home rule contexts. A fuller analysis of the normative underpinnings of these analytical patterns is beyond the scope of this article.
32. See generally KRANE ET AL., supra note 7, at 11-12;
33. Barron, supra note 5, at 2277-322;
34. Frug, Legal Concept, supra note 5, at 1080-119;
35. Joan C. Williams, The Invention of the Municipal Corporation: A Case Study in Legal Change, 34 AM. U. L. REV. 369, 392-431 (1985).
36. See, e.g., Hoagland v. City of Sacramento, 52 Cal. 142, 149 (1877)
37. People v. Lynch, 51 Cal. 15, 34 (1875);
38. People ex rel. Le Roy v. Hurlbut, 24 Mich. 44, 107-08 (1871) (Cooley, J., concurring);
39. Eugene McQuillin, Constitutional Right of Local Self-Govemment of Municipalities, and Principles Applicable to Central Control, 35 AM. L. REV. 510, 524 (1901).
40. See generally David J. Barron, The Promise of Cooley's City: Traces of Local Constitutionalism, 147 U. Pa. L. Rev. 487 (1999).
41. See BAKER & GILLETTE, supra note 14, at 202-03
42. Frug, Legal Concept, supra note 5, at 1114-15.
43. See generally HENDRK Hartog, PUBLIC PROPERTY AND PRIVATE POWER: The Corporation of the crry of New York in American Law, 1730-1870 (1983).
44. See, e.g., RODNEY L. MOTT, HOME RULE FOR AMERICA'S Cities 11 (1949) ("During a large part of the nineteenth century, under the dominant theory of legislative supremacy, cities were considered to be merely creatures of the state legislature.... Cities were completely subservient to legislative vagaries and whims.... Legislative interference with cities tends to turn state legislatures into spasmodic city councils. Home rule, as a device for returning local business to the city, is the obvious remedy for these evils.").
45. See KRANE ET al., supra note 7, at 11; see also the state constitutional provisions cited supra note 12.
46. See Briffault, Our Localism, supra note 4, at 10.
47. See Baker & Gillette, supra note 14, at 201-243 (discussing state constitutional limitations on state power besides home rule);
48. Briffault & Reynolds, supra note 14, at 278-314 (same);
49. Michael E. Libonati, Local Government, in 3 STATE CONSTITUTIONS FOR THE TWENTY- FIRST Century: The Agenda of State Constitutional Reform 109-27 (G. Alan Tarr & Robert F. Willams eds., 2006) (discussing historical development of home rale provisions in the larger context of the evolution of state constitutions).
50. See KRANE ET AL., supra note 7, at 11-12.
51. Id. at 241-42.
52. See generally McBain, supra note 7, at 119-99.
53. See supra note 17.
54. See Briffault & REYNOLDS, supra note 14, at 331-32 (discussing the distinction between the "initiation" and "immunity" functions of home rule);
55. see also BAKER & GILLETTE, supra note 14, at 307-11 (discussing distinction between "investing" and "divesting" functions of home rule).
56. See Briffault, Extraterritoriality and Local Autonomy, supra note 4, at 1317. A particularly florid statement of this ideal is found in an early decision of the California Supreme Court: What did [the Constitution's framers] have in their minds when they spoke of cities and villages? It needed but to recall their origin and history to impress the Constitutional Convention with a conviction that municipalities are invaluable to a great and free people. The enlightened genius of the Roman civilization was planted and fostered by the establishment of colonies with urban privileges. In the Dark Ages the chartered towns in Europe served to curb the turbulence of the more potent of the crown vassals, and to erect barriers for the protection of personal rights against the rude force of the feudal barons. It often happened that from such centres of self-government the spirit of freedom was extended and expanded, and it may be safely be said of the English boroughs-for example-that they were largely instrumental in developing the constitution of government which made that people jealous of the liberty they possessed, and capable of receiving still greater accessions of the same blessing. In our own country the existence of local political corporations began...." People v. Lynch, 51 Cal. 15, 29-30 (1875).
57. See Sandalow, supra note 2, at 712.
58. See Briffault, Our Localism, supra note 4, at 98-99.
59. See, e.g., David L. Shapiro, federalism: A Dialogue 14-15 (1995).
60. It should be noted, however, that not all municipalities within an imperio home rule state are eligible for "home rule" status. In some imperio states, home rule status is afforded only cities that meet certain minimum population requirements. See REYNOLDS, Jr., supra note 14, at 108-10. See also, e.g., infra Appendix.
