Category Archives: courts

A good time for a critical review

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As we have researched issues related to funding for construction of a National Steamboat Museum and a State Museum building, we have come to the conclusion that somebody should empanel a commission, task force, or committee to see if the laws and regulations on casino gambling in Missouri are best serving the interests of the six-million people who live here or are best serving the interests of the owners of thirteen businesses, all of which are headquartered in other states.

Frankly, we think things have evolved to the advantage of the latter and to the disadvantage of the best interests of the people of Missouri.

We don’t know if there has developed some kind of mysterious mental vortex on this matter, but it’s good to see that Speaker of the House Elijah Haahr has established an interim committee on gaming headed by Representative Dan Shaul of Imperial.

The committee already has held a hearing on Video Lottery Terminals. Efforts are being made to legalize them. Some people in the casino industry see them as illegal competition and folks in the home-dock cities of our casino boats are concerned those terminals will further erode patronage at casinos and the steadily-eroding financial support those cities draw from casino admission fees.

About two months ago, Platte County Prosecutor Eric Zahnd sued a company that provides VLTs. He says the company has put a couple of the illegal machines in stores in Parkville, where police seized five of the machines last year. The company says the machines are not “betting devices” because lottery results already are determined before the player uses the machine. The case apparently is set for hearing in December.

We understand from talking to Rep. Shaul that the committee also will examine issues such as proposed sports wagering and other things.

We’ve had casinos in Missouri since the spring of 1994. There is ample evidence that at least one part of casino law is badly outdated, allowing the casinos to make large profits at the expense of their home dock cities, veterans, and others. And there are some serious questions about proposed sports wagering legislation.

Speaker Haahr has taken an important initiative and members of the committee and members of the legislature next year might be asked to exhibit courage during an election season in the face of a politically-powerful industry to tilt the tables back to a more fair level for the all of the people of Missouri rather than thirteen businesses.

There is nothing wrong with casinos making a lot of money. The problem is how they keep it. And after a quarter-century, it’s time for a fair but critical look at an industry that seems (from this perspective at least) to have only one goal: to take as much money out of Missouri as possible—by obeying the law. But are laws passed in the early 90s valid a quarter-century later?

They are to the casinos, who correctly note they are obeying laws and regulations. But are they fair to the people who elect members of the legislature to watch out for the welfare of all of the people of Missouri?

Speaker Haahr has appointed the committee to answer that important question.

Sometimes you miss a turn

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—and you wind up in part of a long-ago Missouri political embarrassment.

I was headed back to my Illinois home town of Sullivan for a brief visit a few weeks ago when I missed the entrance to I-72 from Highway 54 and wound up in Griggsville, Illinois, a small town of about fifteen-hundred people that fifty years ago, or so, was linked to Jefferson City because of an event that some people in Griggsville and elsewhere thought was a major scandal.

Whatever you want to call it, the incident made national headlines—even in the New York Times. The incident/scandal came to mind as I saw the big sign painted on the wall of a downtown Griggsville tavern, just around the corner from city hall. The incident was known in Jefferson City—and Griggsville— as the Great Purple Martin Massacre. Griggsville had started calling itself the “Purple Martin Capital of the Nation” just two years earlier. At the time it was the home of Trio Manufacturing Co, the nation’s leading producer of Purple Martin bird houses.

This is the story, then, of how a little Illinois town and Missouri’s capital city suddenly had a lot in common.

It was the summer of 1967, a usual hot and muggy Monday night in the heart of downtown Jefferson City when five men armed with shotguns invaded the grounds of the Executive Mansion, ready to kill. It was August 21, fifty-two years ago today.

Governor Hearnes had been bothered for a month or more by smelly, noisy, roosting birds in the trees around the mansion, His spokesman told New York Times reporter Douglas Kneeland (whose career later included coverage of somewhat larger stories such as Charles Manson’s murders, Patty Hearst’s kidnapping, the Kent State shootings, Richard Nixon’s “Saturday night massacre,” the firing of special Watergate prosecutor Archibald Cox, and four presidential campaigns), that Hearnes “said to a sergeant in the State Highway Patrol who was on duty at the mansion on Monday, ‘Let’s try to do something about these birds.’”

The sergeant apparently took that to mean the governor had ordered a “hit” on the thousands of noisy starlings, maybe as many as ten-thousand, around the old white-painted mansion (Betty Hearnes later led the effort to wash off decades of paint so the beautiful brick could be seen). The word was passed along to Stan Diemler, the assistant to the director of the Department of Planning and Construction, who recruited two other employees, Roy Renn and Earl Campbell. They invited two other state workers, Ed Plogsted and Larry Jarrett to go starling hunting. This wasn’t the first time shotguns had been used to encourage starlings to find other roosting places. Diemler had consulted with the Conservation Commission on previous occasions and had been encouraged to poison the birds.

“Last time we tried poisoning them we didn’t kill any birds and just killed six pet squirrels,” he said later.

The shooting started about 9 p.m. Street lights provided limited visibility of the clusters of birds on the limbs above the men. About one-hundred shots were fired into the trees and about 2,000 birds dropped to the ground. But, said the spokesman, “In the course of the shooting, a little old lady called a state biologist who was a neighbor of hers and said someone was shooting those lovely birds.” The biologist showed up, got the killers to stop shooting, and started looking at the carcasses.

Not a single starling was found. The birds were Purple Martins, most of which were hauled away to be cremated. But some were turned over to the Missouri Department of Conservation, which confirmed that the five men had murdered birds protected by state and federal law and international compacts.

“It’s a sad story. I just wish to hell we could redo the whole thing,” the spokesman told Kneeland. “We made a mistake and we’re sorry. The Governor regrets this thing more than anyone else at the present time. He never would have condoned the shooting of Purple Martins. Nobody is his right mind would, particularly since we had a wet spring and there are a lot of mosquitoes around here.

You know, this has been done for several years previous to this. It has been S.O.P., standard operating procedure. Now the question has arisen in our minds as to whether we have been killing starlings all these years or Purple Martins.”

National umbrage made itself felt almost immediately. The National Audubon Society Executive Director Charlie Callison, a former director of the Conservation Federation of Missouri, admitted the birds do migrate in large flocks about that time of year. But, “If their droppings are offensive to anyone, all they have to do is call upon the local fire department to chase them out of the local trees with water from a hose line.”

Truth to tell, Purple Martins and Starlings can be easily confused, particularly in the dark, especially by amateur bird observers (as opposed to the more serious bird-watchers). Purple Martin Place, an internet site that advocates for the Martins, says they’re sometimes confused with Tree and Barn Swallows and European Starlings.

The European Starlings are darkly colored with some feathers of iridescent green or purple. Purple Martins are “blackish” colored. Males are “blueish-blackish” while females have chests that are creamy colored or grayish. The most distinguishing feature is the beak.

The European Starling beak is “long pointy and deadly…designed to unearth ground dwelling insects…bright yellow in color in both males and females. The shape of the head is more narrow and longer.”   The Purple Martin beak is “ALWAYS dark colored and much shorter with a downward curve…much wider at the base as it is designed to catch insects while flying.”

Within twenty-four hours the incident had gained national attention. Federal Game Management Agent John Hague, who lived in St. Joseph, was ordered to start a federal investigation.

Letters began to pour into Jefferson City from individual bird lovers and bird advocacy organizations demanding the heads of the shotgun five.

