Local government design, mayoral leadership, and law enforcement reform.
Apathy's practical disenfranchisement of minority residents in cities has led some to give up the cause of a fix and focus attention elsewhere. This is what we might call the "exit" strategy of minority influence through democratic representation. Where turnout is low due to apathy fostered by structural barriers and perpetual defeatism, exit calls for voters to find submunicipal modes of political participation instead.
Erwin Chemerinsky and Sam Kleiner have noted that traditional citywide governance makes it "difficult for minorities to gain significant political representation." (167) Accordingly, minority representation in proportion to its majority population status must sometimes cede to "minority rule without sovereignty." (168) That is to say, when minority populations cannot elect members to City Hall in proportions equal to their representation in the general population, they must turn to neighborhood-based associations to discuss and petition.
Recognizing the same phenomenon, Heather Gerken has called for submunicipal "[s]pecial purpose institutions" as a way to impact municipal policy when representation by voting in city elections is such a lost cause. (169) The goal, suggests Gerken, is to provide localized institutions that "provide minorities with a chance to exercise voice inside the system, [even if they cannot] set policy outside of it." (170) For Gerken, this comes in the form of nonsovereign institutions that nonetheless wield immense power: "juries, school committees, zoning commissions, administrative agencies, local prosecutors' offices, and the like." (171)
In a sense, meaningful minority participation in government might require what one commentator has called a "polycentric [city] government." (172) In this formulation, Gerken's institutions can take form in more autonomous "school boards, water districts, utility districts, and transit commissions." (173) And these submunicipal institutions can also be divided on a geographic basis, whether in the form of neighborhood councils (174) or "enterprise zones, tax increment finance districts, special zoning districts, and business improvement districts." (175) But adopting this model of minority participation as a replacement rather than a supplement to meaningful participation in higher levels of local government is largely unhelpful, as a good deal of public safety and policing policy is tasked to those higher levels.
2. Structural reform
In contrast, we might attempt to overcome minority underrepresentation through structural changes to either municipal elections or governance. The challenges and potential solutions become clear in a case like Ferguson, Missouri. The population of Ferguson is almost 70% African American. (176) In the last mayoral election, (177) 11.7% of the city's eligible population voted-17% of white eligible voters and 6% of African American eligible voters. (178) At that time, five of Ferguson's six city councilmembers, its mayor, and fifty of its fifty-three police officers were white. (179) In responding to this disjunction, commentators have suggested that electoral reform is needed. (180) Their focus has been on moving city elections on cycle with national elections, where turnout--especially among minority voters--is likely to be higher. (181)
The data bear out the wisdom of this switch but also suggest an addition: switching to a mayor-council governance structure. As one study determined, only two factors independently increased election turnout: holding local elections concurrent with national elections and the empowerment of the city mayor. (182) Controlling for several salient variables such as African American population percentage, voter turnout was predicted to be highest in mayor-council cities (34.68%); this was about nine percentage points higher than in council-manager cities with an independently elected mayor (25.89%) and more than eleven percentage points higher than in strict council-manager cities (22.96%). (183) However intuitive the result--a centralized figure with increased visibility and accountability will energize an electorate--the link between turnout numbers and mayoralty has evaded scrutiny in the wake of recent events.
This is all the more worrisome given that minority voting turnout may itself be the single largest driver of the social and civil rights improvements of minority populations. As Pamela Karlan and Samuel Issacharoff have explained, it was "business set-asides, affirmative action, and government employment," not civil rights litigation, that proved the turning point in minority empowerment during the later portions of the civil rights movement. (184) These were gains won "precisely because blacks were able to elect their candidates of choice in majority-minority districts." (185) In short, it was the "vigilance of a black political class" that led to the "creation of a black middle class." (186) As Heather Gerken also notes, pulling from a recent study, the election of African American mayors correlates with the number of African American municipal employees, including in public safety and law enforcement divisions. (187)
It is possible that a greater number of African American police officers may not lead to less violence and tension between law enforcement officers and city residents. (188) But there are good reasons to cautiously draw a connection. David Sklansky points to three possible benefits of greater diversity in law enforcement: competency effects, community effects, and organizational effects. (189) While the competency effects might be low--that is, some studies have shown that black officers fire their weapons and are subject to disciplinary actions at the same rate as white officers (190) -the latter two effects may be stronger.
Community effects materialize on both the micro and macro levels. On the micro level, a black officer may have more credibility than a white colleague in a predominantly black neighborhood. (191) And on a larger scale, "a department that recruits, retains, and promotes a significant number of black officers may find the credibility of its entire force enhanced in black neighborhoods." (192) Finally, the largest impact may be at the organizational level, in the interactions within police departments between diverse officers. (193) Sklansky notes that there is both anecdotal and statistical evidence that contact between partners of diverse backgrounds--white and minority, male and female, straight and openly gay--can change attitudes and lead to diminished use of force and better response to minority populations. (194)
There is a third strategy to consider: combating underrepresentation through litigation. Where barriers to minority representation in cities are compounded by institutional choices, a cognizable claim may emerge under either the Constitution or a statute. (195) Of course, with the Supreme Court's recent neutering of the Voting Rights Act (VRA) in Shelby County v. Holder, (196) the efficacy of such a strategy is unclear. There are articles to be written, studies to be conducted, and arguments to be made on the effect of Shelby County on our cities moving forward. (197) At bottom, the use of litigation on its own as a strategy to mitigate civil rights issues is increasingly difficult, with institutional and governmental design choices moving to the forefront.
It should also be noted that the move to a strong mayor system could itself implicate potential VRA challenges. VRA claims have been made on the basis of a number of local governmental design choices, including the debate between at-large and ward system elections and the annexation of suburban districts into city limits. (198) A strong mayor system presents at least potential intersections with the VRA because it will likely require the move to an at-large election, which might raise vote dilution claims under section 2 of the VRA. (199) And this is to say nothing of the collection of state voting rights acts, like the 2002 California Voting Rights Act, which makes vote dilution suits in at-large elections potentially easier to win than they would be under federal law. (200) Accordingly, a switch to an at-large mayoral election could face challenges under state and federal law if designed to consolidate executive power in an official that minority residents have no chance at influencing.
4. Aligning expectations and power
Increasing voter turnout among minority populations is a necessary, but not sufficient, step. After all, voting only carries the full force of accountability if voters' beliefs as to which actors hold which powers align with the reality of power distribution. (201) And the ways in which executives--be they at the federal, state, or local level--struggle with power deficits in the face of overwhelming responsibilities has been well documented since Richard Neustadt famously observed that presidential power needs to expand informally to meet outsized voter expectations. (202)
However, council-manager government--and especially adapted government--tends to exacerbate voter malfunction by confusing voters as to the extent of the mayor's powers and responsibilities. The error for voters thinking about their mayor in this system comes in the mayor's decreased official capacity, far below that of voter expectations. Voters tend to overestimate the powers and responsibilities of mayors in adapted cities and, to a lesser extent, council-manager cities, thus leading to voter malfunction. (203)
Particularly, the powers and stature of federal, state, and local executives from other cities can imprint on citizens of an adapted city and skew their beliefs of what their mayor can and should do. (204) "The notion of the strong executive is deeply embedded in American political culture," writes Richard Schragger. (205) Yet while this impression of an inherently strong executive matches actual political powers to some degree at the federal and state levels, it departs from reality at the local level. (206) While the U.S. President and state governors sit at "the peak of a pyramid" in terms of governmental hierarchy and power, mayors sit amidst the fray "at the center of intersecting circles." (207) The American mythos of a strong federal and state executive primes voters to expect a similar figure to run the community closest to them.
One case study helps to illustrate just how dramatic this gap can be on the ground. Sacramento, California has recently discussed, debated, and rejected proposals for increased mayoral power on numerous occasions. (208) The dialogue surrounding these efforts is particularly revealing. As one long-time journalist noted, Sacramento possesses the "worst of all municipal worlds." (209) Sacramento's mayor "has almost no real authority," even though it "ostensibly" appears to most of the voting public that he is clothed in far greater power. (210) Exacerbating this problem is the fact that similarly situated California cities--Fresno, Los Angeles, Oakland, and San Diego--have either maintained or switched to the strong mayor model, (211) increasing the likelihood that Sacramento voters will assume the same of their city. The problem is one familiar to mayors in council-manager cities, who, "confused with mayors in cities where the position is a true executive office, ... are commonly perceived to be doing less than they are or capable of doing more than they can." (212)
This matching of power to expectation for mayors helps counter one of the lingering doubts of an empowered mayoralty: that elected mayors may simply not want to wield their power in pursuit of reform. For instance, Mayor Rahm Emanuel of Chicago has faced extensive backlash for his failure to reform his city's police department in the wake of the shooting of Laquan McDonald. (213) But the point is precisely that he has faced a backlash. His political incentives to make reforms were able to meet his enumerated power to remove his superintendent of police and hire a special advisor to help select a replacement. (214) The rationale for empowering mayors is not that they are purer of heart than city managers or city councils but rather that they have an electoral impetus to make substantive reforms within their capability.
C. Unifying Cosmopolitan Municipalities
As Gerald Frug has noted, "[o]n a local level, democracy can be a lived experience--it enables engagement in public issues that goes far beyond voting," (215) spilling over into identity in a way less possible at a state or federal level. And the powerful, popularly elected mayor represents the symbol of municipal democratic dynamism. When a city is viewed "as a polity with a collective identity ..., then the embodiment of those interests in one executive office becomes more attractive." (216) A popularly elected mayor who has a citywide constituency and is removed from the day-to-day minutiae of municipal bureaucracy can be an outlet for democratic beliefs and articulate a clear vision of the city and its core tenets, empowering the city to become a "distinct and independent portion" (217) of the constitutional order.
There have been many strong mayors who embody the values of their cities' voters. Mayor Rudolph Giuliani's leadership in the wake of the September 11 attacks fostered "collective feelings of ownership" among New Yorkers over their city, helping to clarify the "city's civic identity." (218) A similar civic embodiment took place in San Francisco in 2004. Mayor Gavin Newsom's decision to issue marriage licenses to same-sex couples challenged interpretations of the state and federal constitutions, sparked a national debate, and "asserted a populist vision of the mayoralty that did not accept its relatively weak constitutional status." (219) Finally, as Cristina Rodriguez has noted, mayors of cosmopolitan "global cities" have been among the strongest advocates of immigration reform on the national stage. (220) The "cosmopolitan Zeitgeist" and "concept of citizenship disassociated from thick forms of cultural identity" in these cities are expressed in the zealous advocacy of their mayors, empowered by their offices and their constituencies. (221)
By way of illustration, then, consider a tale of two cities. On the one hand is Mayor Knowles of Ferguson. As touched upon above, he is one such "weak mayor without veto power," unable to advocate for his city to state and federal officials or speak to his diverse electorate with any authority. (222)
Compare the ineffectuality of Knowles's response with the powerfully wrought words of Baltimore's (strong) Mayor Rawlings-Blake in the wake of racial unrest in her city:
I worked with the police and instructed them to do everything that they could to make sure that the protesters were able to exercise their right to free speech. It's a very delicate balancing act. Because while we try to make sure that they were protected from the cars and the other things that were going on, we also gave those who wished to destroy space to do that as well. (223)
In the midst of chaos, her statements gestured toward the watchwords of municipal crisis management: accountability, centralization, and democratic expression. Her words were also no doubt controversial, and she was forced to clarify her comments after a subsequent outcry that she was encouraging rioters in her city. (224) But whether these statements should be condoned or condemned, there is inherent value in adding a mayoral viewpoint to the discourse, especially in giving voice to those who might not otherwise have one.
Rawlings-Blake was recently elevated to the nationally influential position of president of the U.S. Conference of Mayors. (225) Her first remarks as president focused with unrelenting clarity on the continued civil unrest in America's cities. (226) Particularly, she has already started development of a "Baltimore Compact," promising to serve as a mouthpiece in calming the violence and tension in her city and other municipalities facing similar challenges. (227)
This is not necessarily to say that Rawlings-Blake is a better mayor than Knowles. But it is to say that, when they possess such divergent sets of tools and embody such divergent conceptions of executive power at the municipal level, the term "mayor" cannot serve to accurately describe both positions. This is not a question of mere academic theory. Early in 2015, before the Freddie Gray riots, the Baltimore City Council called for a weakening of its mayor's executive power. (228) As of May 2016, the potential weakening of the mayoralty was still the subject of heated debate. (229) The debate rages on in our cities over which conception of the mayor is best. As a matter of speaking up and speaking out on behalf of the citizenry, a stronger view of the mayoralty may shine far brighter than the alternative.
III. Barriers and Considerations in Charter Reform
The benefits of the mayor-council system for civil rights reform may make it attractive, but they do not make it inevitable or even probable. Stated more particularly, the empowerment of mayors as executives is a question of can, should, and will. Can a city legally amend its charter to shift municipal powers under both long-established precedents and modern trends? Should a city move to a strong mayoralty given some of the policy drawbacks associated with the governance structure? (230) And even so, in which type of political climate will a city be able to unstick established municipal governance from negative inertia? This Part addresses each query in turn.
A. Legal Rules and Trends Constraining Local Empowerment
Given the shift away from executive mayoral governance early in the twentieth century, (231) it should come as little surprise that suspicion of local empowerment has endured. This worry holds that local government is "too parochial, too small to grapple with the scale of urban problems." (232) Accordingly, many have advocated for "increas[ing] state power or [developing] a national urban policy," as well as "embrac[ing] a particular version of the idea of regionalism." (233) These calls have sometimes been translated into legal rules and machinations--both long-established and modern--that might restrict a potential move to a strong mayor system (or even informal empowerment of the mayor). This Subpart sets these legal barriers out in two troughs: first, the existing legal framework constricting municipal self-governance determinations and second, modern trends that countervail against mayoral and even municipal power.