61. See, e.g., Briffault, Our Localism, supra note 4, at 10-11;
62. Kenneth Vanlandingham, Constitutional Municipal Home Rule Since the AMA (NLC) Model, 17 Wm. & MARY L. REV. 1, 1 n. l (1975). See also infra Appendix (Delaware, Indiana, Mississippi).
63. See Briffault, Our Localism, supra note 4, at 23
64. Krane ET AL., supra note 7, at 12-13.
65. See supra note 10.
66. See supra note 12.
67. See, e.g.,Libonati, supra note 22, at 115 "Courts in several jurisdictions where a constitutional grant of home rule initiative is qualified by the adjective 'local' or 'municipal' have not been shy in holding that the subject matter in question is susceptible to redefinition as a matter of statewide concern when the state legislature has so spoken."
68. See, e.g., Libonati, supra note 22, at 115 ("Courts in several jurisdictions where a constitutional grant of home rule initiative is qualified by the adjective 'local' or 'municipal' have not been shy in holding that the subject matter in question is susceptible to redefinition as a matter of statewide concern when the state legislature has so spoken. ")
69. James D. Cole, Constitutional Home Rule in New York: "The Ghost of Home Rule," 59 ST. John's L. Rev. 713, 715 (1985) ("The balance between state and local powers [in New York] has tipped away from the preservation of local authority toward a presumption of state concern. ")
70. Eliot J. Kirshnitz, City of New York v. State of New York The New York State Court of Appeals, in Declaring the Repeal of the Commuter Tax Unconstitutional, Strikes another Blow against Constitutional Home Rule in New York, 74 ST. JOHN'S L. REV. 935, 947-48 (2000) (contending that "under the 'state concern' doctrine [crafted by New York courts], even if legislation relates to the property, affairs, or government of a city, if the legislation is also a matter of state concern, home rule is not implicated and the legislature may act through ordinary legislative process").
71. See, e.g., Kirshnitz, supra note 36, at 945-48 (citing and discussing New York cases);
72. Krane ET AL., supra note 7, at 304 (noting that the highest court in New York "has consistently rendered decisions 'protecting the Legislature's power to act by ordinary legislation if a "matter of state concern" is involved, '" and that the "courts 'have found state concerns even in seemingly local matters'");
73. id. at 368 (noting regarding Rhode Island that "a series of decisions that struck down municipal efforts to use charter language to secure substantive authority" has resulting in the constitutional phrase "in all local matters" meaning "the structural aspects of local government and little more").
74. See, e.g., Daniel B. Rodriguez, Localism and Lawmaking, 32 RUTGERS LJ. 627, 639 (2001) ("state courts are most frequently made up of state judges who stand for election or reelection; they are beholden to state voters, and not local governments, for their decisions").
75. Courts compromise local sovereignty either by narrowing the scope of local governments' initiation power, or by limiting their immunity power, or both.
76. See, e.g., Briffault, Our Localism, supra note 4, at 15 ("Despite the standard contention that a crabbed judicial interpretation of the 'municipal affairs' language in home rule provisions has limited local power to initiate measures, the most comprehensive study of the first decades of home rule found that the courts generally permitted 'a fairly wide latitude of action on the part of the city in its so-called capacity as an organization for the satisfaction of local needs.'") (quoting McBain, supra note 7, at 671).
77. We use duty here in its weak sense, that is, the "duty" to undertake constitutional interpretation, taking no position upon whether and to what extent the constitution's text is the sole source of information about the meaning of one or another state's home rule doctrine.
78. See, e.g., Sandalow, supra note 2, at 651, 660-61;
79. Sato, supra note 6, at 1060, 1075-76.
80. The imperio home rule provisions of some state constitutions include non-exclusive lists of these categories. See supra note 6.
81. See, e.g., KRANE et al, supra note 7, at 304 (discussing New York Constitution and cases); id. at 79 (discussing Connecticut Constitution and cases).