“Yes,” said Cole County Prosecutor Byron Kinder, “I’ll file charges,” a statement that quickly put long-time Magistrate Judge O. Lee Munger in the spotlight. “Let’s have a hearing,” he said.

The hearing November 15 was, as you might expect, a colorful event, highlighted by testimony from M. D. Anglin of Berryville, Arkansas, who once described Berryville as being “about eight miles, as the crow flies, to the Missouri line,” an interesting observation for the President of the National Association for the Protection and Propagation of Purple Martins and Bluebirds (NAPPPM&B), who claimed he had “fooled around with Purple Martins and Bluebirds” for 56 of his 62 years. He disagreed with the defense that Purple Martins had been known to break tree limbs. “Never heard of it before in my life,” he said. He maintained the only way to keep Purple Martins from flocking into a tree was to “cut the tree down,” a comment that prompted Kinder to protest, “But, Mr. Anglin, only God can make a tree!”

Anglin complained that man had spoiled nature with pesticides, insecticides, and even birth control pills for birds. He charged that most people won’t know anything about birds except that they have feathers and can fly. Personally, he said, he would rather clean up after Purple Martins and do without the mosquitoes they eat. As for Starlings—they’re so bad that even cats wouldn’t eat them.

“I don’t want to cut their throats,” he said referring to the five defendants. “Or I don’t want to see them shot because they didn’t know the difference between a Purple Martin and a Starling. If you shot everyone who didn’t know the difference, you’d have one big funeral.”

Munger and defense attorney Bud Wilbers hoped to keep any mention of Governor Hearnes out of the proceedings. But Anglin, who called himself “a fellow Democrat,” said he’s heard all kinds of reports about the killings, even that the governor——

But shouts from the dozen spectators, the two lawyers, and the judge cut that part of his testimony short.

Wilbers withdrew the earlier “not guilty” plea from the five shooters, who pleaded “guilty,” although Wilbers doubted Kinder could have made much of a case because it could not be determined which of the five men actually killed or wounded all those birds. Besides, “the defendants felt a moral obligation” not to “hide behind the law.”

Kinder, who had a bit of a flamboyant side at times, argued that the honest intentions of the men made no difference and that they should have looked into “what species they were dealing with” before they started shooting.

Munger wanted to know three things “for my own conscience” from the accused killers. Had the men been acting on their own or at the request of “someone else,” if they knew the birds were Purple Martins, and whether they would have shot them even if they had known it.

Diemler said “someone else’ had made the request. He said he decided to use shotguns because “this is the way it was done in the past” in getting rid of starlings. And, no, he wouldn’t have shot the birds if he’d know they were protected by law.

The five threw themselves on the mercy of the court. Munger find each of them fifty dollars plus $12.10 in court costs.

Among the onlookers were Thomas Coulson, the editor of the Purple Martin Capital News, published in Griggsville, who brought with him Wayne Bradshaw and George Mobus, a photographer and writer for the paper. They described themselves as representatives of the Griggsville Wild Bird Society, which had a membership of 12,000. He described the organization as having a “Madison Avenue approach” to selling the concept of protecting wildlife.

“We thought by this time in the Midwest everyone knew the difference between a Purple Martin and a Starling either by sight or sound,” he lamented. “It will take years again to build the martin bird society in this area.”

He found Munger’s judgment unsatisfactory. “If I went out and shot a duck that wasn’t in season I’d be fined $25 or $50 for each duck I shot. But here we had 2,000 federally protected species slaughter and all it cost them was $50 for the whole lot.” He considered the possibility the case could be prosecuted by federal authorities (it wasn’t). And, in noting that the birds are protected by compacts with other nations, “It could go as far as the United Nations.” It didn’t.

Retired Presbyterian minister A. B. Jackson, in his weekly column in the Jefferson City Sunday News and Tribune, observed a couple of weeks later that various groups were demonstrating for their rights in those days and “I suppose the purple martins would have liked to have some rights, but somehow they didn’t seem to have. The ‘purple martin incident’ is over, and a lot of folks would like it to be forgotten, but it leaves some unanswered questions. Such as, who ordered the shooting and why didn’t he come forward and take the blame? When someone said at the trial that the only way to get rid of the birds was to cut down the trees, someone remarked, ‘But only God can make a tree.’ True, but it is also true that only God can make a purple martin and it will take him some time to replace the 2,000 which were killed.”

For months after the trial, Governor Hearnes’ office received The Purple Martin Capital News, which had covered the massacre as most newspapers cover major wars. Prosecutor Kinder, who once opined that his knowledge of birds was not very extensive although he felt he could tell the difference between an ostrich and a hummingbird, also received gifts for several months, including a stuffed bird.

The incident appears not to have caused lasting damage to the major participants. Hearnes was elected to a second term as governor. Kinder became a widely-known circuit judge. Diemler later was a deputy sheriff and then Cole County Clerk. The incident is remembered, if it is remembered at all, as one of life’s embarrassing moments, although Purple Martin lovers would never dismiss it that lightly.

And Griggsville, Illinois, remains a small town about sixty miles west of Springfield, a town whose streets are lined with Purple Martin houses including a 70-foot tall, 562-apartment complex for the birds. Trio Manufacturing, founded in 1947, was a leading maker of television antennas until founder J. L. Wade started building Purple Martin houses and selling them throughout the nation. Wade, by then 93, sold his company—then known as Nature House and Nature Society, in 2006 to Erva Tool and Manufacturing Co., of Chicago. Production of Purple Martin houses ended in Griggsville in March of 2007 and the twenty-two employees were laid off. Erva today makes a lot of metal lawn and garden equipment, still makes metal Purple Martin Houses, and “the World’s Greatest Squirrel Baffles” (that’s the real name) to keep squirrels out of bird houses. And the company ships directly from its factory. No Amazon involved.

When I told the folks at the Griggsville City Hall I was from Jefferson City, Missouri it didn’t cause a stir. They hadn’t heard about the connection between Griggsville and the big state government scandal in Jefferson City so long ago.

It’s a nice, clean, little town just off I-72. You’d like it. And I bet if somebody says Griggsville is for the birds, the folks there would smile and say, “It sure is.”

Governor Mike and First Lady Teresa Parson have moved to temporary quarters while a much-needed extensive renovation and repair is made to the Governor’s Mansion. One nice touch during that effort might be to add a Purple Martin house to the place.   Have a little dedication ceremony for it. Invite the mayor of Griggsville. I bet he’d enjoy it.

(Photo credits: Griggsville—Bob Priddy; Mansion—Missouri Secretary of State; Purple Martin—Audubon.com)

Sponsorships

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State government never has enough money to fix the roads, educate our kids, take care of those of us in our declining years, pay our prison guards and state employees  enough to get off of food stamps, maintain hundreds of buildings it owns, keep our air and water safe, and a lot of other things.

I woke up on a Monday morning a few weeks ago with the solution.  I think it was the day after I’d watched the Indianapolis 500 in person and the NASCAR 600-mile race at Charlotte that evening on the telly.  It came to me that state government could make millions if it followed an economic model based on racing.

A few years ago the stock car race at Indianapolis was called something like the Your Name Here Crown Royal Brickyard 400 Powered by Big Machine Records.  Each year the name of some citizen—a private citizen who was a veteran or someone who had voluntarily done something of public benefit would be picked to fill in the “Your Name Here” part of the event name—a nice thing to do to recognize the importance of people like most of us who do good stuff just because we do good stuff.

