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Missouri high court hears challenge to 2010 ethics law

Thursday, November 10, 2011 | 7:16 p.m. CST

JEFFERSON CITY — Like loggers surveying a tree, the Missouri Supreme Court is deciding whether to chop down a far-reaching 2010 state ethics law or prune back only a portion of its many branches.

The state high court heard arguments Thursday from attorneys who presented a variety of possible solutions for the legislation — such as an outright invalidation of the whole thing, the elimination of the main provisions on ethics and campaign finance laws, or the stripping of only a single provision granting lawmakers keys to an exclusive tourist site atop the Capitol dome.

The court's decision will hinge on how it interprets a pair of provisions in the Missouri Constitution prohibiting legislation from containing more than one subject that is clearly expressed in its title and barring lawmakers from amending a bill to change its original purpose.

In March, Cole County Circuit Judge Daniel Green ruled that the legislation violated the constitutional ban on bills containing multiple subjects. He only let the bill's original section stand, allowing statewide-elected officials to use the Office of Administration to determine the best bids for their contracts and one amendment that also dealt with state contracts. Green said those sections both abided by the bill's original purpose.

The judge struck down the rest of the 69-page bill, including sections that had changed campaign finance laws, given 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. The judge also struck down the requirement that each lawmaker get a key to the Capitol dome.

On appeal to the state Supreme Court, attorneys for the plaintiffs and the state agreed the dome-key provision violated the constitution's restrictions.

Attorney Chuck Hatfield, representing those who challenged the law, argued the entire legislation should be struck down because it contained multiple subjects. That would be a departure from recent court precedent but a possibility that intrigued state Supreme Court Judge Zel M. Fischer.

"Maybe if there was no doctrine of severance, those interested in legislation would be more vigilant to make sure they were within the range of acceptability" when crafting legislation, Fischer said while questioning the attorneys.

Ronald Holliger, the general counsel for Attorney General Chris Koster, said striking down the entire legislation would set a bad precedent for legislators.

"That drastic remedy would allow someone who wanted to torpedo a bill to insert a poison pill," knowing the entire bill would fall if challenged in court, he said.

If the state Supreme Court believes part of the bill can be spared, Hatfield suggested it should do as the trial judge did and strike everything that did not relate to the original purpose of government procurement.

But Holliger suggested the state Supreme Court should instead look at the final title of the legislation — which declared "relating to ethics" — to determine which parts should stay or go. By that test, Holliger said, the provisions on ethics and campaign finance laws should be upheld. So too, he argued, could the original section on government contracting for elected officials, which he said related to the subject of ethics by allowing officials to avoid the appearance of a conflict of interest in handling bids.

Holliger also argued that judges should not look merely to the title of the original bill — which said, "relating to contracts for purchasing, printing, and services for statewide-elected officials" — to determine its original purpose. To do so would equate a bill's "purpose" with its "subject" — mixing the two separate constitutional provisions, he said. Instead, Holliger suggested judges should try to deduce the legislature's objective to determine a bill's original purpose. In this case, he said that original purpose was to improve ethics in government.


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