Lawsuit sounds out of tune to officials

JEFFERSON CITY, Mo. -- The Kansas City Symphony is getting some scathing reviews at the Missouri Capitol, but not because of its musical performances.

It's the symphony's court performance that has the governor, legislators and other arts groups irate.

The symphony has sued the state, claiming politicians have shortchanged the Missouri Arts Council Trust Fund by nearly $65 million over the past decade. With interest, the symphony is demanding the state give more than $83 million to the arts.

Ironically, the Missouri Arts Council is vehemently opposed to the lawsuit. Its chairman, Mike Vangel, calls the lawsuit "ill-advised," a "threat to the spirit of cooperation" among elected officials and the arts community and an "intemperate action by a single arts organization." In a letter to the governor, he offers to help "quash this lawsuit."

Based upon the reaction at the Capitol, the symphony members might just as well have put down their violins, cellos and horns and stormed the state treasury with rifles and swords.

"Government falls apart if this kind of lawsuit is ever successful," declared Senate Appropriations Committee Chairman Chuck Gross, R-St. Charles. He calls it "a slap to the face" of the Legislature and governor.

The reason for the sharp tone is that the symphony is challenging the power of Missouri officials to spend taxpayer money as they see fit.

It is a commonly held assertion at the Capitol that while a law may create a program, that program will not exist unless lawmakers actually appropriate money for it in the state budget, and the governor neither vetoes nor withholds that money.

The symphony's lawsuit claims the Legislature and governor have no choice but to provide money to the arts, based on a previously passed law.

A 1994 state law directed a portion of the Missouri income tax collected from visiting athletes and entertainers to the Missouri Arts Council Trust Fund. The specific language and allocation was altered in 1998 and again in 2003.

The law states a specific portion of the annual tax revenues "shall be transferred from the general revenue fund to the Missouri Arts Council Trust Fund."

Kansas City Symphony attorney Dick Miller emphasizes the use of "shall," as opposed to "may."

"When you use the word shall, that's mandatory, and you have to do it," Miller said.

But legislators and governors have not done as they said they would.

The lawsuit notes that the annual allocation to the arts fund fell short of the law's requirement during the 1997-2002 fiscal years. In 2003-2005, the state gave the arts fund nothing. In the 2006-2007 fiscal years, the state again appropriated part of the athletes and entertainers tax to the arts, but the amounts fell far shy of the law's language.

The lawsuit claims "the Missouri Legislature has no justification whatsoever for not allocating these principal funds."

To the contrary, elected officials say, the arts funding could not be justified during an abysmal budget period when funding for education and social services was getting slashed.

"I don't know anybody who really wanted to cut that money, but we were faced with dire circumstances and tough choices," said former Sen. Pat Dougherty, D-St. Louis, who served on the Senate Appropriations Committee.

Enhancing the symphony's affront, at least from the perspective of Gov. Matt Blunt and some lawmakers, is the fact that the arts trust fund transfer was boosted to $3.3 million in 2007 -- its highest level since the 2001 fiscal year.

Blunt had been considering a budget recommendation of $7.8 million for the 2008 fiscal year. But "he's reconsidering because of the lawsuit," said Blunt spokeswoman Jessica Robinson.

"Governor Blunt is a supporter of the arts," Robinson said. But "if there's an appropriation line that's under litigation, it's realistic that it may not be appropriate to fund that."

Adding to the intense emotion about the symphony lawsuit is its potential to reverberate.

For example, a 2003 law says the state "shall deposit" 25 percent of its annual revenues from a settlement with tobacco companies in the Life Sciences Research Trust Fund, beginning in the 2007 fiscal year. Blunt, accordingly, recommended $38.5 million for the life sciences fund this year. But the Legislature appropriated nothing because of some concerns the money could go toward embryonic stem-cell research.

Following the pattern of the symphony lawsuit, an entity that conducts life sciences research could sue the state seeking to force the funding, though none has.

To back up his lawsuit, Miller points to an August state appeals court ruling in a case where the city of St. Louis did not appropriate the full amount called for by its firefighter pension system.

Similar to the state, the city has an ordinance saying the amount certified by the retirement system "shall be appropriated by the city." The appeals court noted that "shall" could be either mandatory or merely directory. But given the context in the St. Louis case, a trial judge and appeals court both concluded it was mandatory. The Missouri Supreme Court heard arguments on the St. Louis case last week.

If the symphony's lawsuit goes to trial, the ruling could either affirm the Legislature's budgeting authority or force it to fulfill the promises of past laws.

After recently concluding 28 years as a lawmaker, Dougherty is curious about the outcome.

"You can't tie the hands of the Legislature" when appropriating money, he said, "yet you probably need a mechanism to try to keep faith with previously enacted stuff."