Unconstitutional State Special Laws: Is Rational Basis Review the Rational Solution?

AuthorSlusher, Chloe

City of Aurora v. Spectra, 592 S.W.3d 764 (2019).


    For centuries, scholars, judges, and lawmakers have argued over the role of the judiciary in striking down laws created by a democratically elected legislature. (1) This problem has come to be known as the "Countermajoritarian Difficulty." (2)

    The famous Carolene Products footnote offers one widely accepted answer to the Countermajoritarian Difficulty. (3) It stipulates that the judiciary should only invalidate laws that violate fundamental rights specified in the Constitution, disadvantage discrete or insular minorities, or undermine the political process. (4) This approach promised judicial deference and allowed the legislature to create economic regulations. (5) Debates on this subject typically involve federal courts. (6) However, the Supreme Court of Missouri's decision in City of Aurora v. Spectra raises these same issues on a state level. (7)

    In cases like Spectra, Missouri courts have grappled with how to interpret the Missouri Constitution's special laws provision. (8) Special laws are statutes that benefit an individual as opposed to the public. (9) Special laws cases have created the same countermajoritarian issues that scholars have struggled with for centuries. (10) What amount of deference to the legislature should Missouri state courts allow when reviewing special laws that benefit an individual or locality as opposed to the public as a whole?

    City of Aurora purports to solve this dilemma by reinforcing that rational basis review is the correct standard for reviewing special laws. (11) The court's holding, however, is dangerously vague. (12) When deciding whether a special law survives rational basis review, the court has two options. (13) The court could ask whether the legislature has a rational basis for including the specific class of persons that is in the law. (14) If the court took this route, there will almost always be a rational basis as to why the legislature included the specific class. The court will have abdicated the responsibility delegated to them by the Missouri Constitution to strike down impermissible special laws by instituting a standard of review so low that any law can survive. (15) Instead, the court should have specified that special laws are permissible if the legislature has a rational basis for excluding a similarly situated group. (16) This standard of review would strike the perfect balance between judicial deference to the democratically elected legislature while allowing the court to inquire into whether the legislature is unfairly giving out advantages to specific groups.

    Part II of this Note describes the facts and holding of City of Aurora v. Spectra. Part III gives a summary of the Missouri Special Laws doctrine. Part IV reviews the reasoning of City of Aurora v. Spectra. Finally, Part V suggests courts should ask whether the legislature had a rational basis for excluding certain groups from the special law. This strikes a balance between providing deference to the legislature and allowing the judiciary to step in when the legislature acts in a countermajoritarian manner, a function typically reserved for courts.


    In 2012, the Cities of Aurora, Cameron, and Oak Grove, Missouri ("Cities") brought a declaratory judgment action against CenturyLink, an internet service company, alleging that it had not paid all the required license taxes owed under the Cities' respective ordinances. (17) The Cities also alleged that CenturyLink failed to enter into right-of-way agreements with Cameron and Wentzville and failed to pay linear foot fees under Cameron's right-of-way ordinance. (18) CenturyLink denied failing to pay the taxes and linear foot fees. (19) CenturyLink also denied being required to enter into right-of-way user agreements with Cameron and Wentzville. (20) Section 67.1846.1 of the Missouri Revised Statutes banned cities from enacting linear foot fees but created an exception that allowed grandfathered political subdivisions to continue their fees. (21) The Cities asserted that this exception allowed their linear foot fees to be enforceable. (22) CenturyLink claimed that the exception for grandfathered political subdivisions was a constitutionally invalid special law under Article II of the Missouri Constitution which prohibits any special law where a general law could be made. (23) CenturyLink claimed this law was special because it applied only to certain subdivisions, and no other cities could ever enter into the class included in the statute because of the date restriction. (24)

