FAQ

An excellent link for legal specifics on home rule vs. Dillon's Rule

Types of Authority Given by the State

Political power in a state can be divided into three spheres: the local government, the state government and the functions that the two governments share. Within the local sphere, there are four categories in which the state allows discretionary authority:

• Structural -- power to choose the form of government, charter and enact charter revisions
• Functional -- power to exercise local self government in a broad or limited manner
• Fiscal -- authority to determine revenue sources, set tax rates, borrow funds and other related financial activities
• Personnel -- authority to set employment rules, remuneration rates, employment conditions and collective bargaining

Typically, the broadest discretionary powers are applicable to local government structure, and the narrowest are given to finance. Also, local governments endowed with discretionary authority may not always exercise it; for example, the adoption or amendment of a local government's municipal charter is infrequent.

Note that California is both a home rule state and a Dillon's Rule state. 

In CA, charter cities are exempt from Dillon's rule and therefore have complete home rule authority.  But home rule counties are limited by Dillon's rule. 

• A municipal corporation can exercise only the powers explicitly granted to them
• Those necessarily or fairly implied in or incident to the powers expressly granted
• Those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable

For the full story, go to:

http://www.nlc.org/build-skills-and-networks/resources/cities-101/city-powers/local-government-authority

Can county law have precedence over State law?

The provisions of the charter have equal force and weight as do state laws.  The only instance we can imagine of a county law having greater strength than a state law is if the county fills a gap in state law that makes so much sense that all other counties follow suit. 

There are several synonymous terms that have very specific meanings in the law: having greater strength, taking precedence, and supersede.  On 4/19/16, Geoff Neill of the California State Association of Counties, a private non-profit corporation, testified before the Mendocino County Board of Supervisors about what he had learned in the last couple of weeks about charter counties.  He clearly stated, that within the narrow scope of the charter county's home rule authority DOES SUPERCEDE state laws in conflict therewith, and then only to the extent that they are not limited by the CA Constitution.

CA Constitution Article XI § 4 (g) Whenever any county has framed and adopted a charter, and the same shall have been approved by the Legislature as herein provided, the general laws adopted by the Legislature in pursuance of Section 1 (b) of this article, shall, as to such county, be superseded by said charter as to matters for which, under this section it is competent to make provision in such charter, and for which provision is made therein, except as herein otherwise expressly provided. (h) Charter counties shall have all the powers that are provided by this Constitution or by statute for counties.

[General law county]

§ 1 (b) The Legislature shall provide for county powers, an elected county sheriff, an elected district attorney, an elected assessor, and an elected governing body in each county. Except as provided in subdivision (b) of Section 4 of this article, each governing body shall prescribe by ordinance the compensation of its members, but the ordinance prescribing such compensation shall be subject to referendum. The Legislature or the governing body may provide for other officers whose compensation shall be prescribed by the governing body. The governing body shall provide for the number, compensation, tenure, and appointment of employees.

The precedence issue is one of long debate and only applies if there is a conflict between state and county laws, i.e. spraying glyphosate on school campuses.  If the state rules that glyphosate is safe in spite of the scientific evidence, World Health Organization warnings and the precautionary principle, and the county charter has a provision banning the use of glyphosate on school campuses, then of course, the state law would take precedence, as determined by Dillon's Rule and State Preemption laws. 

Dillon was an Iowa State Supreme Court Justice, who, in 1868, during the Gilded Age of the Railroad Barons, ruled that federal law took precedence over state law, and state law takes precedence over county or city law.  California adopted Dillon's Rule in 1911. 

From Wikipedia: "The theory of state preeminence over local governments was expressed as Dillon's Rule in an 1868 case: "Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control".^[2] By contrast, the Cooley Doctrine expressed the theory of an inherent right to local self-determination. In a concurring opinion, Michigan Supreme Court Judge Thomas M. Cooley in 1871 stated: "[L]ocal government is a matter of absolute right; and the state cannot take it away""

Dillon held that local municipal governments get their derived powers from the state government, which can also take them away.  But Cooley held that governments derive their powers from the unalienable right of the People, and that power begins on the local level. 

Although the State of California has adopted Dillon's Rule and did not adopt the Cooley Doctrine, many of us clearly interpret from the founding documents of this nation that all government power is derived from the people and government exists to serve the needs of the People.  Therefore, Dillon's Rule is anti-democratic, anti-constitutional, patriarchal and obsolete. 

Mr. Neill of CSAC made it very clear that when a county adopts a charter, the law established by the charter will supercede the general laws that have been provided by the State to guide county governments.  Mr. Neill stated that there are times when charter law conflicting with general laws would take precedence in order to provide for the peace, comfort, convenience and prosperity of the county's citizens. 

