State of Confusion

It’s not often the General Assembly passes a law that upends the North Carolina Constitution – but it happened back in 1971.

Article VII of the North Carolina Constitution states “The General Assembly…may give such powers and duties to counties, cities and towns, … as it may deem advisable.” In other words, local governments receive their powers – to tax and pass laws – from the General Assembly.

If you’re a mayor or a county commissioner you may not like that. Or not think it’s ideal. But it’s a tried and true legal principle: Way back in 1872 a Federal Judge – named John Forrest Dillon – wrote an opinion confirming that local governments receive their powers from the states and two years later, in 1874, the NC Supreme Court embraced ‘Dillon’s Rule.’

However, in 1971, the General Assembly threw a monkey wrench into the works with an odd declaration of its own. The General Assembly said the powers the state grants local governments “shall be broadly construed.”

Broadly construed was pretty ambiguous language and, to make matters worse, the General Assembly never clarified what it meant. It just left the concept hanging there in the air – vague and ambiguous.

For the next 45 years North Carolina courts struggled to figure out what legislators meant –  with some judges interpreting broadly construed one way and others another.

The UNC-School of Government has probably studied these problems more than anyone – and I have never heard them referred to as a Republican think tank. In a well-documented article, a decade ago, their staff suggested it would be a good idea to clear up the confusion.

It’s hard to argue with that – but it’s not as simple as it sounds. For example, who should be granted the power to determine local laws in Catawba County – counties or cities? If the answer is cities, Catawba County could end up with seven or eight different sets of local laws.

Untying a 45-year old legal knot won’t be easy. But, still, there’s not much doubt it would be preferable to what we are doing now.

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