Local Government Law in a Nutshell
Authors:
McCarthy Jr., David J. / Reynolds, Laurie
Edition:
5th
Copyright Date:
2003
13 chapters
have results for local law
Chapter I. Local Governing Power—General Aspects, Limitations, Resolution of Power Conflicts and Challenges 112 results (showing 5 best matches)
- If a state and local law are in conflict, in most instances the local law will fall. A clear example would be a local law that purported to decriminalize a state felony. In imperio home rule jurisdictions, of course, a law found to be exclusively local should be immune from state laws, irrespective of the conflict. But beyond that narrow band of immunity, which may exist more in theory than in practice, preemption by state law is always possible, and conflict is the most straightforward type of preemption analysis. Of course, the definition of conflict itself leaves a fair amount of judicial discretion; does a local law that prohibits boating between 4 p.m. and 10 a.m. conflict with a state law that prohibits boating from one hour after sunset to one hour before sunrise? A court seeking to uphold the local initiative, found that the laws did not conflict. It upheld the local ordinance, concluding that the local law was merely supplemental to the state law and did not attempt to...
- It is important to note at this juncture that this section’s discussion has been limited to a review of the principles used to determine whether a local law falls within the scope of the power that has been delegated to it by the state. In addition, we have seen how the source of that local power will determine the course of the judicial inquiry, with different analyses applying to evaluate the legitimacy of local laws passed pursuant to explicit delegations of power, general welfare clauses, imperio home rule, or legislative home rule. A determination that the local action falls within the scope of its power, however, does not end the inquiry. Questions may still arise over the extent to which state or federal laws may preempt the local law. Those issues are discussed in Section D of this Chapter. In practice, courts sometimes subsume their analysis whether a law is a valid local enactment within this broader preemption issue; if a court concludes that the local law has been...
- Implied preemption analyses typically involve one of two main lines of reasoning: that the local law is inconsistent with some fundamental aspect of the state law; or that the state law is intended to occupy the field. In either instance, a finding of implied preemption means that the court has concluded that the state legislature intended state law to be exclusive, thus leaving no room for concurrent local legislation.
- The judicial involvement in the determination of the scope of home rule powers should be less in legislative home rule states. There the inquiry starts from the presumption that the local law is legitimate. In the absence of state legislative action depriving home rules units of the challenged power, the state judiciary should refrain from excessive analysis of the nature of the local law, because by definition that task has been left to the legislature. Even in legislative home rule states, though, judicial analysis is inevitable–a state court conclusion that a local law deals with a matter left exclusively to the state is likely to result in invalidation of the home rule ordinance even if the state legislature has not explicitly prohibited the local action. If a local law, for instance, purported to adopt new penalties for crimes committed within its jurisdiction, it is difficult to imagine that a state court would hesitate to invalidate the law even in the absence of state...
- It must be emphasized that, like the federal government, the state must be acting in an area within its competence before it can lawfully preempt local action. If the subject matter is committed by law to local autonomy (a local matter, e.g.), it is the state action which may be rendered inoperative in the particular locality. Not only is there much dispute concerning conflict and occupation of the field, there are also questions whether an ordinance which merely duplicates the state law may stand, whether an ordinance may stand until a state statute is enacted on a matter not deemed local or municipal, and whether in the converse situation the state law is operative until a local law is enacted. The jurisdictions answer these questions inconsistently.
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Chapter II. Formation of the Local Government, Alteration, Boundary Changes; Some Problems of Organization and Operation—Officers, Employees, Allocation and Delegation of Functions, Elections 107 results (showing 5 best matches)
- The National Labor Relations Act does not cover state and local government employees. Their labor relations are covered by a mixture of the common law, numerous state statutes, and local ordinances. There is enormous variety, and local laws must be consulted.
- Experience indicates that many local units initially selected forms which later became inadequate to respond to their increased size, complexity or service management challenges. In those instances, state law is likely to detail procedures and substantive requirements pursuant to which a general purpose local government unit may change its classification. The local government may wish to assume a broader range of powers, both regulatory and financial, to respond to the greater complexity. It is not uncommon, for instance, for state law to establish several “classes” of municipalities, each one with a delimited range of powers and revenue raising capabilities. Greater population and urban density will frequently authorize a local purpose government to become a city of a different class, with the resulting enhancement of governmental functions such reclassification brings.