1. Rules: home rule and Dillon's Rule
States have plenary power under the Tenth Amendment to the U.S. Constitution, (234) but nowhere in the Constitution are the inherent powers of cities for self-governance established. And so it follows, even though those of the Founding era viewed cities and towns as essential to the constitutional order, (235) these local governments exist only as an elective choice by the state and are therefore revocable by the state at legislative whim. (236)
This default state of affairs is the so-called "Dillon's Rule," named after its proponent, Judge John Dillon. Stated in its nascent form in City of Clinton v. Cedar Rapids & Missouri River Railroad Co., (237) the view holds that a city is a "public municipal corporation, created for public purposes only, and can exercise no powers but such as are expressly granted by law, or such as are incidental to those expressly granted, and is always subject to legislative control." (238) In the event that the powers of municipalities were ambiguous under state statute, the statutory power grant was to be construed as narrowly as possible. (239) Dillon's Rule competed for acceptance with the doctrine espoused by Michigan Supreme Court Justice Thomas M. Cooley: "[L]ocal government is matter [sic] of absolute right; and the state cannot take it away." (240)
The U.S. Supreme Court resolved the debate conclusively in Dillon's favor in Merrill v. Monticello, (241) Quoting Dillon, the Court noted that "[a]ny fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied." (242) The Court reaffirmed this view in Hunter v. City of Pittsburgh, (243) holding that "[m]unicipal corporations are political subdivisions of the State, created as convenient agencies for exercising [given] governmental powers of the State." (244) The state "may modify or withdraw all such powers" of the municipal corporation. (245)
If the default for cities is limited power under Dillon's Rule, then constitutional home rule provisions provide an alternative means by which to define cities' powers. Under home rule, cities may "administer [their] own affairs to the maximum degree," including, importantly, "the right to determine the form of government" and the right "to define the nature and scope of municipal services involving matters of purely local concern." (246) Again, home rule is a product of state governmental legislation. So technically, it is less an alternative to Dillon's Rule and more a manifestation of the state's elective grant of power to municipal corporations.
In practice, some states have crafted home rule amendments, but others continue to adhere to the Dillon default. (247) Accordingly, many cities have not been granted the right to self-governance by states. And this lack of control includes the governance structure of the city, meaning that it might well be impossible to change from council-manager government (which is typically the default) to mayor-council government without the explicit imprimatur of the state.
2. Trends: emergency managers and state receivership
Modern legal trends and reforms have moved governance away from cities and toward other entities, rendering the executive mayor model potentially impossible in particular cities. First, as mentioned above in the case of Benton Harbor, states have stepped in to appoint emergency managers over troubled local governments. (248) Between 2008 and 2013, emergency managers were put in place in twenty-eight cities. (249) These managers have broad authority to run the affairs, finances, and service provisions of cities. (250) Conversely, mayors and city councils are generally restricted to mostly ceremonial functions until the emergency manager and state government have deemed the crisis over. (251) In Central Falls, Rhode Island, for instance, the emergency manager wrote to the city's elected mayor shortly upon arrival: "Effective immediately, I have assumed the duties and functions of the Office of the Mayor. As a result of my role, your responsibility will be limited to serving in an advisory capacity, on such occasions as my office may seek input from you." (252)
Second, cities facing financial crisis or bankruptcy often must enter into state receivership that dictates how creditors are to be paid and how services are to be provided (and in what priority). In short, formal state receivership "captures cities that have formally declared a fiscal emergency under state law, or otherwise have been placed under the jurisdiction of a formal state receivership in which the state is not merely monitoring a vulnerable city's finances, but has actually stepped in to manage or co-manage its finances." (253) The powers of the state in oversight of the city can include gathering information about the city's finances, managing the city's debt and finances, and guaranteeing the city's loans. (254) Such a system obviously constricts the discretion of a city and significantly diminishes the powers and possibilities of mayoral governance.
Third, and relatedly, municipal bankruptcy reorganization plans can limit the ability of cities to choose their governance structures. Upon a city's consent during a Chapter 9 bankruptcy filing, a bankruptcy court may alter a municipality's political or governmental powers. (255) And a bankruptcy judge may withhold consent for a bankruptcy plan if he or she concludes "that continuing the existing municipal governance structure substantially increase[s] the probability of recidivism or impede[s] the delivery of services." (256)
What both of these developments instruct is that there is a window of opportunity for strong mayoral government: cities must endure some strife to make a government changeover seem organic. (257) However, where a city's financial situation deteriorates to such an extent that the state intervenes, municipal self-determination and the ability to empower a local executive may disappear entirely.
B. Municipal Demographics
Larger cities are more likely to have a strong mayor form of government. Indeed, the size of a city and its form of government appear to be correlated--the five largest U.S. cities are mayor-council, seventeen of the top twenty-five largest cities are mayor-council, (258) and three of the four most populous California cities are mayor-council. (259) Furthermore, of cities with 500,000 or more residents, most have mayor-council governments, and the likelihood of this government form increases linearly the larger the city becomes. (260)
Some have suggested a causal relationship between population size and governance structure: "City size seems to have some effect on the form of municipal government that works best." (261) It appears this is true, but why? In what follows, this Note draws out some of the preconditions that underlie this causal relationship.
It is likely not a city's size, standing alone, that makes for a better fit with mayor-council governance but rather independent factors that are more likely to exist in a larger city. This Note offers two potential drivers: talent encouragement and the ability to assume increased governmental costs.
1. Talent development
One of the major concerns regarding strong mayoral government is that the system requires an incredibly talented and rare mayor. She must possess both the political talent to defeat opponents in a contested election as well as the administrative and executive talent to manage the intricacies of a complex bureaucratic government. (262) The worry is that such high demands will not be met, leading to incompetency. (263) In a council-manager city, this problem might be avoided because the political and administrative functions are split among the mayor, city council, and city manager. In short, where power is diffuse, the effect of power and its potential attendant problems of corruption or misgoverning are diffused.
The likelihood of finding the rare individuals who are (1) native to a city, (2) politically savvy and electable, and (3) able to effectively run a city's administration is likely to increase the larger the city is. When 160 urban scholars were asked to name the most influential mayors since 1960, no mayors of mid-sized cities made the list. (264) But many large-city mayors were identified. (265)
There are a few reasons why this might be. First, and most obviously, the odds of finding a talented mayor are going to be better given a larger population to draw from. Second, larger cities tend to be more politically vibrant and diverse, leading its citizens--and potential homegrown politicians--to have better understandings of political issues and campaigns. (266)
2. Expense assumption
Critics of mayor-council government commonly contend that strong mayors cost cities more than weak mayors and city managers do. (267) This argument has come under some scrutiny in light of recent studies, which found that the average council-manager city spends $54 more per citizen on city government (including public services) and about 0.396 more of the total city budget on administrative costs than do cities with strong mayors. (268)
The transition from council-manager to mayor-council, however, may itself be responsible for increasing costs, including those associated with new mayoral staff. (269) And social science predicts that if this new councilmember means the creation of a new district, city expenditures per capita will increase given the increased fragmentation of interests. (270) In addition, the mayor's staff will usually also require additional salary expenditures. (271)
In general, larger cities tend to be better equipped than smaller cities to defray these costs through economies of scale, as fixed transition costs can be spread over a larger population. (272) While being a larger city certainly helps deal with strong mayor expenses and overruns, smaller cities might nonetheless be in a better position to afford the transition if they are in a healthy fiscal state. A wealthy suburb of 100,000 people can arguably assume the costs of mayor-council government better than a larger, troubled city like Stockton given the larger tax base and the ability of residents to cover expenses normally provided by government. (273)
Finally, it is important to note that though executive mayor governance may produce increased costs in the short term (though, again, this may not actually be the case), it may increase economic vitality in the long term. (274) As intimated earlier, a more prosperous city may be able to afford a more robust police department staff and therefore reduce the potential for overextended policing and violence. (275)
C. Charter Moments and Punctuated Equilibria
Cities transitioning from council-manager to mayor-council government do not do so without some significant provocation. The famous federal analogue to this theory is Bruce Ackerman's theory of constitutional moments: that evolutions in constitutional interpretation and the identity of the U.S. government occur in sudden, public changes. (276) These rapid changes are the result of a collision of public, political, and legal evolutions that cause "high-temperature, high-pressure bursts of energy that sweep across the whole political system." (277) The public "becomes proactive," moving ahead of its leaders in response to some type of crisis that alters its perception about the place of government or policy. (278) This ground-up movement pressures the existing framework to alter its basic identity to conform to these punctuations. (279)
If this is true of the federal government, it is perhaps even truer of municipal government, where politics are fought in the trenches. (280) The municipal parallel to the federal and state constitutions is the city charter, which strikes the processes of governance and balance of powers in much the same way as the former documents do. The transition to mayor-council government usually requires what this Note calls a "municipal charter moment": a time or set of circumstances in which events conspire to change the way that a city's residents view the obligation, role, and scope of the city government and its actors.
These municipal charter moments typically take one of two forms: severe economic collapse or some impropriety or vast ineffectiveness on the part of the current city government. This pattern is borne out by the facts of the most recent transition efforts in Colorado Springs, San Diego, Richmond, Hartford, and Spokane.
Colorado Springs (2010). Colorado Springs's charter moment was a combination of economic and governmental collapse. "Difficult financial times ha[d] exposed a system unable to react quickly and creatively" to new economic challenges. (281) The government itself had become deadlocked, with the "most recent city manager, [t]here barely two years, abandoning] the position in frustration." (282) The city ultimately voted to switch over to a strong mayor government.
San Diego (2004). Similar to Colorado Springs's, San Diego's push for
a strong mayor came as a result of corruption and economic downturn. In 2004, City Hall was wracked by scandals, including "three council members under criminal fraud indictment." (283) In addition, the city experienced a "financial debacle in 2004 caused by many years of underfunding the city-run retirement fund." (284) These factors provided the "final impetus to change." (285) Again, the result was a change to the fundamental charter and governance structure of the city.
Richmond (2003). The same factors were intensely present in Richmond's decision to move to mayor-council governance. Richmond had "suffered from years of economic decline, conflict with its surrounding suburbs, [and] an adversarial relationship with the business community." (286) It had also experienced "ethical lapses under the council-manager system." (287) Virginia Governor L. Douglas Wilder stepped in and used these factors to successfully argue for charter reform. (288)
Hartford (2002). Hartford did not have a single act of corruption that crystalized the need for a strong mayor government. But Hartford was surrounded by a similar municipal charter moment context when it transitioned to strong mayor governance. In 2002, "30 percent of the population live[d] in poverty," (289) and there was "extreme racial tension and violence" and rampant "partisan bickering between Democrats and Republicans" in the city. (290)
Spokane (1999). Like Hartford, the drive in Spokane to change from council-manager to mayor-council governance was not catalyzed by a single disruptive act but rather a dire business outlook. Spokane is a city of about 200,000 people in Washington State. (291) In the latter half of the 1990s, downtown Spokane suffered a battered economic climate and needed to aggressively pursue redevelopment. (292) The city was also plagued by "high-profile personnel problems." (293) One driver of the victory of the strong mayor movement was that the reform effort was led by both the mayor and city councilmembers. (294)
Charter reform is enacted not as a luxury but rather in response to situations so dire that they cause citizens to reflect upon the very purpose and role of local government. When cities attempt and fail to amend their charters to adopt strong mayor governance, it is usually in cases lacking any catalyzing moment. (295) As Mayor Johnson of Sacramento put it succinctly in 2014 after the defeat of a widely hailed strong mayor plan, "[i]t's hard to make this kind of change without a crisis." (296) The series of recent charter changes to strong mayor systems reflects a modern municipal charter moment that is perhaps an analogue to the great corruption of the early twentieth century and the rise of Progressive control over cities. These municipal charter moments are more likely to catalyze massive charter changes because they reflect reasoned, bottom-up reform: instead of a mayor or business community sweeping in with a power grab or self-interested proposal, respectively, the citizens are more likely to lead the charge and support the strong mayor that results when their city lies in shambles.
IV. Alternative Ways Forward
As mentioned above, municipal charter moments have historically been induced by either collapse or corruption. But it is reasonable to expect that violence, especially that sparked by a conflict with law enforcement, (297) can prove a third legitimate rationale for pursuing charter change without the specter of an illegitimate seizing of power. The call for reform comes, like in the former two instances, from the bottom up: the dissatisfaction of municipal residents and the amplification of that discontent by the press make charter reform seem organic and inevitable.
This Note has suggested one particularly potent avenue for law enforcement reform: empowering mayors to lead this reform through strong mayoral forms of government. But as discussed above, (298) it is not right for all instances. Municipal self-determination can manifest in a variety of other forms and is expressed in myriad solutions. This Part considers a few, particularly those based upon the relationship between local and state governments.
A. Parens Patriae
One of the best alternatives moving forward are municipal parens patriae suits brought on behalf of citizens against city law enforcement officials. (299) Parens patriae (300) suits allow a government (usually a state) to protect the health, safety, and well-being of its population through litigation brought on the population's behalf. (301) This tool has been used by states to help their cities keep their rivers and harbors clean, (302) their air free from fumes, (303) and their transportation providers from colluding. (304) It has been suggested that this may also prove a particularly tenable vehicle in police misconduct cases. (305)
Unfortunately, federal courts have made clear that they are unwilling to recognize cities as quasi-sovereigns for the purposes of these lawsuits. (306) But cities may well have standing in state court. This is, once again, a matter of state legislative discretion. By statute, states may grant status to cities to pursue parens patriae suits either by a grant of home rule (307) or by a narrower enabling statute. (308) States may also aid cities in pursuing claims by creating new state statutory civil rights claims or articulating a broader zone of interest for preexisting statutory claims. (309) In sum, states and cities can work together to empower municipal action and protection for residents without a formal change to mayoral powers.
B. Sensible State-Local Legislation
Furthermore, states could work with local governments to restructure, revise, or repeal state laws that incentivize overzealous policing. (310) These laws are, regrettably, not uncommon. At present, some states allow municipalities to charge defendants for the cost of police investigations and trials. (311) Other states allow cities to charge arrestees a fee upon booking regardless of the legality of the underlying arrest. (312) And yet other states allow cities to collect a fee if the local prosecutor's office halts prosecution. (313)
These laws, combined with state restrictions on municipalities' discretion in how they collect and use their local tax revenue, (314) create perverse incentives for cities to rely upon mass policing for revenue, thus raising the potential for civil rights violations. State legislatures can work with local communities to create a far more sensible scheme. Or, at the very least, states can engage in conversation with local government, community leaders, and law enforcement before enacting these potentially insidious reforms. (315)
"A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines."
