SPECIAL LEGISLATION

SULLIVAN AND ITS AFTERMATH

Sullivan

• City improved an area that did not have sanitary sewers by building new sewers with a 3.3 million dollar bond issue.

• City charged a higher connection fee in area with new sewers than areas that had sewers.

• Plaintiff argued that the ordinance was specific as to geography and was based on historic fact.

Sullivan

• Eastern District held the connection fee was special legislation because it was based on geography and historic fact.

– Applied Branson Test.

• A law is a facially special law if it is based on closed-ended characteristics, like historical facts, geography or constitutional status

• The Missouri Supreme Court upheld the connection fee because it was based on proper differences that were inherent in or peculiar to the class.

SULLIVAN

• Fee embraced all of the class to which it was naturally related.

• The class contemplated an important government function.

• Fee contributed to funding the project.

Jefferson County

• Section 321.222.7. – Amended in 2005 to remove the power of FPD’s in

Jefferson County to adopt fire protection codes. • Applied only to FPD’s: “… wholly within any county of the first

classification with more than one hundred ninety-eight thousand but fewer than one hundred ninety-nine thousand two hundred inhabitants”

– Just a one hundred population window

Jefferson County

– Presumption of special legislation if:

• Only one subdivision within the classification;

• Other political subdivisions of similar size are not yet included; and

• Only apparent reason for the narrow range is to target a

particular political subdivision.

– Presumption can be overcome by substantial justification.

Jefferson County

– Facts.

• Narrowest population of any case.

• Narrow range eliminated all other counties.

• No substantial justification for the legislation.

Jefferson CountyArguments for Justification

• Eliminates duplicative permitting process.

Court response. Every county with a fire district has this dual system.

• Unique size and growth of Jefferson County.

– Court response. Other counties have similar growth. No showing how the County was unique.

There was no substantial justification.

Jefferson County Conclusions

• Historical analysis.

– Prior to the mid to late 1800’s state legislatures primarily passed special legislation. About 87%.

-- Problems with special legislation: too many laws; classic log rolling; and politics of favoritism leading to powerful lobbyists.

-- In 1875 MO. adopted provision in its constitution to prohibit special legislation.

-- Some 46 other states have similar constitutional provisions.

JEFFERSON COUNTYCONCLUSIONS

– Determination of whether or not law is special legislation is an issue for the Court.

– Holding applies only prospectively.

– Determination of whether or not law is special legislation is an issue for the Court.

– Holding applies only prospectively.

-- Branson test still alive.

• A law is a facially special law if it is based on closed-ended characteristics, like historical facts, geography or constitutional status.

JEFFERSON COUNTYQUESTIONS

• Why not just a rationale basis instead of substantial justification?

– Rationale basis test used to determine validity of other ordinances in Equal Protection context except:

• Heightened scrutiny usually applies to suspect categories like race, color, creed and national origin.

* Did the Court really mean to deviate from the long standing rationale basis test?

Building Owners and Managers Ass’n

• Ordinance required successor employers to continue

employment of employee for a period of 90 days except for:

– Employees earing more than $25 per hour.

– Residential buildings that have less than 50 units.

– Buildings smaller than 50,000 square feet.

– Buildings where 50% of the space is occupied by a governmental entity or is owned or operated by a hospital.

Building Owners and Managers Ass’n

• Eastern District holds the ordinance is facially special because the City failed to show a substantial justification for the exceptions.

– It is not sufficient to show that there is a rationale or reasonable justification citing Sullivan.

– Think all of the laws that make distinctions like those made in this case.

NEW RULES

• Exclusions need to be based on substantial justification. – Will make drafting a lot more complicated

– Be careful of being under inclusive.

• Discuss with Mayor, City Councilmembers, City Manager or Administrator and City Staff reasons for exclusions.

– If they do not agree with your opinion tell them?

• Be Happy – Think of the havoc you can wreck with State laws.