And if you watch any of these events, you know that the first thing the winners do in the post-race interview is thank all the sponsors whose logos adorned their cars and are sewn onto their fire-resistant driving suits. “You know, Goodyear (Firestone) gave us an awesome tire today and our (Chevrolet, Honda, Toyota, Ford) had awesome power.  I’d like to thank Bass Pro, M&Ms, Budweiser, Coke, Monster Energy, Gainbridge, NAPA, and all my other sponsors who make this possible—and the fans, you’re the BEST!!!”

Suppose state government was run like that.

At the end of a legislative session, the Speaker and the President Pro Tem, in their joint news conference, began with “We have had an awesome, productive session here at the Anheuser-Busch Capitol powered by Ameren.”

“The Monsanto Department of Agriculture driven by the Missouri Farm Bureau will be better equipped than ever to regulate corporate farming through the Tyson CAFO Division.

“The Master Lock Department of Corrections employees are getting a significant pay increase; The Depends Division of Aging is expanding its services significantly; the Tracker Marine Water Patrol is able to hire more officers; and the Dollar General Department of Revenue is going to install new computers to get our H&R Block tax refunds out faster.

“The Cabela’s Department of Conservation sales tax renewal has been put on the ballot next year.  The Wikipedia Department of Higher Education driven by Nike has been given more authority to approve such programs as the Shook, Hardy & Bacon Law School at UMKC, the Wal-Mart Business School in Columbia, the Eagle Forum Liberal Studies program at UMSL, and technology developed at the Hewlett-Packard 3-D Missouri University of Science and Technology will now be capable of building new football facilities on our campuses for pennies..  And we found additional funding for the Cologuard Department of Health and its Purdue Pharma Division of Drug and Alcohol Abuse.

We also were able to put a proposal on the ballot next year to increase funding for the Quikcrete Department of Transportation.

“We couldn’t do all of the great things we’ve done in the 101st Session of the Citizens United General Assembly fueled by Laffer Economics without the support of all of our state’s other great sponsors.

“And we appreciate the participation of you citizens out there.  We couldn’t do this without all of you. You’re the BEST!!!”

And the confetti made from 1,994 un-passed bills would rain down and the legislative leaders would spray champagne (or, more likely, shaken-up Bud) all over each other in the Chamber of Commerce and Industry Legislative Victory Circle (previously known as the rotunda) and the legislative mascot dressed as the Official State Dessert would dance to a celebratory song performed by Sheryl Crowe, who next year will be chosen as a project by a third-grade class studying state government to be the subject of a bill designating her as the Official State Country Singer.

This would never work, of course.  We can’t see members of the legislature in uniforms that have state government sponsors’ patches all over them during the sessions or campaigning in outfits that have the logos of their donors.  And the Senate would just flat out refuse to tolerate anything that would eliminate Seersucker Wednesdays.

Even if government tried something like this, the Supreme Court would be tied up for years in lawsuits determining whether sponsorships should be calculated as Total State Revenue under the Hancock Amendment, thereby triggering tax refunds that would undermine the entire idea.  And Clean Missouri would get another ballot proposal approved by voters that would tie the Missouri Ethics Commission into knots trying to define whether sponsors constitute campaign donors.

Hate to say it folks.  In the real world, if we want better services or more services or better roads or prison guards who don’t have to hold two other jobs, it’s us taxpayers who will have to be the sponsors of state government.    And after all, shouldn’t we want to be

THE BEST?

Grasping to retain power, regardless

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We’re watching with interest efforts in Wisconsin by Republicans to limit the power of a newly-elected Democratic governor who will replace Scott Walker.                The New York Times reported yesterday:

“The long list of proposals Republicans want to consider also includes wide efforts to shore up their strength before Tony Evers, the Democrat who beat Gov. Scott Walker last month, takes office: new limits on early voting, a shift in the timing of the 2020 presidential primary in Wisconsin, and new authority for lawmakers on state litigation. The Republican plan would also slash the power of the incoming attorney general, who is also a Democrat…In recent years, single parties have come to dominate state legislatures, allowing lawmakers to make significant policy changes in states even as Washington wrestled with gridlock. But in states like Wisconsin and Michigan, where Democrats regained governor’s offices in capitals that Republicans fully controlled for years, Republicans are making last-minute efforts to weaken their powers…It is a model pioneered in North Carolina, where Republican lawmakers in 2016 tried to restrict the power of the governor after a Democrat was narrowly elected to the post. That set off a bitter court battle that continues to this day.”

There is nothing new in this.  In fact one of the most egregious examples happened here in Missouri. Only then it was Democrats who had controlled the state government including the legislature during the depression in a way that could make today’s two-thirds Republican legislature jealous. The state constitution then in effect required the Speaker of the House to make the official announcement of the election results at the start of the next legislative session so the winners could be inaugurated a few days later.

Governor Lloyd Stark, who had broken with the political boss in Kansas City, Tom Pendergast, could not succeed himself but in the process of what happened after the election he became the longest-serving single-term governor in Missouri history. With the demise of the statewide Pendergast machine, the organization run by St. Louis Mayor Bernard Dickmann became the dominant machine power within the Democratic Party.

Forrest c. Donnell (whose name was pronounced as if it was “Donald” without the “d”) campaigned heavily against Democrat machine politics and beat Lawrence McDaniel, his former Sunday School pupil, by 3,613 votes, the second-closest margin in state history. Democrats retained the other statewide offices.

Two weeks later, Democratic State Committee chairman C. Marion Hulen of Mexico proclaimed there was “an imposing array of reports, evidence of illegal use of large sums of money and of vote buying, of irregular voting and of alleged frauds.”  Another committee member claimed there was enough evidence to show McDaniel had won by 7,500 votes.

When the House convened on January 8, 1941, it passed a resolution barring Speaker Morris Osburn from announcing the results until a ten-member committee (of which six were Democrats) examined the ballots. Attorney General Roy McKittrick, one of those re-elected in November, held such an action was legal.

The committee recommended that Osburn certify the re-election of all of the Democratic candidates but it said Donnell should not be certified because of mistakes and fraudulent voting in the governor’s race.  The Republican committee members called the report a fraud and noted nobody had presented the committee with any evidence of fraud.

Inauguration day was January 13.  But there was no parade, no big event in the rotunda (inaugurations were indoors then), no inaugural ball.  Secretary of State Dwight Brown, Auditor Forrest Smith, and Attorney General McKittrick were sworn in for their third terms at the Supreme Court.  Lieutenant Governor Frank Harris, also a third-termer, took his oath in the state senate chamber because he constitutionally was the President of the Senate. Wilson Bell was sworn in as treasurer for his first term.

Donnell could have been sworn in by a Justice of the Peace (an office later replaced by magistrate judges who were even later replaced by associate circuit judges on the government charts) or some other qualified officer but he rejected the suggestion, saying he wanted to avoid further chaos.  Instead, he went to Jefferson City and asked the Supreme Court to order Osburn to announce him as the winner.

With those actions, Lloyd Stark could not leave office. He was to serve until his successor had been elected and qualified to take over. He was, to put it politely, urinarily agitated.

In what was to have been his final State of the State speech he announced he had vetoed the joint resolution seeking an investigation and said he would not approve spending any money for any such thing. He called for Donnell to be seated as governor and for any dispute about the results to “proceed in a legal and proper manner.”

His fellow democrats, not happy with his position, started an “absolutely bipartisan” recount anyway.  In mid-February the Supreme Court ordered the legislature to declare Donnell governor.  Osborn read the official document on February 20 declaring Donnell the winner.  The Senate majority leader immediately announced that McDaniel would file a declaration contesting the results.