--Ralph Waldo Emerson, Self-Reliance (316)
We have come to expect very little from city governments. There remains the temptation to fall back upon antiquated fears of widespread municipal corruption. As a result, we constrict our cities until they can do nothing but carry out basic services. But this is a consequential policy decision. And in the wake of clashes between law enforcement and city residents, the decentralization and bureaucratization of power and authority in municipal government becomes a division mirroring the divided population.
Perhaps more importantly than formal suggestions, this Note's defense of an empowered mayor is synecdoche for a new form of empowered localism. In our haste to protect cities from themselves through increased turns to state control, dissolution, and minimalism, we have left communities with all the trappings of a municipality--buildings and borders, infrastructure and services--but a hollow one with no manner of self-governance. Urban life continues apace. It just exists increasingly without governmental accountability or responsiveness. Leadership in our cities must come from within instead of being imposed or abandoned altogether. Whether in the form of empowered executives, an increasingly vigilant and creative bureaucracy, a rallied and motivated population, or creative policy solutions imported as best practices from other municipalities, structural and substantive changes must be made. We must support our cities and allow them to survive as they always have: adapting and evolving; opening to new ideas; redrawing blueprints; and holding firm to their identities, pride, and spirit.
Alexander J. Kasner, Former Law Clerk to the Honorable David F. Hamilton, U.S. Court of Appeals for the Seventh Circuit. J.D., Stanford Law School, 2015; B.A., Stanford University, 2012. I thank the Honorable Kevin Johnson and Kunal Merchant for developing my passion for local government during my time with the Office of the Mayor of Sacramento. I would also like to thank Michelle Wilde Anderson, who provided insightful feedback on a nascent draft of this Note and inspiration as a teacher, mentor, and writer. For their thorough and collegial feedback and editing on this project, I owe deep appreciation to the members of the editing team of the Stanford Law Review, especially Amari Hammonds and Shannon Grammel. To Mom, Dad, and Matt. And to Devin.
(1.) The most prominent examples being: Michael Brown, Ferguson (2014); Eric Garner, New York City (2014); Laquan McDonald, Chicago (2014); Tamir Rice, Cleveland (2014); Walter Scott, North Charleston (2015); Freddie Gray, Baltimore (2015); Philando Castile, St. Paul (2016); and Alton Sterling, Baton Rouge (2016). See, e.g., WSJ News Graphics, From Ferguson to Dallas: A Recent History of Deaths Involving Police, WALL St. J. (July 8, 2016, 3:30 PM ET), http://graphics.wsj.com/dallas-police-involved-deaths. This Note does not explore the culpability of law enforcement officials in these incidents. Its intent is to examine systemic problems and solutions in order to reduce violence, give proper recourse to victims, and create democratic responsiveness in city government.
(2.) These include the ambush by a Dallas gunman in 2016 that left five law enforcement officers dead, see Faith Karimi et al., Dallas Sniper Attack 5 Officers Killed, Suspect Identified, CNN (July 9, 2016, 1:37 AM ET), http://cnn.it/29CSWVU, and the murders of three Baton Rouge police officers, see Steve Visser, Baton Rouge Shooting: 3 Officers Dead; Shooter Was Missouri Man, Sources Say, CNN (July 18, 2016, 7:15 PM ET), http://cnn.it/29QPNmX.
(3.) It was F. Scott Fitzgerald who wrote, "Show me a hero and I will write you a tragedy." F. SCOTT FITZGERALD, The Notebooks of F. SCOTT FITZGERALD 51 (Matthew J. Bruccoli ed., Harcourt Brace Jovanovich 1978) (1945). Fittingly, the phrase was later appropriated for an investigation of mayoral heroics. See LISA BELKIN, SHOW ME A HERO: A TALE OF MURDER, SUICIDE, RACE, AND REDEMPTION, at xi (1999). For indictments of the lack of leadership in Detroit--in addition to the stories of Ferguson and Stockton that follow--see, for example, Jena McGregor, What Killed Detroit?: Let's Not Forget the 'Who,' WASH. POST (July 19, 2013), http://wpo.st/NXEC2, which asserts that "Detroit also failed as a city because of the leaders who failed Detroit." See also, e.g., Amy Padnani, Anatomy of Detroit's Decline, N.Y. Times (Dec. 8, 2013), http://nyti.ms/1f0mB5O.
(4.) Stephen Deere, Ferguson Mayor James Knowles Faces Recall Effort, St. Louis POST-DISPATCH (Mar. 17, 2015), http://www.stltoday.com/news/local/crime-and-courts/ ferguson-mayor-james-knowles-faces-recall-effort/article_f50361e0-bbac-53ba-9d0a-b01c500c8ddc.html.
(5.) Id. For example, in the wake of the Ferguson violence, law professors urged Knowles to provide amnesty to nonviolent criminals as an olive branch toward reconciliation. Jason Rosenbaum, Attorneys Ask Ferguson's Mayor to Commute Non-Violent Ordinance Offenses, KBIA (Aug. 27, 2014, 9:07 PM), http://kbia.org/post/attorneys-ask-fergusons -mayor-commute-non-violent-ordinance-offenses. Yet because of the present limitations on mayoral power, Knowles may actually have no authority to commute municipal sentences. Id. Knowles has seen his limitations reflected in his treatment by state officials:
That's been one of the most frustrating aspects of dealing with th[e] crisis [surrounding Michael Brown's death].... Governor (Jay) Nixon showed up in Ferguson before he contacted us or let us know. There were people who helped me, some legislators in the region who helped me reach out to the governor's office when we couldn't get through to say we believe that me [sic]--as the local municipal official, the person who is on the ground being assumed to have control even though as a part-time, weak-mayor form of government I did not have that control--that I should be kept in the loop on some of these issues.
Erica Smith, Ferguson Mayor Says He Considered Resigning, Is Now Working to Unite Community, ST. LOUIS PUB. RADIO (Dec. 2, 2014), http://news.stlpublicradio.org/post/ ferguson-mayor-says-he-considered-resigning-now-working-unite-community.
(6.) Smith, supra note 5.
(7.) Tina Rosenberg, Opinion, A Strategy to Build Police-Citizen Trust, N.Y. TIMES (July 26, 2016), http://nyti.ms/29WzlBX.
(9.) Scott Smith, Change to Strong Mayor System in Stockton's Future?, RECORDNET.COM (May 5, 2013, 12:01 AM), http://www.recordnet.com/article/20130505/A_NEWS/ 305050307. In another telling remark, Silva referred to himself as more of a "cheerleader" than a mayor, musing, "[W]hat's the point of running for office when you're trying to get things done?" Roger Phillips, Silva Bemoans Status as 'Cheerleader,' RECORDNET.COM (Sept. 10, 2014, 8:30 PM), http://www.recordnet.com/article/ 20140910/NE WS/140919948.
(10.) See Smith, supra note 9 (noting that responsibility belongs to the city manager).
(11.) Roger Phillips, Stockton Mayor Complains He's out of the Loop, RECORDNET.COM (Jan. 15, 2015, 12:01 AM), http://www.recordnet.com/article/20150115/News/150119805.
(12.) Michelle Wilde Anderson, Dissolving Cities, 121 YALE L.J. 1364, 1366 (2012).
(13.) For background on Stockton's bankruptcy and economic struggle, see Malia Wollan, Years of Unraveling, Then Bankruptcy for a City, N.Y. Times (July 18, 2012), http://nyti.ms/N AGTEH.
(14.) T.S. ELIOT, The Hollow Men, in The Complete Poems and Plays, 1909-1950, at 56, 59 (1971). Or, to draw from other Eliot, "Unreal City, !.. A had not thought death had undone so many." T.S. ELIOT, The Waste Land, in THE WASTE Land AND OTHER POEMS 59,66-67 (George Stade ed., Barnes & Noble Classics 2005) (1922).
(15.) E.g., Perry Hiott, Georgia's City Governments, NEW Ga. ENCYCLOPEDIA (Aug. 3, 2016), http://www.georgiaency clopedia.org/articles/government-politics/georgias-city-governments. Standard ceremonial duties of a mayor include presiding at council meetings, signing proclamations, and making ceremonial presentations. E.g., Responsibilities and Roles of Mayors and Councilmembers (Commissioners) in Florida, Fla. LEAGUE CITIES, INC., http://www.floridaleagueofcities.com/News.aspx? CNID=4376 (last visited Feb. 2, 2017).
(16.) See GERALD E. FRUG, CITY MAKING: BUILDING COMMUNITIES WITHOUT BUILDING WALLS 46-47 (1999) (emphasis omitted) (quoting JOHN F. DILLON, TREATISE ON THE LAW OF MUNICIPAL CORPORATIONS 22 (Chicago, James Cockcroft & Co. 1872)) (discussing the views of Judge John Dillon, who advocated for state control over cities to achieve "a fully public city government dedicated to the common good").
(17.) See 1 JOHN F. DILLON, COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS [section] 237 (5th ed. 1911) (stating that municipal corporate powers are narrowly construed to those expressly granted by state governments, those necessary or incident to the powers expressly granted, and those essential to the accomplishment of the corporation's purposes); Nestor M. Davidson, Cooperative Localism Federal-Local Collaboration in an Era of State Sovereignty, 93 VA. L. REV. 959, 979-90 (2007) (analyzing the judiciary's developing view in the twentieth century of municipal governments as entities indistinguishable from states).
(18.) See COMM, ON MUN. PROGRAM, NAT'L MUN. LEAGUE, A MODEL CITY CHARTER AND MUNICIPAL HOME RULE [section][section] 3-6 (1916) (outlining and encouraging council-manager governance, with a mayor drawn from councilmembership, on behalf of the National Municipal League); Richard C. Schragger, Can Strong Mayors Empower Weak Cities?: On the Power of Local Executives in a Federal System, 115 Yale L.J. 2542, 2548-49 (2006). A city manager is a municipal official usually appointed by the city council. Id. at 2548. She is the administrative manager of the city in a council-manager form of government, analogous to a chief executive officer or chief administrative officer of a corporation (this analogy being drawn explicitly by the fact that cities were initially conceived as municipal corporations). See id. She is typically in charge of proposing the city's budget and overseeing the administrative bureaucratic functions of city government. See, e.g., Ga. Mun. Ass'n, Handbook for Georgia Mayors and Councilmembers: Municipal Government Structure 3-4 (5th ed. 2012), http://www.gmanet.com/GMASite/media/ PDF/handbook/structure.pdf. For additional background, see RICHARD J. STILLMAN II, THE RISE OF THE CITY MANAGER: A PUBLIC PROFESSIONAL IN LOCAL GOVERNMENT 8 (1974); and Schragger, supra, at 2548-49. See also infra Part LA.
(19.) See infra Part I.A.
(20.) See infra Part I.A.
(21.) See Kent Mathewson, Democracy in Council-Manager Government, 19 PUB. ADMIN. REV. 183, 184 (1959) ("[S]upporters and detractors alike agree that [council-manager government]... worked the most significant advance in government in the twentieth century."); see also John E. Bebout, Management for Large Cities, 15 PUB. ADMIN. REV. 188, 192 (1955) C([O]n the whole, the council-manager plan has certain positive advantages. ... It is the simplest available structural arrangement for obtaining representative decisions on policy and competent execution of those decisions."); John A. Perkins, Editorial Comment, Council-Manager Government Efficiency for Good, 21 Pub. ADMIN, rev. 180, 180 (1961) ("Today, critics ... might with confidence ... declare that municipal government during the last fifty years has exhibited more 'efficiency for good' than almost any other institution in the United States. This is so owing to the spread of council-manager government...." (quoting Charles W. Eliot, President, Harvard Univ.)).
(22.) See infra Part I.
(23.) E.g., Anderson, supra note 12, at 1419-43; Michelle Wilde Anderson, Who Needs Local Government Anyway?: Dissolution in Pennsylvania's Distressed Cities, 24 Widener L.J. 149 (2015); Michael W. McConnell & Randal C. Picker, When Cities Go Broke: A Conceptual Introduction to Municipal Bankruptcy, 60 U. Chi. L. Rev. 425 (1993); cf. Clayton P. Gillette, Dictatorships for Democracy: Takeovers of Financially Failed Cities, 114 COLUM. L. REV. 1373, 1418, 1449-50 (2014) (discussing emergency takeover laws and other mechanisms used to respond to municipal financial problems); Omer Kimhi, Reviving Cities: Legal Remedies to Municipal Financial Crises, 88 B.U. L. Rev. 633, 664-84 (2008) (discussing the same).
(24.) Eg., Michelle Wilde Anderson, Mapped Out of Local Democracy, 62 STAN. L. RV. 931 (2010); Kristen Clarke, Voting Rights & City-County Consolidations, 43 HOUS. L. REV. 621 (2006); Annette Steinacker, Prospects for Regional Governance: Lessons from the Miami Abolition Vote, 37 URB. Aff. Rev. 100 (2001).
(25.) E.g., Sarah Schindler, Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment, 124 YALE L.J. 1934 (2015); see also, e.g., Keith Aoki, Race, Space, and Place: The Relation Between Architectural Modernism, PostModernism, Urban Planning, and Gentrification, 20 FORDHAM URB. L.J. 699 (1993).
(26.) E.g., Anderson, supra note 24, at 934 n.3.
(27.) See, e.g., Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014); Tom R.
Tyler & Jeffrey A. Fagan, American Policing in the 21st Century: Legitimacy as a Key Concern, Fordham Urb. L.J. City Square (May 5, 2015), http://urbanlawjournal.com/ american-policing-in-the-21st-century-legitimacy-as-a-key-concern; Steven Zeidman, Due Process and the Failure of the Criminal Court, FORDHAM URB. L.J. CITY SQUARE (May 5, 2015), http://urbanlawjournal.com/due-process-and-the-failure-of-the -criminal-court; see also, e.g., Developments in the Law--Policing, 128 HARV. L. REV. 1706, 1723, 1794 (2015); Alec Karakatsanis, Policing, Mass Imprisonment, and the Failure of American Lawyers, 128 HARV. L. REV. F. 253 (2015).
