Washington Cities Have More Powers Than We Think

Optional municipal code (code) and first class (charter) cities in Washington have many more powers than we think. City officials and their lawyers frequently wrestle with whether they have sufficient authority to do one thing or another, and then run to the legislature for express permission. But that’s often not necessary.

Our state’s 1889 constitution was the third in the country to allow residents of large cities to draft their own charters and decide how to structure city government. The same constitution gave cities, towns, and counties all the police powers (regulatory powers) of the state, except where denied by statute. But outside of police powers, the courts initially interpreted city powers conservatively, following the “Dillon’s Rule” that municipalities have only the powers expressly granted by the legislature or necessarily implied.

Progressive Era courts in the early twentieth century rejected Dillon’s Rule. In Hilzinger v. Gillman (1909), the Washington Supreme Court held: “Growing cities should be empowered to determine for themselves . . . the many important and complex questions of local policy . . . .” In Ennis v. Sup’r Court (1929), the court ruled that Dillon’s Rule, “to the effect that ‘[a]ny fair or reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied,’ should not be followed in determining a question involving the powers of a city of the first class . . . .”

But those decisions focused on first class charter cities, leaving the bulk of Washington’s cities under Dillon’s Rule. Washington faced another period of rapid urban expansion after World War II, and constitutional adjustments and statutes were enacted to provide additional flexibility (including a 1947 constitutional amendment permitting home rule counties).

A 1966 Municipal Code Committee report recommended the Optional Municipal Code, and expressed “the state legislature’s intent to confer the greatest power of local self-government, consistent with provisions of the State Constitution, upon the [code] cities . . . .” The report also said that a key purpose of the Optional Municipal Code was “that the laws be liberally construed in favor of the [code] city as a clear mandate to abandon the so-called ‘Dillon’s Rule’ of construction.”

The Optional Municipal Code was approved in 1967 and codified at Title 35A RCW. Almost all non-charter cities promptly converted to code city status. RCW 35A.11.020 declares that the “legislative body of each code city shall have all powers possible for a city or town to have under the Constitution of this state, and not specifically denied to code cities by law,” including “the rendering of local social, cultural, recreational, educational, governmental, or corporate services, including operating and supplying of utilities and municipal services commonly or conveniently rendered by cities or towns.” RCW 35A.11.050 similarly states:

The general grant of municipal power conferred by this chapter and this title . . . is intended to confer the greatest power of local self-government consistent with the Constitution of this state and shall be construed liberally in favor of such cities. Specific mention of a particular municipal power or authority contained in this title or in the general law shall be construed as in addition and supplementary to, or explanatory of the powers conferred in general terms by this chapter.

Other provisions of Titles 35 and 35A RCW make it clear that charter cities have all the powers of code cities, and vice versa. So the bottom line is that both code cities and charter cities today have broad authority to regulate and to provide a broad array of municipal service—unless the legislature has expressly denied a specific city power.

Why are municipal lawyers still nervous about whether code and charter cities really have the powers granted in 1967? Because the State Supreme Court has been inconsistent about following the legislature’s directive that such cities have all powers not expressly denied.

There are at least three reasons the restrictive Dillon’s Rule pops up in court rulings. First, the doctrine clearly applies to special purpose districts, second class cities, and towns. That means the rule floats around in legal literature, resurfacing when lawyers or judges fail to make the crucial distinction between code and charter cities, on the one hand, and other municipalities on the other. Second, the legislature continues to give express powers to code and charter cities, which reinforces the notion that these grants are necessary when they aren’t. Third, the Optional Municipal Code was unclear about four key powers: taxation, debt, eminent domain, and franchises.

The solution is straightforward: Code and charter cities need to act every day on the assumption that they have the powers they need to do what they want—unless expressly denied. That’s what RCW 35A.11.050 says, and that’s what it means. If judges deny cities powers they should have, and the denial is not constitutionally based, then cities should ask the legislature to reinforce the Optional Municipal Code—perhaps repealing the hundreds of statutes giving express authority and restating the 1967 mantra that cities have all the powers they need unless they are expressly denied by statute. Finally, flexibility in the areas of taxation, debt, eminent domain, and franchises should be statutorily enhanced.

The bottom line: code and charter cities have robust powers, so we should not spend too much time dithering around when we’re trying to get a job done.

Have a question or comment about this information? Please feel free to leave a comment below or contact me directly at spith@uw.edu.