82. One particularly significant question, to which we offer no answer in this Article, is whether and to what extent the state legislature's express judgment that a matter is in fact one of statewide concern is typically outcome determinative in imperio home rule states. Compare, e.g., Bishop v. City of San Jose, 460 P.2d 137, 141 (Cal. 1969) ("[T]he fact, standing alone, that the Legislature has attempted to deal with a particular subject on a statewide basis is not determinative of the issue as between state and municipal affairs ⋯ the Legislature is empowered neither to determine what constitutes a municipal affair nor to change such an affair into a matter of statewide concern. "), with Oelbermann Assoc. Ltd. P'ship v. Borov, 535 N. Y. S.2d 315, 318-19 (Civ. Ct N. Y. County 1988) (holding that a state statute exempting loft apartments from local zoning requirements was valid as applied to properties within a home rule city, notwithstanding language in New York Constitution reserving to home rule governments the power to regulate "its property, affairs or government").
83. See Rodriguez, supra note 38, at 646-55.
84. Cf. id. at 648-58 (describing structural differences between state and local institutions and some implications of these differences);
85. Daniel B. Rodriguez, Turning Federalism Inside Out: Intrastate Aspects of Interstate Regulatory Competition, 14 YALE L. & POL'Y REV. 149, 172-75 (1997).
86. Although the "anti-commandeering" doctrine set out by the Court in New York v. United States, 505 U. S. 144 (1992), and Printz v. United States, 521 U. S. 898, 933 (1997), has chipped away at the seemingly plenary powers of Congress under the Tenth Amendment,
87. see infra notes 177-79 and accompanying text, the spending power remains an easy end run around any restrictions that the Constitution might be interpreted to impose on Congress's ability to regulate the states.
88. See Lynn A. Baker, Conditional Federal Spending after Lopez, 95 Colum. L. Rev. 1911, 1914 (1995);
89. Lynn A. Baker, The Spending Power and the Federalist Revival, 4 CHAPMAN L. Rev. 195, 195 (2001) [hereinafter Baker, Spending Power];
90. Lynn A. Baker & Mitchell N. Berman, Getting off the Dole: Why the Court Should Abandon Its Spending Doctrine, and How a Too-Clever Congress Could Provoke It to Do So, 78 Ind. L. J. 459, 460 (2003).
91. See CAL. CONST, art. XIIIA (imposing various limitations on the real property assessment and taxing powers of state and local governments).
92. See Kirk Stark & Jonathan Zasloff, Tiebout and Tax Revolts: Did Serrano Really Cause Proposition 13?, 50 UCLA L. Rev. 801, 814 (2003).
93. 841 P.2d 990 (Cal. 1992).
94. Id. at 991-92.
95. Or the state constitution must be amended to redefine the affected areas as "matters of state concern. "
96. Town of Telluride v. Lot Thirty-Four Venture, L. L. C., 3 P.3d 30 (Colo. 2000).
97. Lot Thirty-Four Venture, 3 P.3d at 40.
98. Kalodimos v. Vill. of Morton Grove, 470 N. E.2d 266, 269 (Ill. 1984).
99. Id. emphasis added.
100. 185 P.3d 161 (Colo. 2008).
101. For example, the Court noted that the citizens of Telluride, "for years have allocated twenty percent of the town's annual revenue to fund the acquisition of the Valley Floor" for open space and park purposes. Id. at 164.
102. Id. at 163-64.
103. City & County of Denver v. State of Colorado, 788 P.2d 764, 767-68 (Colo. 1990).
104. Town of Telluride v. Lot Thirty-Four Venture, L. L. C., 3 P.3d 30 (Colo. 2000).
105. Kalodimos v. Vill. of Morton Grove, 470 N. E.2d 266, 274 (Ill. 1984).
106. Johnson v. Bradley, 841 P.2d 990, 995-96 (Cal. 1992).
107. Id. at 996.
108. Lot Thirty-Four Venture, 3 P.3d at 37.
109. Id. at 37.
110. City & County of Denver v. State of Colorado, 788 P.2d 764, 767 (Colo. 1990).
111. Kalodimos v. Vill. of Morton Grove, 470 N. E.2d 266, 274 (Ill. 1984).
112. Id.
113. Id. at 275-76.
114. Lot thirty-four venture, 3 p.3d at 37.
115. see also City & County of Denver, 788 P.2d at 768 (discussing same four factors)
116. Kalodimos, 470 N. E.2d at 274 (identifying as the relevant factors "the nature and extent of the problem, the units of government which have the most vital interest in its solution, and the role traditionally played by local and statewide authorities in dealing with it")
117. Johnson, 841 P.2d at 996, 1001 (identifying as central to the home rule analysis a focus on "extramunicipal concerns" and an interest in statewide uniformity).
