STATE SUBSTANTIVE AND PROCEDURAL CONSTRAINTS ON LOCAL PREEMPTION LEGISLATION This memorandum provides an overview of some substantive and procedural constraints on the latitude of state legislatures to limit local authority and autonomy. In Part I, the memorandum canvasses substantive theories that include generality and “special law” constraints, as well as related “general laws” and uniformity requirements—all state constitutional doctrines that interact with principles of home rule. In Part II, the memorandum outlines procedures in some states that are required in order for state legislatures to curtail home rule. Finally, in Part III, the memorandum addresses general legislative procedural constraints, not grounded in the law of state-local relations but nonetheless with have some potential application in the preemption context, such as single-subject rules, clear-title requirements, original purpose rule, and others.1 I. SUBSTANTIVE CONSTRAINTS RELATED TO SUBJECT MATTER COVERAGE AND GENERALITY One potential constraint on certain types of state preemption may be found in state constitutional provisions that require some form of “generality” or “uniformity” or conversely prohibit “special” or “local” legislation. There are multiple variations on ideas of generality and uniformity in state oversight of local governments, and these provisions must be read in the context of a given state’s home rule, although also reflects broader principles not limited to state- local relations. Overall, the strongest examples of generality and related principles make clear that individual cities cannot be singled out, with clear relevance for preemption conflicts; in many states, however, the judiciary has allowed circumvention, for example, by permitting any legislation that does not expressly identify a particular target jurisdiction, even if in fact by operation only one jurisdiction was effected. Traditionally, this jurisprudence has not been a significant source of protection for local authority, but there are some examples of the doctrine succeeding, and the landscape may change as the nature of preemption becomes more targeted.2 1 Prepared by Nestor Davidson for the Legal Effort to Address Preemption (LEAP) Project, March 2017. The information contained in this document does not constitute legal advice. 2 For an excellent recent examination of the nature and history of this subject (not focused on the context of preemption), see Justin R. Long, State Constitutional Prohibitions on Special Laws, 60 CLEV. ST. L. REV. 719 (2012). A. General vs. “Special” or “Local” Legislation 1. Landscape of Constitutional Provisions Roughly 37 states constitutions provide that legislation must be general, as opposed to “special” or “local.”3 Although the jurisprudence is varied, it is perhaps not too much of an oversimplification to say that a statute that relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is a special law. Similarly, a local law is a kind of special law, where the subject of the law is a specific locality or group of localities singled out from the class of all localities. State statutes might be vulnerable because they are “local” in the geographic sense, or discriminate against a particular category, or are applicable only to government entities, instead of including private parties.4 Category 1 states: In a number of states, the state constitution has specifically enumerated prohibitions as well as a general clause restricting special legislation. Even in these states, it is the ultimate job of the courts to determine whether challenged legislation falls within one of the categories listed in the constitution.5 For example, the Missouri Constitution provides that “The general assembly shall not pass any local or special law . where a general law can be made applicable.” 6 The constitution, however, also provides 29 specific areas where the state legislature may not act through special legislation, in addition to the final general prohibition. The specific areas include liens, divorces, regulation of mining and manufacturing, and many others. Some 31 states have constitutional provisions substantially similar to Missouri, although the specifics vary.7 See Appendix A. Category 2 states: Unlike Missouri, some states omit the list of enumerated subjects, and instead restrict special laws by imposing a requirement that special laws may not be passed when a general law can be made applicable.8 These states include Alaska, Illinois, Utah, California, Montana. 9 The National Municipal League’s Model State Constitution also adopts this approach. Category 3 states: A number of states constrain “special” or “local” legislation only with regard to specific enumerated subjects. 3 See Appendix B. 4 JOHN MARTINEZ, LOCAL GOVERNMENT LAW § 3:23 (2016) (enumerating categories of “special” or “local” laws, but noting that the categories often blur in practice). 5 See Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and Judicial Scrutiny, 86 DENV. U. L. REV. 1337, 1338 n.6 (2009). 