April 5, 2016: Balance of Power Between New York State and Local Governments has Shifted, Needs Further Study, Says State Bar Association

By Communications Department

April 5, 2016

April 5, 2016: Balance of Power Between New York State and Local Governments has Shifted, Needs Further Study, Says State Bar Association


By Communications Department

The Home Rule provision of the state Constitution “is a subject ripe for consideration and debate,” concludes the New York State Bar Association in a report that describes how the autonomy of local governments has been eroded by state laws and court decisions.

Constitutional Home Rule, in theory, grants local governments the authority to decide how best to govern their communities in matters of local concern. It allows them to enact local laws without the interference from the state Legislature.

However, over the years, those protections have been so eroded that the state Legislature has assumed the power to regulate such local concerns as taxi cabs in New York City and the salary of the Allegany County district attorney, to offer just two examples of state micromanagement of local governments.

“New York’s constitutional and statutory provisions regarding home rule are extensive, evincing a clear intent to protect local autonomy. However, the balance between State and local powers has tipped away from the preservation of local authority toward a presumption of state concern,” the report concludes.

The report, approved by the Association’s House of Delegates on April 2, calls for additional study, possibly by a preparatory commission for a state constitutional convention. New York voters will decide in 2017 whether to authorize a convention.

“We expect our Home Rule report will enhance public understanding of the relationship between the state and local governments. It also offers a valuable resource for further study,” said State Bar President David P. Miranda.

The report—meant to be descriptive rather than prescriptive—was drafted by the Association’s Committee on the New York State Constitution, which was created by Miranda in 2015 and is chaired by Henry M. Greenberg of Albany (Greenberg Traurig).

The report recognizes the vital governance role played by local governments, which are responsible for drinking water, social services, sewerage, zoning, schools, roads, parks, police, courts, jails, trash disposal — and more.

“In New York State, local government has a greater impact on the day-to-day lives of the public than any tier of government,” it says. “Without local government, public services often taken for granted would not be delivered.”

In 1963, New York voters amended the Home Rule provision of the state Constitution to expand and secure the powers of local governments. Since then, those powers have been limited by judicial decisions and legislative mandates.

Legislative mandates

The Legislature can order local governments to perform certain functions in a wide range of fields, including health care, education and social services. These mandates often require localities, rather than the state, to bear the costs. “New York imposes  more unfunded mandates than any state,” according to the report.

Numerous states have provisions in their constitutions prohibiting or limiting unfunded mandates.  They include: California, Florida, Hawaii, Louisiana, Michigan, Missouri, New Hampshire, New Jersey, New Mexico and Tennessee.

Judicial doctrines impacting Home Rule

Constitutional Home Rule in New York has been restricted by judicial development of two legal doctrines: state preemption and state concern.

State preemption doctrine

Under this doctrine, if a local government enacts a law that directly conflicts with a state law, the local law is unenforceable. “Even in the absence of an outright conflict, a local law is preempted if the state Legislature has evidenced its intent to occupy the field.” Such “field preemption may be express or implied.”

For example, applying this doctrine, courts have ruled that localities cannot: set operating hours for taverns and bars; raise the minimum wage above the state minimum wage; or enact local zoning ordinances to restrict construction of power plants.

Implied preemption, the report says, “is a significant constraint on local authority… . It has also generated considerable litigation, with often unpredictable results, creating confusion and uncertainty for local governments.”

State Concern Doctrine

Since a 1929 decision, the state Court of Appeals has expansively interpreted the “state concern” doctrine.

Citing “state concerns,” courts have upheld acts of the Legislature that:  regulate waste disposal in Nassau and Suffolk counties and municipal sewers in Buffalo; require certain counties to pay district attorneys the same salary as county judges; and impose bidding requirements for local government contracts.

In decisions affecting New York City, courts have ruled the Legislature has the power to: oversee rent controlled apartments; exempt firefighters from the city’s residency requirement; repeal the city’s income tax on commuters; and regulate taxi cabs, to name a few examples.

“The State concern doctrine has narrowed the Home Rule clause’s guarantee of a modicum of local legislative autonomy. Today, the line between matters of State concern and matters of local concern is increasingly indistinct,” the report observes. “Few constraints exist on the Legislature’s ability to interfere in local affairs by special law.”


Despite extensive constitutional and statutory provisions protecting home rule, the balance has tipped toward state government, the report found.

Without taking sides, it cites commentators who disparage the constitutional Home Rule protection as a “ghost,” “merely a pleasant myth” and “a near total failure.” On the other hand, decades of court decisions support the need for a dominant state, which represents all, over the power of local governments, which represent only a portion of the state.

“Constitutional Home Rule is a subject ripe for consideration and debate for all concerned,” the report concludes. “There is a need to weigh the benefits and costs of amendments to Article IX that would restore local autonomy through greater certainty and clarity.”

It suggests a proposed Constitutional Convention preparatory commission devote “significant time and attention” to the topic.

The report on Constitutional Home Rule is available at www.nysba.org/homerulereport.

The 74,000-member New York State Bar Association is the largest voluntary state bar association in the nation. It was founded in 1876.

Contact: Lise Bang-Jensen
Director, Media Services and Public Affairs
[email protected]

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