118. Lot Thirty-Four Venture, 3 P.3d at 37;
119. see also id. at 39 ("On the whole, we cannot conclude that this matter is so discretely local that all state interests are superseded" and acknowledging "the legitimacy of both the state interests and [the municipality's] interests");
120. City & County of Denver, 788 P.2d at 768 ("We have considered the relative interests of the state and the home rule municipality in regulating the matter at issue in a particular case");
121. id. at 770 (comparing "the asserted state interests" with "the asserted local interests");
122. Kalodimos, 470 N. E.2d at 274 ("Whether a particular problem is of statewide rather than local dimension must be decided not on the basis of a specific formula ⋯ but with regard for [various factors].");
123. Johnson, 841 P.2d at 997 ("the hinge of the [home rule] decision is the identification of a convincing basis for legislative action originating in extramural concerns ⋯" and "the sweep of the state's protective measures may be no broader than its interest").
124. See, e.g., Fraternal Order of Police, Colo. Lodge #27 v. City & County of Denver, 926 P.2d 582, 588-90 (Colo. 1996);
125. City & County of Denver v. State, 788 P.2d 764, 768-69 (Colo. 1990).
126. 3 P.3d 30 (Colo. 2000).
127. Id. at 38.
128. Id.
129. This is reinforced by Chief Justice Mullarkey's dissenting opinion in which she insists that the Telluride ordinance "is fundamentally a land use regulation," and therefore is properly local. Id. at 45 (Mullarkey, C. J., dissenting). Chief Justice Mullarkey argues that the majority goes wrong by narrowing the scope of what is a land use decision. "Land use policy," she says, "is not limited to the mere definition of permissible uses; rather, land use policy encompasses conditions implemented within the rubric of zoning and planning decisions." Id.
130. 673 P.2d 354, 362 (Colo. 1983).
131. Town of Telluride v. San Miguel Valley Corp., 185 P.3d 161, 163-64 (Colo. 2008).
132. Id. at 171.
133. See Briffault, Extraterritoriality and Local Autonomy, supra note 4, at 1324-25.
134. San Miguel Valley Corp., 185 P.3d at 163-64.
135. See, e.g., Clayton P. Gillette, Fiscal Home Rule, 86 DENV. U. L. REV. 1241, 1249-50 (2009).
136. The "good government" movement of the Progressive era, described ably in Barron, supra note 5, at 2291, was the administrative- political analogue of the home rule doctrine of this early period.
137. Dillon's Rule is a canon of statutory construction that calls for the narrow interpretation of local government authority.
138. See BAKER & GILLETTE, supra note 14, at 244 (setting out Dillon's Rule);
139. See also, e.g., BRIFFAULT & REYNOLDS, supra note 14, at 314-17 (describing inception of Dillon's Rule);
140. David J. Barron, supra note 17, at 506-09 (explaining Dillon's Rule and its application);
141. Joan C. Williams, The Constitutional Vulnerability of American Local Government: The Politics of City Status in American Law, 1986 Wis. L., REV. 83, 88-90 (1986) (discussing Cooley's theory of inherent local sovereignty).
142. See, e.g.. Porter v. City of Santa Barbara, 35 P.2d 207, 207-08 (Cal. Dist. Ct App. 1934);
143. Ex parte Hitchcock, 166 P. 849, 849-51 (Cal. Dist. Ct. App. 1917);
144. see also William Carey Jones, "Municipal Affairs" in the California Constitution, 1 CAL. L. REV. 132, 144 (1913);
145. Sato, supra note 6, at 1094-98.
146. 167 N. E. 705 (N. Y. 1929).
147. Id. at 715 (Lehman, J., dissenting).
148. Kalodimos v. Vill. of Morton Grove, 470 N. E.2d 266, 269 (Ill. 1984).
149. Id. at 276.
150. Vill. of Euclid, Ohio v. Ambler Realty Co., 272 U. S. 365 (1926).
151. Kenneth A. Stahl, The Suburb as a Legal Concept: The Problem of Organization and the Fate of Municipalities in American Law, 29 CARDOZO L. Rev. 1193, 1266-68 (2008);
152. Richard Briffault, Our Localism Part II-Localism and Legal Theory, 90 COLUM. L. REV. 346, 366 (1990);
153. Charles M. Haar, In Accordance with a Comprehensive Plan, 68 Harv. L. Rev. 1154, 1154-56 (1955).
154. See, e.g., Barron, supra note 5, at 2259-63.
155. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U. S. 252 (1977);
156. City of Eastlake v. Forest City Enters., 426 U. S. 668 (1976);
157. Warth v. Seldin, 422 U. S. 490 (1975);
158. Vill. of Belle Terre v. Boraas, 416 U. S. 1 (1974).
159. See Barron, supra note 5, at 2378-79;
160. Briffault, Our Localism, supra note 4, at 39-58.
161. 3 P.3d 30 (Colo. 2000).
