Associated Builders & Contractors v. Ventura

PAGE, J.

(dissent).

I respectfully dissent. I do so because I disagree with the court’s conclusion that the 1997 Omnibus Tax Bill, Act of June 2, 1997, ch. 231, 1997 Minn. Laws 2394, vio*308lates Article IV, Section 17, of the Minnesota Constitution which provides that “No law shall embrace more than one subject, which shall be expressed in its title.”1 Laws passed by our legislature are presumed constitutional and “our powers to declare a [law] unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). Further, we have said that a law will withstand a single subject challenge even when “the common thread which runs through the various sections ***js***a mere filament.” Blanch v. Suburban Hennepin Reg’l Park Dist., 449 N.W.2d 150, 155 (Minn.1989). With respect to a subject being expressed in the title of the enactment, we have said “it is sufficient that the title is fairly suggestive of the enactments which follow.” State v. Pioneer Press Co., 100 Minn. 173, 175, 110 N.W. 867, 868 (1907).

Chapter 231 is “[a]n act relating to the financing and operation of state and local government * * ⅜.”2 In their complaint, respondents allege that the prevailing wage requirements enacted in article 16, section 4 of chapter 231 will result in a cost increase more than $2 million above and beyond the initial cost budgeted for completion of ISD 882’s high school construction project. Given the fiscal and tax implications of article 16, section 4 of chapter 231, as alleged by respondents in support of their contention that chapter 231 is unconstitutional, it is difficult to see how that section is not connected to the other enactments contained in chapter 231 by, at a minimum, a “mere filament.” See Act of June 2, 1997, ch. 231, article 16, section 4, 1997 Minn. Laws 2394, 2629. The court also suggests that article 16, section 4 does not involve state and local government financing or operation. I believe that suggestion is incorrect. The language of article 16, section 4, now codified at MinmStat. § 123B.71, subd. 2 (1998), provides that school construction projects exceeding $100,000 in cost are projects under Minn. Stat. § 177.42, subd. 2 (1998) of the state’s prevailing wage act. As such, the applicability of article 16, section 4 is limited to “projects financed in whole or in part by state funds * * Minn.Stat. § 177.41 (1998) (emphasis added). “Project” under the prevailing wage act means “[the] erection, construction, remodeling, or repairing of a public building or other public work financed in whole or part by state funds.”3 See MinmStat. § 177.42, subd. 2. Thus, there is also a direct connection to state and local government financing and operation. Based on these connections and the law’s title, I cannot conclude that article 16, section 4 of chapter 231 violates Article IV, Section 17, of the Minnesota Constitution.

Interestingly, article 16, section 4 of chapter 231 has a far greater connection to the title of chapter 231 as well as to the *309majority of the provisions contained in chapter 231 than do any of the provisions of article 15, which deal exclusively with the regulation of certain insurance companies. Article 16, section 4 of chapter 231 also has as much if not more of a connection to the majority of the provisions of chapter 231 than do article 16, section 1, which deals with reporting of local government lobbying expenditures; article 16, section 2, which deals with the power and authority of sanitary districts; article 16, section 3, which deals with the appeal of certain eminent domain awards; article 16, section 5, which deals with utility easements and the conveyance of property by the Commissioner of Transportation; article 16, section 11, which deals with the distribution of income by cooperatives; article 16, section 12, which prohibits rebates and concessions by wholesalers in connection with the sale of cigarettes; article 16, section 19, which deals with a county’s, home rule charter city’s, statutory city’s, town’s, school district’s or other political subdivision’s authority to create a corporation and the validity of certain lease purchase agreements; and article 16, section 27, which requires that computer hardware and software purchased with money appropriated in chapter 231 be Year 2000 compliant.

While I believe the court is in error when it concludes that chapter 231 violates Article IV, Section 17, of the Minnesota Constitution, I do not believe that error is the court’s most serious or most troubling. By severing article 16, section 4 from the remainder of chapter 231, the court has taken on the role of a super legislature, deciding which provisions of chapter 231 will be given effect by picking and choosing between the law’s various provisions, even though all of its provisions are unconstitutional Under article IV, section 17, this court is not vested with the power to determine that certain provisions of an enactment will become law and that others will not.4 The court’s only power is to declare the entire law either constitutional or unconstitutional. Interestingly, in sev7 ering what it believes to be the offending provision of chapter 231, the court does not rely on' language from the constitution.5 It does not because under article IV, section 17, it cannot. Article IV, section 17, of the constitution says “No law shall embrace more than one subject which shall be expressed in its title.” (Emphasis added.) The language of article IV, section 17 could not be clearer or more explicit. It says “no law,” it does not say “no provision of a law.”

In defending the severance of what it believes to be the offending provision of chapter 231, the court relies on verbal sleight-of-hand. While talking about the constitutionality of chapter 231, under article IV, section 17 of our constitution, the court applies the principles we use .to determine whether a statute or a provision of a statute is constitutional. The court acts as though our responsibility is not to determine the constitutionality of the law being challenged. Indeed, the court states that “Our goal of constitutipnal compliance relates to the particular provision of the law being challenged only * * That statement is incorrect. The court evident*310ly does not understand the distinction between a law that, while validly enacted, contains a provision that is unconstitutional and a law that is unconstitutional because it was never validly enacted.

