SULOCAL GOVERNMENT LAWSPRING 08

Tara Short, Class of 2009

Local Government

Professor Rick Su, Spring 2008

CHAPTER 1: INTRODUCTION TO THE PROBLEMS OF DECENTRALIZATION

A. DECENTRALIZATION OF POWER TO LOCAL GOV’T: PROS & CONS001–022

Debates about the definition ofdesirability of decentralizing political power

  • Constitutional supporters – strengthen national gov’t
  • Constitutional opposition (anti-federalists) - argued the Constitution threatened the primacy of the states & endangered the preservation of individual liberty.
  • Controversy over the distribution of power (not whether it should be distributed but how)
  • Tocqueville’s defense of decentralization of power to local gov’t
  • Madison’s Federalist 10, argument against decentralization of power

Alexis De Tocqueville, Democracy in America4

  • Town is the only assoc. which is so perfectly natural
  • Until local freedom has become part of the culture of a people, it is easily destroyed

­Can’t go up against a large organized gov’t

  • Strength of free nations resides in the local community

­local gov’t brings liberty w/in people’s reach & teach them how to use & enjoy it

­w/o local institutions, a nation may establish a free gov’t, but it can’t have the spirit of liberty

  • However, enlightened & skillful a central power may be, it can’t of itself embrace all the details of the life of a great nation.
  • Centralization excels in prevention, but not action
  • Action of individuals, joined to that of the public authorities, frequently accomplishes what the most energetic centralized administration would be unable to do.
  • The great adv. of the Americans consists in their being able to commit faults which they may repair afterwards.
  • The citizen looks upon the fortune of the public as his own, & he labors for the good of the State, not merely from a sense of pride or duty, but greed.
  • Democratic gov’t brings the notion of political rights to the level of the humblest citizens.
  • Every one is personally interested in enforcing the obedience of the whole community to the law.

­The citizen of the US complies w/ it, not only b/c it is the work of the majority, but b/c it is his own, & he regards it as a K to which he is himself a party.

­Americans obey the law not only b/c it is their work, but b/c it may be changed if by any chance it is harmful; a law is observed b/c first, it is a self-imposed evil, &, secondly, it is an evil of transient duration.

  • Democracy does not give the people the most skillful gov’t, but it produces what the ablest gov’t are frequently unable to create; namely, an all-pervadingrestless activity
  • Local Gov’t - positives

­Change / innovation

­Correctability, bad decisions will be made, but easier to overcome at local level

­Self-realization – liberty

­Empowerment, responsibility

­Greed / self interest (free market analysis) -

­Built in disincentive

­Enforcement – the people that pass it, has a vested interest in following the law

  • Local Gov’t – negatives

­No unity

­Assumption people involved voted or have power

Madison, The Federalist, Number 1012

  • Brakecontrol the violence of factions
  • The larger the polity, even when the faction forms, it’s unlikely a faction will make up a majoritybe able to assert their own interests

­Scale – diversity of views

­Be opposite of changeinnovation, keep the status quo & get more views

  • Delegation

Comparison

  • Split them up (national v. local interest)
  • Madison – local is like the gov’tmore oppressive
  • Tocq – local gov’t more like individual

Romer v. Evans, 517 U.S. 620 (1996)17

Facts: Amend. 2 sent to voters. Factions: the state & homosexuals.In Colorado, various ords that afforded protection to persons discriminated against by reason of sexual orientation gave rise to a statewide controversy. In a statewide referendum, voters passed Amend. 2. It prohibited all legislative, executive, or judicial action at any level of state or local gov’t designed to protect homosexual persons. Resps., homosexual persons municipalities whose ords. were invalidated, commenced litigation to declare Amend. 2 invalid enjoin its enforcement. The state supreme Ct.affirmed the judgment that enjoined enforcement of Amend. 2.

H/Rat: The US Sup. Ct.affirmed. Amend. 2 violated the EP clause, U.S. Const. amend. 14, b/c the classification was unrelated to any legitimate state interest. Amend. 2 w/drew from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, & it forbid reinstatement of protective lawspolicies. Amend. 2 thus classified homosexuals not to further a proper legislative end but to make them unequal to everyone else.
Dissent: This is a frustration of the state process by passing local.

