What Are General Law and Home Rule?
General Law, as the name suggests, governs localities that have not chosen to adopt the more autonomous governance of Home Rule. Thus, in contrast to Home Rule, general law gives cities, towns, and villages only those powers explicitly granted to them by the State’s Constitution or by statute adopted by their legislative body. Unlike municipalities governed by Home Rule Authority, general Law municipalities have minimal power to legislate for the welfare of their citizens. That is, while municipalities operating under general law have the authority to adopt, amend, or repeal local laws, ordinances, rules, and regulations, there are many restrictions on their legislative authority including, but not limited to: (i) the requirement that general law municipalities’ legislation must be consistent with state statutes, (ii) the prohibition against general law municipalities exercising powers that may only be exercised by specific classes of local governments, and (iii) the need to reference specific state statutes that provide authority for a general law municipality to enact or implement a specific regulation. Such restrictions have led to confusion about the scope of legislative authority granted to municipalities under the City Home Rule Law , particularly as it relates to the general law. Such confusion has resulted in frequent litigation between local municipalities and the State over such issues as land use, building regulations, parking regulations, etc.
Conversely, municipalities with Home Rule Powers enjoy substantial independence in all aspects of their operation. Indeed, municipalities operating under Home Rule Authority have general legislative authority including the authority to legislate for the general health and safety of their residents. The fact that Home Rule municipalities can exercise substantial legislative independence has led to many conflicts with the State. These conflicts frequently arise in areas of building and land use regulation. For example, as a result of amendments to the State Constitution in the 1960s, the general law now provides that municipal home rule powers and the state enabling legislation Art. 16 of N.Y. Zoning and Planning Laws are to be construed together. Generally, the legislative intent of allowing municipalities to exercise an expansive Home Rule Authority is to promote law and order, health and safety regulations. Indeed, the courts have held that ordinances and regulations based upon such a need "should be entitled to a liberal construction."
Origins and Evolution
The origins of general law can be traced to the Middle Ages, when personal and territorial domains were governed by their own distinct sets of rules. As trade routes expanded, merchants began demanding for a more uniform system of regulation. The result was a common law, which developed out of judicial decisions rather than legislative acts. A wide-range of laws evolved that were then applied in different jurisdictions. In general, common law provided for a limited form of self-governance for municipal governments. However, it could often be burdensome. The harsh nature of these laws necessitated revision. In order to address this problem, the English Parliament passed the Municipal Corporations Act of 1835, which reformed the structure of municipal law in England. It was not until the 1850s that the United States would adopt a similar reform. These reforms established common council city governments and county system governments. Common councils possess limited powers of self-governance and can make and amend local laws. The county system is further decentralized into townships and boroughs. The latter is a separate municipality from the parent county wherein state laws pertaining to cities are present.
Home rule also finds its roots in 19th century England. By the latter half of the century, many cities began to agitate for a greater degree of autonomy. They sought independence from state legislative bodies. These efforts eventually culminated in the Baltimore Charter of 1898. It would later be adopted in other cities, including St. Louis, Missouri, by 1915, though the St. Louis charter was revised significantly in 1959.
In the United States, movement for home rule was first initiated by the Progressive Society in 1889 as a way to resolve the corruption within Chicago. State constitutions began to adopt provisions related to home rule following the passage of the New York Constitution of 1894. It provided a charter for the city of New York. Similar home rules were adopted in Illinois and Michigan in 1905. In the early 20th century, most states adopted some form of home rule.
