Category Archives: courts

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)

Activist Judges

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—-is a phrase for losers.

Senate leader Ron Richard is whining about “activist judges” on the Missouri Supreme Court who have ruled the Senate violated the Missouri Constitution in overriding Governor Nixon’s veto last year of a bill that makes Missouri one of the least sympathetic states in the nation for people who lose their jobs.

Richard accuses the majority judges in the 4-3 opinion of “overstepping…constitutional authority” in ruling that it was the Senate that overstepped its constitutional authority.

It is easy and all too common for losers to throw around the kind of charges against the court system that Richard throws around.  But sorting out what the constitution means is not done recklessly by the court system and a reading of the majority and minority opinions outlines that difficulty.  The 4-3 vote that takes 28 pages to explain is indicative of the struggle courts go through to determine the meaning of the law.

Implying that the outcome is the result of “activist judges” is a cheap shot easily fired and easily accepted by a general public that seldom cares, as it should, about the difficulty of establishing the specific parameters that a general law originates.  Legal opinions are hardly bodice-busting stories of passion that rivet readers to the printed page, but reading them is something more of us should do especially when the losers blame others for their faults.

Here’s what happened:

In 2015, Richard’s party that controls the legislature passed House Bill 150 that says a person who loses his or her job when the unemployment rate is low will only get thirteen weeks of unemployment benefits.  If, however, that person has the good fortune to lose his or her job when the rate is above six percent, the state will provide twenty weeks of help.  Either way, the legislature wants Missouri to be among the chintziest states when it comes to paying a paltry amount of unemployment benefits.  Governor Nixon notes our benefits rank 43rd out of all fifty states.  Even a return to twenty weeks of benefits puts Missouri a full six weeks behind the national average.

But being behind the national average is not an uncomfortable positions for Missouri’s legislators.

We have wandered.

The legislature passed the bill early enough (April 21) that it would have a chance to override a Nixon veto if there was one.  The legislature went to great effort a few years ago to enact such a system.  It wanted time to override budget vetoes and withholdings before the start of a new fiscal year on July 1.

Nixon vetoed HB150 on May 5.  The House overrode the veto on the 12th.  But the Senate frittered away the last three days of the session and didn’t take an override vote.   But during the September session that is held annually to consider overrides of bills vetoed after the regular session or vetoed too late to be overridden in the regular session, it overrode the HB150 veto.

The majority of the court has ruled that the Senate lacked the constitutional authority to override the veto in September.  The three judge-minority reads the same section of the state constitution in a different light.

This fact is unchallenged:  The court would not have been put in this position if the Senate had done its job in the closing days of the 2015 session.  Senate leaders—Richard and Majority Floor Leader Mike Kehoe–conveniently overlook that little issue in criticizing the court for doing what it has had to do.  And what it had to do is—something.

Richard also fumes that the court “tramples on the respect for a co-equal branch of government demanded by our constitution,” and he continues, “The legislature is the voice of the people of Missouri and with today’s decision the Court has substitute its own voice for theirs.”

That kind of talk is oh, so tiresome.  On one hand he speaks of a co-equal government and in the next line he suggests that the legislature should not be challenged by one of those co-equal branches.  Courts are valuable things to have when legislatures move from being the “voice of the people” to being “the voice of SOME people.”

“Activist judges” is a phrase for those who, in the end, have failed to justify their positions within the law. Their legal arguments ultimately are unable to convince four people of their correctness. In fact, the cases going before the Missouri Supreme Court often involve far more than seven men and women in Jefferson City.  By the time those four “activists” make the apparently final ruling,  other “activist” judges have evaluated an issue on the basis of law all the way back to a municipal or circuit judge, perhaps.

But the case might not have begun there.  The evaluation of the issue—under the law—might have started with a city council vote in which “activist” council members, maybe as many as two, make a policy.  Or perhaps it began with legislators passing a bill, as in this case. Perhaps the issue began with one “activist” who financed a petition effort approved by voters that gave him or her a preferential right or privilege not to be enjoyed by others who are in our system equal under the law.

In each instance, the issue has been reviewed, weighed, and decided.  Arguments and counter-arguments have shaped the issue at increasingly higher levels of scrutiny.

Perhaps it is time for judges accused of being “activist judges” to say something.  Maybe it should be something like:

Thank you for the compliment.  Thank you for recognizing the role we play in our political system.  Thank you for recognizing that we are called upon to decide—to act. We have done what you demanded that we do–to take action. The alternative to taking action is to passively accept without argument a position placed before us and we realize that is not what our justice system is about. Although we might differ among ourselves, we have acted. In a nation that places faith in the judgment of a majority, we have kept that faith. Too bad it didn’t go your way.

Judges are called upon to be activists.  Somebody has to decide.  A judge who won’t act doesn’t meet the responsibility of the title.  So it is that the cheaply-uttered epithet “activist judges” is—unfortunately for those who readily hurl it after their own failures to justify their attitudes and positions—a compliment to those who have done the job we expect them to do.

There are plenty of countries where neither citizens nor judges are allowed to be activists.  You don’t want to live there.