Category Archives: courts

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.

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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.

The objections of the governor notwithstanding

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Jay Nixon has been the legislature’s favorite punching bag for most of his eight years in office. And the legislature has delivered some farewell belts in this year’s veto session.  Whatever legacy Nixon might claim in December or January after his eight years in office, his legacy as the most overridden governor in Missouri History will be large.

Several causes can be attributed to that record, not the least of which is that the legislature is two-thirds-plus in both chambers Republican and Nixon is a Democrat who talks as if he gets along well with the other side while the other side says he’s been aloof and uncommunicative.

The first veto overridden in Missouri was in 1820 when our first Governor, Alexander McNair, vetoed the bill establishing the compensation of members of the legislature.

Until Jay Nixon, whose override total will be in the 90s by the time the legislature is done with him, the override champion was Daniel Dunklin, who served in the 1830s.  In those days, the legislature granted divorces.  And overrides could happen by simple majorities in each chamber.  The 1875 Constitution established the two-third vote for overrides.

Understand that divorce in those days was hard to get.  In fact, divorce didn’t become a matter for the courts exclusively to handle until 1853.  A lot of women just packed up and went somewhere else rather than try to get a divorce, a divorce being something of a family disgrace in those days anyway.  A woman—or a man–who could not afford, financially or socially, to get a court-ordered divorce, sometimes asked the legislature to grant one.

But Dunklin wasn’t sure the legislature had the power to grant divorces.  He vetoed a dozen bills granting divorces including one that granted thirty-five of them.

His message of January 5, 1833 explaining to the Senate why he vetoed a bill granting Mary Ann (Lawrence) Dunlap a divorce from husband David, says he did so for two important reasons:

one the Constitutionality, the other the expediency of a bill to grant a divorce by the Legislature. Can the Legislature constitutionally exercise the power claimed to pass this bill? If it can, then is it expedient to engage in this species of Legislation? I will make but one remark as to the expediency. When parties are divorced by the Legislature, it is valid only in the State granting it. When divorced by the Court, it is valid in every State in the Union…With this remark, I will dismiss the question of expediency; and however opposed I may be to the practice of legislating in such cases, I would not withhold my assent to this bill, were there no Constitutional objections.

Dunklin was concerned that legislatively-granted divorces infringed on the constitutional separation of powers.

To which of the departments does it “properly belong” to exercise the power to grant this divorce? If to the Legislative, then the Judicial cannot exercise the power, if to the Judicial, then the Legislative cannot exercise it. Before I proceed to answer the question, let me remark, that the Legislature is not asked to reinstate a right forfeited to the government; nor to remove a disability created by the government; but to absolve one of the parties from obligation to perform certain duties, (such as continence and kindness), contracted by previous marriage—Then I ask, to which of the departments of government, does it “properly belong,” to exercise the power to grant this divorce?

Marriage, he noted, is a civil contract that carries certain obligations.  But he argued the obligations were not only a matter between the two parties who entered into the contract. But Dunklin noted that the public also has an interest in the benefits that results from contracts, a circumstance that involved the political as well as the legal branch of government.  Therefore, was the political arm of government entitled to take jurisdiction because “of the nature of the contract itself?”

If, he argued, a marriage contract is a matter of “law or equity,” the powers to grand divorces lay with the courts, not the legislature.

Dunklin dug into the laws of other states.  And what he found is interesting in today’s divorce climate as well as the diversity of attitudes that existed in his time.  In Georgia, Alabama, and Mississippi, the process was bifurcated.  The judicial departments settled the facts, then the legislature decided whether those facts were sufficient to grant a divorce.  In colonial Massachusetts and New Hampshire, the early constitutions gave the power to the governors and the legislative councils although that was later changed giving the power to the judiciary. Dunklin found five states with constitutional provisions addressing the issue.  Only Virginia and Maryland had the power specifically assigned to the legislatures although the courts had the authority to rule on the legality of marriages.  In the other seventeen states, the judiciary had powers over divorces and in fourteen of those seventeen states, that authority rested exclusively with the judiciary.  Only Missouri, Illinois and Kentucky had the confusing judicial/legislative question.

