Iowa Constitution gives local leaders power over face mask policy

July 21, 2020 8:00 am

Citing the need for deaf students to see their teachers’ faces, Gov. Kim Reynolds is fighting efforts to extend a court order that  effectively allows schools to impose mask mandates in combatting the spread of COVID-19. (Photo courtesy of the State of Utah)

What do an unlicensed vehicle and a face mask have in common with a Civil War era judge? The answer, I think, is that the Home Rule Amendment to the Iowa Constitution overturned that judge’s view of local governments and gave cities and counties some say over what you must do with them.

In 1990, Stan Gruen fought the City of Des Moines to the Iowa Supreme Court over a $100 penalty for keeping an unlicensed vehicle on his property. He did not dispute that he was in violation of the city’s ordinance. He argued that there was nothing in state law that that prevented him from keeping an unlicensed vehicle on his property.

The state, you see, has very clearly occupied the field on vehicle regulations. As the Supreme Court put it, “Gruen’s argument boils down to one proposition: because the general assembly has provided that he may lawfully possess unregistered vehicles under certain conditions, the city may not in any manner regulate where or how he parks those vehicles.”

If you consider, for a moment, smoking regulations or even when and where you can carry a firearm, Gruen’s argument made some sense. When the General Assembly speaks, the subordinate local governments must abide by the state’s specific legislation. In fact, until 1968, Iowa lived – as many states still do – under the “Dillon Rule.”

Justice John Forest Dillon served on the Iowa Supreme Court from 1862 to 1868. His 1868 opinion in Clinton v. Cedar Rapids and the Missouri River Railroad articulated the rule that local governments have only the specific powers given by the legislature. Conversely, Dillon would say, local governments have no power not expressly given them.

In 1968 and 1978, the People of Iowa expressed exactly the opposite in a pair of Home Rule amendments — one for cities and later one for counties. We expressly abolished the Dillon Rule: “The Rule or proposition of law that a municipal corporation possesses and can exercise only those powers granted in express words is not a part of the law of this state.”

So, it might be lawful to keep an unlicensed vehicle, but the Iowa Supreme Court said that the city could tell Mr. Gruen when and where he could store it. If state law and local law could be harmonized, then the local ordinance did not run afoul of the state law. Why? Home rule.

“Under home rule,” the Supreme Court has ruled, “a city has the power to enact an ordinance on a matter which is also the subject of statute if the ordinance and statute can be harmonized and reconciled.” Equally important, the General Assembly codified this saying, “An exercise of a city power is not inconsistent with a state law unless it is irreconcilable with the state law.”

Now, like unlicensed vehicles, the question is whether local government has anything to say about mandatory personal protective equipment (PPE) when the state has a law or even might have a rule. Two attorney general opinions and comments of Gov. Kim Reynolds rest on the assertion that the governor’s emergency management authority occupies the field and local governments have nothing to say about PPE. These assertions run counter to the Iowa Constitution and multiple Iowa Supreme Court rulings and overlook a couple of fundamental things.

One fundamental issue overlooked is that, whether folks at the state level like it or not, our Constitution literally grants local governments “home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government.” The courts have repeatedly said this means a local action must be irreconcilable with the state action. That is a pretty high bar. Moreover, where possible the courts are supposed to try to harmonize the local and state actions.

When the court ruled against Stan Gruen, it said, “A municipal ordinance is irreconcilable with a law of the General Assembly and, therefore, preempted by it, when the ordinance ‘prohibits an act permitted by statute, or permits an act prohibited by a statute.’” This leads to the other fundamental issue overlooked: the Iowa Constitution requires one to go deeper and actually to test the local action for whether it is irreconcilable and cannot be harmonized with state action.

The argument seems to boil down to the same one made by Stan Gruen. The emergency management power has been exercised. The governor could make a proclamation about mandatory PPE use. Consequently, this power is exclusive to the state — even if it would be the same rule made by a city or county.

Make no mistake, the breadth of the governor’s emergency management power is breathtaking. Likewise, state and local boards of health have substantial public health rule-making authority. If none of these have taken an action and a city were to step into the breach — fully assessing their almost fiduciary obligation to promote the health and safety of their citizens as permitted by the Home Rule Amendment— what exactly is so irreconcilable with state action?

The only scenario where a local rule requiring mandatory PPE would be irreconcilable with a state rule is when there is an actual state rule prohibiting PPE. Leaving to another time whether this would ever be an appropriate or lawful order for a state official to give, it seems to me that every other scenario is logically consistent with and completely reconcilable with a local rule requiring the use of PPE. If the state came along with an order for the use of PPE, for example, it would be the same and, by definition, not irreconcilable.

If the state has no rule about where to park your unlicensed vehicle or when and where to put on your face mask but a local government does, what would be inconsistent or irreconcilable? Saying that the state has occupied the field is only part of the analysis. The Iowa Constitution says you have to find the inconsistency and try to harmonize. When there is the absence of a state rule — when and where to park your unlicensed vehicle or when and where to wear your face mask — it simply is not logically sound to say that a city’s or county’s rule is irreconcilable with the state law.

One can disagree about whether local government should be making their own rules mandating PPE. That is a healthy debate to have. The issues are complex. On one hand, cities and counties do not have the same access to experts and the bigger picture. There are enforcement and compliance issues. On the other hand, cities and counties have a better handle on what the local hospitals can handle. Local governments have a better feel for their unique problems, like concentrations of factory and meat processing jobs, college students, vulnerable populations, access to medical care, or areas at high susceptibility of disease transmission. On the subjective question of whether local rules are a good idea, you can draw your own conclusions.

On the objective issue of whether a city or county could have a local rule about PPE, I think Home Rule does allow local governments to take stock of their own situations and have their own rules. It is not enough to say that a state official could imagine a state rule that would conflict. It is also not enough that the state actually has a rule. State and local rules must actually be in conflict for the local rule to be inappropriate.

Iowa has had Home Rule for more than 50 years. It is time to let old Judge Dillon rest in peace.

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Frank Feilmeyer
Frank Feilmeyer

Frank Feilmeyer lives in and has practiced law in Ames for 29 years and was a judicial law clerk for the Iowa Court of Appeals. Frank has practiced municipal law for 29 years and was the president of the Iowa Municipal Attorneys Association from 2006-2007.