Legal Structure and Framework
The legal framework underlying general law and home rule is primarily governed by the statute; however, it is also shaped by constitutional provisions that authorize the powers of local governments and limit the extent of their authority. General law units are created and governed by state laws enabling general law units to adopt a form of government. General law units are not empowered to govern themselves and are subject to the authority of the state legislature for enacting and enforcing ordinances that affect the welfare of the inhabitants of that unit. While the Constitution of the State of Illinois does not expressly grant any powers to general law units of government, it does recognize their existence. Specifically, Article VII, Section 6 of the Illinois Constitution sets forth in great detail the powers granted to home rule units. Home rule units have the power to exercise power and perform certain functions essential to the governing and welfare of its people, subject only to certain restrictions. The only express prohibition on the power and function of home rule units is with respect to the levying of a tax or excise on income. Like general law units, the powers of home rule units are subject to review by the legislature. Article VII, Section 6(i) provides that the state legislature may "preempt by conflicting legislation" any home rule unit ordinance, measure or resolution. However, in order for the state legislature to preempt the action of a home rule unit, there must be a "direct conflict between such ordinance, Measure, or resolution and a State statute." A "direct conflict" has been defined as: One which permits . . . no law-abiding citizen seriously to entertain a belief that both laws simultaneously can stand. General law units and home rule units are regulated and governed by the same statute, the Illinois Municipal Code, 65 ILCS 5/1-1-1 et seq. (hereinafter "Code"). However, general law units and home rule units operate in distinctly different realms with respect to the authority and autonomy granted to them under the statute. The Code expressly provides that only the powers enumerated therein are granted to general law units. In contrast, Article VII, Section 6(a) of the Illinois Constitution vests home rule units with all powers and may be exercised as "complementary to powers expressly granted by the constitution." The Code provides that home rule units have the power to enact ordinances and orders necessary to exercise the powers granted to them "unless disallowed by a county or state law." 65 ILCS 5/1-8-3. Thus, the Secretary of State is charged with ensuring that home rule unit ordinances do not violate any state law, and the county clerk is required to file those ordinances that do not conflict with county laws. In terms of the specific powers granted to general law units and home rule units, there are vast differences with respect to the home rule unit powers described in Article VII, Section 6(a)-(h) of the Illinois Constitution. See 65 ILCS 5/11-1-1; 5/11-1-2. In addition to the descriptions set forth above, general law units are limited to the zoning powers granted in General Municipal Powers, Section 11-13-1 of the Code, while home rule units are empowered to exercise "any power pertaining to the organization of municipal government or relating to its internal affairs." All issues resolved by a general law unit’s ordinance with respect to zoning for the district in that particular jurisdiction are subject to review by the state appellate court. With respect to home rule units, the language of the Constitution is restrictive—only those ordinances directly conflicting with the law of the state may be overturned.
Pros and Cons
Each system has its benefits. Under the general law system, residents do not need to worry as much about government entanglement. A positive of general law is also that it fosters a sense of independence for each municipality by allowing them to decide the local rules for themselves. On the flip side, applying state law to every locality can produce inconsistent governmental practices, reduce the opportunity to foster new ideas from local governments, and may not meet the needs of all communities.
Those in favor of home rule say that the shift provides necessary power and flexibility to local governments to address their individual needs. They say that home rule gives municipalities the autonomy they need to innovate, particularly in a modern era where longer term planning is key to addressing many challenges. Conversely, those against home rule say that it may cause confusion among citizens about the differences in local laws, potentially leading to unintended violations. Moreover, confusion can be caused by varying home rule powers across Illinois. For instance, Springfield, which is home rule, has far more autonomy than in other municipalities, but not as much as in others. This can lead to questions as to what powers actually exist in home rule, thereby adding potential duplication and confusion in reviewing legislative actions.
Case Examples: Deployed in Various States
Several states in the U.S. have adopted different approaches to home rule or general law governance. While not exhaustive, this section looks at the implementation of general law or home rule across several states and territories.
California
California provides for local self-governance pursuant to Article XI, Section 7 of the state Constitution. Under this Article, counties, cities, and charter cities shall have "the right of local self-government" and to "make and enforce within their respective limits all police, sanitary and other regulations, subject only to such restrictions upon their powers as are provided by that Article." The Section is further implemented by the Government Code 23000 et seq. (The portion creating the local agency formation commission to oversee the incorporation of municipalities is not discussed here). California recognizes several different types of municipalities: charter cities, general law cities, counties, and counties consolidated with a city. Charter cities operate under their own charters and elect their own officials, while general law cities and counties are subject to the general law of the state. A "charter city" under California law is defined as a city "which by its charter or by an amendment to its charter, elects to be governed by powers specified in the constitution or laws of the State of California." In practice, these charter cities operate and regulate their internal affairs under the powers granted specifically by their charters and the state Constitution; they are not subject to the general law of the state. Thus, while the general laws applicable to other municipalities such as general and special elections apply to charter cities with respect to the timing of the election itself, the charter city has the authority to decide on the procedures to implement their provisions (unless otherwise prohibited by the state). All new charter cities are governed by Article XI, Sections 3, 4, and 8 of the California Constitution, and thus subject to the general laws pertaining to the election and governance of charter cities. An example of an existing charter city which is considered a "general law charter city" under the California Constitution is Orange County in the State of California, which uses a home rule form of governance.
