David McCarthy Jr. - Local Government Law in a Nutshell

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JESSE H. CHOPER

Professor of Law,
University of California, Berkeley

DAVID P. CURRIE

Professor of Law, University of Chicago

YALE KAMISAR

Professor of Law, University of Michigan
Professor of Law, University of San Diego

MARY KAY KANE

Chancellor, Dean and Distinguished Professor of Law,
University of California,
Hastings College of the Law

WAYNE R. LaFAVE

Professor of Law, University of Illinois

ARTHUR R. MILLER

Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, University of California, Los Angeles

JAMES J. WHITE

Professor of Law, University of Michigan

FIFTH EDITION

By

DAVID J. McCARTHY, Jr.

Dean Emeritus & Carmack Waterhouse Professor of
State and Local Government Law, Emeritus
Georgetown University Law Center

LAURIE REYNOLDS

Professor of Law
University of Illinois College of Law

Mat #40064727

West, a Thomson business, has created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. West is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

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ISBN 0314264892

TO MARY E. McCARTHY

D.J.M.

TO JOE, KATY, AND DAVID

L.R.

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This text will aid students who seek to learn Local Government Law. We hope that it will also assist practicing attorneys who seek an overview of all or part of the subject matter. The relationships among local governments, their citizens, their states and the federal government are so pervasive that choices of emphasis must of necessity be made in a text of this size. Because Local Government Law tends to overlap several other law school courses, the choice in this text was to address at least as many areas as could accurately convey the scope of these relationships and to treat more extensively areas, such as taxation and borrowing, that are not likely to be pursued in such detail in the core courses common to all law school curricula.

The vast scope of the subject inevitably means that individual authors and editors will approach it with differing views of the most interesting and instructive theme and focus. Our choice has been the central theme of delegated power and the limitations imposed on its exercise by law and challenge, the latter because it serves significantly, as intended, to restrain the exercise of governing power. The setting is, perhaps, more practical than theoretical.

Occasionally, throughout the text, comments and queries will attempt to provoke reader reaction (agreement or disagreement) to the status or trend of particular legal principles and of local government VI policies. Frequent illustrations, many of which have been drawn from actual cases, will be used to assist in understanding the text.

While many cases, articles, books and casebooks were consulted in the preparation of this and preceding editions, we are especially grateful for the assistance provided by the writings of Chester Antieau, Richard Briffault, David Callies, Jefferson Fordham, Robert Freilich, Gerald Frug, M. David Gelfand, Clayton Gillette, Jerome Hellerstein, Walter Hellerstein, Harold Hovey, George Lefcoe, Michael Libonati, Daniel Mandelker, Frank Michelman, Dawn Clark Netsch, Laura Oren, Osbourne Reynolds, Peter Salsich, Terence Sandalow, Sho Sato, William Valente, Arvo Van Alstyne, Judith Wegner, and Robert Williams.

For past editions, Professor McCarthy has expressed his gratitude to several people: to Georgetowns very supportive Dean, Judith Areen; to his student research assistants, Kathryn Kovacs (JD 1995) and David Angeli (JD 1997); and to Georgetowns Office of Administration personnel for their indispensable assistance. Professor Reynolds thanks Jennifer Chavez for her outstanding research and Patricia Estergard for tireless secretarial assistance.

DAVID J. MCCARTHY, JR.

LAURIE REYNOLDS

FIFTH EDITION

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OUTLINE

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Broadly considered, the study of Local Government Law is the study of local governing powers exercised by entities subsidiary and largely subordinate to the state. A partial understanding of state government and of the roles of governments in the federal system necessarily accompanies the study. When government at any level plans to act, a basic question is whether the proposed activity is an appropriate one for government. Should government get into the business of owning and operating airports?

Since all government is restricted within limits constitutionally structured by the people, the next question may be whether the government entity can act as planned. Can government get into the business of owning and operating an airport?

When the prospective actor is a government of delegated authority, the question of its ability to act would perhaps be phrased, Does this city, Bigville, possess the authority to own and operate this airport?

While legislative and judicial attempts to answer these questions may frequently be characterized as unsatisfactory, resolution of the questions is at the heart of local governance. The decision to what extent the local government either ought to or can initiate activity which might be the subject of private action or government involvement at another level is, in the first instance, committed to the local legislative body. The courts often defer to this decision, especially as to the appropriateness of activity. When a judicial decision of appropriateness is made, it may be expressed in a determination whether the activity serves a public purpose, or serves to protect the public health, safety, morality or general welfare. The expenditure of funds for the purchase and operation of the airport will expedite public travel, will ensure the safety of air traffic operation, will increase local business access to economical commercial routes, will create more jobs, will protect residential areas, and thus will serve a public purpose. Underlying the spoken or unspoken question of appropriateness are basic legislative or judicial views of the importance of centralization or diffusion of power and the consequent protection of individual liberties.