Regaining Rights and Civil Liberties for People in Communities

What if we, as citizens of our community, actually had the right to choose whether or not we wanted RF wireless meters radiating microwaves in our homes 24 hours per day, or cell towers microwaving our children in school all day long, or factories spewing toxic fumes into our air, or CAFO’s poisoning our water, land and air? Is that an impossible dream, because corporate agendas control our system of government, at the federal, state and local levels? Or can we actually restore democracy in our community, by working within the existing governing framework, exercising rights which are still available and working in communities in America today?  

“Building sustainable communities by assisting people to assert their right to local self-government and the rights of nature.”
http://www.celdf.org/section.php?id=220

“What kind of community do you want to live in?” Rather than getting into a room with regulators and politicians and trying to minimize the damage that a corporation wants to do, assert your rights as citizens to make the decisions you think are in the best interest of your community. Isn’t that the Democracy we are taught to believe in?” (Thomas Linzey, introduction to “Be the Change, How to Ge  What You Want, in Your Community”)

We believe that we are in the midst of an escalating ecological crisis, and that the crisis is the result of decisions made by a relatively few people who run corporations and government. We believe that sustainability will never be achieved by leaving those decisions in the hands of a few – both because of their belief in limitless economic production and because their decisions are made at a distance from the communities experiencing the impact of those decisions.

Therefore, we believe that to attain sustainability, a right to local self-government must be asserted that places decisions affecting communities in the hands of those closest to the impacts. That right to local self-government must enable communities to reject unsustainable economic and environmental policies set by state and federal governments, and must enable communities to construct legal frameworks for charting a future towards sustainable energy production, sustainable land development, and sustainable water use, among others. In doing so, communities must challenge and overturn legal doctrines that have been concocted to eliminate their right to self-government, including the doctrines of corporate constitutional rights, preemption, and limitations on local legislative authority. Inseparable from the right to local self government – and its sole limitation – are the rights of human and natural communities; they are the implicit and enumerated  premises on which local self government must be built.

Home Rule

Forty-three states in the U.S. either constitutionally or statutorily allow for Municipal Home Rule. In some, citizens are able to write and adopt their own local governing constitutions.  While the process for becoming a Home Rule municipality differs among the states, it often requires the electorate to first vote to become a Home Rule municipality, as well as elect community representatives to draft a new charter.  That charter is then brought before voters for their approval.

With Home Rule, municipalities take themselves out from under Dillon’s Rule – the prevailing legal doctrine which states that municipalities only have the powers given to them explicitly by the state – and instead allows them to create a form and structure of governance of their choosing, so long as they do not conflict with state or federal law.  In the State of Washington, for example, where we launched the Envision Spokane project, Home Rule municipalities have the ability to establish local laws that may be stricter than state law, unless the state expressly prohibits this. In the Commonwealth of Pennsylvania, we consulted with the elected Government Study Commission, which produced the first community rights-based municipal Home Rule Charter for Blaine Township.

People are beginning to embrace the idea of drafting Home Rule charters as a way to assert in law their communities’ vision for the future, by enumerating the rights of the municipal citizenry, including their right to a certain quality of life, and codifying legal protections of those rights at the local level.

The Home Rule process can serve as an important vehicle for communities that are seeking to challenge the fundamental structure of law which puts the rights of corporations over those of communities; prevents communities from saying “no” to projects that are harmful for workers, the local economy, livability, property values, or the environment; and ultimately prevents municipalities from creating the economically and environmentally sustainable communities they seek.

We are working with communities on Home Rule efforts, as communities are finding that the writing of a local charter of governance allows citizens and municipalities a much broader foundation to work from than the framework of a single ordinance. Adopting a rights-based home rule charter is an obvious step toward community assertion of the inalienable right to local self-government, and a fulfillment of the long-postponed ideals of the American Revolution.

What is Municipal Home Rule?

The powerful corporate interests engaged in the exploitation of municipal franchises are securely entrenched behind a series of constitutional and legal checks on the majority which makes it extremely difficult for public opinion to exercise any effective control over them.” — J. Allen Smith, The Spirit of American Government [pdf], 1907, p. 289

“A local government, needs from the central government, the state, nothing but adequate power to exercise the functions of local government.” — Horace E. Deming, The Government of American Cities[pdf], 1909, p. 126

Official explanations of the meaning of municipal home rule in America are steeped in a history of tension between communities seeking to establish local decision-making and concentrations of wealth cloaked in corporate power exercising influence in state and federal governments. Beginning in the late 1860’s, powerful minorities using corporations and newly bestowed Constitutional protections for corporations took control of federal courts and state legislatures. The result was a constriction of democracy at the community level that prevented majorities of people from enacting laws to protect local businesses, natural resources, workers rights and community values from the vacuuming effect of expanding corporate power and governing authority.