162. Id. at 32.
163. Colo. Rev. Stat. Ann. § 38-12-301 (West 2000).
164. Lot Thirty-Four Venture, 3 P.3d at 39 n. 9.
165. Id. at 39.
166. Id. at 45 (MuUarkey, C. J., dissenting).
167. See id.
168. 185 P.3d 161 (Colo. 2008).
169. Id. at 163.
170. Id. at 170.
171. Id at 169-70.
172. See, e.g., id. at 167 (emphasis added): "[U]pon review of pertinent Colorado law, and considering our state tradition of conducting land planning at the local level, we conclude that condemnation for open space and parks is in fact a lawful, public, local, and municipal purpose within the scope of article XX."
173. Lot Thirty-Four Venture, 3 P.3d at 45 (Mullarkey, C. J., dissenting).
174. San Miguel Valley Corp., 185 P.3d at 171.
175. Kelo v. City of New London, 545 U. S. 469 (2005) (5-4 decision holding that city's exercise of eminent domain power to further an economic development plan satisfies the "public use" requirement of the Fifth Amendment).
176. See Marci A. Hamilton, Political Responses to Supreme Court Decisions, 32 HARV. J. L. & PUB. POL'Y 113, 120-21 (2009) (discussing response to Kelo, including fact that 13 states included takings initiatives on their ballots in 2006);
177. Amnon Lehavi, The Property Puzzle, 96 GEO. L. J. 1987, 1988-89 (2008) (observing that Kelo "resulted in legal backlash in many states in the form of new legislation increasing restrictions on the use of eminent domain for private economic development and in judicial rulings interpreting state legal limits on the use of eminent domain more stringently than Kelo's reading of the federal Constitution").
178. See, e.g., Healy v. Indus. Accident Comm'n, 258 P.2d 1, 3 (Cal. 1953);
179. Wilson v. Walters, 119 P.2d 340, 344 Cal. 1941;
180. City of Pasadena v. Charleville, 10 P.2d 745, 748, 750 (Cal. 1932);
181. Shewbridge v. Police Comm'n of S. F., 149 P.2d 429, 431 (Cal. Dist. Ct. App. 1944);
182. People ex rel. Drake v. Mahaney, 13 Mich. 481, 493, 495-96 (1865);
183. Uniformed Firefighters Ass'n v. City of New York, 405 N. E.2d 679, 680 (N. Y. 1980);
184. City of Rocky River v. State Employment Relations Bd., 530 N. E.2d 1, 4-5 (Ohio 1988).
185. But see Sonoma County Org. of Pub. Employees v. County of Sonoma, 591 P.2d 1, 12-13 Cal. 1979 "Both the language of the Constitution and prior authority support the proposition ⋯ that the determination of the wages paid to employees of charter cities as well as charter counties is a matter of local rather than state-wide concern.";
186. Prof'l Fire Fighters, Inc. v. City of Los Angeles, 384 P.2d 158, 166-69 (Cal. 1963);
187. Popper v. Broderick, 56 P. 53, 55 (Cal. 1899) ("We are of opinion that the pay of firemen and policemen clearly falls within the term 'municipal affairs.'").
188. See generally McBain, supra note 7, at 255 n. 4;
189. Briffault, Our Localism, supra note 4, at 16 n. 53.
190. See New Mexicans for Free Enter, v. City of Santa Fe, 126 P.3d 1149, 1163-64 (N. M. Ct. App. 2005).
191. See, e.g., BRIFFAULT & REYNOLDS, supra note 14, at 390-91 (noting that although some state courts "have been particularly protective of local control over the local employment relationship," that "in most states, state law continues to play a major role in regulating the terms of municipal employment").
192. 66 P.3d 718 (Cal. 2003).