6 http://www.moga.mo.gov/mostatutes/Consthtml/A030401.html. 7 See Anthony Schutz, State Constitutional Restrictions on Special Legislation as Structural Restraints, 40 J. LEG. 39, 48 & n.38 (2014) (listing state constitutional provisions). 8 Id. at 48 n.41. 9 In Indiana, the principle that state statutes cannot differentiate between local governments is covered under the “equal privileges and immunities” clause of the state constitution. Martinez, supra note 4 (citing Hoovler v. State, 689 N.E.2d 738 (Ind. Ct. App. 1997) (interpreting Ind. Const. art. I, § 23)). 2. Interpreting Generality Whatever category a particular state falls into, “there is little agreement on what the terms ‘special,’ ‘local,’ and ‘general’ mean.”10 Generally, granting the significant state-by-state variation, most courts employ a two-step analysis11: First, is the challenged law actually special/local? Very broadly speaking, courts tend to apply one of two types of tests: Closed Classes (a test that evinces less variation among states). A closed class is one to which no objects will be added in the future. The closed-class test has been used to strike down legislation that, for example, ties the classification to historical facts. The most common examples involve laws related to local governments that apply to cities with a population within a certain range.12 Such classifications become closed when the legislation limits the population determination to a particular year or a particular census. On the other hand, in Treadway v. State,13 the Missouri Supreme Court held that statutes that functionally singled out one city could still be general “because they employ open-ended criteria … [that] identify the counties by factors that change such as by reference to county classification, population, charter status and nonattainment criteria. These variables are not immutable characteristics. The statutes employ factors that would not exclude a county from satisfying the statutes’ criteria should such a county in the future fall into one of the listed factors due to changes in county classification, population, charter status and nonattainment criteria.”14 Arbitrarily Defined Classes (a test that evinces greater variation among states): These tests generally require that legislative classifications involve distinctions among objects that are relevant to some legitimate public purpose.15 A very early articulation of this principle came 10 Schutz, supra note 7, at 49. 11 Several states explicitly liken their generality analysis to an equal protection analysis, including Alaska, California, Illinois, Missouri, Montana (to some extent), New Jersey, New Mexico, South Carolina, Tennessee, West Virginia (to some extent), and Wyoming. On the other hand, Arizona, Maine, Nebraska, and North Carolina explicitly distinguish generality analysis from equal protection analysis. 12 See, e.g., City of Miami v. McGrath, 824 So. 2d 143 (Fla. 2002) (invalidating special law which purported to restrict parking-tax enabling provision to three cities based on population as of a certain date); see also Florida Dept. of Business and Professional Regulation v. Gulfstream Park Racing Ass’n, 967 So. 2d 802, 809 (Fla. 2007) (addressing a statute that prohibited thoroughbred permit holders from engaging in inter-track wagering in “any area of the state where there are three or more horserace permitholders within 25 miles of each other,” and holding that it was unconstitutional because there was no reasonable possibility that these conditions would ever exist in another part of the state). 13 988 S.W.2d 508 (Mo. 1999). 14 Id. at 510–11. 15 For some examples, see RICHARD BRIFFAULT & LAURIE REYNOLDS, CASES AND MATERIALS ON STATE AND LOCAL GOVERNMENT LAW 307-08 (8th ed. 2016) (noting, for example, a case that involved “fire protection districts wholly within first class counties with more than 198,000 but fewer than 199,200 inhabitants” or where the classification although not unreasonable on its face has nothing to do with the substance of the law, such as an Arizona law applicable only in counties with 500,000 or more people making it a crime for a minor to carry or possess a firearm in a public place). from the Minnesota Supreme Court in Nichols v. Walter:16 “There must be a substantial distinction, having a reference to the subject-matter of the proposed legislation between the objects or places embraced in such legislation and the objects or places excluded. The marks of distinction on which the classification is founded must be such, in the nature of things, as will, in some reasonable degree at least, account for or justify the restriction of the legislation.”17 The test of a special law is the appropriateness of its provisions to the objects that it excludes.18 As a second step, if the law is determined to be special/local, it is then presumptively unconstitutional. The State must then provide “substantial justification” for excluding the other class members or political subdivisions from the law.19 That means that site-specific legislation can be upheld where there are unique local conditions or a distinctive state interest.20 B.