(28.) See infra Part II.A. 1.
(29.) Angela Glover Blackwell & Andrew Friedman, Calling All Mayors: This Is What Police Reform Should Look Like, Hill (Sept. 9, 2015, 1:00 PM), http://thehill.com/blogs/ congress-blog/civil-rights/252969-calling-all-mayors-this-is-what-police-reform -should-look.
(30.) Section 14141, passed as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (codified as amended in scattered sections of the U.S. Code), prohibits police agencies from engaging "in a pattern or practice of unconstitutional misconduct," Stephen Rushin, Federal Enforcement of Police Reform, 82 Fordham L. Rev. 3189, 3191 (2014). Enforcement is carried out by the DOJ, and the statute aims to curb misconduct by improving organizational policies and procedures and providing widespread adoption of national policing standards. Id. at 3191-92.
(31.) Moreau v. Flanders, 15 A.3d 565, 579 (R.I. 2011); see also People v. Provines, 34 Cal. 520, 533-34, 538, 540 (1868) (noting that executive officials of a municipal corporation may exercise judicial powers and that executive powers and their limits at the municipal level are not analogous to the constraints on state and federal executives to not impinge on other branches of government); Santo v. State, 2 Iowa 165, 220 (1855) (noting the same). But see Broidrick v. Lindsay, 350 N.E.2d 595, 598 (N.Y. 1976) (determining that a certain mayoral action was "an impermissible exercise of legislative power vested by the New York City Charter in the city council"); see also La Guardia v. Smith, 41 N.E.2d 153, 158 (N.Y. 1942) (Lehman, C.J., dissenting) ("[I]f in the charter the Legislature has provided a form of government in which executive powers vested in the Mayor and legislative powers vested in the Council are intended to be kept separate, distinct and independent, that intention must be given effect."). For general background on municipal separation of powers, see Bradley E. Morris, Comment, Separation of Powers in Municipal Government Division of Executive and Legislative Authority, 1978 BYU L. Rev. 961,961-66 (1978).
(32.) Morris, supra note 31, at 963-64 ("All of these forms [of city government] involve!] extensive mingling of functions, with little or no concern for the separation of powers.").
(33.) For an explanation of city managers, see note 18 above.
(34.) H. George Frederickson & Gary Alan Johnson, The Adapted American City: A Study of Institutional Dynamics, 36 Urb. Aff. Rev. 872,877-79,879 tbl.3 (2001).
(35.) See id. at 873-74, 877-78.
(36.) See Schragger, supra note 18, at 2544 (noting that the council-manager form of government vests "legislative authority in an elected council and administrative authority in a professional city manager"); id. at 2549 ("A weak ... mayoralty means that executive power in municipalities tends to be fragmented, either among council members, between the council and city manager, or among the council and other administrative officials who also exercise executive power.").
(37.) Elected Officials, Nat'l League Cities, http://www.nlc.org/build-skills-and-networks/ resources/cities-101/city-officials/elected-officials (last visited Feb. 2, 2017); Forms of Municipal Government, Nat'l League CITIES, http://www.nlc.org/build-skills-and -networks/resources/cities-101/city-structures/forms-of-municipal-government (last visited Feb. 2, 2017). Tim Kaine was selected as mayor of Richmond, Virginia under this method of city-council election. See Amy Biegelson, What's a Nice Guy Like Tim Kaine Doing in a Job Like This?, STYLE WKLY. (Feb. 25, 2009), http://www.styleweekly.com/ richmond/whatandaposs-a-nice-guy-like-tim-kaine-doing-in-a-job-like-this/Content? oid=1383040. For the most straightforward examples of this procedure in action, see cities like Beverly Hills and Malibu. About the City Council, City Beverly Hills, http://www.beverlyhills.org/citygovernment/mayorandcouncilmembers/aboutthe city-council (last visited Feb. 2, 2017) ("From within their membership, the Council then appoints a mayor and vice mayor, with both positions rotating each year. The mayor acts as the presiding officer at meetings and the Council's ceremonial representative at public events."); City Council, CITY Malibu, http://www.malibucity.org/ index.aspx?NID=207 (last visited Feb. 2, 2017) ("The City of Malibu ... operates under the council-manager form of government.... The Mayor's Office is rotated annually among all councilmembers.").
(38.) Morris, supra note 31, at 963 n.18 (quoting Robert P. Boynton, City Councils: Their Role in the Legislative System, in The MUNICIPAL Y EAR Book 67, 67 (1976)).
(39.) Curtis Wood, Voter Turnout in City Elections, 38 Urb. Aff. Rev. 209, 216 (2002).
(40.) Forms of Municipal Government, supra note 37.
(42.) See, e.g., Member Res. Servs., Mich. Mun. League, Structure of Local Government, in Charter Commissioners Handbook 8,15 (2003) ("Mayors in about half of Michigan's home rule cities are chosen directly by the people, in at-large, city-wide elections (including all strong mayor communities)."), https://www.mml.org/pdf/charter_ revision/charter_handbook.pdf.
(43.) See Kathy Hayes & Semoon Chang, The Relative Efficiency of City Manager and Mayor-Council Forms of Government, 57 S. Econ. J. 167,167 (1990); Wood, supra note 39, at 215.
(44.) See Mayoral Powers, Nat'l League Cities, http://www.nlc.org/build-skills-and -networks/resources/cities-101/city-officials/mayoral-powers (last visited Feb. 2, 2017).
(45.) See Wood, supra note 39, at 215.
(46.) Forms of Municipal Government, supra note 37.
(47.) See Morris, supra note 31, at 963.
(48.) Schragger, supra note 18, at 2547-48.
(49.) See supra Introduction.
(50.) Schragger, supra note 18, at 2548 (quoting Harold Wolman, Local Government Institutions and Democratic Governance, in Theories of URBAN POLITICS 135, 138-39 (David Judge et al. eds., 1995)).
(51.) Wood, supra note 39, at 216 (quoting AMY BRIDGES, MORNING GLORIES: MUNICIPAL REFORM IN THE SOUTHWEST 11 (1997)).
(52.) Schragger, supra note 18, at 2571.
(53.) See id.
(54.) See id.
(55.) Forms of Municipal Government, supra note 37.
(57.) Schragger, supra note 18, at 2549.
(58.) Wood, supra note 39, at 216; see also Carol Ebdon & Peter F. Brucato, Jr., Government Structure in Large U.S. Cities: Are Forms Converging?, 23 INT'L J. PUB. ADMIN. 2209, 2211 (2000).
(59.) Rachel A. Harmon, Federal Programs and the Real Costs of Policing, 90 N.Y.U. L. REV. 870, 911(2015).
(60.) Carl Bialik, The Police Are Killing People as Often as They Were Before Ferguson, FIVE THIRTY EIGHT (July 7, 2016,7:02 PM), http://53eig.ht/29qlb9m.
(61.) Id. African Americans make up approximately 30% of victims of fatal police violence in the United States and 13% of the U.S. population. Id.
(62.) The relationship between municipal insolvency and law enforcement deficiencies is a close one. As the San Bernardino city attorney warned residents after cuts to police department funding: "Lock your doors and load your guns." Michelle Wilde Anderson, The New Minimal Cities, 123 YALE L.J. 1118,1120(2014) (quoting Ian Lovett, A Poorer San Bernardino, and a More Dangerous One, Too, N.Y. TIMES (Jan. 14, 2013), http://nyti.ms/11vGhdL).
(63.) See id. at 1161.
(64.) Id. at 1162.
(65.) Id. at 1163. For an extensive documentation of the effect of the recession and economic downturn on city police staffing, see U.S. DEP'T OF JUSTICE, THE IMPACT OF THE ECONOMIC DOWNTURN ON AMERICAN POLICE AGENCIES (2011), http://www.ncdsv.org/ images/COPS_ImpactOfTheEconomicDownturnOnAmericanPoliceAgencies_10 -2011.pdf.
(66.) Anderson, supra note 62, at 1163.
(67.) Id. (quoting John Rudolf, Chris Christie Pushes Camden Police to Disband, Despite Questions over New Plan's Finances, HUFFINGTON Post (Nov. 19, 2012, 2:38 AM ET), http://www.huffingtonpost.com/2012/11/19/chris-christie-camden-police_n_2025372.html).
(68.) Developments in the Law--Policing, supra note 27, at 1714.
(69.) See id. at 1726-33 (exploring each of these three phenomena in more detail).
(70.) Alexander Hamilton once remarked that Congress may not "superintend the police of the city of Philadelphia because they are not authorised to regulate the police of that city." ALEXANDER HAMILTON, Opinion on the Constitutionality of an Act to Establish a National Bank (Feb. 23, 1791), in SELECTED WRITINGS AND SPEECHES OF ALEXANDER HAMILTON 248,251 (Morton J. Frisch ed., 1985) (emphasis omitted).
(71.) See Printz v. United States, 521 U.S. 898, 933 (1997) (prohibiting the federal government from commandeering state and local law enforcement); United States v. Lopez, 514 U.S. 549, 564 (1995) (defending traditional state and local control of criminal law enforcement against federal overreach); All. to End Repression v. City of Chicago, 237 F.3d 799, 802 (7th Cir. 2001) (criticizing "federal judicial micromanagement of local investigations" as undermining federalism and infringing on "the prerogatives of local government"). See generally John S. Baker, Jr., State Police Powers and the Federalization of Local Crime, 72 TEMP. L. REV. 673, 690-94, 712-13 (1999) (explaining the historical and pragmatic bases for local control over law enforcement).
(72.) Harmon, supra note 59, at 937 (citing BRIAN A. REAVES, U.S. DEP'T OF JUSTICE, NCJ 231174, LOCAL POLICE DEPARTMENTS, 2007, at 10 (2010)). These numbers do not include capital expenditures. Id. at 937 n.271.
(73.) Id. at 912 ("[F]ederal public safety programs ... seek to expand and shape police conduct. ... Such programs affect coercion costs because they increase local policing, and that policing involves coercion."); id. at 913 ("Several federal programs promote arrests, sometimes expressly.").
(74.) See id. at 898-99 (citing William N. Evans & Emily G. Owens, COPS and Crime, 91 J. PUB. ECON. 181,193 (2007), which concludes that COPS grants led to an increase in the size of police forces, though not to the degree intended). The COPS program was created in 1994, with the passage of the Violent Crime Control and Law Enforcement Act. For background, see Organization, Mission and Functions Manual Office of Community Oriented Policing Services, U.S. DEP'T JUST., https://www.justice.gov/jmd/organization -mission-and-functions-manual-office-community-oriented-policing-services (last visited Feb. 2, 2017).
(75.) Harmon, supra note 59, at 913-14 (quoting 42 U.S.C. [section] 3796hh(b)(1) (2012)). For a critique of this program, see Benjamin P. Foster, Norms and Costs of Government Domestic Violence Policies: A Critical Review, 32 J. FAM. & ECON. ISSUES 140, 147-48 (2011).
(76.) Harmon, supra note 59, at 915 (citing 8 U.S.C. [section] 1357(g) (2012)). For a general look at local law enforcement and immigration in the midst of federalism concerns, see Huyen Pham, The Constitutional Right Not to Cooperate?: Local Sovereignty and the Federal Immigration Power, 74 U. CIN. L. REV. 1373 (2006).
(77.) Harmon, supra note 59, at 918-19 (citing 6 U.S.C. [section][section] 604-605 (2012)); see also Stephen A. Morreale & David E. Lambert, Homeland Security and the Police Mission, 6 J. HOMELAND SECURITY & EMERGENCY MGMT. 1,13 (2009); Matthew C. Waxman, Police and National Security: American Local Law Enforcement and Counterterrorism After 9/11, 3 J. Nat'l SECURITY L. & POL'Y 377, 388 (2009). For a breakdown of overall federal funding, see Alicia Parlapiano, The Flow of Money and Equipment to Local Police, N.Y. TIMES (Dec. 1, 2014), http://nyti.ms/lAIzaOq.
(78.) For an extensive investigation into how federal involvement in law enforcement priorities and funding alters the behavior of local police, see generally INIMAI CHETTIAR ET AL., BRENNAN CTR. FOR JUSTICE, REFORMING FUNDING TO REDUCE MASS INCARCERATION (2013).
(79.) Though the process of charter amendment is difficult, it is by no means impossible. Amendments are made more probable by the fact that they can often be pursued through a variety of methods. Take cities in Minnesota as an example. Charter cities can amend their governing documents through amendments proposed by a charter commission, MINN. STAT. [section] 410.12(1) (2015), a citizen petition, id. [section] 410.12(1)-(3), or an ordinance that originates in the city council, id. [section] 410.12(5). See also LEAGUE OF MINN. CITIES, HANDBOOK FOR MINNESOTA CITIES ch. 4, at 15-18 (2015), www.lmc.org/media/ document/ l/chapter04.pdf.
(80.) For a survey of the various remedies available via litigation, see MATTHEW V. HESS, Comment, Good Cop-Bad Cop: Reassessing the Legal Remedies for Police Misconduct, 1993 UTAH L. REV. 149. Those remedies include: civil actions under Title 42 of the U.S. Code, including [section] 1983 (actions for deprivation of civil rights), [section] 1985(3) (actions for conspiracy to deprive of civil rights), and [section] 1988(b) (attorney's fees in civil rights claims); federal criminal actions under Title 18, including [section] 242 (penalties for federal civil rights violations) and [section] 241 (penalties for conspiracies to violate federal civil rights); various state law criminal actions; and state law civil remedies, including tort claims for assault, battery, false arrest, and false imprisonment. Hess, supra.
(81.) 436 U.S. 658, 695-701 (1978) (holding that a "person" for the purposes of [section] 1983 includes municipalities and city departments).
(82.) For the framework, see City of Canton v. Harris, 489 U.S. 378, 388-92 (1989); and Karen M. Blum, Making Out the Monell Claim Under Section 1983,25 Touro L. Rev. 829, 829-30 (2009).
