February 2017

Home rule

The Pros and Cons of Home Rule – Knox County VillageSoup

One of the concerns raised by several councilors about the proposed food sovereignty ordinance is that the City of Rockland does not have standing to anticipate state regulations regarding the production and sale of food, even though such transactions occur entirely within its own borders. There is a fascinating political story behind this claim: the principle of “home rule”, which asserts that the state has the ultimate authority to determine the laws and regulations within a municipality.

This may seem unexpected in a state like Maine, where the form of government of direct democracy and town meetings dominates. But in the end, municipalities have a limited area in which they can act freely. Under Maine law, municipalities are allowed to exercise autonomy in a few specific areas. For example: they can choose their own government structure (which allows charters to be changed), exercise self-government within that jurisdiction (for example, form a police force), and raise funds through borrowing or taxes .

These areas are more heavily restricted if a municipality offers something that contradicts (“anticipates”) state law, a term that includes many state regulations in Maine; even when an activity occurs within the boundaries of a municipality, it cannot prejudge the actions of the state. A popular example concerns taxation. The state expressly prohibits municipalities from creating their own sales tax. Local autonomy — because it allows only a limited scope for a municipality — is what maintains this provision.

The history of home rule in Maine is a slow move toward greater autonomy for municipalities, albeit still within a framework established by Dillon’s rule in the late 1800s. Iowa Judge John Dillon , ruled in two landmark court cases that states ultimately decide how much power a municipality can have. While Maine has slowly expanded the limits of this power, the state still determines those limits.

In Maine, state dominance was firm until the late 1960s. Prior to 1969, city governments had to petition the Legislature before making any changes to their local charters, a process by which the Legislative Assembly exercised direct control over the municipal administration. A 1969 constitutional amendment gave local governments sweeping powers to self-regulate within their boundaries all local matters “not prohibited by constitution or general law”, reflecting broad parameters Dillon had established near a century earlier.

Over the next 25 years, the legislature gradually expanded the powers of municipal self-government to encourage greater flexibility in the exercise of local control. The extent to which this can happen is an open question. The law expressly encourages municipalities to “freely interpret” the law and states that a local ordinance is deemed to comply unless proven otherwise. On the other hand, the state tightly regulates many areas in which a local government could act, which leaves municipalities the freedom to enact stricter regulations, but not to eliminate or circumvent the fundamental structure of the State.

While the courts have always interpreted autonomy through Dillon’s rule, there is a competing history that opposes this more centralized model of government with an argument that localized rule is an inherent right. Michigan Judge Thomas Cooley responded to Dillon’s position by saying that “local government is a matter of absolute law; and the state cannot remove it. Today’s movements toward community rights and increased local self-government are inspired by this history.

The contemporary assertion of self-government spans the political spectrum: cities across the country accept or refuse state non-discrimination laws, as well as zoning rules that limit state regulations on everything from abortion to Hydraulic fracking.

This potential for widely divergent regulations in neighboring towns is one reason autonomy is often upheld as a privilege of the state rather than a right of the people. Home rule has a dark side. There is an ugly history of Southern states asserting self-reliance and their right to self-governance to justify discrimination by enacting Jim Crow laws. And without compatible municipal rules, a streamlined business and regulatory environment that allows for large-scale distribution becomes more difficult (or the most restrictive regulation becomes the norm, as companies avoid creating multiple products to satisfy a range of regulatory activities) .

As many states, including Maine, continue to move in the direction of increasing and restricting local autonomy (depending on the specific issue), we must address the core issues and opportunities of democracy.

The late 1800s and early 1900s, the height of home rule protections for local governments, were decades of innovation in government structures, particularly the reorganization of municipalities to establish professional leadership and codify their relations with the state.

Today, citizens continue to wonder what other innovations need to happen. This opens up opportunities, but also raises uncomfortable questions about what a democratic process looks like in communities that can be sharply divided on fundamental political issues.

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