KINDER'S COMMENTARY: FEDERAL COURT UPHOLDS LEGISLATIVE PREROGATIVE ON FUNDING ISSUE

A federal appeals court in St. Louis made news this week. Some background, from a column in this space published June 27, 1997:

"Let me see if we have this straight. On Thursday afternoon, Gov. Mel Carnahan signed the bills that make up the state budget. The big issue was what the governor would do with the House bill appropriating money for the Department of Health. This one contains language prohibiting any state money's going to Planned Parenthood, America's largest abortionist. The language was drafted in the House and approved overwhelmingly by that body and later by the Senate.

"... Gov. Carnahan had all along threatened a veto of this restrictive language, citing a federal judge's ruling last year that the Legislature can't single out one such provider and deny funding solely to them. Came the big day and the governor's split-the-difference decision: He would sign the bill into law and immediately ask Attorney General Jay Nixon to go back to that liberal federal judge's courtroom to ask him whether the state was in violation of the judge's order of last year, which came in another case.

"Excuse me, but has anyone asked the obvious questions, which are straight out of ninth-grade civics class?

"The governor had the option to veto the bill, an option he rejected. Once the governor signs a bill, it is the law of our state. (... The state's fiscal year begins Tuesday. Keep in mind also that a basic principle of American law is that our courts don't issue what are called `advisory' opinions, i.e., rulings that opine on the law even though there exists no true controversy between real parties. Carnahan is asking Nixon to go get him what amounts to ... an advisory opinion.)

"For whom, then, does the attorney general toil? That is, who is his client? Why, the State of Missouri, of course. And what is the heart of the oath of office taken by the ... attorney general? To defend the Constitution and laws of the State of Missouri, of course. Why then, are we witness to an attempt by the ... attorney general to void a law immediately after its having been signed by the governor? Does there exist any precedent in the entire history of the state for so bizarre an action?

"... The attorney general's job is to defend the laws of the state of Missouri, not to enter into a conspiracy ... to undermine those laws."

After this fiasco, a bipartisan group of us legislators forced Nixon to hire outside counsel (St. Louis attorney Jordan Cherrick, whose specializes in federal appellate practice) to do the job he, Nixon, is sworn to do: to defend our statute. Attorney Cherrick performed brilliantly for the state.

On Wednesday, a three-judge panel of estimable federal judges came through. The Eighth U.S. Circuit Court of Appeals reversed the liberal federal judge Nixon resorted to back in '97 and made confetti of the injunction he granted Nixon at the time. The result: game, set and match for the Legislature and a thoroughgoing humiliation for Missouri's attorney general. Mr. Nixon might want to dust off that old junior-high civics textbook for a review of what any ninth grader, C-student or better, could have told him about his fundamental duties.

In the meantime, one wonders whether it is too much to ask Mr. Nixon, as I did back in '97, "to cease and desist" from violations of his "oath of office, and to begin defending, rather than undermining, the duly enacted laws of our state."

Also: Jordan Cherrick for attorney general!

~Peter Kinder is assistant to the president of Rust Communications and a state senator from Cape Girardeau.