- There are local government structures that envision appointed members. The courts have reviewed election mechanisms where the governments have determined to have elections. They have not substituted their judgment for that of the local entities on whether offices shall be elective or appointive. The subject matter of a regular election to elective offices necessarily includes who may be on the ballot and the pertinent role of political parties. The courts have scrutinized laws governing write-in voting, ballot access by minor parties and independent candidates, and term limits. They have also dealt with challenges to laws proscribing party endorsements in non-partisan elections, which in turn are often the results of earlier reforms to make local governments less subject to partisan pressure. Several interests are relevant to the judicial balance. First, the state has a legitimate interest in assuring that items on the ballot have sufficient local support, so as to avoid ballot...local
- Civil service statutes and statutes dealing with public employee labor relations present conceivable conflicts between the merit system and the objectives of permissible collective bargaining. The states which have attempted statutory resolutions seem equally divided among such responses as absolute priority to the civil service laws in all matters; absolute priority to the civil service laws on certain, specified matters; or dispute resolution left to the discretion of the local government employer. The majority of states, however, have attempted no legislative solution and hence have left to the courts the difficult task of defining the appropriate applicability of the two sets of laws.
- Procedural due process implications in dismissals from public employment have expanded well beyond the vestigial theory that no one has a right to government employment. Explanations for discharge must be given and opportunity to respond must be afforded in the appropriate contexts. In order to invoke procedural due process rights at dismissal, the public employee must prove a “legitimate claim of entitlement” to the position, either pursuant to existing laws or a specific provision in the employment contract. Where a position is by law terminable only for cause, such a claim may be asserted. Where it is terminable at will, the claim is unavailing. The full extent of the “entitlement” test is evolving. For example, courts have refused to ...successfully achieve positions on hiring or promotion eligibility lists have been held to have no claim of entitlement to appointment or promotion. Whether there is a claim of entitlement in any case will be decided by reference to state or local...
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Chapter V. Revenues 107 results (showing 5 best matches)
- The sun has set on federal revenue sharing, thus eliminating one major source of federal funds for local governments. The long shadow cast by the federal deficit, the impact of the 1986 federal tax law, especially on state and local borrowing, the number of federal and state unfunded mandates to local governments, and the challenges to use of the local property tax to fund public education, have led to efforts to increase state transfers to local governments. Basic policies are at issue as the state legislatures decide whether to respond. If direct revenue sharing is increased, will there be pressures to reallocate tax dollars to the more affluent political subdivisions? Should more oversight conditions be attached to state funding? Would it be wiser to increase local taxing authority? If so, is not such authority in competition with state revenue resources? Would state enactment of local option taxes be preferable? If local option taxes are enacted, or if new authority is granted,...
- There is a long history of state financial support for its political subdivisions. State transfers occur in a variety of initiatives: in direct revenue sharing programs; in state education budgets, with their frequent provision of funds for local school aid, resource equalization across the state, and money for capital construction; and in a host of appropriations for state social, health, and other services that are partially or largely provided at the local level. The history of state oversight is a mixed one, but as state transfers and local government fiscal problems have increased, state oversight of local fiscal powers, borrowing, and program implementation has grown. Thus, in emergency circumstances, under appropriate state laws, municipal fiscal administration has been taken over by state agencies, and school district fiscal and overall administrative authority has been seized by the state to avoid financial collapse or substantive program failure. Indeed, receivers have...
- In the usual case where plain, adequate, and complete state remedies are available, federal law (the Tax Injunction Act, 28 U.S.C.A. § 1341) and policy (comity) will not permit constitutional challenges to state and local taxation under the civil rights laws to be heard by federal or state courts. Federal law does contemplate federal court action in some cases, however, as railroad challenges to discriminatory property taxes illustrate.
