Plan to limit court power questioned

Monday, April 16, 2007 | 12:00 a.m. CDT; updated 1:12 p.m. CDT, Monday, July 21, 2008

JEFFERSON CITY — John Doe is getting tossed out of his home through eminent domain to make way for a new shopping complex, and he thinks he’s not getting paid enough.

City Council member Jane Doe fears a new state requirement will cost her community thousands of dollars in unanticipated costs.

And Joe Blow can’t believe the legislature decided to spend millions in state money on private and parochial schools.

All of these hypothetical people could be left fuming but unable to change the problems they see if critics of a proposed constitutional amendment are correct.

Awaiting action in the Senate is a proposal that seeks to limit state courts’ ability to question how the state spends its money. If the legislature approves the measure, voters could consider it as they choose the country’s next president in November 2008. Republican Gov. Matt Blunt supports the measure.

Supporters say it simply restates a well-established rule that courts cannot raise taxes and that only the legislature can appropriate money.

“It’s restating it so the Missouri Supreme Court will understand it should not go where some of the other state courts have gone,” said Sen. Matt Bartle, of Lee’s Summit, a Republican attorney and chairman of the Senate Judiciary Committee that endorsed the measure.

But opponents say the idea goes against the principle of three equal branches of government, and the wording could have far broader consequences than many realize, even though the Senate version is scaled back from the original House proposal.

“It still takes away the checks and balances,” said Sen. Jolie Justus, a Kansas City Democrat and attorney. “Courts would not have jurisdiction to hear any case related to taxation.”

The proposed language is short and seemingly simple. The latest version reads: “Under no circumstances shall a court of this state order the general assembly or executive to increase taxes or create new taxes. The appropriation of state revenues is the exclusive province of the General Assembly.”

But attorneys within and outside the legislature disagree on the effect of those words, and further changes are expected.

Critics say it would in effect prevent courts from considering any case that involves taxes or spending matters, even if the judgment didn’t specifically order higher taxes.

One factor driving the legislation is a lawsuit claiming the state doesn’t spend enough on public schools and doesn’t dole out its money fairly. Suing school districts want the state to spend up to $1.3 billion more a year. The trial wrapped up in late March, but a Cole County judge has yet to rule.

Supporters of the ballot proposal say other states’ courts, including neighboring Arkansas and Kansas, have ordered state legislatures to spend more money on education — and they want to prevent that from happening in Missouri. They also point to federal judges’ rulings in Kansas City and St. Louis school desegregation cases that cost the state many millions of dollars.

But others worry that imposing limits would simply flood federal courts with cases that otherwise would be handled at the state level.

“No Missouri court has ever imposed or threatened to impose a tax increase on the people of Missouri,” said Doug Abrams, an associate law professor at MU. “When you amend the Constitution to affect the jurisdiction of the courts, you always run the risk of the measure carrying unanticipated consequences.”

Justus criticizes the idea as merely “a partisan ploy.”

Bartle and other supporters say critics’ fears are overblown and that courts could still consider whatever cases they do now. But some Republicans are taking more of a wait-and-see approach, and it’s unclear how far the measure will get in the Senate.

Sen. Chris Koster, a Harrisonville Republican and former prosecutor, wants more information. For example, he pointed to critics’ concern that the language placing spending decisions exclusively with the legislature could wipe out the governor’s power of a line-item veto. That tool allows the state’s chief executive to deny money for a particular program without rejecting an entire department’s annual spending plan.

“I want to hear more about their side of the story,” he said. “I’ll make up my mind a few days before we vote.”

Notably, no member of the Judiciary Committee, which includes several lawyers, plans to present the bill to the Senate. That job falls to a freshman senator from Wentzville, business owner Scott Rupp.

As attorneys both support and oppose the concept note, if the measure is adopted, it’s likely to be challenged when the next case tied to state spending arises. So in the end, a court would have to determine how much the ballot proposal truly ties the hands of the court.

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