Newspaper editorial writers from both sides of the aisle flayed the Democrats, the Joplin Globe saying “thousands of Democrats” had been “nauseated from the stench from the original office-stealing effort.”

Donnell finally was sworn in on February 26, in the rotunda. Stark, who said he had been “living in a suitcase since January thirteenth,” quickly headed back to St. Louis and his private law practice.

McDaniel’s 226-page election contest petition claimed that a complete recount would show him the winner by 30,000 votes.  State Republican Chairman Charles Ferguson laughed, particularly at the claim that hundreds of non-residents had voted for Donnell in Newton County in southwest Missouri: “It stands to reason that five or six hundred strangers could not show up to vote in a town as small as Neosho and get away with it.”  Neosho’s population that year was 5,318.

Donnell’s response was fifty-thousand words long and accused Democrats of the things they had said his campaign did.

The chairman of the recount committee, Senator Phil M. Donnelly of Lebanon, said the recount would not start until mid-April.   When it did, it was a disaster for McDaniel and the Democrats. By late May reports indicated recounts in eighty-one counties and St. Louis City had ADDED four-thousand votes to Donnell’s total. McDaniel met with Donnelly and agreed to file a letter withdrawing his request for a recount.  He did so without consulting party leaders who had pushed him to demand the recount and who had cooked up the claims of massive Republican vote fraud. McDaniel’s statement later seemed to be a slap at Hulen and his party allies when McDaniel said he had been “misled” by those who claimed he should be declared the winner.

The House and Senate met in joint session and in ten minutes declared the recount over with Donnell the winner.  Because the recount was never completed, his official victory margin remains 3,613 votes.

Democrats paid a heavy price for this escapade.  Several saw the writing on the wall and did not run again in 1942.  Several who did run lost their primary elections and many of those who got through the primaries were whipped in November as Republicans regained control of the House and pulled into a tie in the Senate.

Donnell was succeeded by Senator Donnelly, the senator who led the aborted recount effort. Donnelly later became the first governor to serve two full terms although he had to serve them separately because he was barred from succeeding himself but not prohibited from being governor again.

While Donnell was governor, a constitutional convention was called.  The new constitution, approved after he left office, prevents another effort to “steal” the governor’s election.  It says the Secretary of State, not the Speaker of the House, will certify the winners.

 

 

 

 

 

 

 

 

A tax gift, if we want it

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The U. S. Supreme Court has shown it can change its mind and a new ruling that lets states collect sales taxes from out-of-state internet retailers gives Missouri government a new opportunity as well as some new issues to confront.

All reasons for NOT collecting taxes on out-of-state internet sales seem to have been eliminated by the court’s narrow decision to throw out a 1992 ruling saying out-of-state internet merchants would not have to collect state sales taxes and pay them to the purchaser’s state unless the company had a substantial presence in a state.

That ruling in the early days of internet commerce put brick and mortar businesses in Missouri and other states at a disadvantage and they’ve been aggravated for years that the legislature hasn’t corrected the problem.  The legislature has said its hands have been tied by the 1992 ruling.

The ropes are off now.  We’ll be interested to see if state leaders next year call for passage of a law requiring collection of that sales tax.  There is no doubt the state could use the money.

The legislation will not be easy to write although the court ruling does provide some hints about what will work.

It would not be surprising to hear some voices claim—as they have in the past—that imposing sales taxes on internet merchants would be a tax increase on purchasers and therefore not something the state should lay upon the shoulders of taxpayers who have avoided sales taxes on certain purchases up to now.  We’ll have to see if that lame argument still has any legs in a state that continues to rank in various studies in the lower third of all states for overall tax burden.

The court ruling makes it harder to justify saying, “We’re pro business” while maintaining a sales tax policy that puts our home-town merchants at a sales disadvantage to businesses that exist on our computer screens.

And where do we get the idea that the computers on our desks or in our pockets are not some kind of a “physical presence” in our state? Let’s be honest and admit that the internet long ago became more a physical presence in our lives than Wal-Mart. We don’t have to drive across town to buy something on the internet, after all.

Checking out through Paypal is no different from checking out at the local counter.  The buyer doesn’t  physically stick a credit card into a slot at a cash register with Paypal.  But internet merchants do have a cash register right in front of us—the computer that is a very real physical presence. My brick and mortar house becomes an internet merchant’s physical presence in my town and my state every time I check out with Paypal or some similar system.  (Ohio tried to address the issue with a law saying the use of cookies on consumer’s computers by internet retailers constitutes a “presence.” The retailers are fighting the idea in court.)

The danger, as some might see it, to requiring sales taxes to be collected on internet purchases is that state revenue might increase to the point that some lawmakers will decide to once again ease the overall tax burden on Missourians again.

That idea is getting pretty old. And shaky.

Political commentator Josh Barro, a former staffer at the Tax Foundation (considered a conservative think tank) who contributes to Business Insider, observes in a new article that the court decision reminds states of the Constitution’s Commerce Clause that says states cannot unduly burden or discriminate against businesses from other states.

South Dakota, which brought the lawsuit, avoids that pitfall by providing those retailers with computer software that makes it easier for them to pay sales taxes.  It does not require those retailers to deal with the state and every political subdivision within it that charges sales taxes.  The money goes to a central state agency.  Our Department of Revenue, which collects sales taxes collected by our local businesses and then sends proper amounts to local governments, would fill that role with internet sales taxes.

Missouri has not joined the twenty-or-so states that have signed on to the Streamlined Sales and Use Tax Agreement.  Those states have agreed to some common rules dealing with their sales taxes.  This ruling might encourage a new legislature (The 2019 General Assembly will have new leadership and several dozen new members) to take a new look at the SSUTA as it considers what to do to capitalize on the ruling.

One of Barro’s former colleagues at the Tax Foundation, Joe Henchman, says, “If you want to be absolutely sure that your statute is valid under these rules, you should try to emulate South Dakota as much as possible.”  So that’s a starting point.

Barro makes an important observation that some Missouri leaders seem to have been going against for some time: “It is important for a tax system to be adequate—that is, revenues should grow on pace with the economy, so the government can keep pace with the demand for services as the economy grows.”

He notes tax-free purchases from internet retailers distorts the behavior of purchasers by encouraging them to buy online when they otherwise would buy at a local store, thus reducing local tax collections and that means “the government either has to cut back on services or it has to raise taxes on something else.”   The resulting erosion of sales tax income at the state level has put a heavier burden on property taxes and “taxpayers have revolted against increases in this inflexible tax, voting to impose caps that have in some states kept revenue growth well below economic growth.”

Add to that the penchant government has to lower various taxes under the philosophy that lower taxes will mean more jobs that will stimulate the economy and you can get a state that reduces services that industries and employers would like to see before they commit to creating jobs.

So Missouri has an opportunity because of the court ruling.

Justice Anthony Kennedy, writing for the majority in the Supreme Court decision, estimates the ruling could mean eight to thirty-three Billion dollars in annual tax revenues for the states.  The federal Government Accountability Office thinks Missouri’s share would be $180-275-million a year in state and local sales taxes.

Missouri could do a lot with that amount of money at the state and local levels.  Except—

We have the crippling Hancock Amendments.