Our responsibility is to determine whether the law which was enacted as chapter 231, when enacted, was a law embracing “more than one subject” at least one of which was not “expressed in its title.” The court knows that article 16, section 4, standing alone, does not offend the Minnesota Constitution. The only possible constitutional offense is that by article 16, section 4’s inclusion in the law that was enacted as chapter 231, the law was not validly enacted because it embraces “more than one subject” at least one of which was not “expressed in its title.” While the mere presence of article 16, section 4 in chapter 231 may render all of chapter 231 unconstitutional because it was never validly enacted, the mere presence of the provision does not render the provision itself unconstitutional.

The underlying purpose of article IV, section 17, as the court notes, is to prevent logrolling legislation. In addition, article IV, section 17 is intended to ensure that citizens are fairly apprised of the subjects of laws being considered by the legislature. Those purposes are not and cannot be met by severing any one offending provision of a law. First, as indicated, it puts the court into the role of super legislature in violation of Article III, Section 1, of the Minnesota Constitution.

More importantly, declaring only the offending provision unconstitutional does nothing to discourage the legislature from engaging in the conduct that article IV, section 17 seeks to prevent. Indeed, it may even encourage such conduct. If the legislature enacts a law in violation of article IV, section 17, four things can happen, only one of which discourages laws in violation of article IV, section 17, from being passed. The law may go unchallenged or the law may be challenged but, for whatever reason the reviewing court may decline to strike it down. In either of these cases, the legislature will not be discouraged from violating article IV, section 17.

The law may also be challenged, held unconstitutional and the offending provision severed. Finding the law unconstitutional and severing the offending provision, however, does nothing to discourage the legislature from passing laws in violation of article IV, section 17. On the surface it would seem that severing the offending provision would discourage the legislature from enacting such laws; in fact it does not, because in reality having the offending provision held unconstitutional and then severed from those provisions which go unchallenged results in the legislature (or those behind the offending provisions) being no worse off than if the severed provision had not been enacted at all. Given the possibility that the law may not be challenged at all or if challenged, may be held constitutional, there is no downside to enacting such legislation if the worst position the legislature will be in if the law violates the constitution is the same position it would have been in had the offending provision not been enacted. Further, there may be some political benefit to be gained by including such provisions in a law even if the law is subsequently held unconstitutional and only the offending provision is severed from the remaining provisions of the law.

Finally, the challenged law may be held unconstitutional and the entire law struck down. This is the only outcome that provides an incentive for the legislature to refrain from enacting laws which offend article IV, section 17. Moreover, the clear language of article IV, section 17 requires that result.

While I disagree with the court’s conclusion that article 16, section 4 of chapter 231 violates Article IV, Section 17, of the Minnesota Constitution, to the extent that the court is correct and I am wrong on that point, the clear language of article IV, section 17 and the purposes behind that *311constitutional provision mandate that the law in question, chapter 231, be struck down in its entirety as unconstitutional because “[n]o law shall contain more than one subject which, shall be expressed in its title.”6 Minn. Const, art. IV, § 17.

.Article IV, section 17, is intended "to prevent the title [of the law] from being made a cloak or artifice to distract attention from the substance of the act itself.” Wass v. Anderson, 312 Minn. 394, 398, 252 N.W.2d 131, 135 (Minn.1977) (quoting State ex rel. Olsen v. Board of Control, 85 Minn. 165, 175, 88 N.W. 533, 537 (1902)). "The single subject rule was not intended to inhibit comprehensive legislation.” Id. at 400, 252 N.W.2d 131. Its purpose is to prevent "log-rolling,” which is the attachment of undesirable riders upon bills that are more likely to be passed. Proper observance of the single subject rule of the constitution assures that every distinct piece of legislation is considered on its own merits. See State v. Cassidy, 22 Minn. 312, 322 (1875).

. Act of June 2, 1997, ch. 231, 1997 Minn. Laws 2394.

. The court states that "to construe an amendment requiring prevailing wages that lacks any express limitation to public funding as related to the subject of financing and operation of state and local government would push the mere filament to a mere figment.” The court then "declines” to do so in this case. In making that statement and in declining to construe the amendment here, the court, by way of legerdemain, ignores the express limitations contained in the prevailing wage act.

. The practice of severing select provisions ignores the fact that even if a provision of a law is not germane to its title or is inconsistent with its subject, it does not mean that the provision, as part of the original bill, played no role in the bill being enacted into law. Therefore, there is no guarantee that absent the offending provision the bill would have become a law.

. The court does say "By the plain words of the article, it does not prohibit a bill from becoming law if it does embrace more than one subject * ⅜ And the court is correct in that statement. The article does not prevent such a bill from becoming law. But our concern is not with "bills” which have not been enacted into law, our constitutional concern is with laws that have been enacted. The court acknowledges as much at the end of the sentence quoted above when it states “it only states that 'No law shall embrace more than one subject, which shall be expressed in its title.' " The court then goes on to ignore the constitution’s language.

. In footnote 33 of the court's opinion, the court makes reference to the "dissent's preference for declaring the entire law unconstitutional * * That statement is based on a false premise. I have no preference for declaring the entire law unconstitutional. First, as I have indicated, my reading of article 16, section 4 of chapter 231, in light of our case law and the purposes underlying article IV, section 17 of our constitution, leads me to the conclusion that chapter 231 does not violate the constitution. Moreover, my conclusion that the court lacks the constitutional authority to sever an offending provision of a law that violates article IV, section 17 is not guided by any personal preference but only by the constitution's clear mandate. To the extent that I am guided by any preference, my preference would be that this court give meaning to article IV, section 17’s language and comply with its mandate.