1. Steven J. Lies & Brittany L. Hatting Lies, Bullis & Hatting, PLLP
Home Rule
Steven J. Lies & Brittany L. Hatting
Lies, Bullis & Hatting, PLLP

2. Home Rule Charters
Do not constitute an absolute grant of local self-government to the municipality.
The powers granted are only those that pertain to matters of exclusively local concerns or are expressly granted to local authorities by statute.

3. “Whether an ordinance implementing a home rule power concerns a statewide matter [and is impliedly preempted] is not always clear.”
AG Opinion No ND 34

4. Litten v. City of Fargo 294 N.W.2d 628 (N.D. 1980)
City wanted to change its form of government.
The supersession provision of NDCC does not mean that any and every ordinance the city may pass would supersede any state law which it was in conflict with.
If the power/authority to enact an ordinance on a specific subject is not found in Century Code chapter on Home Rule (or in some other equivalent statute), then a strong presumption exists that the city will be governed by the laws generally applicable to cities.
Home rule cities do not have the authority to select any form of government it may desire.

5. City of Fargo v. Little Brown Jug 468 N.W.2d 392 (N.D. 1991)
Question – Can the city enact an ordinance that provides for a penalty less than a penalty for a similar state law?
Result – Yes, city may impose a penalty different from state law if the municipal penalty is lesser than the state law penalty for an equivalent statute.

6. Sauby v. City of Fargo 2008 ND 60, 747 N.W.2d 65
Fargo had established a fee schedule for non-criminal traffic offenses in excess of the fees allowed by state statute.
Court said, just like criminal offenses, the city cannot have a greater penalty for non- criminal offenses than is authorized by statute.
See NDCC – Cities may double the state penalty for some traffic offenses.

7. City of Fargo v. Malme 2007 ND 137, 737 N.W.2d 390
Fargo created an “Administrative Enforcement Board”, a 3 member layperson board, to adjudicate ordinance violations (planning/zoning, International Building Code, International Property Maintenance Code)
N.D.C.C (1) requires that a municipal judge is required to adjudicate ordinance violations. For a city the size of Fargo, the municipal judge must be licensed to practice law in the state
Court says there is no authority for the Administrative Enforcement Board to exist so its decision is void.
But now see NDCC (30) – Admin boards are ok now ¯\_(ツ)_/¯

8. AG Opinion – 1982 No
AG opinion provided that a home rule ordinance establishing liquor license fees supersedes state statute limitations on liquor licensing fees.’
NDCC (5) – “To fix the fees, number, terms, conditions, duration, and manner of issuing and revoking licenses in the exercise of its governmental police powers.”
But in order to utilize a home rule power, the power must be:
1. Granted in the Century Code
2. Included in the home rule charter; AND
3. Implemented by Ordinance
Home Rule requires Layers 

9. AG Opinion – 2000 No L-32
Home rule city requested an opinion as to whether or not it could impose a law enforcement fee on licensed gaming operation to generate revenue.
AG says nope – “a home rule city may not charge a fee ... to tax exempt charitable or nonprofit entities for fire and police services where the services to be charged for are generally available to all entities within the city, tax exempt or non-tax exempt alike, and where only tax exempt entities would actually be charged, because the charge imposed would be a tax and the entities you propose to charge are tax exempt under the constitution of North Dakota.”

10. AG Opinion – 2003 No L-22
City created an “enterprise fund” to grant money to groups and organizations sponsoring special events in the city. Money for the fund came from sales tax for economic development.
NDCC 40-05,1-06(2) – “ To control its finances and fiscal affairs; to appropriate money for its purposes ”
NDCC (12) – “To engage in any utility, business, or enterprise permitted by the constitution or not prohibited by statute ”
Home rule cities may donate to private entity if there is a property drafted ordinance allowing such donation.
But the enterprise must be for a public purpose. The city must impose supervisory controls to ensure a public purpose is met. The implementing ordinance must be sufficiently detailed so the public knows the authority and limits of the enterprise.

11. AG Opinion – 2008 No L-02
City home rule charter granted permission to commission to amend or repeal initiated/referred ordinances which have been voted on by the people.
AG found that the provisions of the home rule charter that allow the city commission to modify or repeal an initiated ordinance, supersedes the state law that allows modification of an initiated ordinance only by a vote of the people.

12. AG Opinion – 2011 No L-03
State law provided that a library board shall have 5 members. City wanted to increase the number of members.
AG says that nothing the Century Code suggests that membership of a city library board or the terms of its members is a statewide concerns.
If the power is granted in charter, City may increase the library board membership and alter or eliminate term limits.