STATE & LOCAL GOVERNMENT LAW
LAW 806, 1 -- Fall 2011 -- 2 Credits
Thursdays, 2:00-3:50 p.m.
206 Library Building, Harrisburg


WILLIAM MARTIN SLOANE, Adjunct Professor of Law
[email protected] - (717) 249-1069 - [email protected]

Honest Lawyer


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BOOK: Richard Briffault and Laurie Reynolds, Cases and Materials on
State and Local Government Law
, 7th edition (Thomson/West, 2009).


"For forms of government let fools contest; Whate'er is best administer'd is best."
--Alexander Pope, Essay on Man, Epistle III, line 303 (1733).

"[P]olitical speech and writing are largely the defence of the indefensible. . . . Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. . . . Political language . . . is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind."
--George Orwell, "Politics and the English Language," Horizon, London, April 1946.

"The state spends much time and effort persuading the public that it is not really what it is
and that the consequences of its actions are positive rather than negative."
--Hans-Hermann Hoppe, A Theory of Socialism and Capitalism. Auburn AL: Ludwig von Mises Institute, 2007.





READING ASSIGNMENTS


Class #:
Date (2011)
Read principal cases
between these pages
Topics
#1:
25 August
52-142; click here
for a related article
Introduction to the Study of State and Local Government Law
States and Local Governments
The Vertical Distribution of Power Question
The State Constitution
Local Government in the American Constitutional Order
Local Government as Agent of the State
The American Polis: Local Government as Autonomous, Democratic Polity
#2:
1 September
147-243 Local Government as Quasi-Proprietary Firm
Local Government Formation and Boundary Change
The Significance of Local Boundaries
Municipal Incorporation
Annexation and Boundary Change
#3:
8 September
243-352 Annexation and Boundary Change [continued]
Boundary Change and the Right to Vote
Special Districts
State-Local Relations
Introduction: The Conflict Between Plenary State Power and Local Autonomy
State Constitutional Limitations on State Supremacy
Determining the Scope of Local Power
#4:
15 September
357-422 Determining the Scope of Local Power [continued]
Preemption
#5:
22 September
429-539 Preemption [continued]
Conclusion
Interlocal Relations and Metropolitan Area Problems
Interlocal Conflicts and Regional Problems
Interlocal Cooperation
#6:
29 September
539-635 Interlocal Cooperation [continued]
Regional Governance Structures
Local Governments and Sprawl
State and Local Finance
Public Purpose Requirements
#7:
6 October
635-716 Public Purpose Requirements [continued]
Revenues
#8:
13 October
728-800 Revenues [continued]
Borrowing and Debt Limitations
#9:
20 October
803-881 Borrowing and Debt Limitations [continued]
The Business of Government
Local Service Delivery
#10:
27 October
882-963 Local Service Delivery [continued]
Tort Liability
#11:
3 November
967-1037 Public Employment Issues
Maintaining Order
#12:
10 November
1037-1114 Maintaining Order [continued]
State and Local Governments in a Federal System
Vertical Federalism: Federal-State-Local Relations
#13
17 November
1114-1179 Vertical Federalism: Federal-State-Local Relations [continued]
Horizontal Federalism: The Constitution and Interstate Relations
NO CLASS:
24 November
. . . . . .
#14:
1 December
1182-1236 Horizontal Federalism: The Constitution and Interstate Relations [continued]
NO CLASS:
8 December
. . . . . .
15 December 9:00 a.m. FINAL EXAMINATION

SCOPE AND EMPHASIS: This is an introductory, "survey" course about municipal corporations and their creator, the state. We will follow the casebook's emphasis on the "national" perspective, devoting some time as appropriate to Pennsylvania law.

REQUIREMENTS: (1) Students should register with the TWEN page for this course. (2) Students should read the principal cases within the page ranges indicated above and be prepared to recite oral briefs and answer questions in class. (3) Students will take a traditional, in-class, closed-book final examination consisting of three essay questions, each weighted equally. The questions will be based on issues raised in the principal cases and/or class discussion.

ATTENDANCE: The ABA and Widener University policy is that students must attend at least 80% of all classes without exception. No excuses can be accepted for failing to meet this residency requirement. This means that every student must attend a minimum of 11.0 classes. Any student who is absent for 3.1 or more classes will receive a course grade of "IW" (Involuntary Withdrawal); the instructor will endeavor, but does not guarantee, to notify students who are approaching this limit. Arriving late or leaving early is counted as a partial absence. A student who misses the roll call at the beginning of class is irrebuttably presumed to be absent unless he/she makes his/her presence known to the instructor immediately after class.