In 1868, a railroad lawyer turned Iowa Supreme Court Justice, John F Dillon, wrote an opinion that became the Corporate Magna Carta over municipal soverignty. The opinion was transformed within a few decades into a corner stone of American municipal law when corporate lawyers then sitting on the U.S. Supreme Court adopted Dillon’s Rule as the default legal code for municipalities across America (Hunter v. Pittsburgh, 1907). It maintains that a political subdivision of a state is connected to the state as a child is connected to a parent. Dillon’s Rule is used in 39 states [including those with defined municipal home rule options] to interpret state law when there is a question of whether or not a local government has a certain power.[1] Dillon’s Rule is employed to narrowly define the power of local governments.

The first part of Dillon’s Rule states that local governments have only three types of powers:

1. those granted in express words,

2. those necessarily or fairly implied in or incident to the powers expressly granted, and

3. those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.

The second part of Dillon’s Rule states that if there is any reasonable doubt whether a power has been conferred on a local government, then the power has NOT been conferred.  This is the rule of strict construction of local government powers.[2]The National League of Cities reports, “The Constitution of the United States of America does not mention local governments.”

Yet state laws and federal courts over the past one hundred and fifteen years have relegated municipalities to a subordinate status that contradicts the Constitutional status of The People living in those communities as the source of all governing authority.

The Declaration of Independence states that governments are instituted to secure people’s rights, and that government derives its just powers from the consent of the governed. The Pennsylvania Constitution, Article 1, §2, declares, “all power is inherent in the people and all free governments are founded on their authority and instituted for their peace, safety, and happiness.” Most state constitutions make similar acknowledgements that The People are the source of all governing authority.

It is consistent with these fundamental statements of rights and law that communities of people, through their municipal governments, have legitimate authority to make governing decisions about issues affecting their communities and enforce them in law.

The historical need for municipal home rule, as a way of countering the community rights-denying effect of the adoption of “Dillon’s Rule” and it’s application nationally, became even more stark soon afterward. Beginning in the 1880s the U.S. Supreme Court, now packed with railroad corporation lawyers, began “finding” corporations in the US Constitution, although they are nowhere mentioned there.

It is a bitter irony of the post-Civil War era that the Court suddenly began to interpret the newly adopted 14th Amendment as though it intended corporations to be protected with the rights of “persons” under the law. The amendment was passed following the abolition of slavery, to guarantee Constitutional rights for freed slaves. But the Corporate Court, while applying those protections to corporations, rejected the clear meaning of the amendment to protect African Americans from bigoted innkeepers and shopkeepers, discriminatory state laws or Klansmen.

The Supreme Court said the amendment only protected freed slaves from Federal violations of their newly won rights.At the same time, these railroad judges got very busy granting Corporations — NOT their directors and managers, but Corporations as artificial legal “persons” — Constitutional Rights under the 14th Amendment. Unlike African Americans, the Court found corporations deserving of these protections not only from federal encroachment, but also in the states.

Starting in the 1880s and up to the present day, the US Supreme Court has bestowed Constitutional Rights on jointly owned property known as corporations with predictable regularity. In 1886, the court bestowed 14th Amendment rights of Equal Protection, which prohibits states from denying any person within its jurisdiction the equal protection of the laws. Three years later, the right to Due Process was given to corporations. In essence, the court recognized corporations to be “persons” under the terms of the 14th amendment. As legal “persons,” corporations have thus been granted legal protections and constitutional powers once thought only to apply to living people.

As recently as 1978 the Court gave corporations 1st Amendment free speech rights, allowing industry managers to hide behind corporations and funnel large amounts of money to influence legislation. In 1906 it gave them 4th Amendment protections against “unreasonable search and seizure,” thus handing them the tools to avoid compliance with regulatory agencies like OSHA and the EPA.

In 1893 and again in 1922 the Court bestowed 5th Amendment protections against government “takings” of property. In the 1922 case, Pennsylvania Coal Company v Mahon, the coal company complained to the court that laws forcing it to leave pillars of coal to hold up mine ceilings and prevent land and homes above ground from subsiding into the mines constituted an unconstitutional “taking” of property from the corporation, and the Court thus overturned the law.