Those parts of our state constitution put a ceiling on how much new taxes can be collected without a statewide vote.  State Auditor Nicole Galloway, a little more than a year ago, estimated that taxes at the statewide level could not increase by more than $94-million without such a vote. We’re not sure how much of the figure from the GAO would go to the state and how much would go into local government revenue accounts, but Hancock appears to put a cloud over the issue at the state level.

Before the passage of what was called Hancock II, the state had to make refunds to income tax payers if state revenue growth exceeded the original Hancock limits. The state did make those refunds for a couple of years before adopting the first of a series of tax cuts to make sure the state did not to go to the inconvenience of mailing out checks.  The state hasn’t come close to hitting the refund threshold since Hancock II. In fact, Auditor Galloway says Missouri is four BILLION dollars under that limit now.

Will voters support the new authority given Missouri by the U. S. Supreme Court to collect more than $94-million in internet sales taxes?  Will collecting six or seven or eight cents per dollar from an out-of-state internet seller increase state revenue so much that a statewide vote will be required, giving Missourians a chance to reject the proposal?  The GAO and the state auditor have put forth figures indicating that vote might be needed.

We have had about two decades of leadership telling voters their taxes are too high. We’ve seen voters who travel to the polls on increasingly bad roads that go across increasingly crumbling bridges refuse to support gas tax increases to make their journey smoother and safer. And the legislature has taken steps year after year to reduce the state’s financial ability to “keep pace with the demand for services as the economy grows.”

The court has presented Missouri with a gift.  Will Missourians decide to leave it unopened?

(You can read Josh Barro’s article at https://amp.businessinsider.com/supreme-court-wayfair-internet-sales-tax-decision-good-for-consumers-2018-6)

Collateral Damage

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Eric Greitens thought the Missouri governorship would be a step toward the White House. Instead it became a step off a cliff.

He was, as he claimed in his campaign, an outsider, which might be the only part of his campaign that turned out to be true.  He did not clean up state government, as he promised.  His administration is more likely to be remembered for arrogantly being an example of what he promised he would fight.

Six days before he announced he would resign, Team Greitens sent out a typical Greitens message:

“We knew that these baseless allegations would be exposed for what they really are: false attacks brought forward by powerful liberals and Democratic leadership. And that’s exactly what’s happened. The cases against him have been dropped or dismissed.”

Team Greitens knew that not all charges had been dropped or dismissed, knew that the pit was only growing darker.  And Team Greitens surely knew the claimed falsity of the attacks was growing weaker by the day or even by the hour. 

In his announcement of his impending departure, he went back to familiar themes voiced less than a week earlier that, frankly, sounded convincing only to his do-or-die supporters:

“This ordeal has been designed to cause an incredible amount of strain on my family. Millions of dollars of mounting legal bills, endless personal attacks designed to cause maximum damage to family and friends. Legal harassment of colleagues, friends and campaign workers, and it’s clear that for the forces that oppose us, there is no end in sight. I cannot allow those forces to continue to cause pain and difficulty to the people that I love.”

He can blame the “corrupt career politicians” who were his proclaimed enemies as much as he wants.  He can blame “liberals” for destroying the “conservative agenda” he was fighting for as much as he wishes. He can claim the ordeal his family and supporters have been through was “designed.” He hasn’t used the term “fake news” to describe the media that covered his hypocrisies and his personal and political failings, but he did try to control the message and manipulate its delivery as no governor before him had done—and, we hope, as no future governor will try to do—and did blame the media for reporting “lies.”

He can blame everybody he wants to blame but the blame begins and ends with Eric Greitens.

Significantly, he did not announce his planned resignation until a former campaign worker provided some devastating information to the special House committee considering whether to file articles of impeachment and not until a Jefferson City circuit judge had ruled that the committee was legally entitled to obtain documents from the Greitens campaign fund and from the nonprofit organization he set up to push his agenda—including ads attacking those who opposed him, even legislators within his Republican Party.

In truth, Eric Greitens ran for the office of Unit Commander, not Governor.  In the end he still has a platoon of loyalists churning out toothless rhetoric blaming everyone for his situation but Eric Greitens.  Somewhere along the way this much-vaunted SEAL team member forgot the importance of being part of a team.  As far as we know, SEAL teams don’t go around calling each other names and insinuating that they’re not worth being on the same team as the leader.  But then, leaders don’t accomplish much when they shoot at the people they need to have behind them.

But Greitens did that repeatedly with his broad-brush condemnation of the members of the General Assembly. He did not seem to recognize during his campaign and never seemed to concede during his time in office that he could accomplish little without forming relationships in the legislature. Somewhere in his highly-publicized great education he apparently ignored the idea that there are three branches of government, not just the one in which he served.

There is a sense of betrayal about the governorship of Eric Greitens.  He wasn’t what he said he would be.  Some would even argue that he wasn’t even what he said he was.

The saddest thing about Eric Greitens is the damage he has done to others because people like him take others down with them, many of them innocent.  All of the people who believed he could take them along in ever-higher circles of power and influence, even as the evidence piled up against him to the contrary, are now his victims, his collateral damage. They now are seeing his disappointment while dealing with their own and that of their friends.

“The time has come…to tend to those that have been wounded, and to care for those who need us most,” he said in his resignation announcement. 

“Those who have been wounded” include many voters who supported him because they bought his promises to make government cleaner, more principled, more of a service to all of the people, more honorable. They were not wrong for believing in him because we have to believe in somebody’s words. It would not be surprising if many of those voters who supported him because they deeply distrust government find their distrust even deeper now because Eric Greitens seems to have turned out to be at least as bad as those he disparaged during his campaign. They are collateral damage not just now but perhaps in the future because some will wonder even more if they can trust anybody seeking or serving in public office.

There’s one victim in particular who might be collateral damage, who might be the most wounded of all.

We think of this person because of something we heard another former governor talk about many years ago.

In 1976, Missouri had a young, ambitious governor who was seen as a rising star in the Republican Party, so much so that President Gerald Ford had him on his list of potential running mates when the party held its convention in Kansas City that year.   The young governor would be challenged for re-election by a populist who focused his campaign on promising to do what he could not do legally or economically—fire the Public Service Commission and lower utility rates.  Christopher Bond and his campaign failed to recognize the popularity of the Joe Teasdale promises, unrealistic though they might be, and never strongly attacked those promises.   In November, Bond lost by about 12,000 votes.  A career trajectory that might have taken him to the highest national levels nosedived.

Afterwards he spoke of the impact his crushing disappointment had on his then-wife, Carolyn.  His dreams of a second term as governor and then a rise to greater position nationally seemingly had been killed by that election outcome.  But, he recalled, the burden was double for her.  A First Lady of the state, married to a man whose political future seemed unlimited before November, 1976, saw her own dreams crash and burn in that election, too.  She had to deal with her disappointment while also dealing with his.  She carried a double burden.

We do not presume to know how Sheena Greitens has dealt with, is dealing with, or will deal with the events that have led to her husband’s downfall.  The cold reality is that those who attach themselves to a rising star whether family or friends or believers should understand that they can get burned when the star becomes a meteorite.  That does not, however, lessen the pain when that happens.

But wallowing in despair will do none of them any good.

The earth won’t stop turning while people such as Eric Greitens and his supporters rant against the collapse of their worlds or mourn their personal losses.  History is replete with examples of those who stumble or fall whose dishonor is not their doom.

The premature end of a governorship is not necessarily the end of life in public service, elected or not.  And the world doesn’t care if Eric Greitens and his friends feel sorry for themselves. He has no one to blame but himself although it might take a while for him to admit it.  He has to get on with life without being in government.