(83.) Blum, supra note 82, at 829 (citing David Jacks Achtenberg, Taking History Seriously: Municipal Liability Under 42 U.S.C. [section] 1983 and the Debate over Respondeat Superior, 73 FORDHAM L. REV. 2183,2188 (2005)).
(84.) See Blum, supra note 82, at 830 ("There are not many newly written policies that are unconstitutional on their face....").
(85.) Dixon v. County of Cook, 819 F.3d 343, 348 (7th Cir. 2016) (quoting Thomas v. Cook Cty. Sheriffs Dep't, 604 F.3d 293, 303 (7th Cir. 2010)).
(86.) Blum, supra note 82, at 830 (citing Harris, 489 U.S. 378).
(87.) Id. (citing City of St. Louis v. Praprotnik, 485 U.S. 112,123(1988)).
(88.) Fred Smith, Local Sovereign Immunity, 116 COLUM. L. REV. 409, 414 (2016) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 485 (1986), as the last instance of a successful suit).
(89.) Id. (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 173-74 (1970), as a pre-Monell case remanded to the district court to evaluate the existence of a state-enforced custom).
(90.) 489 U.S. at 387.
(91.) Id. at 381.
(93.) Id. at 386-87.
(94.) Id. at 388.
(95.) For an interesting introduction to this issue, see Rosalie Berger Levinson, Who Will Supervise the Supervisors?: Establishing Liability for Failure to Train, Supervise, or Discipline Subordinates in a Post-Iqbal/Connick World, 47 Harv. C.R.-C.L. L. Rev. 273 (2012). As Levinson notes by reference to case law, perhaps the best chance of imposing supervisory liability for police brutality comes when there is direct failure by superiors to intervene contemporaneously with the violation. See id. at 278-79, 279 n.36 (citing Krout v. Goemmer, 583 F.3d 557, 565-66 (8th Cir. 2009); Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008); and Velazquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th Cir. 2007)).
(96.) See generally Smith, supra note 88 (making the case that various factors align to generally shield local governments and officials from civil liability).
(97.) Id. at 412 & n.12 (collecting cases and sources).
(98.) Id. at 411.
(99.) Id. at 411,415 n.23.
(100.) Id. at 416.
(101.) G. Flint Taylor, A Litigator's View of Discovery and Proof in Police Misconduct Policy and Practice Cases, 48 DEPAUL L. REV. 747,772 (1999).
(102.) City of Los Angeles v. Lyons, 461 U.S. 95, 111-13 (1983) (denying an injunction on standing grounds). While this is not to say that Lyons barred victims of police misconduct from pursuing damages, the chilling temporal ripples stretching from Lyons to Eric Garner have not gone unnoticed. See, e.g., Ian Millhiser, How the Supreme Court Helped Make It Possible for Police to Kill by Chokehold, THINKPROGRESS (Dec. 4, 2014, 2:09 PM), http://thinkprogress.org/justice/2014/12f/04/3599605/how-the-supreme -court-helped-make-it-possible-for-police-to-kill-by-chokehold. See generally Erwin CHEMERINSKY, THE CASE AGAINST THE SUPREME COURT 225-27 (2014) (raising a general critique of Lyons said its effect on civil rights remedies).
(103.) Lyons, 461 U.S. at 97-98; Millhiser, supra note 102.
(104.) Millhiser, supra note 102.
(106.) Lyons, 461 U.S. at 105-06.
(107.) Millhiser, supra note 102.
(108.) Section 242 requires that such a deprivation be "wilful," 18 U.S.C. [section] 242 (2015), which can be an especially high bar given that officers may also enjoy qualified immunity. See Wilson v. Layne, 526 U.S. 603, 605-06, 615-16 (1999); see also Paul Hoffman, The Feds, Lies, and Videotape: The Need for an Effective Federal Role in Controlling Police Abuse in Urban America, 66 S. CAL. L. REV. 1453, 1506-07 (1993). And the degree of force necessary to violate the Fourth Amendment is itself fairly high under Supreme Court precedent. See Graham v. Connor, 490 U.S. 386, 396-97 (1989) (noting that deference is given to officers due to the "split-second judgments" that need to be made in "tense, uncertain, and rapidly evolving" situations and stating that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,... violates the Fourth Amendment" (quoting Johnson v. Glick, 481 F.2d 1028,1033 (2d Cir. 1973))).
(109.) Rushin, supra note 30, at 3203 & fig. 1. This draws from data gathered during the 1980s. Id. With the passage of structural reform in the 1990s, see infra Part II.B, the use of this cause of action likely became even less common, see Rushin, supra note 30, at 3203-04.
(110.) Kate Levine, Police Suspects, 116 COLUM. L. REV. 1197, 1200 (2016).
(112.) Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 STAN. L. REV. 1, 3 (2009) (describing the relative inefficacy of such litigation "in promoting reform in law enforcement agencies"). It has been posited, for instance, that civil rights lawyers and advocates' flooding the DOJ's mailboxes with complaints has been one of the more effective tools in sparking DOJ investigations under [section] 14141. See Rushin, supra note 30, at 3219.
(113.) 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013).
(114.) See id. at 606; see also Jessica L. Fangman, Stop the "Stop and Frisk?": How Floyd v. City of New York Will Limit the Power of Law Enforcement Across the Nation, 19 LOY. PUB. INT. L. REP. 50, 52 (2013) (detailing Bloomberg's response to the criticism of stop-and-frisk).
(115.) See Floyd, 959 F. Supp. 2d at 589-624 (analyzing the relevant evidence).
(116.) This case was Daniels v. City of New York, No. 99 Civ. 1695(SAS), 2007 WL 2077150 (S.D.N.Y July 16, 2007). See Daniels, et al. v. the City of New York, CTR. FOR CONST. RTS. (Oct. 1, 2012), http://ccrjustice.org/home/what-we-do/our-cases/daniels-et-al-v-city -new-york.
(117.) Floyd, et al. v. City of New York, et al., CTR. FOR CONST. RTS. (Nov. 18, 2016), http://ccrjustice.org/home/what-we-do/our-cases/floyd-et-al-v-city-new-york-et-al.
(118.) For surveys of institutional-design-based approaches to local government reform, see, for example, Michelle Wilde Anderson, Cities Inside Out Race, Poverty, and Exclusion at the Urban Fringe, 55 UCLA L. Rev. 1095 (2008); and Michelle Wilde Anderson, Democratic Dissolution: Radical Experimentation in State Takeovers of Local Governments, 39 FORDHAM URB. L.J. 577 (2012) [hereinafter Anderson, Democratic Dissolution]. This general debate harkens to a larger discussion about problem-solving, through either litigation or institutional design. Cf, e.g., Michael C. Dorf, Legal Indeterminacy and Institutional Design, 78 N.Y.U. L. REV. 875, 965-70 (2003) (explaining the general tradeoff between and debate about protecting rights on the back end through judicial review or prophylactically through changes in front-end regulation).
(119.) Harmon, supra note 112, at 3. The full toolkit of the DOJ's enforcement power includes 18 U.S.C. [section] 242 (2015) (making it a crime for an agent acting under color of law to deprive a person of constitutional or federal statutory rights); 42 U.S.C. [section] 14141 (2015) (the "police misconduct provision"); Title VI of the Civil Rights Act of 1964, 42 U.S.C. [section][section] 2000d to 2000d-7 (prohibiting patterns of discrimination on the basis of race, color, national origin, sex, or religion, including use of racial slurs, unjustified arrests, and discriminatory traffic stops); Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. [section][section] 12131-12165 (prohibiting discrimination in interrogation or law enforcement practices on the basis of physical or mental impairment); and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. [section] 794 (2015) (prohibiting the same). See Addressing Police Misconduct Laws Enforced by the Department of Justice, U.S. DEP'T JUST., http://www.justice.gov/crt/addressing-police-misconduct-laws-enforced-department -justice (last updated Aug. 6, 2015).
(120.) See DARRELL L. ROSS, CIVIL LIABILITY IN CRIMINAL JUSTICE 183-85 (6th ed. 2013).
(121.) Rushin, supra note 30, at 3213 (citing Police Brutality: Hearings Before the Subcomm. on Civil and Constitutional Rights of the H. Comm, on the Judiciary, 102d Cong. 27, 61 (1991) (statements of Rep. Craig A. Washington, Member, Subcomm. on Civil and Constitutional Rights of the H. Comm, on the Judiciary; and Paul Hoffman, Legal Director, ACLU Foundation of Southern California)).
(122.) William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. Rev. 780, 798 (2006); see also SAMUEL WALKER, THE NEW WORLD OF POLICE ACCOUNTABILITY 33 (2005) (noting that by 2004, the DOJ "had reached settlements with 19 law enforcement agencies, either through consent decrees, memoranda of understanding, or settlement letters").
(123.) See Harmon, supra note 112, at 21. As of the time of the publication of this Note, Alabama Senator Jeff Sessions has been nominated but not confirmed to be U.S. Attorney General under President Donald Trump. Senator Sessions's leadership of the DOJ may fundamentally change the department's willingness to engage in oversight of and investigation into policing practices and substantially reduce the use of [section] 14141. Senator Sessions admitted as much during his confirmation hearing, noting that consent decrees "undermine the respect for police officers and create an impression that the entire department is not doing their work consistent with fidelity to law and fairness, and we need to be careful before we do that." John Fritze, Jeff Sessions Voices Concern About Use of Consent Decrees for Police, BALT. SUN (Jan. 10, 2017, 6:40 PM), http://fw.to/mjiR51L. Such a move would unfortunately undercut the accountability and reform of local police forces.
(124.) Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department "Pattern or Practice" Suits in Context, 22 ST. LOUIS U. PUB. L. REV. 3,6 (2003).
(125.) Harmon, supra note 112, at 52.
(126.) Id. at 53 (noting that cities under investigation tend to vary by size, type, and geographic region).
(127.) U.S. Dep't of Justice, Police Misconduct Pattern or Practice Program 3 (2001), http://web.law.columbia.edu/sites/default/files/microsites/contract-economic -organization/files/10-SPL-Pattern%20or%20Practice%20Program%20FAQ.pdf.
(128.) See Harmon, supra note 112, at 54.
(129.) An easy analogy is to the False Claims Act (FCA). Similar to [section] 14141 suits, the DOJ controls much of the gatekeeping function of bringing FCA claims. In the context of the FCA, there are prevalent "concerns about the capacity and will of agencies to optimally perform gatekeeper duties, whether because of limited ability to gauge case merit, pursuit of political rewards, or imperfect managerial control over line-level personnel." David Freeman Engstrom, Public Regulation of Private Enforcement Empirical Analysis of DOJ Oversight of Qui Tam Litigation Under the False Claims Act, 107 Nw. U. L. Rev. 1689, 1692 (2013). The result, critics allege, is a seemingly random enforcement regime. Id. at 1694-95.
(130.) Compare Myriam E. Gilles, Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights, 100 COLUM. L. REV. 1384, 1386-87, 1389 (2000) (advocating for a private right of action to supplement [section] 14141 enforcement), and Kami Chavis Simmons, Cooperative Federalism and Police Reform: Using Congressional Spending Power to Promote Police Accountability, 62 ALA. L. REV. 351, 373-74 (2011) (summarizing criticisms of [section] 14141 's lack of a private right of action), with David Freeman Engstrom, Agencies as Litigation Gatekeepers, 123 YALE L.J. 616, 629 (2013) (noting private rights of action in securities, antitrust, and job discrimination litigation), and David Freeman Engstrom, Harnessing the Private Attorney General Evidence from Qui Tam Litigation, 112 COLUM. L. REV. 1244, 1253-56, 1270-72 (2012) (discussing features of legal frameworks, including FCA qui tarn provisions, that provide for private rights of action).
(131.) CIVIL RIGHTS DIV. & N. DIST. OF OHIO U.S. ATT'Y'S OFFICE, U.S. DEP'T OF JUSTICE, INVESTIGATION OF THE CLEVELAND DIVISION OF POLICE (2014), https://www.justice.gov/ sites/default/ files/opa/press-releases/attachments/2014/12/04/cleveland_ division_of_police_findings_letter.pdf (quoting Mike De Wine, Ohio Att'y Gen., Statement on Officer-Involved Shooting of Timothy Russell and Malissa Williams (Feb. 5, 2013), http://www.ohioattorneygeneral.gov/Files/Briefing-Room/News -Releases/Cleveland-Officer-Involved-Shooting-Investigation/Officer-Involved -Shooting-Statement-Morning-02-05.aspx).
(132.) Id. at 8-9 (citing Leila Atassi, Cleveland Mayor Frank Jackson Seeks Outside Review of All Future Use of Deadly Force Cases, CLEVELAND.COM (Dec. 27, 2012, 2:40 PM), http://s.cleveland.com/YMylXAm).
(133.) See Patrick Cooley, DOJ Consent Decree: How Long Does the Cleveland Police Department Have to Implement Changes?, CLEVELAND.COM (May 26, 2015, 4:59 PM), http://s.cleveland.com/wKrqj V g.
(134.) Lynh Bui & Dana Hedgpeth, Baltimore Mayor Seeks Justice Review for Police Dept.; State of Emergency Lifted, WASH. POST (May 6, 2015), http://wpo.st/j_mD2.
(136.) See Press Release, Office of the Mayor, City of Balt., Mayor Rawlings-Blake Requests Federal Investigation of Baltimore Police Department (May 6, 2015), http://mayor.baltimorecity.gov/news/press-releases/2015-05-06-mayor-rawlings -blake-requests-federal-investigation-baltimore-police.
(137.) See id.
(139.) See Harmon, supra note 112, at 43.
(140.) Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489, 519 (2008); Samuel Walker & Morgan Macdonald, An Alternative Remedy for Police Misconduct A Model State "Pattern or Practice" Statute, 19 GEO. MASON U. C.R.L.J. 479, 481 (2009) ("Serious questions remain about whether reforms effected through litigation will be sustained once the consent decree or [memorandum of agreement] is terminated.").
(141.) Harmon, supra note 112, at 45 n.136; accord Clayton P. Gillette & David A. Skeel, Jr., Governance Reform and the judicial Role in Municipal Bankruptcy, 125 YALE L.J. 1150, 1188 & n.173 (2016).
(142.) Harmon, supra note 112, at 45 n.136.