CLASS NOTES

  • Taking power away from the city to enact a benefit for a discriminated class

­Taking away local political right

  • Courts Rule

­Avoid making a judgment on whether or not homosexuals should have a protected status

­Should the Ct.have any role, who should define the relationship?

­Arguing the individual – city is a collection of individual

  • City bounces backforth

­Gov’tthe people, fundamental divide

­Law adjudicates the rights b/t the gov’t & individual rights

­Not clear for intermediary bodies

B. THE CITY AS PUBLIC OR PRIVATE022–056

  • Sketching arguments for & against decentralization of power, introduce one of the basic themes of local gov’t law.
  • Question: Whether cities, when they exercise decentralized power, should be treated as public or private entities.

­Cities can be understood as exercising the coercive power of the gov’t

­Also traditionally been understood as a collective entities organized to pursue not the interest of the state but the interest of the people who live w/in them.

  • Cities seen not as only gov’t but vehicles for the exercise of self determination.
  • Defending the autonomy of medieval towns against national control was a way to maintain individual liberty by securing the entitlements of a group.

­By ensuring the rights of a corporation, one could protect the group as a whole.

  • Frug – describes how the nature of the relationship b/t corporations & legislatures became established.

­It shows the law distinguished b/t public corporations, such as towns & cities,private corporations, such as business.

GERALD FRUG, CITY MAKING: BUILDING COMMUNITIES W/O BUILDING WALLS24

  • History of the city, nebulous line b/t privatepublic corporation

­City was originally private – medieval towns & compares it to the sovereigns

Organized around a protected fear

­Tension b/t kingtown

The city in the very beginning was a collection of individuals that gathered together to make moneyhave some protections – biggest counterweight to the king

­Ability to hold on to private propertyregulate their own property

  • Dartmouth College 1819 – state wanted to pick the president, college said no

­What is DC? Public or private corporation

­What is the purpose?

­What are their property rights?

  • What are the courts drawing on to make a public / private distinction?

­Exclusion - not public if can exclude

­Ownership of property - cannot have one owner – how can you have a public entity if only one owner

­Function (private corporation opens up for public use, i.e. shop owners)

­Formal title

­Profit + income (taxes or personal income)

OREGON v. CITY OF RAJNEESHPURAM, 598 F.Supp. 1208 (USDC Org. 1984)30

PP: Π state sought a declaratory judgment declaring that it was not required by state law to recognize the municipal status of defendant city b/c to do so would violate the Oregon Constitutionthe Establishment Clause under U.S. Const. amend. I. The city filed a motion to dismiss the state's complaint for failure to state a claim upon which relief can be granted.

Issue: Whether the Establishment Clause was violated by the operation & existence of a city, which was subject to the control of a religious corp., as a sovereign municipal gov’t that was validated & supported by the state.

Overview: The ct concluded that if, as alleged, all of the real property in the city was owned or controlled by a religious org., the provision of municipal services by the city necessarily had the effect of aiding not only the individual residents of the city, but also of directly, obviously, & immediately benefiting the religious organization itself. The ct could have also concluded that the acts of the statecounty in recognizing the existenceoperation of the city would have as a principalprimary effect the advancement of the religion. Finally, given the alleged powercontrol of the religious organization & leaders over all real propertyresidency w/in the city, the ct could conclude that the existence & operation of the city would represent an excessive gov’t entanglement w/ religion.

OUTCOME: The ct held that it could conclude that the acts of the state & county in recognizing the existence & operation of the city violated the Establishment Cl., & denied the city's motion to dismiss the state's case for failure to state a claim.

MARSH v. ALABAMA, 326 U.S. 501 (1946)34

F/PP: Company town - ∆ appealed from a judgment of the Ct of App. of AL, which affirmed her conviction, of remaining on the premises of another after having been warned not to do so.

Issue: Whether a State, consistently w/ the 1st & 14th Amends, can impose criminal punishment on a person who undertakes to distribute religious literature on the premises of a company-owned town contrary to the wishes of the town’s management?

