Equal Protection and Arbitrary Classifications Under the Missouri Constitution (Adapted From the Appellant’s Brief in KCPA v. Missouri Real Estate Commission) Article I, Section 2, of the Missouri Constitution guarantees that citizens will enjoy the equal protection of the laws, and Article III, section 40(30), states that “The General Assembly shall not pass any local or special law… where a general law can be made applicable, and whether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on the subject.” The Missouri Supreme Court has held that the legislature is permitted to create legal distinctions among people if they have a “similarity of situation or condition with respect to the feature which renders the law appropriate and applicable,” but also that “a law may not include less than all who are similarly situated.” In 1960 the Court decided Petitt v. Field, a case in which the Missouri General Assembly had passed a law that made it illegal for anyone to sell or issue certain financial instruments unless they first obtained a license from the state. Under the law, just about any kind of company could apply for one of the licenses, but the statute specifically prohibited the issuance of a license to “any business the major portion of which involves the processing, manufacture or purchase and sale of commodities or articles of tangible personal property.” The plaintiffs, whose business involved the purchase and sale of commodities or articles of tangible personal property, contended that the law created an arbitrary and unreasonable classification in violation of the Missouri Constitution’s guarantee of equal protection and its prohibition against the passage of special laws. The Missouri Supreme Court agreed, pointing out that there was “no reasonable basis” for allowing licenses to be issued to those for whom 49% of their business was buying and selling goods, while denying licensure to persons for whom buying and selling goods comprised 51% of their business. The Court held that “it is arbitrary discrimination violating the Equal Protection Clause… to make exclusions not based on differences reasonably related to the purposes of the act.” Kansas City Premier Apartments v. Missouri Real Estate Commission presents a very similar issue. The law the MREC is trying to enforce exempts magazines, newspapers, and websites from real estate licensing requirements if the advertisement of real estate is only an “incidental” part of their operations, but it requires licensure for magazines, newspapers, and websites where the advertisement of real estate is more than an incidental part of their operations. Not only does this statute fail to explain how the MREC should calculate the extent to which real estate advertising is incidental to a business’s operation (which gives the MREC unlimited discretion to pick and choose which businesses have to be licensed and which do not,) the Missouri Supreme Court’s holding in Petitt shows that the government cannot lawfully differentiate between two companies engaged in the business of real estate advertising, simply because that activity may be slightly more prevalent in one company than it is in the other. The Court should reaffirm its holding in Petitt and rule that the classification made in Missouri’s real estate licensing law is arbitrary and violates Article I, Section 2, and Article III, section 40(30) of the Missouri Constitution.