(143.) Id. at 45.
(144.) Id.; see also Walker & Macdonald, supra note 140, at 495 (noting that fractured and splintered municipal departmentalism undercuts any force of incentives).
(145.) Ferguson has been a particularly stark example of this problem. In early 2016, Ferguson's city council rejected a previously negotiated consent decree with the DOJ, voting instead to call for the DOJ to back down on several key provisions. In the wake of this move, the DOJ decried the action and began exploring legal actions to compel compliance. Aamer Madhani & Kevin Johnson, Justice Department Threatens Legal Action Against Ferguson, USA TODAY (Feb. 10, 2016, 12:48 PM EST), http://usat.ly/lTbFSIf; see also Complaint at 2, United States v. City of Ferguson, No. 4:16-cv-00180-CDP (E.D. Mo. Feb. 10, 2016), http://www.moed.uscourts.gov/sites/default/files/mdl/16-0180/ 0001.pdf (alleging the city was unlikely to remedy police misconduct without judicial relief). Because authority in Ferguson is diffuse, no single member bears the electoral brunt of resident dissatisfaction with the broken deal.
(146.) Harmon, supra note 112, at 67. Rushin notes the natural converse: that civil litigation "only works if aggrieved parties regularly litigate and departments feel the financial consequences of this litigation, thus motivating them to change behaviors and policies." Rushin, supra note 30, at 3202.
(147.) Harmon, supra note 112, at 46.
(149.) Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. REV. 1023,1028 (2010).
(151.) Id. at 1057 & n.207.
(152.) Joanna C. Schwartz, What Police Learn from Lawsuits, 33 CARDOZOL. REV. 841, 874 n. 184 (2012); see also Schwartz, supra note 149, at 1057 n.209 (discussing similar considerations by the mayor of Portland).
(153.) Schwartz, supra note 149, at 1057 n.209 (alteration in original) (quoting Letter from Vera Katz, Mayor of Portland, to Gary Blackmer, City Auditor, Portland (Aug. 26, 2004)).
(154.) Simmons, supra note 130, at 376; cf. Kami Chavis Simmons, New Governance and the "New Paradigm" of Police Accountability: A Democratic Approach to Police Reform, 59 CATH. U. L. REV. 373, 405 (2010) (explaining a bottom-up and localized, democratic model of policing in contrast to a statist regulatory approach).
(155.) See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (noting that states and local governments may "serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country").
(156.) Frank M. Bryan, Direct Democracy and Civic Competence: The Case of Town Meeting, in CITIZEN COMPETENCE AND DEMOCRATIC INSTITUTIONS 195, 195 (Stephen L. Elkin & Karol Edward Soltan eds., 1999) (explaining de Tocqueville's view that "[t]ownmeetings are to liberty what primary schools are to science; they bring it within the people's reach, they teach men how to use and how to enjoy it" (quoting 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 76 (Francis Bowen ed., Henry Reeve trans., Cambridge, Sever & Francis 1862))). As James Bryce noted, "[t]he town meeting has been not only the source but the school of democracy." Id. (quoting 1 JAMES BRYCE, THE AMERICAN COMMONWEALTH 626 (new ed. 1912)). John Stuart Mill called the town meeting a "school of public spirit." Id. (quoting JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 73 (Henry Regnery Co. 1962) (1861)).
(157.) Schragger, supra note 18, at 2571; see also 1 ALEXIS DE TOCQUEVILLE, Democracy IN AMERICA 318-21 (Francis Bowen ed., Henry Reeve trans., Cambridge, Sever & Francis 2d ed. 1863).
(158.) Jonathan Mahler, Now That the Factories Are Closed, It's Tee Time in Benton Harbor, Mich., N.Y. TIMES MAG. (Dec. 15, 2011), http://nyti.ms/10XU6XK.
(160.) See id.
(161.) Anderson, Democratic Dissolution, supra note 118, at 580; The Rachel Maddow Show (MSNBC television broadcast Apr. 19, 2011).
(162.) Stephanie Stang, James Hightower Wins Benton Harbor Mayors Race, Incumbent Asks for Recount, WNDU (Nov. 9, 2011, 6:32 PM), http://www.wndu.com/home/headlines/ Cooke_Hightower_vying_for_mayors_office_in_Benton_Harbor_133493273.html.
(163.) See Zoltan L. Hajnal & Paul G. Lewis, Municipal Institutions and Voter Turnout in Local Elections, 38 URB. AFF. REV. 645,645 (2003).
(164.) Wood, supra note 39, at 223. The highest turnout rate among all the cities surveyed was 67.5%. Id. at 223 tbl.2.
(165.) Neal Caren, Big City, Big Turnout?: Electoral Participation in American Cities, 29 J. URB. AFF. 31, 33 (2007). One study puts turnout in concurrent election jurisdictions at 55.73% and nonconcurrent (unaligned with state and federal elections) at 28.56%. Wood, supra note 39, at 224-25.
(166.) Zoltan Hajnal & Jessica Trounstine, Where Turnout Matters: The Consequences of Uneven Turnout in City Politics, 67 J. Pol. 515, 518 (2005).
(167.) Erwin Chemerinsky & Sam Kleiner, Federalism from the Neighborhood up: Los Angeles's Neighborhood Councils, Minority Representation, and Democratic Legitimacy, 32 YALE L. & POL'Y REV. 569, 576(2014).
(168.) Id. (quoting Heather K. Gerken, Foreword: Federalism All the Way down, 124 HARV. L. REV. 4,45 (2010)).
(169.) Gerken, supra note 168, at 26-27.
(170.) Id. at 27.
(171.) Id. at 26.
(172.) Clarke, supra note 24, at 631 n.37 (citing G. ROSS STEPHENS & NELSON WlKSTROM, METROPOLITAN GOVERNMENT AND GOVERNANCE: THEORETICAL PERSPECTIVES, EMPIRICAL ANALYSIS, AND THE FUTURE 117 (2000)).
(173.) Id. at 631.
(174.) Chemerinsky & Kleiner, supra note 167, at 577-79.
(175.) Richard Briffault, The Rise of Sublocal Structures in Urban Governance, 82 MINN. L. REV. 503, 508 (1997) (discussing the rise of "submunicipal political institutions").
(176.) Ian Millhiser, This Is the Most Important Reform Ferguson Can Enact to Give Its Black Residents a Voice, THINKPROGRESS (Aug. 18, 2014, 9:00 AM), http://thinkprogress.org/ justice/2014/08/18/3472278/this-is-the-most-important-reform-ferguson-can-enact -to-prevent-another-standoff.
(177.) As of the publication of this Note, the most recent mayoral election in Ferguson took place in April 2014.
(178.) Millhiser, supra note 176.
(179.) Id. The next year, African American candidates won two of the three open seats on the city council, resulting in a six-member council that includes three African American members. See Moni Basu, Ferguson Election Makes History, Adds More Blacks to City Council, CNN (Apr. 8, 2015,4:15 PM ET), http://cnn.it/lc6ITHj.
(180.) Millhiser, supra note 176.
(182.) Wood, supra note 39, at 225-27.
(183.) Id. at 225.
(184.) Gerken, supra note 168, at 53 (citing Samuel Issacharoff & Pamela S. Karlan, Groups, Politics, and the Equal Protection Clause, 58 U. MIAMI L. REV. 35,47-50 (2003)).
(186.) Issacharoff & Karlan, supra note 184, at 49. Justice Souter noted in Bush v. Vera, 517 U.S. 952, 1060-76 (1996) (Souter,)., dissenting), that election of minority Irish and Italian politicians in Boston similarly helped to legitimize ethnic minorities and cool ethnic tensions, perhaps more than any strictly legalistic protections for those minorities. See also Gerken, supra note 168, at 53 (discussing Justice Souter's dissent in Vera).
(187.) Gerken, supra note 168, at 53 n.190 (citing John C. Nye et al., Do Black Mayors Improve Black Employment Outcomes?: Evidence from Large U.S. Cities (Apr. 6, 2010) (unpublished manuscript) (on file with the Harvard Law School Library)). The Author commends the reader to Gerken's groundbreaking work, in toto, on this topic. See generally Gerken, supra note 168 (explaining how minority groups can exercise power through state and local institutions even absent formal sovereignty in the federal system).
(188.) And, as some have pointed out, there may be no relationship between the two at all. Jamelle Bouie, Black and Blue: Why More Diverse Police Departments Won't Put an End to Police Misconduct, Slate (Oct. 13, 2014, 7:12 PM), http://www.slate.com/articles/ news_and_politics/politics/2014/10/diversity _won_t_solve_police_misconduct_ black_cops_don_t_reduce_violence.html (citing Brad W. Smith, The Impact of Police Officer Diversity on Police-Caused Homicides, 31 POL'Y STUD. J. 147,158-59 (2003)).
(189.) David Alan Sklansky, Not Your Father's Police Department Making Sense of the New Demographics of Law Enforcement, 96 J. CRIM. L. & CRIMINOLOGY 1209, 1223 (2006). Sklansky's work has been revisited in the wake of Ferguson. See, e.g., Batya Ungar-Sargon, Lessons for Ferguson in Creating a Diverse Police Department, FIVE THIRTY EIGHT fian. 5, 2015,7:19 AM), http://53eig.ht/lDS3Y44.
(190.) Sklansky, supra note 189, at 1224.
(191.) Id. at 1228.
(193.) Id. at 1229-30.
(194.) Id. at 1230.
(195.) See City of Rome v. United States, 446 U.S. 156, 183-84 (1980) (affirming the district court's findings that the city's annexations and switch from plurality-win to majority-win elections with staggered terms violated the Voting Rights Act); White v. Regester, 412 U.S. 755, 765 (1973) (upholding the viability of a constitutional challenge where multimember districts were being used to dilute the voting strength of racial groups).
(196.) 133 S.Ct. 2612 (2013).
(197.) We have certainly started to see reporting of some of the early effects. Cities, after all, were "where 85 percent of the DOJ's Section 5 objections have been under the Voting Rights Act since it was passed," reports one recent account. Sarah Childress, After Shelby, Voting-Law Changes Come One Town at a Time, FRONTLINE (Aug. 8, 2013), http://www.pbs.org/wgbh/frontline/article/after-shelby-voting-law-changes-come -one-town-at-a-time. "And that's where legal challenges, the only remaining remedy to fight voter discrimination, are likely to take place," notes Dale Ho, the head of the ACLU's Voting Rights Project. Id.
(198.) For a somewhat antiquated but still well-wrought account, see Joseph F. Zimmerman, The Federal Voting Rights Act and Alternative Election Systems, 19 Wm. & MARY L. REV. 621, 631-32 (1978), which states that "[t]he causes of ... dilution include such subtle discriminatory actions as the replacement of a municipality's ward system with at large elections, a city's annexation of a predominantly white area, or the adoption of a redistricting plan calculated to minimize the political influence of racial minorities." See also, e.g., Regester, 412 U.S. at 756 (confronting a challenge to an at-large scheme at the county level); Whitcomb v. Chavis, 403 U.S. 124, 127 (1971) (examining a similar scheme); Paul W. Bonapfel, Minority Challenges to At-Large Elections: The Dilution Problem, 10 GA. L. REV. 353 (1976); Note, The Voting Rights Act and Local At-Large Elections, 67 VA. L. REV. 1011 (1981) (discussing a challenge to an at-large electoral system in a local school district election in United States v. Uvalde Consol. Indep. Sch. Dist., 625 F.2d 547 (5th Cir. 1980)).
(199.) See Voting Rights Act of 1965, Pub. L. No. 89-110, [section] 2, 79 Stat. 437, 437 (codified as amended at 52 U.S.C. [section] 10301 (2015)) (formerly codified at 42 U.S.C. [section] 1973). A variety of lawsuits have made this claim. See, e.g., Montes v. City of Yakima, 40 F. Supp. 3d 1377, 1385, 1414 (E.D. Wash. 2014) (holding that Yakima's at-large system of electing members of the city council violated section 2 of the VRA); Complaint at 1, United States v. Town of Lake Park, No. 09-80507 (S.D. Fla. Mar. 31, 2009), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/lakepark_comp. pdf (alleging that Lake Park's at-large system of electing city commissioners violates section 2 of the VRA by denying African American voters an equal opportunity to elect representatives of their choice); Complaint at 1-2, United States v. Euclid City Sch. Dist. Bd. of Educ., No. l:08-cv-02832-KMO (N.D. Ohio Dec. 2, 2008), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/euclid_school_co mp.pdf (alleging that Euclid City's at-large system of electing school board members violates section 2 of the VRA by diluting the voting strength of African American residents).
(200.) David Garrick, Election Lawsuits Spreading Across State, SAN Diego Union-Trib. (Aug. 5, 2013, 10:05 AM), http://fw.to/g2HR9KN (pointing out that a number of California cities--including Oceanside and El Cajon--are vulnerable to this type of suit due to their at-large voting schemes and that Escondido has already been required to change its voting scheme).
(201.) See Printz v. United States, 521 U.S. 898, 930 (1997) (addressing the worry of state and local officials taking the blame for a defective federal policy enacted by commandeering those officials).
(202.) See RICHARD E. NEUSTADT, PRESIDENTIAL POWER AND THE MODERN PRESIDENTS: THE Politics of Leadership from Roosevelt to Reagan 11 (1990) (promulgating that idiom most engrained in political science students: "[p]residential power is the power to persuade"); see also Steven G. Calabresi, "The Era of Big Government Is Over," 50 STAN. L. REV. 1015, 1040 (1998) (reviewing ALAN BRINKLEY ET AL., NEW FEDERALIST PAPERS: ESSAYS IN DEFENSE OF THE CONSTITUTION (1997)) ("One of the biggest problems American democracy faces today is that the presidency is too weak an office, constitutionally, to fulfill the expectations that voters have for it.").
(203.) This is a fairly novel description of the problem, but it is by no means an utterly new idea. See James H. Svara, Institutional Powers and Mayoral Leadership, 27 St. & LOC. GOV'T REV. 71, 71 (1995) ("The position of mayor is a classic impossible job. It comes with both great expectations and inherent constraints that limit the ability of the mayor to fulfill those expectations."); James H. Svara, Mayoral Leadership in Council-Manager Cities' Preconditions Versus Preconceptions, 49 J. POL. 207, 207 (1987) (hereinafter Svara, Preconditions Versus Preconceptions] ("[N]onexecutive mayors are commonly perceived to be doing less than they are or capable of doing more than they can.").