In 1962, the Court granted corporations 5th amendment immunity from Double Jeopardy, ruling that a corporation can not be re-tried for the same violation if it has been acquitted in a previous trial. And there’s the “Dormant Commerce Clause,” an invention of the court based on the constitutional provision knowns as the Commerce Clause, which gives Congress power to regulate trade between the states. By inventing the “Dormant Commerce Clause,” the court declared that – even if Congress has not legislated specifically to protect a commercial activity, the law must be interpreted as if it had in every case intended to do so.

Thus, any state or local law is considered unconstitutional if it “burdens” interstate commerce. In a Virginia case, the court ruled that states and municipalities could not ban or regulate trash importation because trash hauling is not a matter of community concern, but a form of “commerce.” The interests of profit making thus trump the interests of communities as a matter of indisputable law.In the 1870s, just prior to the Federal Court successfully “finding” corporations in the US Constitution (after great efforts to achieve just this aim), Thomas Cooley, a Michigan Supreme Court Justice and the first head of the Interstate Commerce Commission, had declared state lawmaking bodies to be “captured legislatures” and mere tools of the corporations. He argued for the rights of municipalities to govern themselves, free from corrupt meddling at the state level. The people in their communities, he argued, had not surrendered their sovereignty to the state.

  • The movement toward municipal home rule began simultaneously with the constriction of municipal governing authority imposed by corporate controlled courts and legislatures following the Civil War. Even before the court elevated “Dillon’s Rule” to national status over municipalities, the city of Saint Louis drafted and adopted the first municipal home rule charter in America.

    Today, there are forty-three states that have provisions either in law or within the body of their Constitutions acknowledging the right of citizens, through their municipal governments, to exercise local decision-making power with the weight of law. [A listing of which states have municipal home rule provisions, including links to detailed information is available on this web site.] However, municipal home rule powers vary widely from state to state. In some, the authority is extended only to certain classes of cities, counties, and towns. Some states that retain “Dillon’s Rule.” continuing to subordinate municipalities to the state legislature, offer some form of municipal chartering. Others are “Home Rule” states, with fewer local constraints. [Do I Live in a Home Rule State or a Dillon’s Rule State?]

    Overall, state legislatures have consistently limited home rule prerogatives. None-the-less, the People, as the legitimate governing authority over municipalities and state legislatures, have just as consistently pushed back.

    Today, the need has never been greater for communities to assert local democracy and make choices that carry the weight of law about the health, safety, sustainable business and agricultural practices and quality of life in those communities. State legislators and judges in cahoots with corporate managers and lobbyists have preempted local democracy by erecting and enforcing municipal codes, land use laws, and “development” friendly legislation that keeps citizens out of important decision-making processes. Regulatory agencies and zoning schemes assure corporate access and governing privileges that preempt the rights of citizens to create sustainable communities.

    Despite the attempted limitations on self-government imposed on citizens by such illegitimate legal usurpations, people are beginning to embrace the idea of drafting local constitutions – home rule charters – as a way to assert in law their communities’ vision for the future, by enumerating the rights of the municipal citizenry, including their right to a certain quality of life, and codifying legal protections of those rights at the local level.

    The Community Environmental Legal Defense Fund is at the forefront of this community justice revolution, and invites you to explore our work and strategy for building a people’s movement that has as its goal the establishment of local democracy and real people-run government, one community at a time.

    [1] Jesse J. Richardson, Jr., Meghan Zimmerman Gough, and Robert Puentes “Is Home Rule The Answer? Clarifying The Influence Of Dillon’s Rule On Growth Management.” January 2003

    [2] Clay Wirt. “Dillon’s Rule.”  Virginia Town & City. August 1989, vol. 24 no. 8, pp 12-15.

Rights of Nature

Stay up-to-date on all the latest on Rights of Nature on Facebook.

The Community Environmental Legal Defense Fund is working with communities in the United Statesand in countries around the world on grassroots organizing, public education and outreach, research, and legislative drafting – assisting people, NGOs, elected representatives, and government officials to craft and adopt new laws that change the status of natural communities and ecosystems from being regarded as property under the law to being recognized as rights-bearing entities.

Through this work, the Legal Defense Fund has assisted more than two dozen communities in the U.S., and assisted the Constitutional Assembly of Ecuador, to put in place a new paradigm to protect nature – a paradigm based on rights.

