Governor Nixon's Declaration of a State of Emergency is Illegal

			Dedicated to the sovereignty of Missourians.

November 19, 2014

In anticipation of civil unrest in Ferguson, on November 17, 2014 Governor Jay Nixon issued Executive Order 14-14, declaring that State of Emergency exists in the State of Missouri.

That declaration was not legally proclaimed.

Under Missouri law, the declaration of emergency and the assumption of what could easily be considered dictatorial powers by the governor, applies to the entire state, not just some region suffering from a disaster or civil unrest.

The powers the governor assumes during a state of emergency are enumerated in Chapter 44.100 RSMo. They include the power to “Seize, take or requisition... Any means of transportation, other than railroads”, “Any communication system”, “All stocks of fuel”, and “Facilities for housing, feeding and hospitalization of persons, including buildings and plants”.

The governor can also, “Control, restrict and regulate by rationing, freezing, use of quotas, prohibitions on shipments, price fixing, allocation or other means the use, sale or distribution of food, feed, fuel, clothing and other commodities, materials, goods or services.”

The declaration of a State of Emergency is no small matter.

That's why Missouri law limits the Governor's authority to declare an emergency to times when there is an “actual occurrence of a natural or man-made disaster of major proportions within this state” (Emphasis added.) 44.010(6) RSMo

Furthermore, the law requires that the Governor's Proclamation of a State of Emergency describe that “actual occurrence”.

Chapter 44.101(1) says, “The existence of an emergency may be proclaimed by the governor or by resolution of the legislature, if the governor in his proclamation, or the legislature in its resolution, finds that a natural or man-made disaster of major proportions has actually occurred within this state, and that the safety and welfare of the inhabitants of this state require an invocation of the provisions of this section.” (Emphasis added.) 44.101.1(1) RSMo

In his Proclamation, Governor Nixon made no claim to an existing disaster. To the contrary, his executive order merely asserts the potential for a man-made disaster with phrases like, “there is the possibility of expanded unrest”.

Clearly, the Governor has been forbidden by statute to preemptively declare an emergency, but that is exactly what he has done.

That's not to say he can't prepare for an emergency – he simply can't declare one, and thereby assume the accompanying dictatorial powers, until there is an actual emergency.

The Governor's proclamation is purported to be a remedy for potential lawlessness. If lawlessness “actually occurs” in “major proportions”, such a proclamation may be appropriate, but until then we must insist that the Governor, himself, follow the law.

He should immediately repeal his executive order.

And the General Assembly should consider the passage of the Legislative Oversight bill filed by Senator Sarah Steelman in 2003, SB 652, which would limit the power of the Governor to declare a State of Emergency to a 10 day period, unless extended by the legislature.

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Contact:

Ron Calzone, director
Missouri First, Inc.
ron@mofirst.org

Emergency Powers Statutes

Definitions.

44.010 . As used in sections 44.010 to 44.130 , the following terms mean:

(1) "Agency", the state emergency management agency;

(2) "Bioterrorism", the intentional use of any microorganism, virus, infectious substance, or biological product that may be engineered as a result of biotechnology, or any naturally occurring or bioengineered component of any such microorganism, virus, infectious substance, or biological product, to cause death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism in order to influence the conduct of government or to intimidate or coerce a civilian population;

(3) "Director", the director of the state emergency management agency;

(4) "Disasters", disasters which may result from terrorism, including bioterrorism, or from fire, wind, flood, earthquake, or other natural or man-made causes;

(5) "Economic or geographic area", an area or areas within the state, or partly in this state and adjacent states, comprising political subdivisions grouped together for purposes of administration, organization, control or disaster recovery and rehabilitation in time of emergency;

(6) "Emergency", any state of emergency declared by proclamation by the governor, or by resolution of the legislature pursuant to sections 44.010 to 44.130 upon the actual occurrence of a natural or man-made disaster of major proportions within this state when the safety and welfare of the inhabitants of this state are jeopardized;

(7) "Emergency management", government at all levels performing emergency functions, other than functions for which military forces are primarily responsible;

(8) "Emergency management functions", "emergency management activities" and "emergency management service", those functions required to prepare for and carry out actions to prevent, minimize and repair injury and damage due to disasters, to include emergency management of resources and administration of such economic controls as may be needed to provide for the welfare of the people, either on order of or at the request of the federal government, or in the event the federal government is incapable of administering such control;

(9) "Emergency resources planning and management", planning for, management and coordination of national, state and local resources;

(10) "Executive officer of any political subdivision", the county commission or county supervisor or the mayor or other manager of the executive affairs of any city, town, village or fire protection district;

(11) "Local organization for emergency management", any organization established under this law by any county or by any city, town, or village to perform local emergency management functions;

(12) "Management", the activities of the emergency management director in the implementation of emergency operations plans during time of emergency;

(13) "Planning", activities of the state and local emergency management agency in the formulation of emergency management plans to be used in time of emergency;

(14) "Political subdivision", any county or city, town or village, or any fire district created by law.

