NEWS ANALYSIS: Missouri lawmakers test special session limit

Monday, September 12, 2011 | 5:11 p.m. CDT; updated 2:06 p.m. CDT, Wednesday, September 14, 2011

JEFFERSON CITY — Missouri lawmakers appear poised to give Gov. Jay Nixon more than he asked for during a special legislation session.

And that could create legal uncertainty for several high-profile issues, including Missouri's role in the 2012 presidential race, aid to Joplin tornado victims and the fine line between proper and improper Internet chats among teachers and students.

A week into the extraordinary session called by Nixon, lawmakers have in bipartisan fashion endorsed several bills that appear to go beyond the narrow agenda set by the governor. Under the Missouri Constitution, legislators are supposed to act only upon subjects specially designated by the governor while they are in special session.

Nixon, a Democrat, went to great lengths to try to limit the scope of the debate for what he hoped would be "a crisp, effective session." Lawmakers contend he went too far by setting such narrow parameters. If they pass legislation stretching the limits of Nixon's agenda — and if Nixon signs those bills into law — it could be up to a judge to decide whether the legislation is legal.

Here's a look at some of the issues on which lawmakers are challenging the boundaries of Nixon's agenda:

Teachers on Facebook

Nixon's agenda: To repeal a new Missouri law limiting teachers' interaction with students over online sites such as Facebook. Nixon's written proclamation specifically states that his repeal request "should not be construed to allow or permit amendments to those subsections or to otherwise enact revised or new language."

The Senate nonetheless is considering a bill that would repeal the current law and replace it with a requirement for local school districts to develop policies about employee-student communication via electronic media.

Sponsoring Sen. Jane Cunningham, R-Chesterfield, contends the constitution gives governors the authority only to set the matters to be considered during a special session, not to limit the legislature's action on those matters. Applied to this case, that would mean the governor could call upon lawmakers to consider the law about teacher-student communications but could not prescribe that they must repeal the law instead of revise it.

Cunningham cites a 1922 Missouri Supreme Court case that said a legislature in special session "does not have to follow the views of the governor and legislate in a particular way upon the submitted subject." That sentence, however, was not the main point of the court case. In fact, the Supreme Court ruled that lawmakers in a 1921 special session had gone beyond the governor's prescribed subject of creating justice-of-the-peace districts in St. Louis to also establish constable districts. The court struck down the law.

Democratic Rep. Chris Kelly, a former Boone County associate circuit court judge from Columbia, plans to handle the legislation in the House.

"The argument that it goes beyond the (governor's) call is constitutionally fatuous," meaning it is so wrong that it would be ridiculous to even make, Kelly said. "The governor can call a special (session); he can't define every little thing we do."

Presidential primary

Nixon's agenda: "To enact legislation moving Missouri's presidential primary to the first Tuesday after the first Monday in March" instead of in February as currently scheduled. The election change is needed for Missouri to comply with national Republican and Democratic party guidelines for the presidential race.

The House nonetheless passed a bill 147-2 last week that not only changes the date but also raises the filing fee that presidential candidates must pay to their political parties from the current $1,000 to $5,000 for the 2012 elections and $10,000 for the 2016 elections and beyond.

Sponsoring Rep. Tony Dugger, R-Hartville, cited a similar reasoning as Cunningham, asserting that the fee increase was constitutional because it related to the presidential primary even though it was not specifically mentioned in Nixon's proclamation setting the special session.

"I think the presidential primary is the matter here, and I think it's open after that — we can work on anything about the presidential primary," Dugger said.

What if a presidential candidate objects to the fee increase and challenges the law in court?

Dugger said he believed a judge could invalidate the fee increase while leaving intact the new election date. In the 1922 case, however, the Supreme Court struck down full legislation.

Disaster relief

Nixon's agenda: "To enact legislation establishing a mechanism for commercial property to be removed on a pro rata basis from the tax book if such commercial property is destroyed by a natural disaster." The intent is to provide a property tax break for businesses destroyed by the Joplin tornado or other disasters, similar to what already exists in some places for homeowners.

The House nonetheless passed a bill 149-0 last week that not only offers the particular tax break sought by Nixon but also authorizes special Tax Increment Financing districts in Joplin and other disaster areas that would divert state sales and income taxes to help with redevelopment.

Rep. Tom Flanigan, R-Carthage, who sponsored the amendment expanding the disaster relief legislation, said he wasn't concerned that it could go beyond Nixon's proclamation for the special session.

"It's certainly within the spirit," Flanigan said.

Although not mentioned on Nixon's agenda, the House also passed two other bills last week related to disaster relief. One would authorize the use of $150 million from the state's rainy day fund for disaster response efforts. The other would create a legislative committee to oversee the use of that money. Unlike with the other bills, sponsoring Rep. Ryan Silvey, R-Kansas City, acknowledges that the reserve-fund legislation goes beyond Nixon's agenda and thus would be unconstitutional. But lawmakers passed the two bills on the hope that Nixon would expand the agenda to cover them.

The governor, so far, has given no indication that he will bend his agenda to the desire of lawmakers.

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