193. Id. at 721.
194. Id. at 721, 728.
195. See the cases cited in Briffault, Our Localism, supra note 4, at 17 n. 54.
196. City of La Grande v. Pub. Employees Ret. Bd., 576 P.2d 1204, 1215 (Or. 1978).
197. Id at 1215.
198. Id.
199. Id.
200. See Briffault & Reynolds, supra note 14, at 353 (observing that "[s]ome state courts have upheld local antidiscrimination ordinances that are more expansive than state antidiscrimination laws" and surveying cases);
201. id. at 354-56 (observing that "[m]ost courts that have considered [domestic partnership and other measures protecting gays and lesbians against discrimination] have found that a state's constitutional or statutory grant of home rule power provides local governments with the authority to adopt them" and surveying cases).
202. See id at 348-57 (surveying cases);
203. see also Richard C. Schragger, Cities as Constitutional Actors: The Case of Same-Sex Marriage, 21 J. L. & POL. 147, 167-77 (2005).
204. 95 P.3d 459 (Cal. 2004).
205. Id at 472.
206. See id. at 471.
207. 517 U. S. 620, 625 (1996).
208. See League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1300 (9th Cir. 1997).
209. See, e.g., Weekes v. City of Oakland, 579 P.2d 449, 573 (Cal. 1978);
210. Ex Parte Braun, 74 P. 780, 780-81, 783-84 (Cal. 1903);
211. Century Plaza Hotel Co. v. City of Los Angeles, 87 Cal. Rptr. 166, 167-70 (Cal. Ct. App. 1970);
212. City & County of Denver v. Sweet, 329 P.2d 441, 442-43 (Colo. 1958);
213. Angell v. City of Toledo, 91 N. E.2d 250, 251-52 (Ohio 1950).
214. 812 P.2d 916 (Cal. 1991).
215. Id. at 917-18.
216. See id. at 925.
217. See id. at 926-27.
218. See Daniel B. Rodriguez, State Supremacy, Local Sovereignty: Reconstructing State/Local Relations under the California Constitution, in CONSTITUTIONAL REFORM IN CALIFORNIA 401, 408-09 (Bruce E. Cain & Roger G. Noll eds., 1995).
219. 469 U. S. 528 (1985).
220. U. S. Const amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.").
221. See, e.g., Garcia, 469 U. S. at 531 (observing that eight years of experience "persuades us that the attempt to draw the boundaries of state regulatory immunity in terms of 'traditional governmental function' is not only unworkable but is also inconsistent with established principles of federalism....);
222. id. at 546-47 (rejecting "as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is 'integral' or 'traditional'");
223. Nat'l League of Cities v. Usery, 426 U. S. 833, 880 (1976) (Brennan, J., dissenting) (contending mat the "essential-function test" is "conceptually unworkable").
224. See, e.g., KRANE, ET AL., supra note 7, at 12 (terming the effort of the courts to sort out state and local interests "a quixotic quest," but applying no articulated standard when evaluating the cases). Similarly, George Vaubel has simply concluded, without elaboration, that the cases are "unpredictable" and "arbitrary":
225. Many observers lament the need for judicial decision as the greatest weakness of home rule. Forced to work with vague constitutional language supported only by an imprecise concept of "local matters," courts rest their decisions upon the facts and circumstances of each case. The results are unpredictable, if not, at times, arbitrary. Courts, involved in this impossible, or at least daunting task, equivocate.
226. George D. Vaubel, Toward Principles of State Restraint Upon the Exercise of Municipal Power in Home Rule, 20 STETSON L. Rev. 5, 39 (1990) (footnotes omitted).
227. Perhaps the best known example of a court contending that a doctrine is "unworkable" or inadequate, without articulating a useful baseline against which to measure the cases is the U. S. Supreme Court in Garcia, 469 U. S. at 530 (contending that Nat'l League of Cities doctrine is unacceptable because although the Court "supplied some examples of 'traditional governmental functions, ' it did not offer a general explanation of how a 'traditional' function is to be distinguished from a 'nontraditional' one");
228. id. at 539 (contending that "this Court has made little headway in defining the scope of the governmental functions deemed protected under Nat'I League of Cities").
229. See supra Parts III (Introduction) and III. A.
230. For a defense of the intriguing proposition that like cases need not be treated alike and that "[t]he principle 'treat like cases alike' has no independent moral force, "
231. see David A. Strauss, Must Like Cases Be Treated Alike? 2 (Chicago Pub. Law & Legal Theory Working Paper No. 24, May 2002), available at http://ssrn.com/abstract-id=312180.
