| KAUP & SHULTZ Attorneys at Law, LC 901 Kentucky, Suite 305 Lawrence, Kansas 66044 785-838-4300 |
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| The Kaup & Shultz Municipal Law Library |
Kaup & Shultz,
Attorneys at Law, LC
901 Kentucky
Suite 305
Lawrence, KS 66044
785-838-4300 phone
785-838-4302 fax
A law firm dedicated to
serving the interests of
Kansas municipal
governments with offices
located in Lawrence and
Johnson County, Kansas.
No matter where you are
located in the State of
Kansas, we can work with
you. If your local
government needs legal
assistance, you deserve
Kansas attorneys who know
and practice Kansas local
government law on a daily
basis.
Attorneys at Law, LC
901 Kentucky
Suite 305
Lawrence, KS 66044
785-838-4300 phone
785-838-4302 fax
A law firm dedicated to
serving the interests of
Kansas municipal
governments with offices
located in Lawrence and
Johnson County, Kansas.
No matter where you are
located in the State of
Kansas, we can work with
you. If your local
government needs legal
assistance, you deserve
Kansas attorneys who know
and practice Kansas local
government law on a daily
basis.
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| Rethinking Home Rule by Ernie Mosher |
Jim Kaup’s kind invitation to write “something” for this first edition of the
Kaup & Shultz Newsletter was somewhat unsettling. What could I write that
is relevant today to those concerned about municipal law? While I began my
“career” in local government 60 years ago, I have been an outside observer
of state and local affairs for more than 15 years. But I have long been
convinced of the importance of history and institutional memory, a concern
increasingly irrelevant to most young people, and, I think, most state
legislators. So, I write about home rule, a matter of enduring concern.
In my personal judgment, the single, most important thing that ever happened
to Kansas cities was the overwhelming approval of the voters of the Home
Rule Constitutional amendment in November 1960. As a corollary belief, I
would also observe that an important and continuing responsibility of those
who represent municipalities—legally or otherwise— is to preserve and
protect Home Rule. Frankly, I don’t read many court decisions any more.
Nor do I still traipse the halls of the Kansas Legislature. But I sense that the
public interests of cities and counties are no longer as strong as in the past.
There are two simple but powerful clauses specified in the Kansas
Constitution (Article 12, Section 5): (1) “Cities are hereby empowered to
determine their local affairs and government…”, and (2) “Powers and
authority granted cities pursuant to this section shall be liberally construed for
the purpose of giving cities the largest measure of self-government”. What is
sometimes forgotten by the courts and legislature, it seems to me, is that
sovereignty in our democratic system is granted to the people, and it was the
people—not the courts and not the legislature—who delegated this authority
to cities. Some judges and legislators either don’t understand this people-
sovereignty concept, or simply don’t like it!
A case in point is what has happened to the 1974 statutory home rule
powers granted to counties (which I helped draft). The original law included
eight exceptions to home rule powers, largely related to matters clearly of
statewide concern in which the county served its historical role as an
administrative arm of the state. Since then, the “lock out” amendments –
specifying a subject where counties are prohibited from exercising home rule,
has grown to more than 40. (Frankly, I doubt whether the Kansas
legislatures of recent years would even approve the submission of a
proposed city home rule amendment to the voters.)
Fundamental to the institutional memory of Kansas municipal history was that
the amendment created a profound new era in municipal government. Prior
to 1961 when the amendment took effect, Kansas was a classic victim of the
old Dillon’s Rule – that cities couldn’t do anything unless authorized by state
law. The amendment conferred greater responsibility on local officials, who
could no longer hide behind the absence of legal authority. Beginning in
1962, the League of Kansas Municipalities successfully sponsored bills that
repealed hundreds of statutory provisions that duplicated the powers granted
by the Constitution, and even opposed bills sponsored by any of its member
cities that were unnecessary under home rule.
In conclusion, I think home rule is alive, and well, and living in Kansas. We
should cherish it. But we must also preserve and protect it. There are few
attorneys, local officials, judges and legislators who witnessed pre-home rule
and post-home rule days, and the turnover of elected officials is constant.
Those who work for local government in a professional way should be both
knowledgeable* about home rule, but also have the responsibility to spread
the gospel to those they serve.
___
* See Kansas Government Law, by Michael R. Heim, published by the
League of Kansas Municipalities.
Kaup & Shultz Newsletter was somewhat unsettling. What could I write that
is relevant today to those concerned about municipal law? While I began my
“career” in local government 60 years ago, I have been an outside observer
of state and local affairs for more than 15 years. But I have long been
convinced of the importance of history and institutional memory, a concern
increasingly irrelevant to most young people, and, I think, most state
legislators. So, I write about home rule, a matter of enduring concern.
In my personal judgment, the single, most important thing that ever happened
to Kansas cities was the overwhelming approval of the voters of the Home
Rule Constitutional amendment in November 1960. As a corollary belief, I
would also observe that an important and continuing responsibility of those
who represent municipalities—legally or otherwise— is to preserve and
protect Home Rule. Frankly, I don’t read many court decisions any more.
Nor do I still traipse the halls of the Kansas Legislature. But I sense that the
public interests of cities and counties are no longer as strong as in the past.