COMMUNICATION: Students are encouraged to contact the instructor at any time, either privately via email or phone, or publicly via the TWEN bulletin board for the course. Individual meetings can be arranged at a mutually convenient time and place.

GRADING: The course grade will be determined by the grade received on the final examination, which may be raised or lowered by one grade (e.g., from B+ to A-, or from C to C-) on the basis of the student's class participation. The instructor will be available next spring to review the final exams with any student who is interested and to suggest means for improvement in writing successful essay answers.





Here are some examples of points worth noting (work in progress):


Chapter II considers three ways that courts have conceptualized local government.

Hunter (70) illustrates absolute plenary state control over local "governmental" property.

Proprietors (76): "Governmental" = state agent; "proprietary" = benefit of own citizens.

City of Cambridge (76): Property owned as state agency is governmental, subject to control.

Holt (115): City's extraterritorial police power survived 14th Amendment challenges.


Chapter III explores the importance of boundary lines in local government law.

City of Tualatin (232): Unsuccessful attempt to use procedural defect to undo annexation.


Chapter IV addresses the relationships between states and their localities.

Sonoma (335, 390): Wages paid charter-county employees is local concern, not state legislative.

City of LaGrande (377): Local-government pension benefits is matter of statewide concern.

Weekes (446, 788): Local fee of 1% of gross receipts is not an income tax barred by statute.


Chapter V turns to the horizontal relationship between and among local governmental units.

Ferraro (550): Transfer of taxing power over property does not also transfer zoning power.

Frazer (597): Differential tax of city and suburbs does not violate constitutional uniformity.

Miami Shores (598): Court must decide what functions are county affairs vs. "purely local."

Hess (600, 606): Interstate-compact corporation lacks 11th Amendment immunity.

Eastern (600): Authority consented to N.J. jurisdiction by contracting with Camden.


Chapter VI is all about money.

City and County of Denver (787): Local income tax is prohibited by constitutional uniformity.

Chemical (846): Ultra vires for municipalities to join bond-issuing joint operating agency.


Is this decision still good law?

Outline of Presbytery of Seattle v. King County, 114 Wash.2d 320 (1990)


I.  SUBSTANTIVE DUE PROCESS VIOLATION?
A. Legitimate public purpose (problem)?
B. Means are reasonably necessary (solve problem)?
C. Not unduly oppressive?
"No" to any one = S.D.P. violation (void, but no $).
II. TAKING?
A. Merely prevents public harm (vs. provides public benefit)?
1. If yes, then no taking.
2. If no, then go on to B.
B. Does it deny a fundamental attribute of ownership?
1. If no, then no taking.
2. If yes, then go on to C.
C. Substantially advance legitimate state interest?
1. If no, = taking (end analysis; pay $).
2. If yes,
a. Facial (denies all economically viable use), = taking.
b. In application (regulate public health, safety, environment, fisc)?
(i) If no, = taking.
(ii) If yes, does it destroy fundamental attributes of ownership?
(a) If yes, = taking.
(b) If no, then no taking (but may violate S.D.P.).

Where to Find Selected Pennsylvania Statutes

Last Updated 1991

Auxiliary Police (Act of 14 January 1952, P.L. [1951] 2016, 1) . . . 53 P.S. 731

Board of Revision of Taxes [Philadelphia] (Act of 1939, P.L. 1199) . . . 72 P.S. 5341.1a

Borough Code (Act of 1 February 1966, P.L. [1965] 1656, No. 581) . . . 53 P.S. 45101

Child Labor Law [e.g., junior firefighters] (Act of 1915, P.L. 286 . . . 43 P.S. 41

County Code [3rd to 8th class counties] (Act of 1955, P.L. 323) . . . 16 P.S. 101

County Pension Law [2nd-A to 8th class] (Act of 1971, P.L. 398, No. 96) . . . 16 P.S. 11651

Death Benefits for Firefighters, etc. (Act of 1976, P.L. 424, No. 101) . . . 53 P.S. 891

Eminent Domain Code (Act of 22 June 1964, Sp. Sess., P.L. 84) . . . 26 P.S. 1-101

First Class City Government Law (Act of 25 June 1919, P.L. 581) . . . 53 P.S. 12101

First Class Township Code (Act of 24 June 1931, P.L. 1206) . . . 53 P.S. 55101

Foreign Casualty Insurance Tax Distribution (Act of 1943, P.L. 259) . . . 72 P.S. 2263.1

Foreign Fire Insurance Tax Distribut. (Act of 1984, P.L. 1005, No. 205) . . . 53 P.S. 895.701

Fourth to 8th Class County Assessment Law (Act of 1943, P.L. 571) . . . 72 P.S. 5453.101

General County Assessment Law (Act of 22 May 1933, P.L. 853) . . . 72 P.S. 5020-101