Washington
Washington State’s Constitution provides in Article XI, Section 10 for the direct and exclusive power of local self-government by charter or otherwise. After approval and acceptance by the electors of the county or city , the legislature may authorize the adoption or amendment of the charter and the legislature shall give it "the force and effect of law." This provision was interpreted by the Washington Supreme Court in 1909 in an opinion that states that "unless restricted by statute or constitutional provision, the people of the county [or city] retain the right to adopt a charter," and Charters may be amended by the Council itself, unless limited by the charter itself. In 2009, the Washington State Legislature passed RCW 35.22.300 – 400 and RCW 35A.13.370 – 650, which provide for optional municipal code home rule and elective mayoral-council government form of local government. RCW 35.22.310 provides that a city may adopt a home rule municipal code that "may be amended, supplemented, rejected or changed in whole or in part." The decision to adopt a home rule municipal code must be made by the voters of the municipality. If rejected, a home rule ordinance must not be submitted to the voters for one year. The first step in passing a home rule ordinance is a vote of the people for the selection of a charter commission. Following this vote, the charter commission is responsible for creating a charter to be submitted to the voters once again. If the charter is approved by a majority of the voters, the mayor must declare it a law. The legislative authority is responsible for implementing the charter, unless it does not comply with chapter 58.17 RCW—Real Property Title Act. RCW 35.22.350 establishes that an optional municipal code city may establish the "strong mayor-council" form of government. In cities that establish the strong mayor-council form of government, the mayor has veto power over legislation. However, the mayor does not have the duty to prepare the budget to submit to the council for approval or the responsibility for overseeing its administration. The mayor appoints the city attorney, engages legal counsel as necessary to represent the city in litigation, and supervises the city’s legal department. Further, the mayor proposes ordinances, drafts the agenda of the council when acting as the legislature, puts the municipal code into a code book, causes the preservation of the municipal code, and improves the municipal code. This form of local government cannot be used unless the charter is approved by a vote of the electors in the city in accordance with Section 4 of Article XI of the Washington State Constitution.
Effect on Local Policy-Making and Governance
One of the most telling differences between general law and home rule is the autonomy and flexibility it offers a community in determining what policies or ordinances to adopt. Because a home rule community can exercise all powers not expressly denied by the Illinois Constitution, it can react more quickly to changing needs, demands and situations. This grants it a certain degree of control over its governance and policies. It is not constrained to follow the model already adopted by the state: In many cases, it can choose to review and adopt a model that fits the community better after carefully weighing the consequences. Home rule communities can also decide exactly how much authority to delegate to its boards and commissions with the knowledge that it can reclaim authority when necessary. General law, on the other hand, is dictated by statute. If the enabling legislation does not permit it, a general law municipality must seek changes in state legislation before it can amend its policies. This has an effect as well on the local policy and decision-making process in that the community has to be extremely proactive or willing to accept its lot if it needs changes in order to address concerns (such as sustainability, economic development, etc.). The fact that many of the policies adopted by the state legislature are for urbanized communities along the population center of Chicago brings another concern to general law communities: The need to potentially defend their policy choices if those choices vary from suburban norms.
Future Considerations and Trends
As society continues to evolve and change, so too do the legal landscapes impacting home rule and general law municipalities. We can expect to see attempts to streamline legislation regarding home rule authority by the Illinois Legislature. It is not uncommon for home rule authority to be entrenched in somewhat ambiguous language, which lends itself to various interpretations. The confusion among attorneys and municipalities regarding home rule authority does not go unnoticed by the legislature. There are ongoing discussions about new legislation aimed at creating a home rule authority codification committee that would produce a codified list of home rule authority issued by the legislature. Until the legislature weighs in, we can expect to continue to see the efforts to clarify home rule concepts in case law. Furthermore, as public demands continue to push home rule units to take action on various issues, the tension between home rule and general law units will continue. We can expect home rule units will be the targets of cases in which plaintiffs attempt to test limits of their authority. Will home rule authority become more restrictive? Will home rule authority expand? These are questions that can only be answered with context specific analysis and careful legal review. Finally, practitioners and municipalities should continue to consider the most efficient way to manage issues regarding home rule powers and authority. Courts generally defer to home rule authority and there is a significant body of law aimed at protecting the authority of home rule municipalities. However, the general law provisions codify certain limitations, promote uniformity, and further the goals of the Municipal Code as a whole. The aforementioned benefits should be considered when making decisions that implicate compliance with a home rule ordinance and a general law ordinance.
Conclusion: General Law or Home Rule
Conclusion: Weighing General Law vs Home Rule Options
As we have seen throughout this article, there are many factors to consider when choosing between general law and home rule. Ultimately, the decision should be made with input from citizens regarding their needs and the pros and cons of each option discussed in this article. It is important to understand that home rule municipalities and counties have several options available to them in terms of the scope of authority they wish to grant themselves. It is not an all-or-nothing proposition . Local governments have more flexibility than they often realize to choose the best approach for their particular community, including using combinations of general law, home rule, and enabling acts to adopt the powers and authorities they need. Local governments should carefully consider the current and future needs of their citizens when determining whether to adopt a general law or home rule form of government or to amend their existing governing structure. Engaging citizens in the decision-making process ensures that everyone has a voice in determining how their local government best meets their needs.
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