[CRNMC] Some Comments On Home Rule

[Charles Cresson Wood]

Hello CRNMC friends,

Since I mentioned it in a post to this listserv several days back, several people have asked me to provide more information about “home rule counties.” This email attempts to do that. I am not an expert on the matter -- just a law school student investigating this possibility. Perhaps becoming a home rule county is an appropriate next step for the CRNMC? 

Black’s Law Dictionary (1990 edition) defines “home rule” as a state constitutional provision or legislative action providing city or county government with a greater measure of self-government.  The basic document used to carry on the function of home rule is the “home rule charter.” A home rule charter is an organizational plan or framework for a municipal corporation, analogous to a constitution of a state or nation, and again it is drawn by the municipality itself and adopted by popular vote of its people (Black’s Law Dictionary). Such a home rule charter gives an affirmative grant of power to a city or county to manage its own affairs, it can be used to transfer portions of state power to local government. Home rule charters give city or county governments a fair amount of autonomy from state control, and have been used to keep the state out of the day-to-day operations of local government units. California adopted a constitutional provision granting the possibility of home rule to counties, and was the first state to do so – all that happening back in 1911. [History buffs will note this follows on the heels of the height of the populist movement around 1890-1900.]

A home rule charter is interesting because it can provide additional powers to our local government to accomplish the following:

(1) Enhanced Environmental Regulation: provide additional ability to regulate the environment and the ways in which business is affecting the environment. Counties in Colorado are using home rule county powers to regulate fracking. (See an article entitled “Local Government Fracking Regulations: A Colorado Case Study,” appearing in the Stanford Environmental Law Journal, in January 2014.) We may need additional local regulations to effectively control fracking and other detrimental industrial processes, such as preventing toxic pesticides from getting into our wells and surface waters. 

(2) Adopt Powers of the State: By becoming a charter county, a California county can have its charter take on the force and effect of state legislative enactment (state law). In other words, a county charter is something more than a local ordinance and less than the California Constitution. This can give it sovereign immunity in California courts, so that some of its laws stand up, particularly when challenges come from legal persons such as corporations. (See an article entitled “California Counties – Second-Rate Localities or Ready-Made Regional Governments?,” appearing in the Hastings Law Review,” in Spring 1999).  We may need additional fortification against future legal challenges coming from corporations.

(3) Immunity from State Control: The role of the state in preempting local regulatory authority differs significantly between home rule and non-home rule (general law) counties. For both, state constitutions implicitly recognize the superior authority of the state to regulate certain matters; in these matters the state may always preempt local regulations. Home rule counties have an opportunity to adopt a more active and definite role in their own governance than general law counties (Mendocino is now a general law county). Home rule status, per the California Constitution, Article XI, provision 5(a), authorizes local government to preempt state law in the governing of municipal affairs. Although the law is still evolving here, cases show that in cases where a significant local interest is served, home rule counties can preempt state law. Regulation of non-hazardous solid waste is one of those areas deemed to be a matter of significant local concern. (See An Assessment of the Role of Local Government in Environmental Regulation, UCLA Journal of Environmental Law and Policy, 1986.) Note that according to the Wikipedia entry for “Home Rule,” in California, Dillon’s Rule does not apply to home rule charter cities (although this needs to be confirmed, it may also not apply to home rule counties). We may need to, in the future, block certain industry-friendly laws that the state seeks to impose on us.

(4) Handle Our Own Problems Expeditiously: Home rule counties can handle their own problems as they take place, and they have been granted broad powers to do so without going to the state legislature. Home rule thus gives a city or county government great flexibility to deal effectively with local needs and desires in its own ways. (See the article “Home Rule Comes to Minnesota,” appearing in the William Mitchell Law Review, Vol. 19, issue 4, 1999.) One use of home rule charter is to provide for a public bank. The city of Bolder Colorado has used its public bank to build out a publicly-owned public utility. (See http://coloradopublicbanking.blogspot.com). Many other interesting possibilities open up when public money is used for the good of the people instead of the big banks. We may need  the legal clout to establish our own local and parallel financial system, so that the existing corrupt financial system tied in with the Wall Street big banks can collapse and go bankrupt, but our county will not be wiped out by their implosion.

/s/ Charles