Dunklin concluded:

Here is great weight of authority shewing that the power to grant divorces, ought to belong to the courts of law; yet, it does not conclusively prove, at least to my mind, that the power could not, consistently with the nature of the contract, be exercised by the Legislature. Then, why withhold my approval of this bill?—It is because every branch of this government has concurred in assigning the power to grant divorces to the Judiciary…But it may be said that it is as reasonable to question the constitutionality of that law as the constitutionality of this bill. To prove that law unconstitutional, will require it to be shown that the marital right is exclusively political, and that the Legislature has the exclusive right to exercise powers over it. The only authority for such an opinion, that has fallen in my way is the practice of the States of Virginia and Maryland, while the practice of the other twenty-two States is directly to the contrary. Were it not for the law “concerning divorces and alimony,” I should have no constitutional objection to approving this bill. But if that law be constitutional (and I believe it to be so) then it is incompatible with my duty, according to my construction of the 2d Article of the Constitution of this State to approve this bill. It is therefore returned to the Senate, where it originated.

Governors who veto bills outline their reasons in veto messages like this one, as Governor Nixon did with the bills or parts of bills he vetoed this year.  And the legislature in 2016, has done to several of those vetoed bills what the legislature did in 1833.  It has overridden the vetoes, “the objections of the governor notwithstanding.”  Mary Ann and David Lawrence split.

Echoes of Dunklin’s investigation into marriage and the state’s place in determining what obligations there are in a marriage, in fact what marriage IS, are still being heard in various forms in today’s legislature. And differences of opinion remain between the governor and the legislature.

Governor Dunklin’s record as the most overridden governor in Missouri history stood for almost 180 years. We wonder if some scribe in the year 2196 will write about Jay Nixon the way we have written about Daniel Dunklin.

One hundred and eighty years.  Now, THAT’S a legacy.

The risk of supporting privilege

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A right, unequally available, is not a right, but is, instead, a privilege.  And a government, whether a city council, a legislature, or a Congress, which perpetuates the furtherance of the latter rather than strengthens the opportunities embodied in the former acts against the foundation on which this nation is built.

By action or by inaction, a government which advocates privilege ignores the constitutional mandate to seek, on behalf of all of the people, a more perfect Union, to strive for justice and domestic tranquility, to promote the general welfare, and to secure the blessings of liberty for all—and replaces that mandate with a policy that favors the few who can afford to exercise a granted privilege.

If, as our founders proclaimed in separate expressions, all citizens are equal under the law, the concept of privilege violates that standard of legal equality.

These standards, here laid forth by one untrained in the law, have been argued in local, state, and national venues from the beginning of our country.  They have been argued recently in one Jefferson City courtroom and likely will be argued in another one.

The issue is large amounts of money in political campaigns.  The blatant use of it to buy candidates and laws is obvious. Missouri is the only state that gives those with a lot of money an ability far beyond the ability of the average citizen to influence public policy. The refusal by the legislature to even consider trying to let all citizens participate in the election process equally has become intolerable to those who have turned to the initiative process to replace the state-sanctioned privilege afforded the wealthy few with a plan to revitalize a right in which all can participate.

We are not saying the proposal that has withstood its first legal challenge is the best answer.  But it is an inevitable result when those elected to serve on behalf of all Missourians lack the will to strengthen rights and therefore defend privilege, often for their own benefit.

More than three-hundred thousand Missourians signed a petition to reinstate campaign contribution limits in Missouri and keep political action committees from hiding the sources of the money they spend, supposedly independently of candidates.  County clerks who looked at the names and signatures on those petitions have found enough valid ones to put the issue on the November ballot.

Opponents are challenging the constitutionality of the proposal.  Supporters are saying there is no constitutional question until the proposal becomes law.  Opponents say the proposal violates equal protection standards of the constitution because it denies certain entities from taking part in the financing of campaigns.  Proponents can point to the last paragraph of the proposition that says courts can find part of the matter unconstitutional without endangering the validity of the remaining parts.

One of the arguments is that campaign finance restrictions limit freedom of speech by those who wish to express it through large campaign donations. But a freedom, unequally protected, is not a freedom.  It is a privilege, a position of superiority, a violation of equality under the law. When freedom of speech is accorded greater weight to those with the ability to buy it, it is not a freedom.  It is, in fact, a form of oppression.

At least, that is how this citizen continues to observe it, any legal rulings to the contrary notwithstanding.

