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Counties need more local control

September 25, 2010
By Delegate John Doyle, The Doyle Report

For many years I've heard the argument that the reason West Virginia counties have little ability to make decisions for themselves is the result of "Dillon's Rule" (often phrased as "The Dillon Rule"). Not so fast.

Thanks to a constituent, I came across a 2003 study of this issue by three academics done for the Brookings Institution. The lead author is Professor Jesse Richardson of Virginia Tech. He was assisted by Meghan Zimmerman Gough of Virginia Tech and Robert Puentes of Brookings. I think the findings are quite interesting.

Iowa Judge John Dillon was a leading authority on municipal law in the latter half of the 19th century. In 1868 he handed down a decision in City of Clinton v. Cedar Rapids and Missouri River Railroad that stated, "Municipal corporations owe their origin to, and derive their rights wholly from, the Legislature." He went on to say that they are "the mere tenants at will of the Legislature."

Three years later, Judge Thomas Cooley of the Michigan Supreme Court laid out the opposite view in People v. Hurlbut (1871). He said that local governments held the inherent right of self-governance.

Richardson et al believe that 39 states, including West Virginia and four of the five states bordering her are "Dillon Rule" states. Ten others, including Ohio, are "Cooley Doctrine" states, and they believe that Florida cannot be classified. They came to these conclusions based on an exhausitive review of state supreme court decisions on this question in all 50 states.

However, they also came to the conclusion that whether a state is "Dillon Rule" or "Cooley Doctrine" is mostly irrelevant. What really counts, they say, is what powers local governments have, not how they came to get them.

In some Dillon Rule states (Maryland is an example) the legislature has, over time, granted so much power to local governments that they enjoy as much autonomy as those in any Cooley Doctrine state.

By contrast, the legislatures of some Cooley Doctrine states (such as Massachustetts) have taken away so much of the authority presumed inherent to them that they have less ability to act on their own than most Dillon Rule states.

Either Dillon's Rule or the Cooley Doctrine are merely starting points for discussion. What counts is how much local control there really is, not the source of that local control as determined by the courts.

Several years ago in this column I said I thought that the West Virginia Supreme Court couldn't make up its mind whether or not our state operated under Dillon's Rule.

Richardson and his fellow authors agree. Here is an excerpt from their study: "The West Virginia Legislature passed a law in 1969 abolishing Dillon's Rule, at least as it pertained to certain grants of power. However, the courts virtually ignored the provision until 1991, when the West Virginia Supreme Court recognized the statute and applied a liberal rule of construction (McAllister v. Nelson). Since 1991 the West Virginia Supreme Court has alternated between applying Dillon's Rule and the statutory rule, seemingly at random (Lorensen)."

We are faced, however, with an even more fundamental question. Even if we were a Cooley Doctrine state, we would have the same problem of lack of local control we have now.

Our state constitution gives more specific authority to state government to make local decisions than that of most other states. So it doesn't make any difference whether any powers left unaccounted for are inherent to local government or reserved to the state. There just aren't that many left to discuss. That's the real problem, not Judge Dillon.

Richardson and company also question the assumption that more local control means better growth management. They point out that while growth management done at the state level (as in West Virginia) means a tendency toward a "one size fits all" (my quotes) mentality, lots of local control often "causes local governments to pursue insular goals that often defeat statewide or regional aims."

One weakness of the study to which I refer is that it focuses almost exclusively on municipalities, as opposed to counties, townships, school districts or other local governments. Perhaps that's because case law on this question has come mostly from municipal questions.

In my many conversations with legislators from other states I find that those from states with lots of local control think that West Virginia has it right. They can't stand all the local control they face. However, those from other highly centralized states (such as Massachusetts and Idaho) seem to think more local control would be a good thing.

The ancient Greeks used to say "nothing too much." I think the right balance is one that is as close to equal as we can find. In West Virginia, I think that means more local control.



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