DemocracySchool

http://www.celdf.org/democracy-school

The Daniel Pennock Democracy Schools are a key piece of our community organizing.  Named for a boy in Pennsylvania who died after exposure to sewage sludge, the Democracy Schools are one to three-day intensive seminars that examine how communities across the U.S. are beginning to assert local control to protect the rights of their residents, their communities, and nature.

We often begin our work with a phone call from a community member.  A resident will contact us because his or her community is facing a proposal for an unwanted project – perhaps a factory farm, a quarry, or mining operations.  From there, we will often visit with community members, conduct an evening presentation, or meet with elected officials and hold a Democracy School.

The Legal Defense Fund has nearly 200 Democracy Schools, graduating nearly 3,000 participants.  Participants include many first-time activists, concerned citizens, and local elected officials.

There are lots of materials about DemocracySchool here on our website as well as a schedule of Schools.  You can also register for a School from our website.  We hope you will join us at an upcoming DemocracySchool.

http://www.celdf.org/democracy-school

2011 Iowa Code
TITLE IX LOCAL GOVERNMENT
SUBTITLE 4 CITIES
CHAPTER 372 ORGANIZATION OF CITY GOVERNMENT
372.9 Home rule charter procedure.

IA Code § 372.9 What’s This?

372.9 Home rule charter procedure.

A city to be governed by the home rule charter form shall adopt a home rule charter in which its form of government is set forth. A city may adopt a home rule charter only by the following procedures:

1. A home rule charter may be proposed by:

a. The council, causing a charter to be prepared and filed and by resolution submitting it to the voters.

b. Eligible electors of the city equal in number to at least twenty-five percent of the persons who voted at the last regular city election petitioning the council to appoint a charter commission to prepare a proposed charter. The council shall, within thirty days of the filing of a valid petition, appoint a charter commission composed of not less than five nor more than fifteen members. The charter commission shall, within six months of its appointment, prepare and file with the council a proposed charter.

2. When a charter is filed, the council and mayor shall notify the county commissioner of elections to publish notice containing the full text of the proposed home rule charter, a description of any other form of government being presented to the voters, and the date of the election, and to conduct the election. The notice shall be published at least twice in the manner provided in section 362.3, except that the publications must occur within sixty days of the filing of the home rule charter, with a two-week interval between each publication. The council shall provide copies of a proposed charter for public distribution by the city clerk.

3. The proposed home rule charter must be submitted at a special election on a date specified in section 39.2, subsection 4, paragraph b , and in accordance with section 47.6. However, the date of the last publication must be not less than thirty nor more than sixty days before the election.

4. If a proposed home rule charter is rejected by the voters, it may not be resubmitted in substantially the same form to the voters within the next four years. If a proposed home rule charter is adopted by the voters, no other form of government may be submitted to the voters for six years.

5. If a petition for the appointment of a charter commission is filed at any time within two weeks after the second publication of a charter proposed by the council, the submission to the voters of a charter proposed by the council must be delayed, a charter commission appointed, and the council proposal and the charter proposed by the charter commission must be submitted to the voters at the same special election.

6. The ballot submitting a proposed charter or charters must also submit the existing form of government as an alternative.

7. a. If only two forms of government are being voted upon, the form of government which receives the highest number of votes is adopted.

b. If more than two forms are being voted upon and no form receives a majority of the votes cast in the special election, there must be a runoff election between the two proposed forms which receive the highest number of votes in the special election. The runoff election must be held within thirty days following the special election and must be conducted in the same manner as a special city election.

8. If a home rule charter is adopted:

a. The elective officers provided for in the charter are to be elected at the next regular city election held more than sixty days after the special election at which the charter was adopted, and the adopted charter becomes effective at the beginning of the new term following the regular city election.

b. The adoption of the charter does not alter any right or liability of the city in effect at the time of the special election at which the charter was adopted.

c. All departments and agencies shall continue to operate until replaced.

d. All measures in effect remain effective until amended or repealed, unless they are irreconcilable with the charter.

e. Upon the effective date of the home rule charter, the city shall adopt by ordinance the home rule charter, and shall file a copy of its charter with the secretary of state, and maintain copies available for public inspection.

[C75, 77, 79, 81, §372.9]

89 Acts, ch 39, §8; 2002 Acts, ch 1134, §103, 115; 2008 Acts, ch 1115, §65, 71
Disclaimer: These codes may not be the most recent version. Iowa may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

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