I know what you’re thinking. This is probably some ridiculous nuance in the law that only attorneys would enjoy opining on. However, I think Dillon’s Rule vs. Home Rule is an important concept to review on this blog – so stick with me. I promise to make it as painless as possible….
I was recently reviewing Harvard Food Law & Policy Clinic’s publication titled “Good Laws, Good Food: Putting Local Food Policy to Work for Our Communities” (July 2012). Specifically, I think the authors did a nice job clearly explaining the interplay of federal, state, local and tribal law found in Section 1 (starting on page 5). The purpose of this publication is to educate food councils about how to change the laws at the state and local level to encourage changes in local food system. However, these are important concepts no matter what type of law you are lobbying for change in. Our legal system is complex — there’s no doubt about it. And our governments at the federal, state, county, and municipal level all work in different ways and have different types of authority. I encourage my readers to review Section 1 in the publication regarding the interplay of these various levels of government.
In particular, I want to bring your attention to the discussion on Dillon’s Rule vs. Home Rule (starting on page 7). You see, the U.S. Constitution is silent on the inherent powers of our local government. When the Constitution or a statute is silent, that’s when judges come in and interpret that silence (or ambiguity). In the great state of Iowa, Judge John Forrest Dillon (hence, “Dillon’s Rule”) held that local governments only have the powers that are expressly given to it by the state in one of three ways:
(1) granted in express words;
(2) necessarily implied or necessarily incident to the powers expressly granted; and
(3) absolutely essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable.
In states that follow Dillon’s Rule, the state legislature typically enacts an “enabling statute” giving the local governments the ability to act within a defined scope (i.e., particular areas). If the local government usurps this authority then the local law may be stricken. New York, for example, follows Dillon’s Rule. See NY Gen. Mun. Law Section 96(1). Because of this, it wasn’t until 1978 when New York municipalities were allowed to permit community gardens.
Conversely, state that follow Home Rule take a different approach. In these states, there is a broad grant of power from the state giving municipalities the authority to handle local matters without the need for special legislation by the state specifically giving this authority so long as there is no conflict with state laws. In these states, when authorization is vague, it is assumed that the municipality has the power unless it is expressly denied.
So why does this matter? It matters- trust me. I urge my readers to get involved in their local governments — attend a city council, county legislature or zoning board meeting. When doing so, it is important to understand what the local government can and cannot do. We all like to complain. We all want change. But what changes are even possible at the local level? Are you barking up the wrong tree and should really be talking to your state elected officials? Alternatively, is your local government going outside its authority with a regulation that might be harming the agriculture industry? The first step in this analysis is to figure out whether you live in Dillon’s Rule or a Home Rule state. I encourage you to review the appendices in the publication illustrating which states are governed by Home Rule at the municipal and county level.
"This blog is for informational purposes only and is not intended to create an attorney-client relationship. It is recommended that you speak to an attorney licensed in your jurisdiction before relying on the information in this blog."