Two tests of severance: procedural and substantive constitutional violations and the legislative process in Missouri.

• Author: Whitfield, Jonathan
• Position: NOTE

Missouri Roundtable for Life, Inc. v. State of Missouri, 396 S.W.3d 348 (Mo. 2013) (en banc).

1. Introduction

   Legislation is an inexact process. John Godfrey Saxe noted that "[l]aws ... like sausages, cease to inspire respect in proportion as we know how they re made." (1) In Missouri, laws are created in the General Assembly. (2) First, a bill is introduced in either the House or the Senate. (3) Second, once a bill passes through the required legislative procedures, it is presented to the Governor, who will sign the bill into law, veto the bill and send it back to the General Assembly for a potential override vote, not sign the bill, or veto line-items in an appropriations bill. (4) In two of the four options, the bill becomes a law and is made a part of the Revised Statutes of Missouri. (5)

   But some bills may become laws even when the constitutional rules governing the legislative process were not followed. Such bills are usually challenged on the grounds that they are unconstitutional, but not because of their content; rather, they are challenged because they violate constitutional mandates like the single-subject rule, the clear title rule, or other procedural rules. (6) In Missouri, constitutional challenges are heard by the Supreme Court of Missouri. (7) When faced with a procedural rule violation, a court has the option of severing the unconstitutional portions of the bill, letting the constitutional portions of the bill remain law. (8)

   Missouri Roundtable for Life, Inc. v. State of Missouri ("Missouri Roundtable") concerned a challenge to the Missouri Science and Innovation Reinvestment Act ("MOSIRA") (9) based on a procedural constitutional violation of the single-subject rule, (10) which is a type of constitutional limitation placed on the subject matters to be addressed by a bill. (11) On August 22, 2011, pursuant to Article IV, Section 9 of the Missouri Constitution, Governor Jeremiah Nixon called a special session of the Missouri General Assembly to address MOSIRA. (12) According to the Governor's proclamation, MOSIRA would have authorized the Missouri Technology Corporation to provide funding to science- and innovation-related businesses. (13) The Missouri Technology Corporation "is a public-private partnership created by the Missouri General Assembly to promote entrepreneurship and foster the growth of new and emerging high-tech companies." (14) The Missouri Senate codified MOSIRA in Senate Bill No. 7 ("S.B. 7"), titled "AN ACT to repeal sections [certain sections of RSMo], and To enact in lieu thereof fourteen new sections relating to science and innovation, with a contingent effective date." (15) In addition to MOSIRA, the General Assembly enacted legislation dealing with tax credit reform, streamlining state training programs, developing an international air cargo hub, building high-tech data centers, and attracting amateur sporting events. (16) These provisions were enacted in Senate Bill No. 8 ("S.B. 8"). (17)

   S.B. 7 was the only bill passed during the special session, (18) and it contained two sections. (19) Section A addressed the substantive provisions of MOSIRA, (20) and Section B contained a contingency clause that conditioned the effectiveness of S.B. 7 on the Governor signing S.B. 8 into law. (21) On October 21,2011, Governor Nixon signed S.B. 7 into law. (22) But, unlike S.B. 7, S.B. 8 was not signed into law. (23) The contingency clause in S.B. 7 and the failed passage of S.B. 8 provided the necessary legal grounds for interest groups to challenge the bill. (24)

   This Note argues that severance is justified in two situations. First, severance is justified where authorized by the legislature. Alternatively, severance is justified when innocent third parties rely on the passage and implementation of a law in good faith, and invalidation of the law would have collateral effects that outweigh the need to ensure consistent legislative practice. Part II of this Note analyzes the facts and holding of Missouri Roundtable. Part III explores the development of severance as a remedy for procedural constitutional violations, particularly in the context of the single-subject rule. Part IV examines the court's rationale in Missouri Roundtable and analyzes the concurrence by Judge Zel Fischer. Lastly, Part V argues how single-subject violations invalidate the entirety of a bill, except in situations where other interests outweigh the complete invalidation of a law on an equitable, case-by-case basis.

