Opinion handed down January 12, 2016
In City of DeSoto v. Nixon, the Supreme Court of Missouri held that a law excluding cities that meet six narrowly drawn criteria from a generally applicable procedure for making post-annexation payments to a fire protection district violated Missouri’s constitutional prohibition against special laws.
I. Facts and Holding
Section 321.322 establishes how a city is to make payments to a fire protection district after the city annexes part of the fire protection district. In 2013, the legislature added section 321.322.4, which excludes from these procedures any city that meets six specific criteria:
The provisions of [section 321.322.1] shall not apply where the annexing city or town operates a city fire department, is any city of the third classification with more than six thousand but fewer than seven thousand inhabitants and located in any county with a charter form of government and with more than two hundred thousand but fewer than three hundred fifty thousand inhabitants, and is entirely surrounded by a single fire protection district.
The City of De Soto brought a lawsuit arguing that section 321.322.4 violates Missouri’s constitutional ban on local or special laws because De Soto is the only city that fits each of the six narrowly drawn criteria. The State responded that section 321.322.4 is not a local or special law because the criteria are open-ended: although De Soto is the only city currently excluded from the payment procedures described in section 321.322, other cities might fall within the exclusion in the future – and De Soto might fall outside of the exclusion – as a result of population growth or political decisions.
On cross-motions for summary judgment, the circuit court granted the State’s motion and overruled De Soto’s, finding that section 321.322.4 was not an unconstitutional local or special law because its criteria were open-ended. De Soto appealed.
II. Legal Background
Like most state constitutions, Missouri’s constitution prohibits the legislature from passing any “local or special law . . . where a general law can be made applicable.”  The Supreme Court of Missouri has described a “special law” as one where “members of a stated class are omitted from the statute’s coverage whose relationship to the subject matter cannot by reason be distinguished from that of those included.” A “local law,” by contrast, is one “which relates or operates over a particular locality instead of over the whole territory of the state.” Recent decisions, however, have tended to use the terms interchangeably, interpreting Missouri’s prohibition of local and special laws as a general requirement that “[a] law may not include less than all who are similarly situated.”
In Jefferson County Fire Protection Districts Ass’n, the Supreme Court of Missouri established a multipart test for determining whether a law that includes population-based classifications is a “special law.” First, the court must determine if the law is facially special. Generally speaking, “[a] law is facially special if it is based on close-ended characteristics, such as historical facts, geography, or constitutional status.” If a law is facially special, it is unconstitutional unless the party defending the law can show a “substantial justification” for the classification. Laws that have classifications based on open-ended characteristics, on the other hand – including population classifications – are presumed constitutional, and the party challenging the law must show that the classification has no rational relationship to a legitimate purpose.
In Jefferson County, however, the Supreme Court of Missouri recognized that a population-based classification – although open-ended – might be drawn so narrowly that the presumption of constitutionality should not be applied. As a result, the court held that
The presumption that a population-based classification is constitutional is overcome if: (1) a statute contains a population classification that includes only one political subdivision, (2) other political subdivisions are similar in size to the targeted political subdivision, yet are not included, and (3) the population range is so narrow that the only apparent reason for the narrow range is to target a particular political subdivision and to exclude all others.
Applying this new test, the court had no trouble finding that the statute challenged by Jefferson County – which applied to “any county . . . with more than one hundred ninety-eight thousand but fewer than one hundred ninety-nine thousand two hundred inhabitants” – was facially special.
III. Instant Decision
In City of DeSoto, a unanimous court reversed the circuit court’s judgment and granted summary judgment in favor of De Soto, finding that section 321.322 violated Missouri’s constitutional prohibition against special laws. The court’s holding was based on its determination that the statute was facially special according to the test established in Jefferson County, and that the State had failed to articulate a “substantial justification” for De Soto’s special treatment.
Applying the test established in Jefferson County, the court concluded that the first two elements were easily satisfied because De Soto was the only political subdivision that met both of the population requirements set out in section 321.322.4, even though other cities are similar in size to De Soto. As a result, whether the statute was facially special depended on if it satisfied the third element: whether “the population range is so narrow that the only apparent reason for the narrow range is to target a particular political subdivision and to exclude all others.”