- The impact of federal taxing and spending on local governments’ fiscal position is stark. In 1997, local government units reported having raised a total of $887 billion in revenues. Nearly $47 billion of that amount came from the federal government, $267 billion from the states, and $41 billion from interlocal transfers, which primarily involve general purpose local government transfers to school districts. Thus, the total amounts raised directly by local governments themselves (referred to as “own source revenue”) was approximately $535 billion. Although federal aid to local governments has continued to increase in terms of absolute dollar amounts, it has steadily decreased when expressed as a percentage of total local government general revenue. In 1976, federal grants comprised nearly 10% of local government income; by 1997, that percentage had decreased to approximately 4%. According to one study, in 1960 the federal government paid for 1/2 of the total national investment in...
- Proponents of balanced taxation argue that state tax systems should rely rather equally on income, ad valorem, and sales and other excise taxes because each reacts differently to economic cycles. Considering state and local taxes as a total system, one may find more balance than expected in most states. But some states do not rely on income taxes, and state governments often make little or no statewide use of the property tax as such. Local governments rarely are able to achieve the goals of balanced taxation. Many local governments are authorized to impose a number of types of taxation, but rely heavily on property taxes which, while declining somewhat as a source of local overall funds, remain by far the dominant force in local tax revenues. In declining order, local sales, gross receipts and other excise taxes and, in some states, local income taxes, are also relied upon to produce impressive results.
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Preface 3 results
- This text will aid students who seek to learn Local Government Law. We hope that it will also assist practicing attorneys who seek an overview of all or part of the subject matter. The relationships among local governments, their citizens, their states and the federal government are so pervasive that choices of emphasis must of necessity be made in a text of this size. Because Local Government Law tends to overlap several other law school courses, the choice in this text was to address at least as many areas as could accurately convey the scope of these relationships and to treat more extensively areas, such as taxation and borrowing, that are not likely to be pursued in such detail in the core courses common to all law school curricula.
- Occasionally, throughout the text, comments and queries will attempt to provoke reader reaction (agreement or disagreement) to the status or trend of particular legal principles and of local government
- The vast scope of the subject inevitably means that individual authors and editors will approach it with differing views of the most interesting and instructive theme and focus. Our choice has been the central theme of delegated power and the limitations imposed on its exercise by law and challenge, the latter because it serves significantly, as intended, to restrain the exercise of governing power. The setting is, perhaps, more practical than theoretical.
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Title Page 3 results
Chapter IV. Acquisition, Limitations on Use, and Disposition of Goods, Services and Property 37 results (showing 5 best matches)
- What were viewed as exorbitant conditions imposed by cities on cable franchises (reserved channels, numbers of channels, fee sharing, programming, e.g.) and the demonstrable economic risk to the industry of competition driven promises to municipalities led Congress to enact a statute designed to encourage the growth of cable systems. While the city franchise role was not totally displaced by this 1984 law, city (and state) efforts to set certain costs, to dictate cable fees, and to regulate the content of programming and advertising were preempted. There was some regulation by the Federal Communications Commission, but escalation of the then deregulated rates charged to cable subscribers, inter alia, resulted in congressional legislation in 1992. That law subjected the industry to rate regulation by the F.C.C. and by local government franchising authorities, prohibited the latter from awarding exclusive franchises, imposed various restrictions including the controversial and...
- Some state constitutions commit the granting of franchises to local, politically accountable bodies. Even without such clauses, local involvement is frequent. Cities award franchises to utilities and others for use of public streets (transit, power, water and sewage, cable television, e.g.) below, above and at ground level. A franchise is a right or privilege, essential to the performance of the primary purpose of the grantee, which can only be granted by the government. It is a contract conferring upon the grantee a property right, analogous to an easement between private parties. As a result grantees can be protected against such incursions as municipal impairment although they may accept their rights subject to an implied obligation to relocate the facilities at their own expense when necessary to a proper government use of the streets. A city must have both the authority to require the grantee to seek the franchise and the power to ...be careful of such local matters as the...
- ...recognition of possible municipal antitrust liability for its activities or those in which it joins with private parties, whether labeled governmental or proprietary, resulted in such a rapid escalation of claims that Congress removed the damages remedy under federal antitrust law. Illustrative of the potential reach are occupational licensing and regulation, operation of sports and convention facilities, zoning and rezoning, urban development, award of franchises, operation of garbage collection services, transportation services (including taxicab monopolies, transit systems, airports, and parking lots), and the provision of utility services. While courts have found appropriate authorization for much municipal activity alleged to be anticompetitive, and have found other instances where the exemption could not be extended to the challenged activity, the issue of the municipality’s exemption is, of course, not synonymous with the question of its ultimate liability under the...
