The pro's and con's of home rule

By Chelsea Maude Avirett | Feb 09, 2017

One of the concerns several Councilors have raised about the proposed food sovereignty ordinance is that the city of Rockland does not have standing to preempt state regulations around the production and sale of food, even if such transactions occur entirely within its own borders. There’s a fascinating political history that underlies this claim: the principle of “home rule,” which asserts that the state has the ultimate authority to determine laws and regulations within a municipality.

This might seem unexpected in a state like Maine, where the direct- democracy, town-meeting form of government dominates. But ultimately, municipalities have a limited sphere in which they can act freely. Under Maine law, municipalities are permitted to exercise self-governance in a few specific areas. For example: they may choose their own government structure (which allows the amendment of charters), exercise self-government within that jurisdiction (for example, form a police force), and raise money through borrowing or taxes.

These areas are more sharply restricted if a municipality proposes something that contradicts (“preempts”) state law, a term which includes extensive state regulations in Maine; even when an activity occurs within a municipality’s boundaries, it cannot preempt the state’s actions. One popular example deals with taxation. The state expressly forbids municipalities from creating their own sales tax. Home rule — because it only permits a limited scope of action by a municipality — is what maintains this provision.

The history of home rule in Maine is a slow movement towards increased self-governance for municipalities, though still within a framework established by Dillon’s Rule in the late 1800s. Iowa Judge John Dillon ruled in two seminal court cases that states ultimately decide how much power a municipality may have. While Maine has slowly extended the boundaries of that power, the state always determines such boundaries.

In Maine, state rule was firm until the late 1960s. Before 1969, municipal governments were required to petition the Legislature before making any change to their local charters, a process by which the Legislature exerted direct control over municipal government. A 1969 constitutional amendment gave local governments extensive powers to self-regulate within their borders all local matters “not prohibited by constitution or general law,” reflecting the general parameters Dillon had established nearly a century earlier.

Over the next 25 years, the Legislature gradually expanded municipal self-government powers to encourage greater flexibility in exercising local control. The extent to which this can occur is an open question. The statute expressly encourages municipalities to “liberally construe” the law, and asserts that a local ordinance is considered to be in compliance unless proven otherwise. On the other hand, the state closely regulates many spheres in which a local government might act, which allows municipalities freedom to enact stricter regulations, but not to eliminate or sidestep the foundational state structure.

While courts have consistently interpreted home rule through Dillon’s Rule, there is a competing history countering 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 arguing that “local government is a matter of absolute right; and the state cannot take it away.” Today’s movements toward community rights and increased local self-governance draw from this history.

The contemporary assertion of self-governance spans the political spectrum: cities across the nation are opting in to or out of state non-discrimination laws, as well as using zoning rules that limit state regulations on everything from abortion to fracking.

This potential for widely divergent regulations in neighboring cities is one reason that home rule is often maintained 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 home rule 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 widespread distribution becomes more difficult (or the most restrictive regulation becomes the standard, as companies avoid creating multiple products to satisfy a range of regulatory activity).

As many states, including Maine, continue to move in a direction of increasing and restricting local self-governance (depending on the specific issue), we must grapple with the essential problems and opportunities of democracy.

The late 1800s and early 1900s, the heyday of home rule protections for local governments, were decades of innovation in government structures, especially reorganizing municipalities to establish professional leadership and codifying their relationships with the state.

Today citizens are continuing to ask what further innovations need to occur. This brings up opportunities, but also brings up troublesome questions about what a democratic process looks like in communities that may be sharply divided about core political issues.

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