H/Rat:The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory & constitutional rights of those who use it. The town had a business section w/ shopssidewalks as well as residential neighborhoods. There was nothing in its appearance to distinguish the town from any other town, except that the title to the town property belonged to a private corporation. The Ctfound that whether a corporation or a municipality owned or possessed the town the public had an identical interest in the functioning of the community. The Ct concluded that the managers of a company-owned town could not curtail the liberty of press & religion of its public consistently w/ the purposes of the constitutional guarantees that a state statute which enforced such actions by criminally punishing those who attempted to distribute religious literature violated the FirstFourteenth Amendments. The Ct.reversed the judgment of conviction.

INT’L SOCIETY FOR KRISHNA CONSCIOUSNESS, INC. v. LEE, 505 U.S. 672 (1992)39

F/PP: Public airport – A non-for profit religious corp. whose members go to public places & disseminate religious literature & solicit funds. Port Authority adopted a regulation forbidding w/in the terminals the repetitive solicitation of $ of distribution of literature. The lower ct granted petitioner's motion as to distribution of literature, but denied it as to solicitation.

H/Rat: Held that airports were not traditional public forums b/c their traditional purpose was not to promote the free exchange of ideas but to facilitate air travel. Therefore, the regulation needed only to be reasonable. The regulation was reasonable b/c it promoted respondent's interest in crowd controlefficient air travel by limiting solicitation to the areas outside of the airport terminals.

NJ COALITION AGAINST WAR IN THE MIDDLE EAST v. J.M.B. REALTY,650 A.2d 757 (N.J. 1994)45

F/PP: private shopping mall – in public sphere - Appellant anti-war coalition was denied the right to leaflet at resp. shopping centers & sought judicial relief to force resp. to allow them to do so. The trial ct denied appellants relief, finding that there existed no free speech right on resps’ private property, App. Ct. affirmed.

Issue: Whether the ∆ regional & community shopping centers must permit leafleting on societal issues.

H/Rat: Ct reverse. Held that regional shopping centers, such as resp., were required to allow such speech activities under N.J. Const. The ct found that there was no such right protected by U.S. Const. amend. I, but that the NJ provision was not restricted to gov’t interference that private property owners were required to allow political speech on their premises under certain circumstances. The public nature of regional shopping centers & their usurpation of the downtown business district were factors the ct relied upon in its decision. It held that leafletting its accompanying speech were protected at regional shopping centers, but not smaller centers, & that resp. were permitted to institute appropriate restrictions on such activity.

COUNCIL OF ORGS & OTHERS FOR ED. ABOUT PAROCHIAID v. ENGLER, 566 N.W.2d 208 (Mich. 1997)51

F/PP: public charter school - After the legislature passed the Charter Schools Act, which provided for the creation of public school academies, Πs, educational org. & individuals, brought an action to enjoin defendants, governor, treasurer, dept of treasury, & dept of ed., from distributing public funds to these academies. The trial ct declared the statute violated Mich. Const. & enjoined the distribution of public funds. The lower app. ct affirmed.

H/Rat: Ct held the Act did not violate Mich. Const. The academies were public b/c the state was not required to retain exclusive control, the state exercised control over the application-approval process, & the state controlled the money. Under Mich. Const., the academies were also subject to ∆ dept of ed's supervision to the same extent as were all other public schools. Also, the repealer in 1994 Mich. Pub. Acts 416 was validenforceable. Ct. reversed & remanded.

C. FORMS OF LOCAL POWER056–092

  • Contrasting views of homeowner’s associations

­Homeowners associations are creatures of property law rather than local gov’t law: covenants & servitudes, instead of city ords, specify the rules of how theses communities operate.

­Some control land use decisionsprovide services in a manner comparable to city gov’t

  • Special purpose gov’ts

­Gov’t-created entities designed to perform a single function or limited range of functions.

­More like business entities than as gov’t: they are often run by an appointed board of directors, immunized from restrictions on city gov’t, & sometimes, given their own sources of revenue.

­Created to avoid popular democratic decision making

  • Business improvement districts (BID)

­Controlled by property owners, not citizens.

­Provide specialized services comparable to those offered by city gov’t

ROBERT ELLICKSON, CITIES & HOMEOWNERS ASSOCIATIONS57

  • The ass’n is the obvious private alternative to the city.