There are two simple but powerful clauses specified in the Kansas
Constitution (Article 12, Section 5): (1) “Cities are hereby empowered to
determine their local affairs and government…”, and (2) “Powers and
authority granted cities pursuant to this section shall be liberally construed for
the purpose of giving cities the largest measure of self-government”. What is
sometimes forgotten by the courts and legislature, it seems to me, is that
sovereignty in our democratic system is granted to the people, and it was the
people—not the courts and not the legislature—who delegated this authority
to cities. Some judges and legislators either don’t understand this people-
sovereignty concept, or simply don’t like it!
A case in point is what has happened to the 1974 statutory home rule
powers granted to counties (which I helped draft). The original law included
eight exceptions to home rule powers, largely related to matters clearly of
statewide concern in which the county served its historical role as an
administrative arm of the state. Since then, the “lock out” amendments –
specifying a subject where counties are prohibited from exercising home rule,
has grown to more than 40. (Frankly, I doubt whether the Kansas
legislatures of recent years would even approve the submission of a
proposed city home rule amendment to the voters.)
Fundamental to the institutional memory of Kansas municipal history was that
the amendment created a profound new era in municipal government. Prior
to 1961 when the amendment took effect, Kansas was a classic victim of the
old Dillon’s Rule – that cities couldn’t do anything unless authorized by state
law. The amendment conferred greater responsibility on local officials, who
could no longer hide behind the absence of legal authority. Beginning in
1962, the League of Kansas Municipalities successfully sponsored bills that
repealed hundreds of statutory provisions that duplicated the powers granted
by the Constitution, and even opposed bills sponsored by any of its member
cities that were unnecessary under home rule.
In conclusion, I think home rule is alive, and well, and living in Kansas. We
should cherish it. But we must also preserve and protect it. There are few
attorneys, local officials, judges and legislators who witnessed pre-home rule
and post-home rule days, and the turnover of elected officials is constant.
Those who work for local government in a professional way should be both
knowledgeable* about home rule, but also have the responsibility to spread
the gospel to those they serve.
___
* See Kansas Government Law, by Michael R. Heim, published by the
League of Kansas Municipalities.
Editor’s Note: It is a difficult task to add this note to the article by
E.A. “Ernie” Mosher, who served local governments with great distinction as
Executive Director of the League of Kansas Municipalities from 1960-91. Last
summer when our law firm was formed Ernie was the first person we asked to
prepare a thought piece for the first edition of our Newsletter. He submitted
this article on Home Rule to us in July 2008, months before he was diagnosed
with lung cancer. Ernie died in Topeka on March 11, 2009.
In this writer’s opinion no person worked harder, more diligently and with more
wisdom and integrity for the cities and counties of Kansas than did Ernie
Mosher. Under his leadership the League enjoyed a level of credibility and
effectiveness which may never be seen again.
Much could be said of Ernie’s 30 years as League Executive Director, and
about his character and achievements generally. Future editions of the
Newsletter are certain to speak of Ernie. For now I would just like to say that it
was a tremendous honor to have worked for Ernie for close to 15 years. For
much longer than that he was my friend and mentor. Ernie was an extremely
talented man whose contributions to Kansas municipal government must not be
overlooked or forgotten. This Newsletter will do what it can to remind those
involved in public service at the municipal level of the results of Ernie’s tireless
advocacy that they enjoy.
As you will see from his article Ernie held Home Rule close to his heart. The
evolution of Home Rule into a powerful tool was due in great part to his
educating city managers, attorneys, mayors and commissioners on how and
why to use Home Rule to serve the public. It is our great fortune that he picked
Home Rule as the subject of what was to have been the first of many articles
we anticipated Ernie writing for the Newsletter. We are saddened beyond
words that his voice is stilled. But we are grateful beyond words for the
lessons he taught us, and for the inspiration he was.
Whether you knew Ernie yourself, or just enjoy the benefits of his work, you
owe him your heartfelt thanks.
- Jim Kaup
E.A. “Ernie” Mosher, who served local governments with great distinction as
Executive Director of the League of Kansas Municipalities from 1960-91. Last
summer when our law firm was formed Ernie was the first person we asked to
prepare a thought piece for the first edition of our Newsletter. He submitted
this article on Home Rule to us in July 2008, months before he was diagnosed
with lung cancer. Ernie died in Topeka on March 11, 2009.
In this writer’s opinion no person worked harder, more diligently and with more
wisdom and integrity for the cities and counties of Kansas than did Ernie
Mosher. Under his leadership the League enjoyed a level of credibility and
effectiveness which may never be seen again.
Much could be said of Ernie’s 30 years as League Executive Director, and
about his character and achievements generally. Future editions of the
Newsletter are certain to speak of Ernie. For now I would just like to say that it
was a tremendous honor to have worked for Ernie for close to 15 years. For
much longer than that he was my friend and mentor. Ernie was an extremely
talented man whose contributions to Kansas municipal government must not be
overlooked or forgotten. This Newsletter will do what it can to remind those
involved in public service at the municipal level of the results of Ernie’s tireless
advocacy that they enjoy.
As you will see from his article Ernie held Home Rule close to his heart. The
evolution of Home Rule into a powerful tool was due in great part to his
educating city managers, attorneys, mayors and commissioners on how and
why to use Home Rule to serve the public. It is our great fortune that he picked
Home Rule as the subject of what was to have been the first of many articles
we anticipated Ernie writing for the Newsletter. We are saddened beyond
words that his voice is stilled. But we are grateful beyond words for the
lessons he taught us, and for the inspiration he was.
Whether you knew Ernie yourself, or just enjoy the benefits of his work, you
owe him your heartfelt thanks.
- Jim Kaup
