Canonizing Local Governments

This last July, the Michigan Supreme Court dusted off an obscure canon of statutory construction to resolve a high-profile case involving the City of Detroit’s efforts to revise its charter. The canon, codified by Article 7, section 34 of the Michigan Constitution, calls for the powers of local governments to be “liberally construed.” In theory, such a canon, which is contained in several other state constitutions or statutory home-rule grants (for instance, those of Kansas, Illinois, and Wisconsin) could be a sort of Chevron canon for local government, converting any statutory ambiguity into policy-making space for local governments. In practice, however, the canon has functioned generally as a weak tie-breaking rule.

As I shall explain below, I think that this weakness is probably a good thing, because the benefits of local governmental power are simply too equivocal to be “canonized” in any strong fashion.

The Michigan Supreme Court invoked the “liberal construction” canon to construe a 1913 state statute to allow Detroit could send proposed revisions of its city charter to its residents for a vote despite Governor Whitmer’s veto. (I have elsewhere delved into technical arguments for each reading of the relevant statutory text. In brief, the 1913 law unambiguously required Detroit’s charter revisions to be sent to the governor so that she can either “approve” the proposals for submission to Detroit’s voters or “return” the proposals with her “objections,” but the statute, was ambiguous about whether the Commission could send the proposals to the voters for a referendum even after the governor objected).

Exactly how much work was the “liberal construction” canon doing? Is it just a tiebreaker in the last resort to resolve an ambiguity that cannot otherwise be deciphered by looking at extra-textual sources like, for instance, statutory purpose? Or is it a heavy thumb on the scale in favor of local governments whenever the bare text of a statute could plausibly be read to confer power powers on cities? The Michigan supreme court ducked this question by simply involving the canon without much explanation as to what sort of extra-textual evidence it either contradicted or reenforced, thereby provoking a concurrence and a dissent respectively from Justices Welch and Viviano.

The exact force of the “liberal construction” canon, however, will determine whether it has any practical force at all. A merely tiebreaking canon might rarely change the outcome of cases: Think of how little actual work the merely tie-breaking lenity canon performs in federal court. By contrast, a canon like the “federalism plain statement rule” in Gregory v Ashcroft put a huge thumb on the local government’s side of the scale. In Gregory, the SCOTUS refused to find that the Age Discrimination in Employment Act covered state judges, even though the text seemed to imply such a reading, because such coverage was not so “unmistakably clear” that it would be “plain to anyone” looking at the statute.

Gregory defended its canon as a way to force Congress to be attentive to the value of federalism, thereby protecting that value through the national political process. Should courts give analogously strong protection to local governments using the “liberal construction” canon?

Although difficulty of this question obviously transcends the limits of the blog format, here are two reasons against protecting local governments with a super-strong anti-preemption canon

1. A strong localism canon could undermine judicial supervision of local governments that ignore the regional costs of their decisions.

Unlike states, the territory defined by most local governments’ boundaries are too narrow to contain the effects of their decisions. States’ territories are always large enough to encompass rich and poor, black and white, suburb and city. States are also big enough to suffer from the regional spillovers imposed by local governments. By contrast, all but the very largest consolidated city-counties (e.g., NYC) divide up commutersheds by class and race. Empowering local governments to resist state law, therefore, means reducing judicial power to bridge social divisions that local laws can exacerbate.

In particular, zoning laws, local government’s most important regulatory responsibility, has created a national housing crisis. There simply is no longer a “growth machine” – i.e., no intra-local constituency advocating for housing supply – even in big cities. It is true enough that state legislatures often do too little to preempt local zoning, but their preemptive legislation rarely makes things any worse, and sometimes, as with recent California legislation, it acts to stop local anti-housing policies. When they do, state courts should not be erecting speed bumps to impede such efforts.

The recent San Mateo decision from the California court of appeals illustrates how much mischief can be caused by any rule construing vague statutory terms to favor local power. California’s Housing Accountability Act bars local governments from rejecting housing developments that is consistent with “objective” zoning standards. Is consistency with the “character of a neighborhood” an objective standard? The trial court so held, thereby gutting the statute’s protection of housing supply. The Court of Appeals reversed (Chris Elmendorf has a great summary here) – but a super-strong localism canon would surely hold that the term “objective” is too vague to be an express preemption of localistic exclusion.

2. A strong localism canon, if limited to cases where local governments are trustworthy agents for extra-local interests, is too politically controversial for judges to use.

The NLC’s Home Rule Principles tout the benefits of side-stepping “the fraught task of speculating about the intentions and motivations of state legislators to determine if state law preempts the local law.” But (see Point 1 above) any simple, across-the-board presumption against preemption that would relieve courts of that “fraught task” would also cut too deep into state efforts to fix our current housing mess.

Paul Diller and Nestor Davidson have both provided important qualifications of the presumptions against preemption. These qualifications urge judges to suspend the presumption when the dangers of parochial, exclusionary, or otherwise undesirable local legislation are especially high. But these policy-laden tests limiting the presumption will likely be just as fraught as inquiring into a particular statute’s extra-textual purpose. At least the latter allows judges to pass the buck to the state legislature by characterizing the judicial decision as simply following the state legislature’s instructions.

This statute-specific inquiry seems to be the path taken by the Michigan supreme court: Finding no plain evidence that the Michigan legislature wanted to confer an absolute veto on the governor, the Court used the “liberal construction” canon as a tiebreaker to rule for Detroit. As Justice Welch pointed out in her concurrence, it would indeed be a little odd for a state legislature to give the governor an absolute and irreversible power to block a city from even asking its voters what they thought of a proposed charter change. (As it turned out, the voters this August soundly rejected the changes proposed by Detroit’s commission).

The Michigan Supreme Court could have reached this decision by employing a strong presumption that a local government’s internal decision-making processes should be controlled by local voters. (Nestor has a defense of this view on this blog). But any such presumption would expose the Court to the accusation that it was imposing it has own judicially tailored preferences on the state. Far easier, then, for the Court to frame its ruling as coming from the specifics of a particular statute.

For this reason, I suspect that most state courts will treat “liberal construction” provisions in their state constitutions as weak canons. Such canons would simply repeal Dillon’s Rule, instructing the judge to read statutes without any bias either for or against inferring that a local government was authorized to act. Given the risks posed by a strong presumption favoring local power, I am inclined to think that these judicial incentives are a good thing. Good or bad, such a view of these “liberal construction” canons has yet to be spelled out by state courts. There is, therefore, room here for legal scholars to nudge the courts one way or the other.