State argues that no one has right to question governor

Sunday, August 25, 2002

At Wednesday's appellate hearing on the lawsuit filed by this writer against Gov. Bob Holden, several impressions are worth sharing with a broader audience.

This is my lawsuit, styled Kinder, et al. vs. Holden, seeking to nullify the Holden executive order instituting collective bargaining for public employees.

In this lawsuit I am joined by perhaps the broadest array of coalition groups ever assembled to sue a governor. These include a Democratic state representative from St. Louis, the Missouri Chamber of Commerce, the Missouri State Teachers Association, Associated Industries of Missouri, the Missouri Farm Bureau, the Missouri Correction Officers Association, the Missouri Municipal League (representing the elected leadership of every city and town) and other groups.

Herewith, some impressions:

The inaudible counsel for the state: The state of Missouri (defending Holden's order) was represented by an assistant attorney general who, one presumes, is reasonably competent.

Her version of competency doesn't include, apparently, any obligation to speak audibly. Hers was easily the softest voice I've ever heard in years of listening to courtroom advocacy.

After a minute or two of her presentation to the three-judge panel, the presiding judge, who sits just a few feet in front of her on the bench, interrupted her to request that she speak a little more loudly. To this judicially requested volume adjustment, she responded with the slightest perceptible gradation of increase.

Those of us in the audience continued cupping our ears, straining to hear her version of the law. This behavior can fairly be read as a mild form of insult to her audience.

No one can question the governor in court: When we were able to get to the heart of the state's argument -- at least that small portion that was audible -- it is that no person has what lawyers call the requisite legal standing to challenge the governor's executive order. Not the chamber of commerce. Not Associated Industries of Missouri. Not the teachers' association, fearful that they are next to be turned over to the tender mercies of the union bosses. Not the correction officers, who are directly affected by the order in question. And certainly not the elected representatives of the people -- neither your municipal officers from the towns and cities across Missouri, nor your elected representatives in the House and Senate. No private citizen. And no taxpayer. No one can challenge the governor in the issuance of an executive order.

Let's be clear: This official legal argument, advanced on behalf of the people of Missouri by the current occupant of the attorney general's office in his defense of this governor, is a breathtaking vision of unfettered executive power.

One is reminded of the quip, by the incomparable Bill Buckley, that conservatives are occasionally accused of wanting to "turn back the clock," but no conservative advocates going back to "the divine right of kings."

Stay tuned.

In a few months, we should have an answer from the appeals court as to whether we still have any semblance of a proper constitutional balance in your state government. Meanwhile, if the governor's argument stands, what is next for us in this rule-by-executive-order?

Peter Kinder is assistant to the chairman of Rust Communications and president pro tem of the Missouri Senate.

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