Significantly, the court rejected the State’s contention that this element should be analyzed by looking at each of the six statutory criteria individually and asking whether any city other than De Soto might someday meet one or more. Instead, the court held that a court must consider the likelihood that a city other than De Soto could meet all six of the criteria in the future. Applying that principle, the court concluded that “[t]he likelihood of all of these factors converging and of another city coming within the scope of section 321.322.4 is sufficiently unlikely that, in the words of Jefferson County, ‘the only apparent reason for the narrow range is to target a particular political subdivision and to exclude all the others.’”
Because section 321.322.4 satisfied all three of the Jefferson County elements, the law was presumptively special, and the State was required to provide a substantial justification for the special treatment. In this case, the State apparently offered no such evidence. As a result, the court concluded that the trial court’s judgment upholding the law required reversal; moreover, because the merits of the State’s motion for summary judgment and De Soto’s motion for summary judgment were “intertwined,” the court determined that it was proper to enter judgment for De Soto rather than remand the case for further proceedings.
The court’s decision in City of DeSoto may be most significant because it rejected the State’s contention that the “specialness” of a law should be analyzed by looking at each of the law’s classification characteristics individually, which would have rendered the test established in Jefferson County – and Missouri’s constitutional prohibition against special laws generally – relatively toothless. It would be absurd if legislators were able to circumvent the prohibition against special laws by simply stacking open-ended classifications in such a way that only one city or group satisfies all of the classifications, so the court was wise to close that potential loophole.
City of DeSoto is also interesting because it demonstrates how Missouri’s “special law” doctrine differs from federal equal protection doctrine. State constitutional bans on “special laws” were intended “to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures.” However, most courts have interpreted their state’s prohibition against special laws as simply requiring a rational basis review modeled on federal equal protection doctrine, essentially reading “special prohibitions out of state constitutions.”
Missouri’s prohibition against special laws, by contrast, appears to be alive and well – a constitutional protection that is additional to, rather than repetitive of, the equal protection doctrine. In this case, if De Soto had challenged section 321.322.4 on equal protection grounds, the court would likely have reviewed the law under the rational basis standard typically applied to economic regulations. But the court in City of DeSoto applied a more stringent standard – requiring the State to show a substantial justification for the law’s classification, demonstrating that Missouri’s special laws doctrine actually provides greater protection from “legislative capture” than the equal protection doctrine.
- Bill Kistner
 City of DeSoto v. Nixon, 476 S.W.3d 282, 290 (Mo. 2016) (en banc).
 Mo. Ann. Stat. § 321.322 (West 2016), held unconstitutional by City of DeSoto, 476 S.W.3d at 291.
 Id. § 321.322.4.
 City of DeSoto, 476 S.W.3d at 285.
 Id. at 286.
 Mo. Const. art. III, § 40 (West, Westlaw through Nov. 2014) (“[W]hether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on that subject.”).
 State ex rel. Bunker Res. Recycling & Reclamation, Inc. v. Mehan, 782 S.W.2d 381, 385 (Mo. 1990) (en banc).
 City of DeSoto, 476 S.W.3d at 286.
 Bunker, 782 S.W.2d at 385.
 Jefferson Cty. Fire Protec. Dists. Ass’n v. Blunt, 205 S.W.3d 866, 870–71 (Mo. 2006) (en banc).
 Id. at 870.
 Id. at 870–71.
 Id. at 872.
 City of DeSoto v. Nixon, 476 S.W.3d 282, 291 (Mo. 2016) (en banc).
 Id. at 288.
 Id. at 289.
 Id. at 290.
 Id. at 290–91.
 Justin R. Long, State Constitutional Prohibitions on Special Laws, 60 Clev. St. L. Rev. 719, 719 (2012).
 See generally Alderson v. State, 273 S.W.3d 533 (Mo. 2009) (en banc). However, the analyses converge where an economic regulation is not “facially special” – either as a result of close-ended classifications or the Jefferson County test – because both doctrines apply rational basis review in those circumstances. Id.