Kourtney Burdick is deputy general counsel for the League and can be reached at kburdick@cacities.org. JoAnne Speers is executive director of the Institute for Local Government and a former general counsel for the League; she can be reached at jspeers@ca-ilg.org. Patrick Whitnell is general counsel for the League and can be reached at pwhitnell@cacities.org.

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This column offers a brief and very general historical look at California cities’ constitutional history and powers. This information sheds light on some of the struggles cities face in protecting local control in the courts and the Legislature.

The 1849 Constitution

When the United States annexed California in 1848, city governments were the only form of government in the state. Cities were allowed to continue to operate, as they had been doing, under international law.

The state held its first constitutional convention Sept. 3, 1849. Despite the fact that local government was the dominant form of government in California, the 1849 Constitution said little about city government — precisely 133 words.

The Constitution’s silence on local government allowed the Legislature and courts to interpret very broadly the state’s powers with respect to local government. When residents were unhappy with a city’s action, they asked the Legislature to override the action. The Legislature ordered cities to sell property, pay specific claims, issue debt and pay city employees certain amounts. In some instances, the Legislature stripped individual cities of their power over particular issues. The Legislature also retained authority to approve (or alter) new city charters. The breadth of the Legislature’s discretion led to widely differing powers among cities.

Between 1849 and 1879, California changed dramatically as its population grew. For some, it was a period of prosperity as the state’s agricultural and manufacturing industries blossomed. For many, however, it was marked by instability and deterioration. The 1870s witnessed widespread unemployment, homelessness, foreclosures and business and bank closures.

These problems were amplified by a “keen outrage … that something had gone terribly wrong in the political process.” The 1849 Constitution’s silence on local government gave the Legislature unchecked power. Unfortunately, the railroads, corporate ranchers and other business interests unduly influenced many legislators — to the detriment of the state’s citizens.

1879 Brings a New State Constitution

People wanted reform. In 1878, the Legislature called a constitutional convention, where delegates drafted a new Constitution, which was proposed to the voters in 1879. A heated campaign ensued over whether to ratify it. Some claimed its adoption would lead to the state’s collapse. Others argued it would serve as a gateway to prosperity. In the end, the voters approved the new Constitution.

The 1879 Constitution has two significant aspects. First, it gave affirmative grants of authority to cities, including the police and charter city powers, which remain in place today. The police power allows cities to make and enforce all local, police, sanitary and other regulations not in conflict with state law. The charter city power allows citizens to give their city “home rule” authority by voting to become a charter city. Charter cities can organize themselves as they see fit and enact measures that affect matters of local concern, regardless of conflicting state laws.

Second, the 1879 Constitution placed significant restrictions on the state’s power to interfere with city matters. Among other things, these restrictions prohibited the Legislature from:

• Adopting special legislation relating to cities;
• Imposing taxes upon cities and city residents for local purposes; and
• Delegating authority over city revenues to private persons.

The Constitution also demanded that the Legislature adopt a uniform procedure for city incorporation.

A Constitutional Revision

The 1879 Constitution was in effect for a long time, but by the 1960s things were again in a state of disarray. The Constitution had been amended more than 300 times, and it had ballooned from a relatively succinct 16,000 words to a whopping 75,000 words. It was longer than the federal Constitution, and the only state with a longer Constitution was Louisiana. The chief justice of the California Supreme Court called the California Constitution ” cumbersome, unelastic and outmoded … much too long … almost everything a Constitution ought not to be.”

Article XI, the portion that addresses local government, was one of the worst offenders. After the 1879 Constitution was adopted, Article XI was amended more than 65 times. It was so specific that one professor described the article as “an object of criticism for its multitudinous procedural details, extensive regulatory trivia and narrowly particularized provisions.”

In 1962, California voters approved a constitutional amendment that allowed the Legislature to propose revisions to the Constitution. The Legislature responded by appointing a Constitutional Revision Commission to assist with the task. Then-League Executive Director Bud Carpenter was a member of this commission, as were a number of city officials.

The commission’s work took almost a decade. The group proceeded methodically through each article. As they finished each article, they submitted it to the Legislature, which in turn submitted the article to the electorate. The voters approved the new and improved version of Article XI in June 1970.

Recent Amendments Are Cause For Celebration

Since 1970, California has adopted many constitutional amendments, chiefly related to the financial relationship of cities to the state and the process local government must use to increase revenues.

For example, a key victory for local control occurred in 2004 when voters overwhelmingly approved Proposition 1A. The proposition was designed to put a stop to the then-prevalent practice of the state taking local revenues to balance its budget. Although the 1879 Constitution was designed in part to limit legislative encroachments into city prerogatives, the state still found ways to dip into local coffers. Prop. 1A stopped this practice, and also prohibits the Legislature from imposing new programs on local governments without providing the money to pay for them.

Court Decisions Focus on Local Control Issues

The 1879 Constitution’s provisions were quaint and largely of historical interest through most of the 20th century. In 2003, however, the California Supreme Court relied on one of the 1879 amendments to strike down a state labor relations law that local officials perceived as threatening their ability to control their budgets.

In the area of pre-emption analysis, the courts have been inconsistent. For example, in summer 2007, the California Supreme Court ruled that the City of Stockton lacked the power to take title of vehicles previously used to acquire drugs or solicit prostitution. This is contrary to the general rule that when a city is regulating in an area of traditional local concern, courts presume the state law does not override local regulation unless the Legislature has clearly expressed an intent to pre-empt. The fact that Stockton is a charter city did not affect the court’s analysis.

Constant Vigilance Is Key

California’s Constitution contains strong protections for local control. This reflects the practical reality that California is not a state in which one-size-fits-all solutions meet the needs of all communities. It also reflects a desire to keep government close to the people. As with all constitutional protections, however, preserving the protections requires constant vigilance, both in the Legislature and the courts. In partnership with California cities, the League continues its 109-year-old tradition of advocacy and support for local control.

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The League’s Legal Advocacy Program

The League is committed to restoring and protecting local control for cities in order to enhance the quality of life for all Californians. One way the League works toward this goal is by lending amicus (friend of the court) support to pending court cases that are of interest to cities statewide. If you know of such a case, please tell us about it at www.cacities.org/requestamicus.

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About Legal Notes

This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.

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This article appears in the January 2008 issue of Western City
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