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 – 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 County Arguments 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 COUNTY CONCLUSIONS – 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 COUNTY QUESTIONS 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.