The lawyer whose clients are challenging the proposed amendment to the state constitution, Chuck Hatfield, does not disagree that the present campaign system is out of hand—in fact he was a key figure nine years ago in a case that re-imposed campaign limits before the legislature EIGHT years ago eliminated them.  But he thinks this proposal is flawed and should not have a chance to be enacted.

And therein lies the problem with initiative petitions that result from frustration with legislative inaction.  The criticism from legislative circles used to be that initiative petitions are dangerous because they do not go through the rigorous wordsmithing that bills go through in the legislative process.  And they are especially dangerous if they take the form of constitutional amendments.  There might be some truth in that contention if one assumes that the legislative process works.

But when the legislature refuses to act, in fact when it seems to protect the status quo through rigid inaction, the penalty for that failure to act can be an initiative petition that raises its own constitutional questions.  When government supports privilege instead of defending rights, it cannot be surprised that the people act.

And if, in the end, the people’s action is flawed, it is not the fault of the people.  It is the fault of those who have chosen to sanction inequality for their own benefit.  And it becomes the responsibility of voters—if only they will exercise it—to reverse that course not only through the initiative process but also through replacing those who support privilege for the few rather than rights available equally to all.

Half-guilty, fully hypocritical

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Your correspondent has a good friend, the Reverend John Bennett, who speaks and prays with a soft but strong voice, a man stooped by age but standing straight and tall in his passion for social justice.

John has been convicted of trespassing in the public gallery of the Missouri Senate.  He’s one of the Medicaid 23, as they are called, the ministers and private citizens who interrupted a filibuster on May 6, 2014 with songs, slogans and prayers urging senators to forget about playing politics with Medicaid expansion and instead think of 300,000 Missourians living on much less than senators are paid who would gain healthcare coverage under that part of Obamacare.

That’s John, wearing his minister’s stole, on the front row with the group in front of the Cole County Courthouse before their trial.

missouri faith voices

He said at the time of the demonstration, “Missouri lawmakers need a wake-up call. This is not about politics—this is about human life.  Until they do their job and pass Medicaid expansion, 700 Missourians will die each year and hundreds of thousands will live with untreated illness and in financial fear. This is a moral issue.”

Your correspondent was at the Senate press table that day.  Posted video of John and the other demonstrators with the story on the Missourinet web page. We understand the video was played during the trial. The Senate did not seem surprised when John and the-more than 23 others confronted them from the gallery.  Ron Richard, then the Majority Floor Leader, immediately moved for adjournment, interrupting Senator Jamilah Nasheed’s filibuster.  A few members stuck around for a while but the rest decided they didn’t need to hear what some people of faith had to say on behalf of folks without enough money to influence lawmakers.  Prosecutor Mark Richardson tried to portray Nasheed as a victim of the protest.  She strongly dismisses that thought.  She says Richardson never talked to her.  She was never asked to testify.

Senator Richard is now the President pro Tem, the leader of the chamber.

Capitol police, who earlier had been briefed by leaders of the demonstration, asked them to leave.  And most of them did.  But the Medicaid 23, as they had promised the police, stayed until officers tapped them individually on the shoulder and asked them to depart.  And when that happened, each of them peacefully left the chamber.  John was one of the last four to go.

Prosecutor Richardson charged the 23 with trespassing and with obstructing the business of the Senate.  One of the 23 was unable to attend the trial and could be tried separately later.  We’ll see if Richardson has the courage to put him on trial by himself. After all, he has to be as guilty as the rest, doesn’t he?

The case could have been dropped at any time by Richard and the Senate but Richardson spent more than two years on their behalf zealously pursuing his case and the righteous Senate leadership didn’t stop him. From the accounts we have read, his closing arguments displayed some ignorance one would not have expected from someone who had spent two years preparing.  In the end, a jury said they were guilty of trespassing.  But they were not guilty of obstructing the Senate.  An appeal of the conviction is likely.

To add a degree of fairness here—just one degree—there is an issue of public safety involved, and Richardson raised it.  If the Senate had dropped these charges, would it be giving tacit approval for other groups to think it’s permissible to do what the Medicaid 23 and their supporters did?  Would the Senate be inviting disorder in its galleries if it did not pursue this case? We weren’t in the jury room but that might have been the telling point leading to the trespassing conviction.