Emergency powers of governor.

44.100.1. The emergency powers of the governor shall be as follows:

(1) The provisions of this section shall be operative only during the existence of a state of emergency (referred to in this section as "emergency"). The existence of an emergency may be proclaimed by the governor or by resolution of the legislature, if the governor in his proclamation, or the legislature in its resolution, finds that a natural or man-made disaster of major proportions has actually occurred within this state, and that the safety and welfare of the inhabitants of this state require an invocation of the provisions of this section;

(2) Any emergency, whether proclaimed by the governor or by the legislature, shall terminate upon the proclamation thereof by the governor, or the passage by the legislature, of a resolution terminating such emergency;

(3) During the period that the state of emergency exists or continues, the governor shall:

(a) Enforce and put into operation all plans, rules and regulations relating to disasters and emergency management of resources adopted under this law and to assume direct operational control of all emergency forces and volunteers in the state;

(b) Take action and give directions to state and local law enforcement officers and agencies as may be reasonable and necessary for the purpose of securing compliance with the provisions of this law and with the orders, rules and regulations made pursuant thereof;

a. Any means of transportation, other than railroads and railroad equipment and fuel, and all fuel necessary for the propulsion thereof;

b. Any communication system or part thereof necessary to the prompt and efficient functioning of the emergency management of the state;

c. All stocks of fuel;

d. Facilities for housing, feeding and hospitalization of persons, including buildings and plants;

(d) Control, restrict and regulate by rationing, freezing, use of quotas, prohibitions on shipments, price fixing, allocation or other means the use, sale or distribution of food, feed, fuel, clothing and other commodities, materials, goods or services;

(e) Prescribe and direct activities in connection with but not limited to use, conservation, salvage and prevention of waste of materials, services and facilities, including production, transportation, power and communication facilities, training and supply of labor, utilization of industrial plants, health and medical care, nutrition, housing, including the use of existing and private facilities, rehabilitation, education, welfare, child care, recreation, consumer protection and other essential civil needs;

(f) Use or distribute all or any of this property among the inhabitants of the state in any area adversely affected by a natural or man-made disaster and to account to the state treasurer for any funds received thereof;

(g) Waive or suspend the operation of any statutory requirement or administrative rule regarding the licensing, certification or issuance of permits evidencing professional, mechanical or other skills;

(h) Waive or suspend the operation of any statutory requirement or administrative rule prescribing procedures for conducting state business, where strict compliance with such requirements and rules would prevent, hinder, or delay necessary action by the department of health and senior services to respond to a declared emergency or increased health threat to the population;

(i) In accordance with rules or regulations, provide that all law enforcement authorities and other emergency response workers and agencies of other states who may be within this state at the request of the governor or pursuant to state or local mutual-aid agreements or compacts shall have the same authority and possess the same powers, duties, rights, privileges and immunities as are possessed by like law enforcement authorities and emergency response workers and agencies of this state;

(j) Perform and exercise such other functions, powers and duties as may be necessary to promote and secure the safety and protection of the civilian population;

(k) Authorize the director of finance and the director of credit unions to waive or suspend the operation of any statutory requirement or administrative rule applicable to the division of finance, banking, financial services, or the division of credit unions and take action and give direction to banks, credit unions, and financial institutions, including coordinating actions with emergency responders, federal agencies, and state banking and credit union associations as may be reasonable and necessary to preserve the safety and soundness of banks, credit unions, and financial institutions; and facilitate disaster response and recovery efforts to serve essential civil needs and protect the public interest.

2. When any property is seized, taken or requisitioned under this section, the circuit court of the county in which the property was taken may on the application of the owner thereof or on the application of the governor in cases where numerous claims may be filed, appoint three disinterested commissioners in the manner provided by section 523.040 to assess the damages which the owners may have sustained by reason of the appropriation thereof. Upon the application the amount due because of the seizure of property shall be determined in the manner provided in chapter 523 for the determination of damages in case of the exercise of the power of eminent domain.