(204.) This is a common and longstanding problem. See Svara, Preconditions Versus Preconceptions, supra note 203, at 207 ("A shortcoming in much of the limited literature on council-manager mayors is a tendency to measure the office and performance in terms of the executive mayor.").
(205.) Schragger, supra note 18, at 2547.
(206.) One is reminded of President Lyndon B. Johnson's famous remark in the midst of a terrible crisis: "Things could be worse. ... I could be a mayor." Edward Kosner, Troubled
Cities--and Their Mayors, NEWSWEEK, Mar. 13, 1967, at 38.
(207.) DAVID L. MARTIN, RUNNING CITY HALL: MUNICIPAL ADMINISTRATION IN AMERICA 86 (2d ed. 1990) (quoting Robert A. DAHL, WHO GOVERNS?: DEMOCRACY AND POWER IN AN AMERICAN CITY 204 (1961)).
(208.) Sacramento's flirtation with strong mayor governance, led by Mayor Kevin Johnson, was a long, protracted fight with voters repeatedly rejecting a sensible plan to reform the city's provincial governance structure. The first proposal came in 2008, but the ballot measure was "tossed" by a judge who held that a "revision of the city charter ... could be placed on the ballot only by an elected body." Ryan Lillis, Sacramento's Strong-Mayor Measure Defeated, SACRAMENTO BEE (Nov. 4, 2014, 8:21 PM), http://sacb.ee/5GDa [hereinafter Lillis, Measure Defeated], Johnson went to the City Council in 2010 to ask that the strong mayor proposal be placed on the ballot; it refused. Id. (In the interest of disclosure, the Author was a policy intern in the Mayor's office during the lead-up to and vote on this proposal.) In 2012, the City Council again rejected a vote on the strong mayor proposal, deferring the plan to a hypothetical elected charter commission. Id. And despite overwhelming support by civic and business leaders, see id., Johnson's 2014 ballot measure was defeated by voters, Ryan Lillis, Strong-Mayor Plan Defeated, Kevin Johnson Concedes, SACRAMENTO BEE (Nov. 5, 2014, 12:36 PM), http://sacb.ee/lRZP. Johnson decided not to run for a third term as mayor, likely due to the defeat and the continued limitations on his power. See id. His successor, California Senator Darrell Steinberg, see Ryan Lillis, Steinberg Wins Sacramento Mayor's Race by Wide Margin, SACRAMENTO bee (June 7, 2016, 8:15 PM), http://sacb.ee/6wyp, was a supporter of the 2014 strong mayor ballot proposal, Lillis, Measure Defeated, supra.
(209.) Dan Walters, California City's with Strong Mayors Thrive, DAILY REPUBLIC (Jan. 17, 2012), http://www.dailyrepublic.com/opinion/statenationalcolumnists/california-citys -with-strong-mayors-thrive.
(212.) Svara, Preconditions Versus Preconceptions, supra note 203, at 207.
(213.) Rick Perlstein, The Sudden but Well-Deserved Fall of Rahm Emanuel, NEW YORKER (Dec. 31, 2015), http://www.newyorker.com/news/daily-comment/the-sudden-but -well-deserved-fall-of-rahm-emanuel.
(214.) Aamer Madhani, Mayor Rahm Emanuel Taps High-Profile Officer to Advise Chicago Police, USA TODAY (Jan. 24, 2016, 5:53 PM EST), http://usat.ly/lRHbc16.
(215.) Gerald E. Frug, The Central-Local Relationship, 25 STAN. L. & POL'Y REV. 1, 2 (2014).
(216.) Schragger, supra note 18, at 2575-76.
(217.) THE FEDERALIST NO. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961).
(218.) Schragger, supra note 18, at 2573.
(219.) Id. at 2573-74; cf. Heather K. Gerken, Dissenting by Deciding, 57 STAN. L. REV. 1745, 176465 (2005) (describing Newsom's decision as "generating] ripple effects that conventional expressions of dissent had never generated").
(220.) See Cristina M. Rodriguez, The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567,577 (2008).
(221.) See id. at 577-78.
(222.) Deere, supra note 4.
(223.) ABC7 WJLA, Baltimore Mayor Press Conference on Protest Violence, YOUTUBE (Apr. 25, 2015), https://www.youtube.com/watch?v=nHv7N 8H4bwk#t=450.
(224.) Elizabeth Chuck, Baltimore Mayor Stephanie Rawlings-Blake Under Fire for 'Space' to Destroy Comment, NBC News (Apr. 28, 2015,1:59 PM ET), http://nbcnews.to/lENz7Xl.
(225.) Luke Broadwater, Rawlings-Blake to Call for America's Mayors to Create 'Baltimore Compact,' BALT. SUN (June 22, 2015,6:00 AM), http://fw.to/wy7yKNV.
(226.) She specifically stated,
What we experienced in Baltimore City was the result of polices [sic] that failed communities for generations. Despite reforms to our police department, historic investments in education and a one-third reduction in our city's unemployment rate, we saw just how much work is left to be done in order to end the pain so many communities are facing while we work to improve police-community relations.... The tensions we saw, and the challenges we still face can be seen in other urban centers across the country. As we continue the process of healing our city, I hope that Mayors across the country use this moment to begin attacking the systemic inequalities that their cities have faced for decades. I will continue this fight in Baltimore and together we can all be stronger.
Press Release, Office of the Mayor, City of Balt., Mayor Rawlings-Blake to Call for Creation of "Baltimore Compact" During Inaugural Address as National President of U.S. Conference of Mayors (June 22, 2015), http://mayor.baltimorecity.gov/news/press-releases/2015-06-22-mayor-rawlings-blake-call-creation-baltimore-compact-during-inaugural.
(228.) Luke Broadwater, City Council Revives Bills Aimed at Weakening Mayor's Power, BALT. Sun (Jan. 16, 2015,9:35 PM), http://fw.to/iNea6hH.
(229.) Compare Editorial, Baltimore's Big Bait-and-Switch, Balt. Sun (May 9, 2016, 2:13 PM), http://fw.to/eroTZNI (opposing charter amendments weakening the mayoralty), with Bernard C. "Jack" Young, Opinion, Young: What Has the Strong Mayor System Achieved?, Balt. Sun (May 13, 2016, 4:10 PM), http://fw.to/CB4r66Z (criticizing opposition to the charter amendments). The Baltimore City Council voted to strip what was essentially the strong mayor framework from Baltimore, but it was unable to get past the mayor's veto. See Edward Ericson Jr., Baltimore's Strong Mayor Remains Stronger than the City Council, CITY PAPER (Balt.) (May 16, 2016,7:03 PM), http://fw.to/6FAjI5g.
(230.) See supra Part I.A.
(231.) See supra Introduction, Part I.A.
(232.) Frug, supra note 215, at 1 ("[E]nhancing state power need not injure all localities.... [S]tates have the potential to regulate interlocal competition, address interlocal inequality and promote local interests on a state-wide basis...." (alterations in original) (quoting Richard Briffault, Our Localism: Part II--Localism and Legal Theory, 90 COLUM. L. REV. 346,356 (1990))); see also David Rusk, Cities WITHOUT SUBURBS (1993); Daniel P. Moynihan, Toward a National Urban Policy, 17 PUB. INT. 3, 3 (1969).
(233.) Frug, supra note 215, at 1.
(234.) U.S. CONST, amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.").
(235.) 1 DE TOCQUEVILLE, supra note 157, at 74-75, 81 ("It is not undesignedly that I begin this subject with the Township. The village or township is the only association which is so perfectly natural, that, wherever a number of men are collected, it seems to constitute itself. The town or tithing, then, exists in all nations ... [;] it is man who makes monarchies and establishes republics, but the township seems to come directly from the hand of God.... Municipal independence in the United States is, therefore, a natural consequence of this very principle of the sovereignty of the people.... [Political life had its origin in the townships....").
(236.) "[I]t has long been recognized in most states that municipal corporations are creatures of the state, exist only at the discretion of the state, have only those powers given by the state, and have no inherent powers to act absent specific statutory authorization." Kenneth D. Dean, The Dillon Rule: A Limit on Local Government Powers, 41 MO. L. REV. 546, 546(1976).
(237.) 24 Iowa 455 (1868) (per curiam).
(238.) Id. at 461. This view was subsequently memorialized in what would become its most cited form. See 1 JOHN F. DILLON, COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS [section] 108 (Little, Brown & Co. 5th ed. 1911) (1872) (noting the "supremacy of the legislative authority over municipal corporations" (emphasis omitted)).
(239.) See Merriam v. Moody's Ex'rs, 25 Iowa 163, 170 (1868) ("[A] municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation--not simply convenient, but indispensable; fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation--against the existence of the power."). For subsequent revisions of this view, see Dean, supra note 236, at 547. For another state analogue, see Ruggles v. Collier, 43 Mo. 353, 375 (1869), which held that "all statutes or charters creating corporations are to be strictly construed."
(240.) People ex rei Le Roy v. Hurlbut, 24 Mich. 44, 108 (1871) (Cooley, J., concurring).
(241.) 138 U.S. 673 (1891).
(242.) Id. at 681 (quoting 1 JOHN F. DILLON, COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS [section] 89 (Boston, Little, Brown & Co. 3d ed. 1881) (1872)).
(243.) 207 U.S. 161(1907).
(244.) Id. at 178.
(246.) Hugh Spitzer, "Home Rule" vs. "Dillon's Rule" for Washington Cities, 38 SEATTLE U. L. REV. 809, 810 (2015) (alteration in original) (quoting Ernest H. Campbell, Municipal Home Rule 1 (1958)).
(247.) For a comprehensive list of states and their statuses on this issue, see Local Government Authority, NAT'L LEAGUE CITIES, http://www.nlc.org/build-skills-and-networks/resources/cities-101/city-powers/local-government-authority (last visited Feb. 2, 2017). This Note will leave aside the distinction between general cities and charter cities, which adds another layer of complexity to the decisionmaking tree.
(248.) For a further discussion of the trends discussed in this Subpart, see Anderson, Democratic Dissolution, supra note 118; and Ahderson, supra note 62.
(249.) See Anderson, supra note 62, at 1120.
(250.) For instance, the Detroit emergency manager had works from the Detroit Institute of Arts appraised for potential creditor payoffs, see Chris Christoff, Christie's Will Appraise Detroit Art Institute Collection, Bloomberg (Aug. 6, 2013, 6:22 PM EDT), http://www.bloomberg.com/news/2013-08-06/christie-s-to-appraise-detroit-art-institute-s-holdings.html; froze pensions, see Sarah Cwiek, Detroit Emergency Manager "Freezes" Pension Benefits, Then Backs Off--Temporarily, MICH. RADIO (Jan. 7, 2014), http://www.j.mp/lyNmrdP; and settled a debt swap deal, see Steven Raphael & Steven Church, Detroit Judge Rejects $165 Million Swaps Deal as Too High, BLOOMBERG (Jan. 16, 2014, 11:39 AM PST), http://bloom.bg/lL90fuV. For background on emergency managers, see Lora Krsulich, Note, Polluted Politics, 105 CALIF. L. REV. (forthcoming Apr. 2017), http://papers.ssrn.com/soB/papers.cfm?abstract_id=2766635.
(251.) See supra Part IT.B (discussing Benton Harbor as an example of local officials' roles being reduced after the arrival of an emergency manager).
(252.) Krsulich, supra note 250 (manuscript at 13-14) (quoting Anderson, Democratic Dissolution, supra note 118, at 596).
(253.) Anderson, supra note 62, at 1131.
(254.) Id. at 1154.
(255.) See Gillette & Skeel, supra note 141, at 1203 (citing 11 U.S.C. [section] 904 (2012)).
(256.) Id. at 1206.
(257.) See infra Part III.C.
(258.) Strong Mayor-Council Inst., Top 25 Cities (2012), http://strongmayorcouncil.org/images/City_List_T op_25_2011_Publication.pdf.
(259.) Forms of Municipal Government, supra note 37.
(260.) See James H. Svara & Douglas J. Watson, Introduction to MORE THAN MAYOR OR MANAGER: CAMPAIGNS TO CHANGE FORM OF GOVERNMENT IN AMERICA'S LARGEST CITIES 1,11 (James H. Svara & Douglas J. Watson eds., 2010).
(261.) KENNETH DAUTRICH ET AL., AMERICAN GOVERNMENT: HISTORICAL, POPULAR, AND GLOBAL PERSPECTIVES 822 (Texas ed. 2010).
(262.) See Svara & Watson, supra note 260, at 15 ("Performance of [the mayor-council] form is too dependent on one person .... Mayors lack equal levels of political and executive skills."); see also TERRY CHRISTENSEN & TOM HOGEN-ESCH, LOCAL POLITICS: A PRACTICAL GUIDE TO GOVERNING AT THE GRASSROOTS 123 (2d ed. 2006) ("Another common concern about the strong mayor system has been that although the chief executive must be a skilled politician to get elected, there is no guarantee that he or she will have the management skills to run a highly complex administrative apparatus....").
(263.) See Svara & Watson, supra note 260, at 15.
(264.) James R. Bowers & Wilbur C. Rich, Introduction to GOVERNING MIDDLE-SIZED CITIES: STUDIES IN MAYORAL LEADERSHIP 1, 2 (James R. Bowers & Wilbur C. Rich eds., 2000). While the urban scholars were asked to name both the best and the worst mayors since 1960, one can assume that at least some of the named mayors were considered the "best."
(265.) See id.
(266.) See EUGENE C. LEE, THE POLITICS OF NONPARTISANSHIP: A STUDY OF CALIFORNIA CITY ELECTIONS 148-50(1960).
(267.) See ICMA, Council-Manager Form of Government: Frequently Asked Questions 5 (2007), http://icma.org/Documents/Document/Document/2705.