232. See, e.g., Nat'l League of Cities, 426 U. S. at 851 (referring to services "which the States have traditionally afforded their citizens");
233. id. at 849 ("traditional aspects of state sovereignty");
234. id. at 852 (invoking "States' freedom to structure integral operations in areas of traditional governmental functions");
235. id. at 854 ('"activities in which the states have traditionally engaged'") (quoting Unites States v. California, 297 U. S. 175, 185 (1936)).
236. Lane County v. Oregon, 74 U. S. 71, 76 (1868)
237. quoted in Nat'l League of Cities, 426 U. S. at 845;
238. see also Coyle v. Oklahoma, 221 U. S. 559, 581 (1911);
239. Nat'l League of Cities, 426 U. S. at 851;
240. id. at 855 (referring to the states "choices as to how essential decisions regarding the conduct of integral governmental functions are to be made").
241. Cf. Garcia, 469 U. S. at 530 (contending that Nat'l League of Cities doctrine is unacceptable because although the Court "supplied some examples of 'traditional governmental functions, ' it did not offer a general explanation of how a 'traditional' function is to be distinguished from a 'nontraditional' one");
242. id. at 539 (contending that "this Court has made little headway in defining the scope of the governmental functions deemed protected under Nat'l League of Cities");
243. id. at 545 ("A nonhistorical standard for selecting immune governmental functions is likely to be just as unworkable as is a historical standard.");
244. id. at 546-47 (rejecting "as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is 'integral' or 'traditional'").
245. See state constitutional provisions cited supra note 12.
246. Colo. Const, art. XX, § 6.
247. Adler v. Deegan, 167 N. E. 705, 713-14 (N. Y. 1929) (Cardozo, CJ., concurring) (citations omitted).
248. See Garcia, 469 U. S. at 556-57;
249. see also Nat'l League of Cities, 426 U. S. at 876-77 (Brennan, J., dissenting).
250. Texas Senate District 14 includes 84% of the city of Austin, as well as twenty-four other municipalities in Travis County. Texas Senate District 25 includes the remaining 16% of Austin, as well as six other municipalities in Travis County and all of the municipalities in each of three neighboring counties (Guadalupe, Hays, and Kendall).
251. See Texas Legislative Council, City and Census Designated Places (CDPs) Report by District, Senate District 14, Senate District 25-Plan 01188S, http://www.fyi.legis.state.tx.us/Info.aspx?rpts=reports (searchable database requiring input of search terms for specific district).
252. Texas House District 46 includes 18% of the city of Austin, part of one neighboring municipality, and all of another. House District 47 includes 13% of the city of Austin and all of ten neighboring municipalities. House District 48 includes 15% of the city of Austin, part of one neighboring municipality, and all of five others. House District 49 includes 21% of the city of Austin. House District 50 includes 13% of the city of Austin, part of five neighboring municipalities, and all of two others. House District 51 includes 19% of the city of Austin, part of one neighboring municipality, and all of two others.
253. See Texas Legislative Council, City and Census Designated Places (CDPs) Report by District, House District 46, 47, 48, 49, 50, 51-Plan 01368H, http://www.fyi.legis.state.tx.us/Info.aspx?rpts=reports (searchable database requiring input of search terms for specific district).
254. 377 U. S. 533 (1964).
255. Id. at 583.
256. See Lynn A. Baker & Samuel H. Dinkin, The Senate: An Institution Whose Time Has Gone?, 13 J. L. & POL. 21, 37 (1997);
257. see also Baker, Spending Power, supra note 49, at 203-04;
258. Lynn A. Baker, Constitutional Ambiguities and Originalism: Lessons from the Spending Power, 103 Nw. U. L. REV. 495, 525 (2009) [hereinafter Baker, Constitutional Ambiguities].
259. See Baker & Dinkin, supra note 155, at 26-29;
260. Baker, Constitutional Ambiguities, supra note 165, at 528-29.
261. See Baker & Dinkin, supra note 155, at 36-41;
262. Baker, Constitutional Ambiguities, supra note 165, at 525-36;
263. Baker, Spending Power, supra note 49, at 203-12.
264. See Baker & Dinkin, supra note 155, at 41-42;
265. Baker, Constitutional Ambiguities, supra note 165, at 535;
266. Baker, Spending Power, supra note 48, at 211.
267. Other provisions of state constitutions, most notably prohibitions on special legislation, may prevent this as well.