Governmental Immunity (Act of 5 October 1980, P.L. 693, No. 142) . . . 42 Pa.C.S. 8501

Home Rule Charter and Optional Plans (Act of 1972, P.L. 184, No. 62) . . . 53 P.S. 1-101

Housing and Redevelopment Assistance Law (Act of 1949, P.L. 1633) . . . 35 P.S. 1661

Housing Authorities Law (Act of 28 May 1937, P.L. 955, 1) . . . 35 P.S. 1541

Incorporated Towns [Bloomsburg] (Act of 22 April 1903, P.L. 247) . . . 53 P.S. 53101

Intergovernmental Cooperation [COGs] (Act of 1972, P.L. 762, No. 180) . . . 53 P.S. 481

Local Agency Law [administrative] (Act of 1978, P.L. 202, No. 53) . . . 2 Pa.C.S. 101

Local Economic Revitalization Tax Ass. (Act of 1977, P.L. 237, No. 76) . . . 72 P.S. 4722

Local Government Unit Debt Act (Act of 1972, P.L. 781, No. 185) . . . 53 P.S. 6780-1

Local Tax Collection Law (Act of 25 May 1945, P.L. 1050, 1) . . . 72 P.S. 5511.1

Local Tax Enabling Act (Act of 31 December 1965, P.L. 1257, No. 511) . . . 53 P.S. 6901

Municipal Claim and Lien Law (Act of 16 May 1923, P.L. 207, 1) . . . 53 P.S. 7101

Municipality Authorities Act of 1945 (Act of 1945, P.L. 382, 1) . . . 53 P.S. 301

Municipal Police Officers' Education (Act of 1974, P.L. 359, No. 120) . . . 53 P.S. 740

Municipal Police Pension Law (Act of 1956, P.L. [1955] 1804, No. 600) . . . 53 P.S. 767

Neighborhood Assistance Act (Act of 29 November 1967, No. 292, 1) . . . 62 P.S. 2081

Penna. Municipalities Planning Code (Act of 1968, P.L. 805, No. 247) . . . 53 P.S. 10101

Pennsylvania Municipal Retirement Law (Act of 1974, P.L. 34, No. 15) . . . 53 P.S. 881.101

Police Tenure Act [boroughs and townships] (Act of 1951, P.L. 586) . . . 53 P.S. 811

Public Official and Employee Ethics Law (Act of 1978, P.L. 883, No. 170) . . . 65 P.S. 401

Real Estate Tax Sale Law (Act of 7 July 1947, P.L. 1368, No. 542) . . . 72 P.S. 5860.101

Right to Know Law [records] (Act of 1957, P.L. 390, No. 212, 1) . . . 65 P.S. 66.1

Second Class City Law (Act of 7 March 1901, P.L. 20, art. XX) . . . 53 P.S. 22101

Second Class County Assessment Law (Act of 1939, P.L. 626, No. 294) . . . 72 P.S. 5452.1

Second Class County Code (Act of 28 July 1953, P.L. 723, No. 230) . . . 16 P.S. 3101

Second Class Township Code (Act of 24 June 1931, P.L. 1206) . . . 53 P.S. 65101

Special Fire Police (Act of 18 June 1941, P.L. 137, 1) . . . 35 P.S. 1201

Statutory Construction Act of 1972 (Act of 1972, P.L. 1339, No. 290) . . . 1 Pa.C.S. 1501

Sterling Act [Philadelphia] (Act of 1932 [Ex. Sess.], P.L. 45) . . . 53 P.S. 15971

Sunshine Act [public meetings] (Act of 3 July 1986, P.L. 388, No. 84) . . . 65 P.S. 271

Tax Reform Code of 1971 (Act of 4 March 1971, P.L. 6, No. 2, art. I) . . . 72 P.S. 7101

Third Class City Code (Act of 23 June 1931, P.L. 932, art. I) . . . 53 P.S. 35101

Third Class County Assessment Board Law [2nd-A & 3rd class counties] . . . 72 P.S. 5342

Uniform Mileage Act [fees] (Act of 20 July 1979, P.L. 156, No. 51) . . . 65 P.S. 371

Urban Redevelopment Law (Act of 24 May 1945, P.L. 991, 1) . . . 35 P.S. 1701

Volunteer Fire Company, Ambulance (Act of 1976, P.L. 1036, No. 208) . . . 72 P.S. 3943.1

Volunteer Firemen Job Protection (Act of 1 Dec. 1977, P.L. 249, No. 83) . . . 43 P.S. 1201

Volunteer Firemen's Relief Association (Act of 1968, P.L. 149, No. 84) . . . 53 P.S. 8501



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