Joel Chaban of Gualala sees the importance in a county charter

My opinion: you need to have town halls here to inform people of the pros and cons of a Charter.  Public banking, which the founders of this movement have been pushing, seems to me to be of lesser importance than other aspects of Mendocino being a Charter county.  What to me is most important about being a Charter County is the ability to have Home Rule where the county can enact ordinances that are of the same enforcement level or even take precedence to State law.  

This is so important to be able to build sustainable communities by assisting people to assert their right to local self-government.  Such barriers to building sustainable communities include corporate constitutional "rights" and the preemptive authority of Sate government -- both of which are used to override community decision making.

These days, no matter how hard  you try to stop projects that are harmful to the community, especially those that cause known environmental harm, our own government works with corporations to make sure such projects are permitted.  Rather than protecting people, workers, communities, and the  environment -- the focus is on endless growth, extraction, and development.  This is a structure that is inherently unsustainable, and has  in fact, made sustainability illegal.

What ever harms communities are facing -- fracking, injection wells, factory farms, pipelines, GMOs, water extraction, or a wide range of other threats -- the barriers they face to stop these projects -- and in their place establish sustainable energy, water, agriculture, and other systems -- consistently experience the same barriers.

With a Charter and Home Rule, the county can enact Community Rights laws which ban practices that violate the rights of people, communities and nature.  Without a Charter, the County has no Home Rule entitlement that allows us to have such things as a Community Bill of Rights.

Joel


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All Things Connected
Joel Chaban
This email address is being protected from spambots. You need JavaScript enabled to view it.
P.O. Box 800
Gualala, CA 95445
tel: 707-884-9280
fax: 707-884-9263

Robin's LTE summing it all up

The Charter Project of Mendocino County is a coalition of people striving to increase local sovereignty with a home rule charter. We want Mendocino to join the 14 other California counties that have established home rule charters under Article XI of the California Constitution.

The greatest advantage to a home rule charter is that provisions of the charter have the same force and effect as state law [Art XI, §3(a)]. That means that whatever we write into the charter, once approved by the voters, will be like state law, but applicable only to our county.

We are all quite proud of Measure H, the 2004 measure, which banned GMO agriculture in Mendocino County.  Mendocino was the first county in the Western Hemisphere to ban GMO crops.  Measure H had a domino effect in which many other counties in the USA, and provinces and states around the world all followed suit and banned GMO agriculture.  In response, ALEC (the American Legislative Exchange Council) pressured states to prohibit counties from banning GMO agriculture. 

“ALEC's response to cities and counties acting as laboratories of democracy has traditionally been to crush it through ‘state preemption laws’ that prohibit local governments from raising the minimum wage, regulating GMO's or building municipal broadband.” 

http://www.prwatch.org/news/2015/07/12876/alecs-2015-agenda

Considering that Measure H is but a measure from a general law county, it could be overturned if the State of California followed ALEC's lead and prohibited counties from prohibiting GMO crops.  If the new charter stated that Mendocino agriculture must be GMO free, it would have the same force and effect as state law and could not be overturned by the State. 

Becoming a charter county is a three-step process. After the correct number of signatures has been collected and validated, there will be two charter measures on the June 2016 ballot for the electorate to vote on. The first is: “Shall a charter commission be elected to propose a Mendocino County charter?” The second will be a list of (at least) 15 people who are running for charter commissioner. If a majority vote “yes” on the first question, then the 15 people with the most votes will be elected to the charter commission. They will draft a charter for the county. Once completed, the charter will then go on the ballot for the people to approve the proposed charter. Once approved by the voters and adopted by the Secretary of State, it then becomes equivalent to state law.

Other provisions that could be included in a home rule charter include protections for the water, air, soil and scenic beauty within the county. Instant Runoff Voting (aka Ranked Choice Voting) in which we could vote for our favorite candidate instead of the lesser of 2 evils. If your #1 choice doesn’t win, then your vote would go to your #2 choice. San Francisco uses IRV, which saves money on runoff elections. We could include anti-corruption laws that prohibit donors outside the County from contributing to local candidates. Also, several of our local measures can be reiterated in the charter, strengthening their impact.

A county charter will also strengthen the case to establish a county public bank and remove our public funds from Bank of America, a felon that is too big to fail, and has derivatives exposures on the world market 28X their total assets. Another worldwide economic downturn is inevitable, and the casino derivatives market is unregulated and has super-priority status over every other debt. Therefore, when the derivatives bubble bursts, our public funds will not be safe in BoA. The sooner we find another safe location for our county’s public funds, the better. The Democratic Central Committee of Mendocino County and the CADems have both endorsed a Mendocino County public bank. Hopefully, when established, it will be a democratically operated benefit corporation called the Public Bank of Mendocino County.

Sign a petition now to get the charter question on the ballot and vote YES on the charter question in June 2016!