    The Cities moved for partial summary judgment as to the license tax and the right-of-way agreements. (25) The trial court granted partial summary judgment, holding the linear foot fees to be constitutional and ordering CenturyLink to pay the fees. (26) The case proceeded to trial in 2016 on the limited issue of damages. (27) After trial, the parties cross-appealed. (28) Since CenturyLink raised a constitutional issue the appeal went directly to the Supreme Court of Missouri. (29) The Supreme Court held that the legislature had a rational basis for the grandfathered political subdivision exception under section 67.1846.1, and it was therefore enforceable and a permissible special law under Article III of the Missouri Constitution. (30)


    Special laws are statutes that benefit an individual or specific group of individuals instead of the public. (31) Many state constitutions include prohibitions on specific types of special laws and include a provision that does not allow a special law where a general law would work instead. (32) In Missouri, according to Article III [section]40, judicial review is the mechanism for determining which special laws are permissible. (33) Allowing judges to strike down special laws they deem impermissible because a general one would be applicable potentially gives the judiciary a broad power to override laws enacted by a democratically elected legislature.

    1. The Principle of Judicial Deference

      Since our country's founding, the role of the judiciary in the United States has been largely debated. (34) The doctrine of separation of powers dictates that the legislature's role is to create laws. (35) While in certain situations, the judiciary has the power to strike down those laws, it should only do so if absolutely necessary. (36) Additionally, according to what is known as the "Countermajoritarian Difficulty," if the foundation of our governmental system is democracy, unelected judges should not have the ability to strike down laws created by a legislature elected by a majority of the people. (37)

      Ideas about what amount of judicial deference to the legislature is appropriate have fluctuated throughout history. (38) It is widely agreed that judicial deference was at its lowest level during the early 1900s, known as the Lochner Era. (39) During this period, the Supreme Court articulated the belief that it was the judiciary's role to carefully examine legislation that interfered with the freedom to contract. (40) By scrutinizing economic legislation, the Court essentially treated the freedom to contract as a fundamental right. (41) Since then, this judicial activism by the Court has largely been renounced. (42) Lochner is seen as part of the Supreme Court "anti-canon" because unelected judges were substituting their values for those of the democratically elected legislatures to protect rights that were not expressly protected by the Constitution. (43) Additionally, post-Lochner decisions held that the Court should defer to laws that regulate the economy because the right of contract is not a fundamental right. (44)

      The Lochner Era ended with West Coast Hotel v. Parrish. (45) Since then, the widely accepted answer to the Countermajoritrian Difficulty and the appropriate amount of judicial deference is found in the Carolene Products footnote number four. (46) The Carolene Products footnote states that the judiciary should only invalidate laws that violate fundamental rights specified in the Constitution, disadvantage discrete or insular minorities, or undermine the political process. (47) This approach promised judicial deference and allowed the legislature to create economic regulations. (48)

    2. Development of Missouri Special Laws Jurisprudence

      In 1875, after the first inclusion of a special laws provision in the Missouri Constitution, courts immediately began to grapple with what counts as a special law and which ones were permissible. (49) When reviewing whether a special law was permissible, courts first asked whether there was a reasonable basis for the classification in the law. (50) This standard of review was eventually renamed rational basis but asked the same question. (51) However, courts eventually altered the standard by introducing the substantial justification test. (52) City of Aurora resolves these inconsistencies in the standard of review for special laws and represents a return to early special laws doctrine. (53) This section outlines how the Supreme Court of Missouri has changed its view on special laws and created varying standards of review over time.

      1. Early History of Special Legislation

        The term "special legislation" refers to statutes that benefit an individual as opposed to the public. (54) Special legislation made up eighty-seven percent of state legislation passed in Missouri before 1859 and was popular in state legislatures nationwide. (55) Special legislation topics varied. (56) Many special laws benefitted well-connected individuals that had the political power to ask the lawmakers from their county to grant them a favor that a judge was unlikely to do. (57) Other special laws benefitted specific municipalities by giving them advantages that the legislature would be unwilling to give to the state as a whole. (58) Examples included laws enacted to divorce couples, change interest rates at individual banks, alter...

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