Prosecutor Richardson told the jury there are other places to hold protests at the Capitol, and it is true that protests are not uncommon in the rotunda or on the south front steps.  It is also true that lawmakers can and do easily ignore them.  Yes, people can testify in committees, and they have.  But when citizens start to feel their lawmakers are stone deaf, some kind of civil disobedience might seem the only alternative.

The jury, perhaps sensing that recommending jail time for these folks and only adding to the list of national embarrassments that Missouri seems to generate too often, has recommended the judge fine them.  Judge Dan Green is deciding how much.

There’s a greater and broader issue that is outside the courtroom.  It is inside the Senate.  And it is this:

What does this prosecution say about a Senate that has spent so much of its time passing a Religious Freedom Restoration bill that lets people use their religion to exclude others from associating with them as a matter of public policy—but prosecutes those who are PRACTICING their religious freedom (among other constitutional rights) to call on the legislature to include people in a matter of public policy?  The Senate seems to prefer as friends those supporting a religion of exclusion while considering those supporting a religion of inclusion as criminals.

It might be good for legislators who meet weekly for Bible Study to become acquainted with Jesus’ words from the Gospel of Matthew because He speaks of them in Chapter 23:

“Jesus said to the crowds and to his disciples: 2 “The teachers of the law and the Pharisees sit in Moses’ seat. 3 So you must be careful to do everything they tell you. But do not do what they do, for they do not practice what they preach. 4 They tie up heavy, cumbersome loads and put them on other people’s shoulders, but they themselves are not willing to lift a finger to move them.

5 “Everything they do is done for people to see: They make their phylacteries wide and the tassels on their garments long; 6 they love the place of honor at banquets and the most important seats in the synagogues; 7 they love to be greeted with respect in the marketplaces and to be called ‘Rabbi’ by others.

8 “But you are not to be called ‘Rabbi,’ for you have one Teacher, and you are all brothers. 9 And do not call anyone on earth ‘father,’ for you have one Father, and he is in heaven. 10 Nor are you to be called instructors, for you have one Instructor, the Messiah. 11 The greatest among you will be your servant. 12 For those who exalt themselves will be humbled, and those who humble themselves will be exalted.

13 “Woe to you, teachers of the law and Pharisees, you hypocrites! You shut the door of the kingdom of heaven in people’s faces. You yourselves do not enter, nor will you let those enter who are trying to. [14]

15 “Woe to you, teachers of the law and Pharisees, you hypocrites! You travel over land and sea to win a single convert, and when you have succeeded, you make them twice as much a child of hell as you are.

16 “Woe to you, blind guides! You say, ‘If anyone swears by the temple, it means nothing; but anyone who swears by the gold of the temple is bound by that oath.’ 17 You blind fools! Which is greater: the gold, or the temple that makes the gold sacred? 18 You also say, ‘If anyone swears by the altar, it means nothing; but anyone who swears by the gift on the altar is bound by that oath.’ 19 You blind men! Which is greater: the gift, or the altar that makes the gift sacred? 20 Therefore, anyone who swears by the altar swears by it and by everything on it. 21 And anyone who swears by the temple swears by it and by the one who dwells in it. 22 And anyone who swears by heaven swears by God’s throne and by the one who sits on it.

23 “Woe to you, teachers of the law and Pharisees, you hypocrites! You give a tenth of your spices—mint, dill and cumin. But you have neglected the more important matters of the law—justice, mercy and faithfulness. You should have practiced the latter, without neglecting the former. 24 You blind guides! You strain out a gnat but swallow a camel.

25 “Woe to you, teachers of the law and Pharisees, you hypocrites! You clean the outside of the cup and dish, but inside they are full of greed and self-indulgence. 26 Blind Pharisee! First clean the inside of the cup and dish, and then the outside also will be clean.

27 “Woe to you, teachers of the law and Pharisees, you hypocrites! You are like whitewashed tombs, which look beautiful on the outside but on the inside are full of the bones of the dead and everything unclean. 28 In the same way, on the outside you appear to people as righteous but on the inside you are full of hypocrisy and wickedness.”

Had Jesus spoken this truth to power from the gallery of the Missouri Senate on May 6, 2014, He would stand today with the Medicaid 22 as a convicted trespasser.

(Photo from Missouri Faith Voices)