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SPECIAL LEGISLATION

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.

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SPECIAL LEGISLATION

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  1. SPECIAL LEGISLATION SULLIVAN AND ITS AFTERMATH

  2. 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.

  3. 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.

  4. 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.

  5. 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

  6. 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.

  7. Jefferson County • Facts. • Narrowest population of any case. • Narrow range eliminated all other counties. • No substantial justification for the legislation.

  8. 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 substantialjustification.

  9. 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.

  10. 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.

  11. 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?

  12. 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.

  13. 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.

  14. 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.

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