(268.) Terry Waterfield, Managerial Effect: Comparing Forms of Local Government 3 tbl.2 (2010) (unpublished M.P.A. paper, University of North Carolina at Chapel Hill), http://www.mpa.unc.edu/sites/www.mpa.unc.edu/files/TerryWaterfield.pdf.
(269.) For a fairly politicized but nonetheless relevant fight over these new costs, see Strong Mayor Opponents Decry Ballooning Mayor's Staff Costs, VOICE San Diego (June 3, 2010) [hereinafter Strong Mayor], http://voiceofsandiego.org/2010/06/03/strong-mayor-opponents-decry-ballooning-mayors-staff-costs.
(270.) The research is summarized in Gillette & Skeel, supra note 141, at 1186 nn.158-62. The primary study demonstrating this effect was Barry R. Weingast et ah, The Political Economy of Benefits and Costs: A Neoclassical Approach to Distributive Politics, 89 J. POL. ECON. 642, 654 (1981). Further studies generally confirmed this result. See, e.g., Reza Baqir, Districting and Government Overspending, 110 J. POL. ECON. 1318, 1336 (2002); John Charles Bradbury & E. Frank Stephenson, Local Government Structure and Public Expenditures, 115 PUB. CHOICE 185, 196 (2003); Laura I. Langbein et al., Rethinking Ward and At-Large Elections in Cities: Total Spending, the Number of Locations of Selected City Services, and Policy Types, 88 PUB. CHOICE 275, 285 (1996). But see Lynn MacDonald, The Impact of Government Structure on Local Public Expenditures, 136 PUB. CHOICE 457, 470 (2008).
(271.) See Strong Mayor, supra note 269.
(272.) This Note is not arguing for the more controversial notion, however, that larger cities in general have a direct correlation with economies of scale. This notion has come under some scrutiny, especially in the city-county consolidation literature. See, e.g., Lawrence Southwick, Economies of Scale in Local Government General Government Spending, 4 iBUSINESS 265, 275-76 (2012). This Note simply contends that the fairly constant fixed cost of a transition is more efficient when spread over a larger population.
(273.) This is a standard problem of "the separation of needs and resources." CHRISTENSEN & HOGEN-ESCH, supra note 262, at 56. "[S]uburbanites are generally economically secure and need fewer public services. They buy their own homes and cars and some join private clubs for recreation and even employ private security." Id. But poorer urban populations require "government services such as welfare, health care, transportation, housing, education, and police." Id. The disconnect is that "while the need is in the central city, the tax resources that might pay for the services are greater in the suburbs." Id.
(274.) A full discussion is beyond the scope of this Note, but a quick explanation is warranted.
Coming out of the recession, cities have begun to explicitly compete with one another for resources, employers, businesses, and development, making streamlined development, fiscal solvency, and clear leadership essential for municipal survival. See Jean-Jacques Dethier & Curtis Morrill, The Great Recession and the Future of Cities 9 (World Bank Dev. Econ. Dep't, Working Paper No. 6256, 2012), http://documents.worldbank.org/curated/en/743951468163152528/pdf/ NonAsciiFileName0.pdf. And because the "homevoter" model--which holds that homeowners use their political power primarily to maximize the value of their home as an asset, see Lee Anne Fennell, Homes Rule, 112 YALE L.J. 617, 617-18 (2002) (reviewing WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS: HOW HOME VALUES INFLUENCE LOCAL GOVERNMENT TAXATION, SCHOOL FINANCE, AND LAND-USE POLICIES (2001))--predicts that higher taxes and redistribution will be difficult to implement for cities, cities must "actively encourage [the] inward flow" of private capital as their way out, Schragger, supra note 18, at 2559. A mayor's efforts to attract capital are most likely to bear fruit in a mayor-council government. The reasoning is simple for a business looking to set up shop in a city: as with buying a car, you would prefer to deal with the salesperson who can cut a deal, not the lackey who must run back to his superiors to ask permission.
For those cities on the margin, strong mayor governance may be enough to make a difference when a business or developer is choosing between two similarly situated cities. The pace of dealmaking, for instance, is sped up in a mayor-council municipality. A few quick examples include:
Kansas City Mayor Emanuel Cleaver noted that getting companies to sit down is not necessarily the hardest part. Rather, when he, as a weak mayor, "sits around with the president and CEO of a major corporation trying to get them to relocate here, [he] is at a disadvantage, because other mayors can cut the deal at the table." BERNARD H. ROSS & MYRON A. LEVINE, URBAN POLITICS: CITIES AND SUBURBS IN A GLOBAL AGE 147 (8th ed. 2012) (quoting Rob Gurwitt, Nobody in Charge, GOVERNING, Sept. 1997, at 20, 21). Instead, weak mayors must take vague terms of bargaining back to the city manager and the city planning staff and then fade into darkness while the wheels of bureaucracy turn.
In the strong mayor city of Baltimore, mayors have been able to harness the speed brought by their institutional position to partner with local business institutions to "get things done" in redeveloping the downtown region. Antonia Casellas, Moving from Decline to Revival in Post-Industrial Cities: An Examination of Why Baltimore's Tourism Strategies Do Not Work 37 (2000) (unpublished Ph.D. dissertation, Rutgers University), http://www.academia.edu/1480433/Casellas_A._2000.
Within a decade of moving to strong mayor government, St. Petersburg Mayor Rick Baker was able to rapidly reach his stated goal of encouraging private development in the midtown area by combining his formal and informal powers: for example, by persuading businesses to relocate and bundling parcels of land for construction projects. J. Edwin Benton et al., St. Petersburg: Easing into a Strong-Mayor Government, in MORE THAN MAYOR OR MANAGER, supra note 260, at 25,42.
And because a mayor sits at the juncture of policy and politics, she is able to anticipate political challenges and realities that will need to be assuaged or considered in making promises to developers that a city manager is not able to foresee. This was particularly true during the wildly successful redevelopment of Indianapolis, in which strong mayor William H. Hudnut was able to "vigorously pursue numerous partnerships to accomplish his goals for local economic development while avoiding" political gridlock and always keeping his eye on "building consensus" politically. David W. Swindell & Roger Parks, Neighborhoods and Unigov, in WILLIAM H. HUDNUT III, THE HUDNUT YEARS IN INDIANAPOLIS, 1976-1991, at 153,155 (1995).
(275.) See supra Part I.B.
(276.) 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 266-94 (1998) (describing the departure at key moments from normal politics into a form of higher lawmaking).
(277.) Walter Dean Burnham, Constitutional Moments and Punctuated Equilibria: A Political Scientist Confronts Bruce Ackerman's We the People, 108 YALE L.J. 2237,2239 (1999).
(278.) Id. Technically speaking, Ackerman proposes that these moments tend to occur in five stages: (1) signaling by one of the branches of government for change, (2) a subsequent proposal in the constitutional order, (3) proponents triggering a conflict by pursuing the proposal, (4) ratification by the electorate over the course of successive elections, and (5) consolidation of the change through public acceptance. Bruce Ackerman, The Living Constitution, 2006 Oliver Wendell Holmes Lectures at Harvard Law School (Oct. 3-5, 2006), in: 120 HARV. L. REV. 1737, 1762-85 (2007); see also David A. Super, The Modernization of American Public Law: Health Care Reform and Popular Constitutionalism, 66 STAN. L. REV. 873, 889-90 (2014). This Note speaks by analogy, and so it has simplified this framework a bit.
(279.) Perhaps the most recent iteration of this process is the debate over healthcare, the Affordable Care Act, and the scope of the federal government's power over public law. See Super, supra note 278, at 889-90.
(280.) For the uniquely grassroots nature of local government and politics, see J. ERIC OLIVER ET AL., LOCAL ELECTIONS AND THE POLITICS OF SMALL-SCALE DEMOCRACY (2012).
(281.) Jane Merritt et al., The Pros and Cons of a Strong Mayor for Colorado Springs, COLO. SPRINGS INDEP. (Apr. 29, 2010), http://www.csindy.com/coloradosprings/the-pros-and-cons-of-a-strong-mayor-for-colorado-springs/Content?oid= 1692644.
(283.) Don Bauder, Does Big Money Doubt Murphy?, SAN DIEGO READER (Apr. 22, 2004), http://www.sandiegoreader.com/news/2004/apr/111 does-big-money-doubt-murphy.
(284.) Svara & Watson, supra note 260, at 17.
(286.) Id. at 16.
(288.) Mat 16-17.
(289.) Stacey Stowe, Can One Man Make a Difference?, N.Y. TIMES (Oct. 20, 2002), http://nyti.ms/2eRsmrP.
(290.) See Svara & Watson, supra note 260, at 16.
(294.) See id.
(295.) Consider the failed attempts in Dallas and Cincinnati. In 2005, Dallas considered moving to a strong mayor system of governance after a federal court mandated that the mayor be selected at large due to Dallas's lack of compliance with one-person, one-vote court rulings. Id. at 17. While the business community supported the effort, there was no catalyst for a change of governance. See id. at 17-18. Moreover, "minority communities strongly opposed the conversion," and the 2005 referenda went down in defeat. Id. at 18. Cincinnati's story was largely similar. In 1995, the business community in urban Cincinnati "had lost much of its clout to neighborhood interests" in the wake of white flight to the Cincinnati suburbs. Id. The strong mayor conversion was proposed by business interests but subsequently defeated and later replaced by a qualified "stronger mayor" proposal. Id.
(296.) Lillis, supra note 208.
(297.) See supra note 1.
(298.) See supra Part III.
(299.) For a framework for this discussion drawn from the mortgage context, see Kathleen C. Engel, Do Cities Have Standing?: Redressing the Externalities of Predatory Lending, 38 CONN. L. REV. 355 (2006).
(300.) "Parens patriae" is literally translated as "parent of the country." Parens Patriae, BLACK'S LAW DICTIONARY (rev. 4th ed. 1968).
(301.) See Note, State Standing in Police-Misconduct Cases: Expanding the Boundaries of Parens Patriae, 16 GA. L. REV. 865, 874 & n.52 (1982). Note that parens patriae standing requires a showing not only of sovereign or quasi-sovereign interest but also "injury to a sufficiently substantial segment" of the population. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592,607-08 (1982).
(302.) New York v. New Jersey, 256 U.S. 296, 301-02 (1921) (holding that New York could bring suit against New Jersey to secure the "health, comfort and prosperity of the people of the State" by stopping New Jersey from dumping sewage into the New York Bay); Missouri v. Illinois, 180 U.S. 208, 241, 248 (1901) (holding that Missouri could bring suit against Illinois for dumping large quantities of sewage into the Mississippi River).
(303.) Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907) ("This is a suit by a State for an injury to it in its capacity of quasi-sovereign.... It has the last word as to whether ... its inhabitants shall breathe pure air." (emphasis omitted)).
(304.) Georgia v. Pa. R.R. Co., 324 U.S. 439, 450 (1945) (holding that Georgia may bring suit on behalf of its citizens to attack an alleged railroad conspiracy to stifle competitive markets and trade).
(305.) Note, supra note 301, at 866.
(306.) Cmty. Commc'ns Co. v. City of Boulder, 455 U.S. 40, 53-54 (1982) (opining that the federal system "has no place for sovereign cities"); City of Sausalito v. O'Neill, 386 F.3d 1186,1197 (9th Cir. 2004); cf. Laura L. Gavioli, Who Should Pay: Obstacles to Cities in Using Affirmative Litigation as a Source of Revenue, 78 TUL. L. REV. 941, 959-60 (2004) (arguing that "parens patriae suffers from vagueness problems" and so some cities have strategically avoided this argument for standing).
(307.) See George D. Vaubel, Toward Principles of State Restraint upon the Exercise of Municipal Power in Home Rule, 20 STETSON L. REV. 5, 30 (1990).
(308.) This latter option is quite common for public nuisance suits, for instance. See Engel, supra note 299, at 367, 384-86.
(309.) See generally New York v. Microsoft Corp., 209 F. Supp. 2d 132, 149 (D.D.C. 2002) ("[T]he presence or absence of a statute authorizing parens patriae standing does affect whether Article Ill's standing requirements have been satisfied.").
(310.) Many of the following issues are noted in Developments in the Law--Policing, supra note 27, at 1726-33.
(311.) Id. at 1727 (citing MICH. COMP. LAWS Ann. [section] 769.1f(2) (West 2000); 42 PA. CONS. STAT. Ann. [section] 9728(g) (West 2014); WASH. REV. CODE ANN. [section] 10.01.160(2) (West 2002); WIS. STAT. [section] 973.06(1)(a) (2011)).
(312.) See Developments in the Law--Policing, supra note 27, at 1727 ("Some cities charge all arrestees a fee, thereby raising revenue 'based on only the say-so and perhaps even the whim of one arresting officer, regardless of whether the arrestee was ever prosecuted or convicted, and regardless of whether the arrest was lawful in the first place.'" (quoting Markadonatos v. Village of Woodridge, 760 F.3d 545, 567 (7th Cir. 2014) (en banc) (Hamilton, J., dissenting)).
(313.) See Okla. St AT. Ann. tit. 22, [section][section] 305.1,991d(A)(1) (West 2016); Wayne A. Logan & Ronald F. Wright, Mercenary Criminal Justice, 2014 U. ILL. L. Rev. 1175, 1188.
(314.) See GERALD E. FRUG & DAVID J. BARRON, CITY BOUND: HOW STATES STIFLE URBAN INNOVATION 76-90 (2008).
(315.) One of the lasting difficulties of this conversation is that communities are often not organized or unified, meaning that conversations will need to involve a number of stakeholders and require a higher degree of sophistication and nuance. See David Alan Sklansky, Police and Democracy, 103 Mich. L. Rev. 1699, 1801-02 (2005).
(316.) Ralph Waldo Emerson, Self-Reliance, in Essays: First and Second Series 30, 39 (Oxford Univ. Press 1936) (1883).
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|Title Annotation:||Continuation of II. Mayoral Power and Redesigning Law Enforcement Oversight B. Civic Engagement and Representativeness through Conclusion, with footnotes, p. 577-602|
|Author:||Kasner, Alexander J.|
|Publication:||Stanford Law Review|
|Date:||Feb 1, 2017|
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