- Also illustrative are efforts to exclude from the pool of potential bidders those persons or firms that have violated the National Labor Relations Act with specified frequency (not preempted by the federal labor law or denied to market participant governments by the dormant Commerce Clause), and efforts to dictate that the composition of the private contractors’ and subcontractors’ labor force must meet local residency requirements. Resident preferences will raise equal protection questions involving the reasonableness of the classification. Although the government’s contract role as market participant will avoid judicial scrutiny under the Commerce Clause, the preference may implicate the Privileges and Immunities Clause if it is seen to frustrate private employment of citizens of other states. The private employment opportunity has been held to be “fundamental” to the promotion of interstate harmony; the ordinance must then be justified by substantial reasons. That the ordinance...
- As with the other local governing powers, the powers to acquire, use and dispose of goods, services and property must find their source either expressly or by implication in state authorization through constitutional home rule clauses and specific or general state statutory provisions. Exercise of the powers will also be subject to state and federal constitutional protections and to the limitations in the local governing entity’s charter.
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Chapter VI. Considerations Pertinent to Citizen Litigation with Local Governments 30 results (showing 5 best matches)
- The questions discussed throughout this text reach the attention of the courts in a variety of ways. Challenges to local government actions or failures to act are raised by individuals, groups, government entities, and classes affected by ordinances and administrative implementation thereof. These challenges may be raised directly or through attorneys general in actions quo warranto, questioning the authority by which an officer or a government entity purported to hold or create office; in court reviews following upon the exhaustion or denial of administrative review procedures, either by “certiorari review” upon the administrative record or by such procedures as mandamus to compel the performance of an allegedly non-discretionary duty; in declaratory judgment actions; in individual actions seeking injunctive relief or damages; in taxpayer suits on behalf of or against the local government seeking to recover illegal expenditures, compel or restrain action; and in defenses to the...
- Nevertheless, there are some aspects common to citizen litigation with local government which deserve brief consideration in this chapter. Municipal immunity, restrictive statutes of limitations, and notice and claim-filing requirements will be viewed in the context of citizen suits in tort against the municipality. The evolving liability of local governments in actions under 42 U.S.C.A. § 1983 will be discussed. The chapter will conclude with some observations on standing in individual and taxpayer actions against the local government, primarily in state and local courts.
- The Supreme Court has held that state agencies, the states, territories, and their officials acting in official capacities were not intended to be persons to whom § 1983 applies and are not subject to suit thereunder for damages. Other political subdivisions are different—the Court has held that local governments are within the intended scope of “persons” for purposes of liability under § 1983. The Court has also held that respondeat superior, which imposes automatic responsibility on the employer for the acts of employees, does not apply. Thus, vicarious liability will not apply to extend liability beyond that of the the person who actually inflicted the injury. Only when the execution of the government’s policy or custom inflicts the injury, when that policy or custom is the moving force, the cause, will the local government be held liable for damages. ...government policy as its laws and regulations are: policy choices made by the government’s authorized decisionmakers (... ...law...
- Section 1983 actions may be brought in federal or state court. Unlike states and state agencies, municipalities cannot assert eleventh amendment immunity as a defense to § 1983 actions. Nor can a municipality assert the good faith of its officers as a defense to municipal liability. Remember that the U.S. Supreme Court has ruled that the eleventh amendment bars federal court actions for monetary relief against the state, and that neither the state nor state officials acting in their official capacities are “persons” to whom § 1983 applies. Neither theory bars action for prospective declaratory and injunctive relief, and at any rate, the states’ eleventh amendment immunity in damage actions is of no moment in actions against municipalities. Still, the classification by state law of subsidiary entities into either state agencies or local government units remains important because neither the eleventh amendment nor the Supreme Court ruling confirming immunity of states and state...
