For those who may have missed it, my former professor Rick Hills posted a fascinating discussion on Prawfsblawg regarding New York City’s authority (or not) to impose congestion pricing. In highlighting the distinction between “legal conventional wisdom” and “legal reasoning,” Hills has hit on a recurring theme in local government law. Despite the detailed state “municipal codes,” many of the basic questions about local authority appear to be settled by “conventional wisdom” — “habits,” “slogans,” “half-truths” — rather than basic legal reasoning. I addressed one of these “slogans” — “the private law exception” — in a recent article. Perhaps the tension highlighted by Hills is just a run-of-the-mill clash between legal formalism and legal realism, but it does seem to play a particularly important role in local government law and, I would argue, warrants more focused study in this context.
As reported in The New York Times, The Wall Street Journal, and elsewhere, a trial court judge in Cuyahoga County, Ohio, invalidated the Ohio state legislature’s attempt to preempt Cleveland’s ban on trans fats, passed in 2011. The analysis in the judge’s brief order (quoted in the Journal article) is nonetheless complex due to the Ohio Constitution’s home-rule language. For another case analyzing this constitutional language but coming out the other way, see the Ohio Supreme Court’s opinion in Lima v. State, which upheld state preemption of city employment residency requirement ordinances.
It’s been a while since we’ve posted anything. In an attempt to “jump start” the blog for the summer, let me mention the Supreme Court’s opinion last month in Filarsky v. Delia, which held, 9-0, that private attorneys that do contract work for local governments are entitled to the same qualified immunity under section 1983 as other government officials.
On February 20, 2012, a judge of the United States District Court for the District of Nebraska invalidated part of Fremont, Nebraska’s immigration ordinance. Like the well-known ordinance from Hazleton, Pa., the Fremont ordinance imposed both employment and residence restrictions. For more on the ordinance and the decision, check out this story from the Fremont newspaper. The decision brings to mind Cristina Rodríguez’s article on the topic from 2008.
As “agencies of the state,” the workings of local government are often highly regulated by state law. In Arizona, a curious state law, A.R.S. 38-201, disqualifies any person from public office, whether at the state or local level, “who is unable to speak, write and read the English language.” For more on the law, its history, and how it was recently used to exclude a candidate from running for the San Luis city council, see this AP article.
In case you missed this important decision before the new year, the California Supreme Court upheld state legislation that required the elimination of hundreds of community redevelopment agencies. The savings from their elimination would be diverted to the state, school districts, and counties. The agencies and other parties challenged the legislation under the California constitution, but lost because the court found the state’s power to reorganize sub-units of government to be paramount, per Hunter v. City of Pittsburgh.
This recent N.Y. Times article discusses the possibility of municipalities reducing their pension obligations by filing for Chapter 9 bankruptcy, focusing specifically on Central Falls, Rhode Island. The article quotes U. Penn. law professor David Skeel, who discusses the Vallejo, California, bankruptcy in his provocative new article, “States of Bankruptcy” (appearing in the University of Chicago Law Review in 2012).
Should cities and towns control drilling for natural gas (through hydraulic fracturing, or “fracking”) as they do zoning in most states? Or is statewide control preferable? This recent N.Y. Times article highlights the dispute as it is playing out in Pennsylvania, where the legislature is considering legislation to assert statewide control over the practice. For more on fracking legislation at the state level, check out this link (from July 2011) from the National Conference of State Legislatures.
The Federal Housing Finance Agency, acting as conservator for mortgage giants Fannie Mae and Freddie Mac, sued Chicago in federal court on December 12. FHFA challenges a city ordinance that requires mortgagees of vacant properties to pay a registration fee and conduct monthly inspections of vacant properties. These requirements apply even if the mortgagee has not yet foreclosed on the property. FHFA’s suit sounds primarily in federal preemption.
Chicago’s ordinance is yet another attempt by a local government to address the fallout from subprime lending. Cleveland, for instance, unsuccessfully sued banks for public nuisance, and Baltimore sued banks for discriminatory subprime lending based on the Fair Housing Act. Other cities have enacted ordinances attempting to regulate or prohibit subprime lending.
The complaint in the Chicago case can be found here: http://www.scribd.com/doc/75530336/FHFA-v-ChiTown.