Vol. 42 No. 6
ByShawn G. Nevers
Shawn G. Nevers teaches legal research and is head of reference services and research instruction at the Howard W. Hunter Law Library at Brigham Young University.
Quarterbacks. Wide receivers. Running backs. They get all the hype. Offensive linemen? Not so much. And, while it defies logic that such enormous men could be overlooked, they may very well be invisible to the casual football fan.
Like an offensive line, local government law is often overlooked. Federal and state laws command the headlines and the highlights, not to mention most of the discussion in law school. Local government law gets little fanfare, even among those with a legal education, but it’s everywhere and you may very well be asked to research it. So, let’s get started.
Whether you realize it or not, local government law impacts much of what you do from day to day. These laws govern where and how you can park on city streets, whether you can smoke in public places, how loud a party can be, and what types of animals you can have for pets (no porcupines in Provo, Utah). While many of these examples of local laws—often referred to as ordinances—won’t necessitate an attorney, there are a number of areas governed by local government law that might.
You may, for instance, represent a local restaurant or other business. Local government law often regulates the licensing of businesses, zoning, and public health and sanitation—all of which will be important to your client. You may represent a landlord who must comply with a variety of zoning and rental dwelling ordinances or a tenant whose landlord isn’t following those laws. You may even find yourself as a city or county attorney that must be familiar with local government law and how it functions. Whatever the situation, local government law touches a variety of areas that you may be involved with as an attorney.
Shockingly, there are currently more than 90,000 local governments in the United States. Many of these local governments, like school districts or transportation authorities, have narrow powers and serve one or a small number of specific functions. Another chunk of local governments exercise a much broader range of powers and provide multiple services. These include counties and municipalities. We’ll focus on these general purpose local governments here as they make most of the local government law that we need to know how to research.
The first thing to understand is that a local government’s power to make law comes from the state. This delegation of power is generally done through the enactment of a charter, but could also be done through a state constitution or statute. A charter establishes the structure of the local government and gives power to that government to act in certain areas. General purpose local governments, like municipalities, are often granted fairly broad powers to enact ordinances within their jurisdictions. A local government must remain within its delegated powers for an ordinance to be valid, but if properly enacted, an ordinance has the same force of law within a municipality that a state statute or regulation would.
While local government law often takes a back seat to state and federal law, it does make the highlight reel from time to time. A City of Chicago ordinance banning handguns took center stage in the US Supreme Court’s 2010 decision in McDonald v. City of Chicago. The Court held that the ordinance violated the Second Amendment.
More recently New York City’s (NYC) ban on large sodas has been in the news. In an attempt to fight obesity, NYC Health Code §81.53 was set to ban the sale of “sugary drinks” larger than 16 ounces in NYC’s “food service establishments.” This was not a state or federal law, but a municipal law that would only have had effect in NYC.
You can imagine that NYC restaurants were interested in how this ordinance would affect business. If one of them was your client you’d need to find this ordinance and analyze it. Researching ordinances can be a bit tricky if you don’t know where to look—and, unfortunately, sometimes even when you do.
Municipal codes are not as prevalent on Westlaw and Lexis as state or federal statutes. Generally, ordinances are available for free online in one of two ways. Either the local governments host ordinances on their own websites or they contract with a publisher like American Legal Publishing Corp., Code Publishing Co., General Code, or Municode, to host their ordinances online. With so many possibilities, the best place to find a free version of a municipal code is often through Google.
In our case, the Laws of NYC are on Westlaw and Lexis, but let’s look at free sources so you can get to local government laws wherever you are. If we Google new york city ordinances, we’ll be taken to a NYC government page that directs us to the Laws of the City of New York hosted by the New York Legal Publishing Corporation. The site is pretty bare bones, but you can browse the Table of Contents and run some rough searches. The company that hosts the website sells a more robust print version of the code with annotations, case notes, etc., which is possibly why the free version is less than stellar.
Free online ordinances vary in their usability. Some local governments (the City of Baltimore, for example) have done a very good job with web design and providing useful tools such as an index. Other websites are stuck in the 1990s, but at least the information is accessible. Of the publishers mentioned above, General Code provides the most modern interface and an index for each code. The other publishers have decent websites that provide search capabilities and tables of contents, but often not an index. Let’s just say researching ordinances online is not a walk in the park (parks are also governed by municipal law), but it can be done.
Back to our example. Since we have a citation to the ordinance in question, we can browse the Laws of the City of New York to find §81.53 of the NYC Health Code. (Unfortunately, this isn’t as easy as it should be and demonstrates some of the frustrations the can arise in this type of research.) Once we get there we can see that this section, “Maximum Beverage Size,” is organized very much like a statute or regulation. The section defines such terms as “sugary drink” and lays out the law prohibiting food service establishments from selling sugary drinks in cups or containers larger than 16 ounces. As is often the case with statutes, we have to go to another section to find the definition of “food service establishment.”
In examining local ordinances like this it’s always critical to check how up to date the code is. Most of the time what’s on the internet is not the official version of the code and may be slightly out of date. To make sure you have the latest version of the official city code, you may have to get in contact with the city.
As you can imagine, many groups, including the National Restaurant Association, weren’t pleased with this ordinance and some sued. One of the bases for the lawsuit was that the Board of Health did not have power under the NYC Charter to enact this ordinance. The New York Supreme Court and the Appellate Division both found that the power to enact this kind of ordinance resided with the NYC Council—the legislative body of NYC. The Board had exceeded its power and the ordinance was struck down. The New York Court of Appeals is set to hear the case soon and we’ll get a final say on whether we can enjoy a 20-ounce Coke in NYC restaurants.
Local government law can be complex and varied. There are some great legal treatises, including McQuillan on Municipal Corporations and Antieau on Local Government Law, that can provide a much fuller picture of local government law and its many nuances. We’ve barely scratched the surface here, but hopefully this will get you started.