150-Year-Old Precedent Faces Changes in New, Blue Virginia

The Virginia State Capitol in Richmond. (Photo via Anderskev/Wikipedia Commons)

RICHMOND, Va. (CN) – In the wake of a mass shooting at a Virginia Beach city building earlier this year, Richmond Mayor Levar Stoney held a press conference at city hall.

“We’re just tired of waiting for the General Assembly, and frankly, enough is enough,” said the young mayor who announced hopes to ban firearms in municipal buildings.

Sally Hudson, the delegate elect from Charlottesville, hinged part of her 2019 campaign on a promise to remove a centrally located statue of Confederate General Robert E. Lee from a downtown park. Interest in removing the statue had been around for a while, but increased following an August 2017 white supremacist rally supporting the statue that left one woman, Heather Heyer, dead.

“Robert E. Lee wasn’t from Charlottesville, there was never a battle here,” said Hudson in a phone interview, noting Lee’s monument was added along with many other confederate memorials during the Jim Crow-era. “For [Charlottesville residents], moving the statues is an important public reckoning with our history.”

But both Stoney and Hudson’s hopes, as well as the hopes of municipalities across Virginia and about 35 other states, often fall on the sword of a legal precedent set over 150 years ago by Iowa Supreme Court Judge John Dillon.

Dillon’s rule is a legal theory of city authority which states no locality can establish powers not granted to them by the state Legislature, or as Dillon put it:

“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.”

Richard Schragger, the Perre Bowen Professor at University of Virginia’s School of Law, said when Dillon first made the ruling it wasn’t unreasonable. Back then, local governments were better known for “giving away the store… and that exercise of power was fleecing the taxpayers.”

“Dillon was concerned with good government, so he wanted to restrict the power of these towns and cities,” Schragger said, noting now, through oversight and numerous other advances, localities face much more accountability.

150 years later, he and other legal scholars and civic groups interviewed for this story believe the alternative, home rule where a city has the power to make a range of laws it sees fit, is preferred.

“[Cities’] tasks today are more complicated,” Schragger said. “Some issues that should be taken care of at the local level become political footballs at the state level and that’s just a problem for good governance.”

Those complicated issues are what led the state of West Virginia to develop a first-of-its-kind pilot program in 2007 which allowed certain cities to apply for home-rule status.

Robert Bastress, a professor at the University of West Virginia’s School of Law, said back then municipalities were facing a range of issues, from revenue shortages to minor parking changes, that all required approval from legislators in Charleston.

The pilot program created a review board for cities to pitch laws to and get quick approval. He said the program started with a few cities but expanded over time. And this year a bipartisan effort saw the pilot program expanded to cover pretty much every city in the state.

West Virginia state Senator Corey Palumbo, whose district includes Charleston, said the expansion faced little opposition when it went up for debate and cities that took advantage of the program have utilized it in numerous ways. Charleston, for example, increased sales taxes to raise money to renovate their convention center.

“Most people believe government closest to the people is what works best,” he said.

But West Virginia’s program is not without limits. Guns, environmental laws and other ordinances which could over-complicate business or other relationships across the state are usually off limits. But still, the power to go to a board for quick approval has found support from struggling cities across the Mountain State.

To the north, Vermont Senator Jeanette White looked to the West Virginia program when she sought to address similar Dillon-rule-created problems in her district. She said legislative control has long been ingrained in municipal charters. When some of her constituents wanted to add parking spaces to a busy, recently redeveloped neighborhood, they realized they’d have to get the state’s Department of Transportation to approve the change.

“They just wanted to put up parking signs and it would have taken months,” said White in a phone interview.

So she submitted legislation to create a pilot program similar to West Virginias, but with some key differences. While West Virginia gave the most populous cities access to the home rule board, White sought to give such power to a range of localities in size, location and form of government to see how they would be impacted.

“If we only did our large towns it doesn’t show what the issues are for small towns,” she said.

But White’s efforts failed to get out of committee during their last session, a move she considered ironic because many of the elected officials who shot down the bill used to sit on municipal boards who faced problems her bill hoped to address.

“If we give localities power, we’re giving it up from us,” she said, theorizing on why the effort failed. “Once you get some power, you don’t want to give it up.”

Back in Virginia, support for the Dillon Rule remains strong among GOP legislators, including Majority Leader of the Virginia House of Delegates, Republican Todd Gilbert. He said rolling it back would lead to a “parade of horribles” in the form of conflicting regulations that would hurt business across the state.

“Can you imagine more than 130 different jurisdictions, all with their own tax, regulatory, environmental and public safety policies?” Gilbert said in an email.

But Schragger pushed back on that theory and suggested local governments were often more interested in reducing regulations, not creating more. Instead, he suggested fears of granting home rule could be based on a race-to-the bottom for some localities.

“There’s lots of towns that are desperate for business,” he said, pointing to wage or environmental laws as areas for abuse.

But with the 2019 elections flipping Virginia’s Legislature blue for the first time in more than 20 years, come January Gilbert won’t be the majority leader, nor will his Republican colleagues who have long killed bills that increase municipal authority.

While Democratic legislators interviewed for this story were hesitant to go as far as proposing a home-rule pilot program, Hudson and the Democratic majority are expected to pass a law giving statue removal power back to cities. She also thinks it won’t be the only Dillon Rule exception – like Stoney’s request to limit guns from city buildings – to make it to the governor’s desk.

“I think Democrats are going to be more receptive to that because we embrace the diversity across the commonwealth,” said the freshmen delegate. “What works in rural Abingdon and what works in urban Arlington is going to be different.”

And while Dillon’s legacy lives on, it should be noted in Iowa, where the decision was issued, passed a constitutional amendment changing the state to home rule in 1968.

Iowa’s League of Cities, a group which advocates for the rights of cities, even spent all of 2018 celebrating the 50-year-anniversary of the home rule amendment.

Alan Kemp, the executive director of the Des Moines-based municipal league, said part of the reason for the celebration was to help educate new lawmakers as turnover at the local level can be high.

He said these freshmen lawmakers are often surprised at the freedom they have, and recalled a convention of city clerks which gave him the perfect chance to illustrate the issue.

Over lunch some of the clerks were discussing differences in their localities’ urban chicken raising laws.

“You’re all looking to regulate urban chickens and you’re doing it in a way that best fits your community,” he said. “That’s home rule.”

And for those hoping to expand home rule in their state, he stressed how it opens the door to truly local authority.

“It allows elected officials to do what they’re elected to do: solve problems,” he said.

Back in Virginia, expect a number of bills that increase municipal authority to make headlines in the coming weeks as legislators begin to file new bills ahead of the 2020 legislative session.

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