­Enables households that have clustered their activities in a territorially defined area to enforce rules of conduct, to provide “public goods” & to pursue other common goals they could not achieve w/o some for of potentially coercive central authority.

­Law treats them as private

  • Difference b/t city & ass’n

­Involuntary nature of membership in a city v. the perfectly voluntary nature of membership in a homeowner’s ass’n.

­Cities are more active than ass’n are in undertaking coercive redistributive programs.

  • Gov’t are distinguished by their acknowledged, lawful authority—not dependent on property ownership —to coerce a territorially definedimperfectly voluntary membership by acts of regulation, taxation,condemnation, the exercise of which authority is determined by majoritarian & representative procedures.
  • Ass’n

­Viewed as private, not a gov’t

­Rules a “territorially defined” area & obtains its power to do so through no form of property ownership.

­Can undertake acts of both regulationtaxation (monthly assessment on members)

­Can’t condemn a unit (gov’t power), but some can expel members

­Members elect board members to manage ass’n (majoritarian & representative procedures)

­Voluntary membership in formation of the ass’n v. involuntariness in formulation in gov’t.

  • The presence of involuntary members is both a necessary condition for the use of the adjective “public” in ordinary language, & also a power explanation for the different legal treatment currently accorded public & private organizations.

EVAN MCKENZIE, PRIVATOPIA60

  • Four basic types of CIDs:

­Condominiums, planned developments, stock cooperativescommunity apts.

­In a CID, everybody who buys a unit automatically becomes a member of the community ass’n

­Although the decision to purchase may be voluntary, membership is mandatory.

­Ass’n is founded & governed by certain documents like state’s constitution & set of codes.

Including, set of covenants, conditions, restrictions that run w/ the land & are legally binding on present & future owners of the property.

Articles of incorporation (if incorporated)

  • Written by the developer.
  • Primarily set out the purpose of the corporation, which is to maintain & protect the common areas & to enforce the CC & Rs.

By laws & rulesregulations

  • Written by the developer.
  • Election of board of directors by members – neighbors will eventually be running one another’s lives, w/o any minimum requirements of education, experience, or professional competence.
  • Only property owners are eligible to vote in elections, so renters are disenfranchised.

­Only one vote per unit may be cast, rather one vote per adult occupant.

  • Primary purpose: the protection of property values through maintenance of the property itself & through preservation of the project’s character & appearance.

­Enforce CC & R provisions by imposing fines.

­The ass’n can impose certain standards of behavior on residents & anyone who visits the property.

­There powers permit the regulation of a wider range of behavior than any w/in the purview of a public local gov’t? is this really true?

  • CID residents, in their concern w/ property values, often behave like the stockholders in any large corp., who neither know nor care about corporate affairs as long as their stock goes up & they keep receiving dividend checks – value conflicts w/ neighborliness.
  • CID regimes are inconsistent not only w/ political theories of legitimacy but w/ the normal process by which gov’t are created.
  • Rules designed first to protect property values, above the fabric of the community.
  • The priorities embodied in creation of ass’n:

­There is a plan

­There is a property

­There are rules to protect the property

­There is a physical “city”

­There are people to live in the city & follow the rules that protect the property.

GARY J. MILLER, CITIES BY CONTRACT68

  • Rolling Hills (private gated comm’n) – unique example of private use of public gov’t
  • City gov’t is simply an extension of the private homeowner’s ass’n.
  • Comm’n Ass’n responsible for controlling the roads & maintaining the entrances

­Levies a private property tax for maintaining the roads & recreation areas, based on county assessment less personal prop.

­Recreational facilities are owned by the city of Rolling Hills & leased by the Ass’n.

  • City ord. that threatens $500 fine for outsiders who enter the city limits uninvited.

CLASS NOTES

  • Voluntary v. involuntary

­Origin

­After creation – insider / outsider

  • Property rights first – gov’t manage interactions v. individual interactions first – then property rights.
  • Rights v. restriction

MUNICIPAL BLDG AUTHORITY v. LOWDER, 711 P.2d 273 (Utah 1985)69