- In 1978, the U.S. Supreme Court held that local governments were among those persons to whom the Civil Rights Act of 1871, now 42 U.S.C.A. § 1983, applies. Since then, the Court and other courts have attempted to define the contours of the increasingly complex theories of liability spawned by this ruling in the atmosphere of tension and uncertainty that inevitably accompanies massive local government exposure to liability for damages and extensive attorney fees.
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Chapter III. Regulation of Conduct and the Use of Land 72 results (showing 5 best matches)
- The rules may be slightly different in those jurisdictions where voters may participate directly in the local government regulatory process, either through the initiative or referendum process. In some jurisdictions, courts have held that the specific legislative method of enacting or amending zoning ordinances was meant to be exclusive. A growing number of jurisdictions, however, permit zoning ordinances or amendments to be enacted by initiative, or to be approved or rejected by referendum. As noted in Chapter II, the initiative and referendum ...that affect the legislative power, however exercised, and are available for legislative, not administrative, matters. Thus, the Maryland court found initiative, but not referendum, inconsistent with Maryland’s delegation of home rule legislative power to the local legislature. In Oregon, with some following elsewhere for a time, judicial views of small-spot rezoning led the courts to classify it as adjudicatory or administrative,... ...laws...
- Customary state zoning enabling legislation has conferred authority for the division of the municipality into districts of such number, shape and area as may be deemed best suited to promote the public health, safety and welfare. Resulting local laws typically regulate the structures to be permitted, the uses to which the property may be put, and the general trend and kind of building and property development to be allowed.
- Even if Congress has not acted, Commerce Clause objection may be raised when on balance, the putative police power gain is outweighed by the undue burden which impedes the free flow of interstate commerce, when then there are less risky alternatives, or where the enactment discriminates against interstate commerce in favor of local commercial businesses. The so-called dormant Commerce Clause is said to implicitly divest states of that power to regulate interstate commerce which is positively granted to the federal government. Individual states are prohibited under the Clause from discriminatory action aimed directly at interstate commerce, from enacting state regulations that, while facially nondiscriminatory, unduly burden interstate commerce, and from regulating those aspects of commerce that by their unique nature demand cohesive treatment. Pursuant to its Commerce Clause power, though, Congress may expressly authorize state and local laws that would otherwise be invalidated by...
- As has been noted earlier, local ordinances prohibit a large number of uses of land that are deemed so detrimental to the public health, safety, morality or welfare as to be nuisances. These prohibitions raise the question of whether the nuisance declaration, which may totally prohibit an ongoing use of the land, constitutes an unconstitutional taking of property without just compensation. Because of the applicability of the federal takings clause to state and local government action, the standard is one of federal rather than state judicial decisionmaking. Recent Supreme Court case law makes clear that government regulation that prohibits a properly defined nuisance will not be invalidated as an unconstitutional taking, irrespective of its financial impact on the property. That standard is generally referred to as the nuisance exception to the takings clause. At the same time, though, the Court has made clear that state and local power to prohibit nuisances is strictly limited to...
- The issue in land use regulation may not simply be whether the individual property owner or the regulating community should bear the cost of a social objective. Some federal and state courts have identified the external consequences of local land use laws and the broader societal objectives thereby implicated. As a result, they have been persuaded to impose upon the regulator as well as the regulated the obligation and the cost of giving greater priority to regional considerations than to local objectives. These courts, though limited to a handful of states, have been willing to examine the extraterritorial impacts of local land use regulation. Multi-acre lot minimums for construction of a single family home, for example, were traditionally viewed as legitimate means for a community to preserve its rural, bucolic character. More recently, though, plaintiffs have had some success in refocusing the judicial inquiry to include consideration of the way in which the minimum lot size...
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Index 66 results (showing 5 best matches)
Half Title 1 result
Outline 22 results (showing 5 best matches)
Advisory Board 9 results (showing 5 best matches)
Copyright Page 1 result
- West, a Thomson business, has created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. West is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- Publication Date: August 8th, 2003
- ISBN: 9780314264893
- Subject: Local Government
- Series: Nutshells
- Type: Overviews
- Description: Reliable source of local government law features added emphasis on finance, including special tax districts and the implications of the Civil Rights Act of 1991. Discusses taxation, borrowing, and updating in the area of 1983. A review of each rule is included, accompanied by expert explanation of its underlying concepts.