Eric Davis: Vermont bound by ‘Dillon’s rule’

Last week, the Legislature overrode Gov. Scott’s vetoes of two bills that will allow non-citizens to vote in local elections in Montpelier and Winooski. Those provisions, changes to the cities’ municipal charters, had already been approved by the voters of Montpelier and Winooski in local referenda. Some readers may wonder why, if local voters had already approved the proposals, they needed to be approved again by lawmakers and the governor.

The answer is that, when it comes to the authority of local governments, Vermont is not a home rule state. In Vermont, cities and towns are, legally, “creatures of the state,” and can only exercise those powers specifically granted to them through state statutes. This provision is called “Dillon’s Rule,” after John F. Dillon of Iowa, a 19th century judge and law professor who wrote extensively on the legal powers of local governments.

As Dillon put it, municipal governments “owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control.”

The National League of Cities has identified 31 states that are Dillon’s Rule states, 10 states that are home rule states, and 9 states that operate under a mixed system. In New England, only New Hampshire and Vermont are Dillon’s Rule states. Connecticut, Maine, Massachusetts, and Rhode Island are all home rule states.

In the home rule states, local governments have considerably more freedom of action than in Dillon’s rule states. Cities and towns are allowed to exercise all powers and authorities that are not inconsistent with the state constitution or statutes.

In home rule states, local governments are also free to make changes to their charters without having to obtain the consent of the legislature and governor. For example, in Massachusetts, the voters of any community with a population of 12,000 or more may vote to change their form of government from a town to a city without having to get approval from the statehouse.

Because Vermont is a Dillon’s Rule state, most local governments do not even have a municipal charter, but simply follow the requirements for municipal organization and powers that are spelled out in state statutes. Information compiled by the Vermont League of Cities and Towns shows that 85 municipalities in the state — about one-third of the total — have city or town charters.

In all cases, these local charters are considered acts of the legislature, and they may be found on the legislative website, in the section with the other laws of Vermont. For example, Middlebury’s town charter is formally Chapter 127 of Title 24 of the Vermont Statutes. The charter includes sections on topics such as the powers of the town, the selectboard, the town manager, the budget, and zoning and planning. Because the charter is a state statute, any changes to it that are approved locally must then be submitted to Montpelier for approval by the legislature and governor before they can go into effect.

The Montpelier and Winooski voting changes are only two of many alterations in municipal charters that have been acted on by the Legislature in recent years. In the two most recently completed biennial sessions, 19 charter changes were approved in 2017-18, and 12 changes were approved in 2019-20. This compares with 210 regular acts in 2017-18 and 180 regular acts in 2019-20.

The concept behind Dillon’s Rule has been inherent in Vermont’s political system for more than 200 years. For Vermont to become a home rule state, an amendment to the state constitution, which must originate in the Legislature, would most likely be required. Most lawmakers, regardless of party or ideology, do not want to give up the power over municipal government that they now hold under the current arrangements.

Eric L. Davis is professor emeritus of political science at Middlebury College.

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