—because government will get on with life without Eric Greitens. And so will the people of Missouri.

We are reminded of some of the words from Carl Sandburg’s great poem, The People, Yes:

The people will live on.

The learning and blundering people will live on.

They will be tricked and sold and again sold

And go back to the nourishing earth for rootholds,

The people so peculiar in renewal and comeback,

You can’t laugh off their capacity to take it…

 

In the darkness with a great bundle of grief

the people march.

In the night, and overhead a shovel of stars for keeps, the people

march:

“Where to? what next?”

 

Whether state government learns any lessons from the Greitens experience and in so doing develops the courage to take actions that will rekindle confidence among the people it serves or whether it will allow the people to “be tricked and sold and again sold” is something to watch for. But many people who were skeptical about government before Greitens used that skepticism to help him get elected are even more skeptical when they see how he turned out. The job of turning them around will be even harder now should anyone make a sincere effort to try.

But, as somebody once said, the mission continues.

Suspension (a continuation of last week’s discussion)

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Last week’s entry about whether a governor facing a criminal charge and/or impeachment could be suspended with or without pay until his or her criminal situation cleared up brought a response from longtime colleague Bob Watson, who has had his nose deeper in the statute books and the Missouri Constitution than your faithful scribe has had his.

Bob thinks we already have what was discussed in that entry, pointing to Section 106.050 of the statutes, reading, “If any officer shall be impeached, he is hereby suspended from exercising his office, after he shall be notified thereof, until his acquittal.”

Bob also recalls that when the Attorney General tried to oust Secretary of State Judi Moriarty after her impeachment, the Missouri Supreme Court suspended her with pay until her impeachment trial ended. The ruling said the only allowable means of removal of a statewide elected official is through the impeachment process and the legislature could not legally enact laws automatically removing any elected executive official.

And three responses to last week’s entry (posted with the entry) from Bill Thompson offered similar clarifications.  We thank Bob and Bill for their assistance.

Our entry last week spoke to suspension before impeachment, however.  But suspension does involve removal from the office and it seems Bob is correct that a suspension before impeachment wouldn’t work.  It seems, therefore, that our point last week that a governor is, indeed, not like other workers who can be suspended upon filing of criminal charges. In his case, impeachment charges have to be filed, too.  Or at least as we now understand it.

We had overlooked one possibility covered by Article IV, section 11B of the State Constitution, which sets up a Disability Board made up of the lieutenant governor, secretary of state, the auditor, treasurer, attorney general, the president pro tem, the speaker of the house, and the majority floor leaders of the two chambers.  That board has the power to declare a governor unable to discharge the powers and duties of his office, upon which finding the gubernatorial succession protocol kicks in.

That only time we know of that such a board met and took action was in the hours immediately after Governor Carnahan’s plane crash, before confirmation of his death.  The board met and cleared the way for Lt. Governor Roger Wilson to become acting governor until there was that confirmation, at which point he was sworn in as the governor.

While some have questioned the governor’s ability to govern under present circumstances, he has been making the point that he can “discharge the powers and duties of his office,” by making appointments and making public appearances and speaking as the elected chief executive of the state.

The discussion highlights the uniqueness in Missouri history of today’s situation, however.  However it turns out will be an important guide should Missourians ever face something like this again.

—–

In a related note, we see that Rachael Herndon Dunn, the editor of the Missouri Times newspaper (which is different from the Missouri Times quarterly newsletter of the State Historical Society of Missouri and the earlier Missouri Times newspaper of the 1970s) says in the latest edition of the newspaper’s magazine that the three people she would pick, if she could pick three people to join her for dinner, would be Bob Griffin, Bill Webster, and Eric Greitens.

Interesting.  But what could they possibly have in common to discuss?

The Process

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This is a time of strong opinions, strong statements, and strong actions.  In such times it is important to recognize there is The Process.

The Process often is ugly.  The Process often is painful. The Process often seems to take longer than it should.

But The Process is what assures us that there is order.   And without order there is no justice.

This is one of those times when The Process emerges from its normal daily work to become a prominent factor in our state political system.

This observer has seen two Speakers of the House and one Attorney General sent to prison. He has seen a Secretary of State impeached and removed from office. He has seen a State Treasurer exonerated after being charged with profiting from state funds. He has covered criminal proceedings against at least seventeen members of the House and three members of the Senate that resulted in convictions or guilty pleas to misdemeanors and to felonies.

In forty years of front line reporting in state government, he watched 1,032 people serve in the General Assembly, interviewed or covered (in one form or another) eleven governors, nine lieutenant governors, eleven Secretaries of State, eleven state auditors, ten state treasurers, and eight attorneys general.  Now he is watching something new and wondering how, in the end, this circumstance will fit into the list of those mentioned in the earlier paragraph.

For the first time in state history a sitting governor faces both criminal proceedings and the potential for removal efforts.  People from both sides are calling for him to resign.

The Process has become his greatest protection as well as his greatest threat.  It diminishes emotion.  It provides a structure for a balanced determination of justice.  It is not perfect but The Process gives balance in times of fierce attacks and equally fierce denials.

A special House committee has presented its first report of the legitimacy of allegations against the governor, who has called its work a “witch hunt.”   The committee was led by an honorable chairman, wisely picked by a Speaker who has chosen to respect The Process despite the difficulties the committee’s hearings might cause for several people whose lives have been altered by events. The committee has not judged the governor but it has concluded the key witness against him is credible.

The governor says the report was drafted without any testimony in his own defense. The committee reports the governor refused invitations to testify.  The governor says he will testify after his criminal trial ends and that is within his rights. Simply put, the stakes are higher in his criminal trial than they are in the committee’s study.  Potential loss of office is serious but not nearly as serious as a potential conviction and possible loss of freedom in the criminal case.  The governor’s decision is not really that hard to make under those circumstances. It is a legitimate part of The Process.

While the committee’s first report seems to be devastating news for the governor, it also is valuable news to the governor because it provides him and his defenders with a strong preview of the kind of testimony they will have to attack in the criminal proceeding next month.  It also provides them with a challenge.  They must determine how to undermine the credibility of that testimony without antagonizing a jury.  The governor says he is confident a jury of his peers will exonerate him.  His lawyers gain through this report an understanding of a fine line they will have to walk in disputing the validity of the testimony without making the witness so sympathetic in the eyes of the jury that the jury of peers tilts the wrong way for their client.

It’s The Process at work.

The committee report strengthens and increases the resolve of those who demand the governor resign. But it also strengthens his position that he should stay because a report is not a jury nor are those demanding his resignation jurors.  As long as The Process considers a person innocent until proven guilty within The System, he is innocent.

He still retains the powers of governor although his ability to govern remains badly weakened. But if he resigns the office he was elected to hold and then is found not guilty of criminal charges, he has no way of returning to the office in which the voters chose him to serve.

The Speaker and the President Pro Tem have said the legislature will start its process of convening a special session to consider penalties for the behavior described by the committee’s witness.  Voters in 1988 approved a constitutional amendment letting the legislature convene itself in special session for as many as thirty days without a call of the governor.  Article III, Section 20(b) says the session can be called by three-fourths of the members of the House and three-fourths of the members of the Senate, a big requirement but a possibility given the committee report and the existing poor relations between the governor and the legislature.

The House does not have the power to remove the governor.  It can only file charges.   The Senate, in the case of a sitting governor, does not have the power of removal either.  Its authority rests in appointing seven “eminent jurists” to conduct a legal proceeding.  Again, The Process brings the matter into The System where justice is determined, we should all hope, in a non-partisan and less emotional setting. Only those jurists can determine if he should forfeit his office.

