Home rule, regarding the overarching concept, refers to how much authority a municipality or constituent part of a state has in terms of exercising government power. Home rule, as more of a policy position, is afforded to some states through their constitutions directly to municipalities and/or counties. We’ll explore what exactly home rule means and where the states’ laws differ from one another.
The Structure of Home Rule
Essentially, home rule affords local governments – usually at the county or town level or some other municipality – a certain level of autonomy to conduct business, run their government, and pass laws, but with certain strings attached. Depending on the state constitution, municipalities might have express provisions guaranteeing their autonomy, as long as their actions do not conflict with state and federal constitutions. Other states’ municipalities must obtain specific permission from the state government to make their own moves. Most states have a mix of these systems.
There are four tenets of home rule authority that can be passed down to the municipalities from the states, at the states’ discretion.
Structural – This refers to the power to choose a form of government, a form of charter, and enact charter revisions. As it pertains to Suffolk County, for example, county-wide elected positions include the County Executive, District Attorney, Clerk, Comptroller, and Sheriff, while the Legislature represents all residents across eighteen districts. The County charter can also specify certain limits of services, such as the 1950s change that dissolved police departments of the five western towns and established the Suffolk County Police Department.
Functional – This refers to the power to exercise local autonomous government in varying scopes, depending on state regulations. This involves the exact parameters to which the local government will be able to function without approval from the state.
Fiscal – This refers to how a municipality determines revenue sources, sets tax rates, borrows funds from lenders, and other financial components of running a government.
Personnel – This refers to municipal employment rules, collective bargaining, compensation and wages, and employment conditions and requirements.
Dillon’s Rule
Dillon’s Rule is a term used to describe state governments’ power over local governments and theories within. It goes back to an 1868 case argued by John Forrest Dillon, one of the most influential historical figures who advocated for home rule at the discretion of the states.
“Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature.It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control,” Dillon said in 1868.
Michigan Supreme Court Judge Thomas Cooley stated in an 1871 concurring opinion that “local government is a matter of absolute right; and the state cannot take it away.”
Dillon would later write that municipalities only have powers expressly granted to them by the state, a contrast to the provisions of the Tenth Amendment to the U.S. Constitution, which states that powers not expressly granted to the federal government are given to the states. This principle would later become known as “Dillon’s Rule.”
Nine states are found to work solely on home rule provisions and not Dillon’s Rule, while twenty-two states utilize classical home rule and Dillon’s Rule provisions simultaneously, with New York being one of them. Such states apply Dillon’s Rule to matters not outlined in the state constitution or statute that grants home rule, meaning that any changes sought by a municipality not specified by the state must be brought before the state. Home rule applies to other matters specifically mentioned in the constitution or existing statutes.
Unique Examples
True to the concept of federalism, the states have their own ways of running themselves. Home rule is no exception and some states have methods of dealing with specific conflicts of local government autonomy.
In California, a city that has not adopted a charter is organized by state law, rather than local law. These are called “code cities” or “general law cities,” which are managed by five-member councils. As of 2020, nearly a quarter of California’s 478 cities are charter cities, meaning a significant portion acquiesces to state guidelines on certain aspects of leadership.
In Colorado, home rule was provided for municipalities in 1902. It was extended to the counties in 1970, but with more limitations than for the municipalities. All tax increases in Colorado must be voter-approved.
In Indiana, Dillon’s Rule only applies to townships, not counties or other municipalities.
In Kansas, Dillon’s Rule does not apply to cities or counties, but other smaller municipalities.
Michigan provides for home rule for only two of its eighty-three counties, Wayne and Macomb, home to the Detroit Metropolitan Area.
Texas allows cities to adopt home rule once their population exceeds 5,000 and once the voters adopt a city charter. Charter provisions cannot conflict with the Texas Constitution. If a recognized city falls below 5,000 population, the charter remains intact and can be amended. Otherwise, such cities are governed by general Texas laws only. School districts in Texas are usually governed by general laws, but may adopt their own home rule charters. Currently, no district has taken that option.
West Virginia abolished Dillon’s rule in 1969 and introduced a home rule pilot program in 2007 that became permanent in 2019.
Which States Hold Which Powers
The National League of Cities, a non-governmental advocacy organization that represents almost 20,000 American cities, identifies thirty-one states as “Dillon’s Rule” states, compared to ten that are home rule, eight that apply Dillon’s Rule to certain municipalities, and one state – Florida – that applies home rule to all aspects of municipal government except for taxation.
Nine states (shown in blue on the map) work on home rule provisions and not Dillon’s Rule: Alaska, Florida, Iowa, Massachusetts, Montana, New Jersey, Ohio, Oregon, and West Virginia.
South Carolina and Utah work with limited home rule provisions and do not include Dillon’s Rule.
As stated previously, twenty-two states (shown in red on the map) utilize a combination of home rule and Dillon’s Rule provisions, with New York being one of them.
Eight states (shown in green on the map) utilize Dillon’s Rule along with limited home rule provisions: Alabama, Arkansas, Indiana, Kansas, Kentucky, North Carolina, Texas, and Wisconsin.
Nine states (shown in purple on the map) have no home rule provisions and rely on Dillon’s Rule for municipality/county autonomy: Delaware, Mississippi, Nebraska, Nevada, New Hampshire, Oklahoma, Vermont, Virginia, and Wyoming.
The purpose of the state outline is to show that political boundaries, especially in the current political climate, are largely, if entirely, removed from how the states hand down home rule provisions to their municipalities.
New York’s Home Rule
Article IX, Section 2 of the New York State Constitution outlines the powers and duties of the state legislature, home rule powers of local governments, and statutes of local governments.
Section 2, Subsection A stipulates that the State government shall provide for the creation and organization of local governments and the powers, rights, privileges, and immunities of the state constitution are afforded to the municipalities.
Section 2, Subsection B grants the state legislature power to enact, repeal, diminish, impair, and/or suspend laws over a local government, as enacted by the legislature and signed by the governor. The legislature also has the authority to act in relation to a municipality’s property, affairs, and/or government personnel only by general state law with a two-thirds vote in the legislative chamber in which the matter arises. The legislature also has the right to grant and withdraw powers to the municipalities not expressly relating to their property, affairs, and/or government personnel.
Section 2, Subsection C allows for municipalities to adopt and amend local laws not inconsistent with the state constitution or general laws, including structural, fiscal, functional, and personnel categories.
