Tipping point: Missouri single subject provision.

• Author: Knoll, Alexander R.

1. INTRODUCTION

   The Missouri single subject provision, which requires that each bill enacted by the Missouri Legislature contain a single subject, is one of the great equalizers in backroom politics. Simply put, it is a hurdle that prevents legislators from hijacking the legislative process by attaching an unrelated provision to a proposed bill. This is a practice that many of our Federal legislators find to be a daily occurrence, but one that our state politicians are prevented from doing under the single subject provision of the Missouri Constitution. However, even with the broad prohibition outlined in the single subject provision, for the reasons discussed within this laws summary, the Missouri Supreme Court has decided violations of the provision along a continuum of reasoning. Somewhere in the middle of this continuum, the tipping point, is where many of these cases lay.

   This continuum analysis comes to the forefront in a recent Missouri Supreme Court case, Rizzo v. State, in which the court straddles the line, and may have mistakenly crossed it. (1) In Rizzo, the Missouri Supreme Court decided that a provision in a bill that could be applied both within the subject of the bill and outside the subject of the bill, must be struck down in total. (2) As decided, the Rizzo decision straddles the tipping point of the single subject provision continuum outlined below. However, because the Missouri Supreme Court did not narrow their question of constitutionality to an "as applied" basis, the entire decision may be overbroad. Nevertheless, before this law summary turns to Rizzo it is helpful to discuss the single subject provision at length and the recent decisions the Missouri Supreme Court has made. This law summary will then attempt to find the bounds of the continuum, but more importantly, it will attempt to find the tipping point.

2. LEGAL BACKGROUND

   Article III, Section 23 of the Missouri Constitution states:

   No bill shall contain more than one subject which shall be clearly expressed in its title, except bills enacted under the third exception in section 37 of this article and general appropriation bills, which may embrace the various subject and accounts for which moneys are appropriated. (3) The single subject provision was first added to the Missouri Constitution in 1865 and "[a] similar provision has appeared in every Missouri Constitution since [that time]." (4) A recent analysis found that "[t]he single subject rule can be traced to ancient Rome, where crafty lawmakers learned to carry an unpopular provision by 'harnessing it up with one more favored.'" (5)

   This section will look at how such a short section of the Missouri Constitution can keep Missouri courts busy. To do this, it is necessary to first consider the policy behind the provision. In light of the policy goals, the section will go on to define the factors and limitations considered by Missouri courts in deciding cases based on the single subject provision.

   1. Policy and Factors

      To better understand how courts interpret the elements of the single subject provision, a study of its policy rationale is required. The provision sets out procedures the General Assembly must follow to ensure that the bills it introduces can be easily understood and intelligently discussed, both by legislators and the general public. (6) One of the public policy goals behind the provision is to prevent logrolling. Logrolling is the practice of combining several unrelated provisions in a single bill when none of the provisions individually will garner enough votes, but collectively will generate sufficient support from legislators with a strong interest in particular provisions to secure a majority vote for the bill as a whole. (7) Logrolling is often seen as a surreptitious method of passing legislation. As such, courts have looked down upon the practice.

      Another public policy goal is "to prevent 'the enactment of amendatory statutes in terms so blind that legislators themselves [are] sometimes deceived in regard to their effect, and the public, from difficulty in making the necessary examination and comparison, fail[s], to become apprised of the changes made in the law.'" (8) Courts are more willing to strike a bill if it is clear that the organization of a bill hinders both the approval process and the administrative process of the bill.

      Since 1865, Missouri Courts have interpreted the meaning of the single subject provision. The most general rule is that in order for the single subject provision to be satisfied, all of the provisions of the statute must "fairly relate to the same subject, have a natural connection therewith or are incidents or means to accomplish its purpose." (9) The test to determine whether a provision of a bill violates the single subject rule is "not whether individual provisions of a bill relate to each other ... [but] whether [the challenged provision] fairly relates to the subject described in the title of the bill, has a natural connection to the subject, or is a means to accomplish the law's purpose." (10)

      Interpreting the single subject provision, the Missouri Supreme Court has stated that the subject of a bill must "include[] all matters that fall within or reasonably relate to the general core purpose of the proposed legislation." (11) To determine the "core purpose" or the subject of a bill, the Supreme Court first looks to the title of the bill. (12) Since there can be many versions of a bill before it is agreed on and enacted, and thus many titles for the same bill, only the title of the enacted bill is relevant. (13)

      Since the subject of a provision within a bill is compared first and foremost with the title of the bill, the title is an important area of analysis and it lends itself to some bright line rules. First, the title to a legislative act should be comprehensive but "need not be a synopsis of the entire act." (14) Second, an act is not void if the title to the act is broader than the act. (15) Lastly, "'[t]he title to a bill need only indicate the general contents of the act[;]' '[t]he title cannot, however, be so general that it tends to obscure the contents of the act."' (16) The "clear title" provision of the state constitution, which requires that the subject of proposed legislation be clearly stated in its title, "was designed to prevent fraudulent, misleading, and improper legislation, by providing that the title should indicate in a general way the kind of legislation that was being enacted." (17) This provision, however, does not require that "every separate tax or every separate legislative thought be in a different bill, it is sufficient if the matters in an Act are germane to the general subject therein." (18)

      Where it is unclear if the title of a bill expresses its subject with reasonable precision, courts look to the Constitution as a whole for guidance. (19) Courts use the organizational headings of the constitution as "evidence of what those who drafted and adopted the constitution meant by 'one subject."' (20) Accordingly, a statute may rely on the precision of the Constitution's headings in organizing a bill into a single subject, but it must still have a "single, readily identifiable and reasonably narrow purpose." (21) Also, in at least one case, the Missouri Supreme Court held that a "[c]ourt may examine the contents of the bill originally filed to determine its subject." (22) However, the "underlying motive not expressed or disclosed in a legislative act cannot be treated as the subject of the act." (23)

   2. Severability

      Once a court finds that a bill contains more than one subject, "the question remains whether the entire bill is unconstitutional or whether the [unconstitutional section] may be severed from the bill." (24) Missouri Revised Statutes section 1.140 states, in pertinent part:

      The provisions of every statute are severable. If any provision of a statute is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the statute are valid unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent. (25) Missouri Courts have interpreted section 1.140 in their own way. In Hammerschmidt v. Boone County, the Missouri Supreme Court reasoned that when a bill violates the single subject provision the entire bill is deemed unconstitutional "unless the Court is convinced beyond a reasonable doubt that one of the bill's multiple subjects is its original, controlling purpose and that the other subject is not." (26) If the bill does have a controlling purpose, "[the court] will sever that portion of the bill containing the additional subject(s) and permit the bill to stand with its primary, core subject intact." (27)

      In reaching this determination, a court will consider three factors: First, whether the additional subject is essential to the efficacy of the bill. Second, whether it is a provision without which the bill would be incomplete and unworkable. And third, whether the provision is one without which the legislators would not have adopted the bill. (28)

      There are several reasons both for and against severing sections from already passed bills in an ex ante way. The following sections will explore the reasoning behind both arguments.

      1. Argument in Favor of Severability

         The argument in favor of severability is relatively simple: just because a provision of a bill is deemed unconstitutional does not mean the entire bill should be thrown out. If courts were to throw out the entire bill, legislative waste would take place. All of the hard work that it took to pass the bill would be thrown out with a...