This also is a time for firm hands on the reins in the legislature.  While the committee continues investigating the governor—-and there is no indication when it might drop the other shoe—the legislature still has about five weeks to focus on its lawmaking responsibilities.  The legislature must provide a budget that will keep government services going to the people who need them.  It also must determine the fates of several issues that will affect the hourly lives of Missouri citizens. That is its responsibility until 6 p.m., May 18.

It is not precluded, with three-fourths of the members agreeing, during that time from setting a date for the House to begin impeachment proceedings in a special session.  It might choose—out of respect for The Process—to set dates that do not conflict with the governor’s right as a citizen to obtain a fair trial. That’s The System, maintaining order in the legislative process.

The governor, as is his prerogative, is entitled to his office until he is removed or disqualified from holding it.  While retaining his position is not popular with many people, it is his prerogative.

The Process is in place and it is moving.   It is protecting the governor while at the same time threatening him, as it would do with you and me if we were facing serious accusations.  The result might not be what you or I would prefer.  But The Process is, in the end, our best hope for justice for you and me.

And for the governor.

(image credit: brainyquote)

Succession

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What happens when the office of Missouri Governor becomes vacant?   That’s an important question but a more complicated one is what happens when a vacancy in the office of governor leads to the vacancy in another office? We’ve been asked about this in recent days. And, as we emphasized last week, we do not want to anticipate what might happen in this difficult time for so many people, but people have asked. So we will explore that a little bit.

Before we plunge into today’s topic, we want to offer a clarification to our last column about impeachment. The Missouri Supreme Court does indeed handle impeachment trials of state officials EXCEPT in the cases of Supreme Court members and Governors. In those instances, the trial is conducted by “seven eminent jurists” elected by the Missouri Senate. We thank our longtime friend King Marc of Arcania, from whom we have not heard for too long. Arcania is a small kingdom within the Missouri Capitol. Now, on with today’s exploration.

Some recall that we offered some thoughts several years ago in the wake of the death of Governor Carnahan and the ascension of Lieutenant Governor Roger Wilson to the governorship.  That’s provided for in the Missouri Constitution.  After that——

Well, it appears to his non-lawyer that all of the cards are wild.

Blame Bill Phelps.

Back in 1972, State Representative William C. Phelps of Kansas City was elected Lieutenant Governor under the campaign promise that he would make the office a “full-time” job.  Full-Time Phelps, he was called.   Until then, the light governor’s main job was to preside over the Senate—a job the Missouri Supreme Court later limited—and to step in when the governor died or was incapacitated.

Well, Phelps created some new responsibilities for that office and the legislature over time assigned more duties to actually make it a full-time post.  So now we have an office that has obligations.  And if the person in that office has to move up to the big room on the second floor, what happens to those obligations?

Simply put:  They remain the obligations of an office that has no one to fulfill them.

The gubernatorial succession part of our Missouri Constitution says the President Pro-Tem of the Senate becomes the Governor if the Governor and the Lieutenant Governor die or are incapacitated.  It does NOT say the Pro-Tem moves up to Lieutenant Governor if that office becomes vacant.  Nor does it say the Pro-Tem assumes the responsibilities of that office.  It might be illegal anyway because that would mean that person would have one foot in the Executive Branch and the other foot in the Legislative Branch.  The Pro-Tem could not resign from the Senate and move into the Lieutenant Governor’s office because there is nothing in the Constitution that allows that. Besides, if that person resigned to take the office, he or she couldn’t take the office because their resignation would take them out of the line of succession.

The Missouri Constitution is silent on how the obligations added to the office since the Constitution was written more than sixty years ago are met when the office becomes vacant.

The office did go vacant for a short time in 2000 until Governor Roger Wilson appointed Lieutenant Governor-elect Joe Maxwell after the November election to hold the job until his regular term began in January, 2001.   The question was raised then, however, whether that appointment was legal.  The Missouri Constitution appears not to give the Governor the power to appoint someone who could become his successor should the Governor resign or become incapacitated. Maxwell has always maintained that legal experts consulted at the time felt the appointment was legal.

The legislature tried to solve that problem in 2013 but Governor Nixon vetoed it.

The bill would have left the office vacant until the next election.  It said that a staff member of the departing Lieutenant Governor would be picked to handle the ministerial duties of the office.  The Senate President pro tem would handle the Lieutenant Governor’s duties in briefly presiding over the Senate.  Nixon called that situation “confusing and untenable.”  He did not want the constitutional duties of the office turned over to a “vaguely defined staff member.”  He also noted the bill called for a general election for the office but did not mention a primary election.  That was important, he argued, because it meant the political parties would select the contenders for the office, not the people.

Nixon did not like the bill’s lack of definition of “ministerial duties” nor its failure to formally create a process to appoint the person to do those jobs.  His veto message questioned the propriety of having an unelected staff member replacing a statewide elected official, particularly if that position became vacant because of impeachment or criminal activity involving the office.

Those who follow Missouri politics will recall that the issue arose when Lieutenant Governor Peter Kinder was thinking about trying to replace Congresswoman Jo Ann Emerson, who had resigned to take a lobbyist job.  When Kinder did not win his party’s nomination, the issue faded away. At the time, Nixon—a Democrat—maintained he could appoint a new Lieutenant Governor.  The Republican-led legislature disagreed.

The issue now has arisen three times in less than twenty years.

There have been several times in Missouri’s history when the office stayed vacant until a new Lieutenant Governor could be elected. Eight times in the first seventy years of statehood the office remained vacant. The longest time was about forty-one months. That was the first time. Lieutenant Governor Benjamin Reeves resigned to join the party surveying the still-new Santa Fe Trail. When Governor Frederick Bates died in the summer of 1825, Senate President Pro Tem Abraham Williams, a one-legged shoemaker from Columbia, became the Governor. He was confronted by the question of whether the state could afford an election to pick a new governor or whether he should remain. He chose to have an election in which John Miller was elected to finish the Bates term and then was elected to a full term of his own. He remained the longest-serving Missouri Governor (in terms of consecutive years) until Warren Hearnes became the first governor elected to a second consecutive four-year term in 1969. Williams then returned to his Pro Tem role in the Senate.

There was no Lieutenant Governor after Lilburn Boggs succeeded Daniel Dunklin, who resigned to become United States Surveyor General for Illinois, Missouri, and Arkansas (he was responsible for the Missouri-Arkansas state line). M. M. Marmaduke succeeded Thomas Reynolds, who committed suicide in 1844 and the number two office remained vacant. Lieutenant Governor Wilson Brown died in office in August of 1855 and the office remained vacant until January, 1857. The office was vacant for eight months when Hancock Lee Jackson succeeded Trusten Polk after Polk was elected by the legislature to the U. S. Senate early in 1857. There was no Lieutenant Governor when Willard Hall replaced Hamilton Gamble, who died in office in 1864. The office was vacant for about eight months after Lieutenant Governor Joseph Gravely died in office in April, 1872. When Governor John Marmaduke died in office at the end of 1887, Albert Morehouse moved up to Governor and the office was not filled again until January, 1889.