   Because severance is justified in some circumstances, this Note concludes that severance may be carefully applied to procedurally unconstitutional legislation and, in so doing, can restore respect for laws in proportion to our knowledge of "how they are made." (25)

2. Facts and Holding

   In Missouri Roundtable for Life, Inc. v. State of Missouri, the Supreme Court of Missouri addressed whether the legislature may condition the effectiveness of a section of a law on the future passage of another law. (26) Missouri Roundtable for Life, (27) Missouri Right to Life, (28) and Lawyers for Life, Inc. (29) (collectively, "Roundtable") are all pro-life interest organizations that include Missouri taxpayers as their officers and members. (30) In 2012, Roundtable filed suit in the Circuit Court of Cole County, seeking to enjoin S.B. 7 from taking effect and to reverse any actions already taken to execute its provisions. (31) In a press release, Missouri Round Table for Life stated that the organizations sought to enjoin S.B. 7 because of their belief that the General Assembly "refused to attach protective language to MOSIRA that [would prevent] Missouri taxpayer dollars from going to abortion, human cloning, and embryo experimentation." (32) Roundtable also filed a motion for judgment on the pleadings based on two grounds: first, "Section B of S.B. 7 was a constitutional example of contingent legislation and that, by the plain terms of Section B, Section A was null and unenforceable"; (33) and second, "if the Circuit Court were to find Section B unconstitutional, Section B could not be severed from S.B. 7 because the record demonstrated that the General Assembly would not have passed S.B. 7 without the inclusion of Section B." (34)

   The Circuit Court of Cole County granted Roundtable's motion based on the second argument, ruling that S.B. 7 violated the single-subject rule as codified in Article III, Section 23 of the Missouri Constitution. (35) The court specifically noted it was "convinced beyond a reasonable doubt" that the General Assembly would not have passed S.B. 7 without Section B. (36) The court further held that Section B could not be severed from S.B. 7. (37) Consequently, the court found S.B. 7 unconstitutional in its entirety. (38) The court enjoined any further implementation of S.B. 7 and ordered that actions already taken be reversed. (39)

   The Missouri Attorney General's Office appealed the circuit court's judgment to the Supreme Court of Missouri. (40) The State of Missouri argued that S.B. 7 was unconstitutional insofar as it abridged the governor's constitutional authority to sign a bill into law and added a second subject to the bill. (41) The State also argued that Section B of S.B. 7 could be severed from the bill while Section A could stand. (42) Though Roundtable opposed the State, they also argued that S.B. 7 was unconstitutional. (43) However, Roundtable differed from the State's position by maintaining that Section B could not be severed from S.B. 7 and that the court should strike down the bill in its entirety. (44)

   On appeal, the Supreme Court of Missouri agreed with the circuit court, holding that S.B. 7 was an unconstitutional violation of the single-subject rule. (45) The court reasoned that when a contingency clause conditions the passage of one bill upon the passage of another, and is included in the title of the initial bill, the initial bill violates the single-subject rule. (46) Accordingly, the court held that the contingency clause could not be severed from the initial bill due to its inclusion in the title of the bill. (47)

3. Legal Background

   Three concepts form the doctrinal structure of Missouri Roundtable. The first is the concept of, and the different types of, unconstitutionally created laws. (48) The second is the single-subject rule. (49) As noted above, the single-subject rule is a type of constitutional limitation placed on the subject matters to be addressed by a bill. (50) The last is severability, which refers to the capability that courts have to strike unconstitutional parts of a law and let the remainder stand. (51)

   1. Types of Unconstitutional Laws

      There are two types of unconstitutional legislation--legislation that violates procedural constitutional requirements and legislation that violates substantive constitutional requirements. Controls on the procedure of the legislative process are featured in most state constitutions. (52) These types of restrictions "regulate only the process by which legislation is enacted." (53) Examples of procedural regulations on legislation include limitations on the purpose, subject, or title of the bill. (54) Each of these restrictions is "designed to eradicate perceived abuses in the legislative process, such as hasty, corrupt, or private interest legislation." (55) Abuses of these restrictions are called procedural constitutional violations. (56) Substantive constitutional violations, on the other hand, occur when a bill contains provisions that are found to "be substantively invalid based on the U.S. Constitution or the Missouri Constitution." (57) 58 These types of violations are more diverse than procedural constitutional violations and can arise from a number of situations, such as laws that violate guarantees from the Bill of Rights to "statutes limiting wrongful death recoveries or mandating a certain type of civil service system[.]" (58)

   2. The Single-Subject Rule

      Section 23 of Article III of the...