Analysis: Missouri lawmaking at issue before high court

Monday, November 7, 2011

JEFFERSON CITY, Mo. -- The will be no shortage of irony this week as the Missouri Supreme Court considers the following question: Did Missouri lawmakers act illegally in an attempt to act more ethically?

The prevailing answer is yes. To decide otherwise, the high court will have to reverse a ruling from a trial judge.

On the last day of March, Cole County Circuit Judge Dan Green declared that an ethics law passed in 2010 by the Republican-led legislature violated the state constitution because it addressed more than one subject. Green struck down the ethics provisions, leaving standing only a provision about government contracting.

An appeal of that decision will be heard Thursday by the Supreme Court, which is being asked to make a far-reaching decision.

Attorney General Chris Koster's office, which is responsible for defending state laws, wants the Supreme Court to overturn one of the Capitol's most widely cited judicial precedents governing the process of how a bill becomes a law.

Possible precedent

Attorney Chuck Hatfield, representing those who challenged the ethics law, wants the Supreme Court to establish a new precedent for the bill-making process that could either discourage the age-old practice of legislative logrolling or result in lots more laws getting tossed by the courts.

If either side gets what it wants, the case "could become the most important ruling on legislative procedure in decades," Hatfield said.

As is common, Koster's office declined to discuss the case because it is ongoing.

The case revolves around two sections of the Missouri Constitution dealing with legislative proceedings. One states: "No bill shall be amended in its passage through either house as to change its original purpose." The other states: "No bill shall contain more than one subject which shall be clearly expressed in its title."

Senate Bill 844 was alleged to have violated both provisions. It started as a one-page bill allowing statewide elected officials to use the Office of Administration to determine the best bids for their contracts. It ended up as a 69-page bill titled "relating to ethics" that changed campaign finance laws, gave greater powers to the Missouri Ethics Commission and created new crimes related to bribery, obstruction of ethics investigations and lobbyists' failure to report their expenses for state officials. In addition to the original contracting provision, the final bill also included a requirement that each lawmaker get a key to the Capitol dome.

Green ruled that the bill violated the constitution's single subject requirement and invalidated everything except the section on government contracting. He cited as precedent a 1994 Missouri Supreme Court ruling in the case of Bob Hammerschmidt v. Boone County.

In the Hammerschmidt case, the court declared that when a bill contains more than one subject, the entire bill is unconstitutional -- unless one of the bill's subjects is its original purpose. If so, that original provision can be allowed to stand while the rest of the bill falls.

Koster's office argues that the Hammerschmidt ruling wrongly blurred the distinctions between the two constitutional sections, ignored 100 years of court precedent and should now be overturned.

In documents filed with the Supreme Court, the attorney general's office concedes that Senate Bill 844 violates the constitution' single subject requirement. But it says the title of the final version of the bill -- in this case, "relating to ethics" -- should be the standard by which individual sections are judged. Thus all the provisions related to campaign contributions, lobbying and the Ethics Commission should be allowed to stand, Koster said. The original provision about government contracting also could stand, because it can be construed to relate to the ethics of elected officials, the attorney general said.

The only section that Koster concedes should be stricken is the provision about keys to the Capitol dome.

In contrast, Hatfield argues on behalf of the plaintiffs that the entire legislation should be struck down. He says the Hammerschmidt precedent should not only be upheld, but expanded. Hatfield's arguments focus on the bill's severability -- that is, the ability of a court to let part of a bill stand and severe only those sections determined to violate the constitution. Although courts have long used a severability analysis, Hatfield argues that it is not allowed under the constitution's requirement that a bill contain only a single subject. If legislation addresses more than one subject, the entire bill should be declared unconstitutional, Hatfield said.

If his argument prevails, Hatfield said, "it's going to make the legislature a lot more cautious in how they do things," because a single unrelated item amended to a bill could doom the whole thing.

If the attorney general prevails, Hatfield contends that lawmakers could start swelling bills with even more unrelated items, with the knowledge that a judge could strike only the extraneous stuff and the rest would stand.

"Either way," Hatfield said, "it would be a change in the law" -- or at least in how laws are made.

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