268. See, e.g., BAKER & GILLETTE, supra note 14, at 224-43 (discussing and presenting cases involving prohibitions on "special" and "local" legislation).
269. See, e.g., BAKER & GILLETTE, supra note 14, at 222-43 (discussing and presenting cases involving prohibitions on special and local legislation);
270. id. at 213-22 (discussing and presenting cases involving prohibitions on special commissions);
271. id. at 393-448 (discussing and presenting cases involving constitutional requirements for the issuance of debt and the spending of public funds).
272. The first state to adopt imperio home rule was Missouri in its 1875 Constitution. The home rule provision granted only the city of St. Louis a power of initiative, which was required to be exercised "in harmony with and subject to the Constitution and laws" of Missouri. Mo. Const, art. TV, §§ 20-22 (1875).
273. Importantly, however, the 1875 Constitution also included a prohibition on special and local laws. Id. art. DC, §§ 20-25.
274. See also libonati, supra note 22, at 109-24. In 1851, Indiana was the first state to include in its constitution a provision prohibiting local or special legislation. Id. at 122-23. And in 1872, Pennsylvania adopted a "ripper clause" constitutional provision limiting the power of the legislature to delegate municipal functions to a "special commission. "Id. at 123. Many states went on to adopt both of these types of provisions, as well as imperio home rule.
275. See, e.g., id. at 114; KRANE ET AL., supra note 7, at 10-12;
276. REYNOLDS, JR., supra note 14, at 90-114.
277. See Garcia, 469 U. S. at 552.
278. See New York v. United States, 505 U. S. 144, 175-77 (1992) (invalidating a federal environmental regulation deemed to "'commandeer' state governments into the service of federal regulatory purposes" and therefore to be "inconsistent with the Constitution's division of authority between federal and state governments");
279. id. at 201-07 (White, J., dissenting) (questioning whether majority's decision in New York could be reconciled with Garcia).
280. See United States v. Lopez, 514 U. S. 549, 564 (1995) (identifying family law, criminal law enforcement, and education as areas "where States historically have been sovereign");
281. id. at 624 (Breyer, J., dissenting) (suggesting that Commerce Clause does not permit the federal government "to regulate 'marriage, divorce, and child custody, ' or to regulate any and all aspects of education").
282. See, e.g., Printz v. United States, 521 U. S. 898, 933 (1997) (holding Brady Act unconstitutional on grounds that "the Federal Government may not compel the States to enact or administer a federal regulatory programs");
283. cf. Alden v. Maine, 527 U. S. 706 (1999) (holding under Eleventh Amendment that Congress lacks authority to empower private citizens to sue states for damages in state court without the states' consent).
284. Cf. Alden v. Maine, 527 U. S. 706 (1999) (holding under Eleventh Amendment that Congress lacks authority to empower private citizens to sue states for damages in state court without the states' consent). Scholars disagree about the extent to which Garcia is still good law, though all agree that the Court has retreated from its position in Garcia that the courts have no role to play in delimiting or enforcing the federal-state divide.
285. Compare, e.g., John C. Yoo, The Judicial Safeguards of Federalism, 70 S. Cal. L. Rev. 1311, 1311-12 (1997) (contending that Garcia is no longer "good law" nor "the controlling theory concerning judicial review of federalism questions")
286. and id. at 1334-35 (acknowledging that "the Court has yet to explicitly override Garcia," but contending that both the then-current majority on the Court as well as the dissenters "have acquiesced in the ovenuling of Garcia" in cases beginning with Gregory v. Ashcroft, 501 U. S. 452 (1991))
287. with Jay S. Bybee, The Tenth Amendment Among the Shadows: On Reading the Constitution in Plato's Cave, 23 Harv. J. L. & PUB. Pol'Y 551, 561 (2000) (describing New York, Printz, and Alden as "cases that chip away at," rather than overrule, Garcia).
288. See also Thomas H. Odom, Foreword: An Introduction to the Symposium on the Federalism Decisions of the Supreme Court's 1999 Term, 25 Okla. City U. L. Rev. 783, 810-11 (2000) (observing that New York and Printz may be understood either "to effectively overrule Garcia" or "to create an 'anti-commandeering' exception to Garcia").