Something interesting happened, however, in 1903 when Lieutenant Governor John Lee quit after admitting he had carried bribe money from the Royal Baking Power Trust to four Senators, buying their votes on a bill establishing the ingredients for baking Powder that shut down Missouri manufacturers and favored the Royal powder. Remember that one of the jobs of the Lieutenant Governor was to serve as President of the Senate. One contemporary newspaper account we have seen notes that Lee’s departure left the Senate without a presiding officer. Senators elected Pro Tem Thomas Rubey as the temporary presiding officer of the senate, i.e., the Senate President. With that designation, says the account, Rubey thus “fell heir” to the Lieutenant Governorship. Rubey is the only Pro Tem listed as a Lieutenant Governor.

The office was vacant for a few days when Frank Gaines died on December 30, 1944, a few days short of completing his third term in the office (which many years later made Peter Kinder the only person in Missouri history to COMPLETE three terms in the office. Walter Davis, who was elected to succeed Gaines, took office on January 8, 1945.

When Edward V. Long resigned to replace Senator Thomas Hennings, who died in the fall of 1960, Governor Blair did not appoint anyone to finish the term. Hillary Bush was elected a few weeks later and was sworn in in 1961.

Thomas Eagleton resigned just before Christmas, 1968 after having been elected to replace the retiring Stuart Symington. Symington resigned his Senate seat early so Eagleton could be sworn in a few days early, giving him some seniority over those who were not sworn in as senators until January. Governor Hearnes appointed William S. Morris to fill the rest of the Eagleton term until Morris could be sworn in for his own term as Lieutenant Governor.  That infuriated Pro Tem Earl Blackwell, a strong opponent of Hearnes (reportedly he was upset that Hearnes supported Morris instead of him in the campaign for the number two job), who threatened to throw Morris out of the chamber if he came in to preside.  Blackwell maintained the appointment was illegal. Morris didn’t darken the Senate’s doors until after he’d been sworn in for the full term.

The role of the Lieutenant Governor as the President of the Senate became so insignificant that in the 1980s, outgoing Pro Tem John Scott and incoming Pro Tem Jim Mathewson ousted the Senate President/Lieutenant Governor from the office created for that person and moved incoming Lieutenant Governor Mel Carnahan into some renovated committee rooms on a lower floor. What would have been Carnahan’s office became the Pro Tem’s office. When Kinder was Lieutenant Governor, he and the head of the Office Administration arranged for the Lieutenant Governor and the State Auditor to switch office rooms. The fulltime Lieutenant Governor’s office staff had expanded enough that it needed the extra space and most of the employees of the auditor by then worked in another state office building.

What’s the solution?  The legislature can try again to write a law.  Or a constitutional amendment that would fill the apparent void in the constitution.

When we wrote about this on the old Missourinet Blog several years ago, we suggested that the new governor appoint someone to serve in the office and carry out the duties of it, someone who would willingly become the target of a test lawsuit that could provide some clarity to what needs to be done to correct the problem—which means the lawyers on both sides would have to carefully word the lawsuit to achieve from the courts the desired result.  We suggested the person for the job be someone with no pretentions about using it for future political gain, perhaps someone with no particular party loyalty so neither party could make claims that the other was trying to take advantage of something.  The person would be content to be a footnote in Missouri history, a sacrificial lamb I think we called it, someone appointed to hold the office and see that its duties were carried out until such time as the courts and subsequent elections eliminated the problem.  A lot of people can gavel the Senate into session each day, call for the chaplain to pray, and run down the order of business before turning the gavel over to a senator to preside—which is what usually happens.

Perhaps the procedure used in the wake of Mel Carnahan’s death and posthumous election could provide a guideline for a clarifying law or amendment—allowing the governor to appoint a Lieutenant Governor to serve until the next general election when someone would be elected to complete the remainder of the term. As you might recall, Jean Carnahan served for two years in her husband’s place but lost a bid to serve he remaining four years.

Whatever. The answer is out there somewhere.

If only Bill Phelps had not decided to make the office a fulltime job…..

 

 

 

Kander and Greitens and the right to kneel

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This will make some of you uneasy.  It will make some of you angry.

In this campaign year where two of our major candidates are making as much hay as they can by emphasizing their military service, it is worth remembering—-

Jason Kander and Eric Greitens served for the right of Colin Kaepernick and others to kneel during the National Anthem.

They served for the right of Donald Trump and Hillary Clinton to have the right to run for President of the United States and say things, true or lies, about each other.

They served for the right of some, on college campuses and elsewhere, to shout racial or cultural epithets at others.

They served for the right of some to picket at the funerals of their military colleagues.

They served for the rights of others to brand the Kaepernicks of this country as idiots and traitors.

They served for the rights of others to brand Donald Trump and Hillary Clinton as liars and traitors.

They served for the rights of others to protest a culture that allows racial and cultural epithets to be applied to them.

They served for the right to be wrong from whichever side of right and wrong you choose to take. They served for this observer’s right to observe and for your right to react to those observations.

They served for the rights of all of us to see our country and our society with different eyes influenced by different backgrounds and experiences.  They served against philosophies that dictate only one idea of patriotism, nationalism, and religion can be allowed, often with fatal consequences to those to differ.

They served so that each of us can stand for the national anthem, if we wish to do so, in a country that allows us to decide what the song and the flag stand for or should stand for—-and thinking such thoughts is not an unhealthy exercise in a nation that is unafraid to admit it has flaws.  We are unafraid, aren’t we?  Or have we forfeited the freedom to be unafraid?

A few days ago, the first enlisted black Marine to both be selected for the Naval Academy Preparatory School and graduate from the Naval Academy, wrote of this issue.  He served twenty-two years in the Navy and the Marines before going into television.  The Montel Williams Show last seventeen years.

Williams thinks some of Kaepernick’s behavior has been “childish and counterproductive” and ignores “the OVERWHELMING majorities of police officers who serve with honor and distinction.” But he also thinks “the threats and cruelty directed against many of these athletes should scare every freedom-loving American.”

“So too should those who propose to coerce or force these athletes to stand.  In this country, may I remind you, we allow individuals to define patriotism for themselves.  Unless you want scripted patriotism—North Korea, anyone?”

Reactions to incidents such as those inspired by Kaepernick tend to quickly ignore one of this country’s traditionally greatest strengths, as mentioned by Williams: We allow individuals to define patriotism for themselves.  AND, we allow others to think what they will about the way each of us defines patriotism.

New Yorker magazine writer Jeffrey Toobin thinks Kaepernick’s right to not stand for the anthem is rooted in a 1943 Freedom of Religion case that challenged the right of a school district to expel children from a Jehovah’s Witness family for refusing to salute the flag and repeat the Pledge of Allegiance which was then required by West Virginia Law. U. S. Supreme Court Robert Jackson’s opinion, writes Toobin, “demands that those in power allow others to think for themselves.”

“To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.  We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes.  When they are so harmless to others or to the State as those we deal with here, the price is not too great.  But freedom to differ is not limited to things that do not matter much.  That would be a mere shadow of freedom.  The test of its substance is the right to differ as to things that touch the heart of the existing order.”  

And he reminds us that freedom of expression means a government—or a league—cannot tell citizens or players what they may say or think or express.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

You are free to consider this entry disloyal and disrespectful of the things Greitens and Kander served to protect.  I am grateful that they served to protect my right to compose it.  You and I are free to go to a polling place in a few weeks and decide whether we want to vote for either of these men who served with millions of colleagues in uniform who surely were not uniform in their reasons for service so that we might differ with each other, with Colin Kaepernick, or even with them.

Let us not wrap ourselves in the flag so tightly that we cannot breathe the air of freedom.