Sticking-up for Judge Dillon

Judge Dillon is a great American.

Now, I know what you are thinking: “Sure, there goes old Craddock again, dissing local governments, wanting to curtail their powers.” Well, setting aside my thoughts and views about the proper role and scope of local government, or any level of government for that matter, my affinity for late Judge Dillon has little to do with the power and scope of local governments in Virginia because the Dillon Rule is not about how powerful local governments are, and changing the Dillon Rule would in reality not have the effect that its detractors claim.

To be sure, when you ask some folks about the power of local governments, you are bound to get an answer to the effect that local governments in Virginia are constrained by the Dillon Rule because it curtails the powers of local government and if we just repealed that evil Dillon Rule, all would be great and Virginia would prosper.

There is a reason that Virginia has been consistently ranked as the best state in which to do business. Today, debates concerning the legal authority localities have or don’t have, are debated in the General Assembly, which has sessions that last 60 days one year and 45 days the next. Whatever the General Assembly decides, there is generally a consistent policy set throughout the Commonwealth.

Consistency is very important to a business knows, it means it knows what the “rules of the game” are in whatever localities they may choose do business. Can you imagine what the business climate (and Virginia‘s national and international competitiveness) would be like in the Commonwealth if the battleground for business issues was in more than 100 localities, 365 days a year?

Let us take a gander at the words of Judge Dillon himself as quoted here in Clinton v. Cedar Rapids and the Missouri River Railroad:

The true view is this: Municipal corporations owe their origin to, and derive their powers and rights from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on this right so far as the corporations themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature.

The key point of the Dillon Rule is not that local governments’ powers are limited as a matter of course. It is not a matter of power. It is simply a tool of how we craft and interpret state law with respect to local governments. We interpret the law to mean that local governments only have the powers they are given by the state. There is absolutely nothing in Judge Dillon’s fine quote above or the general notion of the Dillon Rule regarding the power and scope of local governments. The Dillon Rule only concerns itself with how those powers are enumerated; it is a question of manner and not scope. You can have powerful local governments in Dillon Rule states if a state so chooses.

Because Virginia is a Dillon Rule state, state laws regarding local governments generally read as laws that require local governments to do one thing or another or give them discretion to do certain things. To be sure, there is a fair dose of conditions placed on those powers, and there is language that gives some direction in terms of shape and form. Anything outside those words of empowerment is generally considered to be off limits.

If local governments want a specific power, all they have to do is ask the General Assembly. If they are unsuccessful, it is not the fault of the Dillon Rule; it is a choice made by the General Assembly. Certainly, if there was a great cry for more local government power from the people, they could elect legislators more sympathetic to those who want increased powers for local governments. But, the fact remains that the General Assembly has for the most part been very leery of granting increased powers to local governments.

The Dillon Rule is a key part of the fundamental legal structure that makes Virginia such a pro-business state, the best in all the country. I do not think we should change that. The Dillon Rule is clearly the better choice.