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Legal Challenge to 2014 SB 672

The Missouri General Assembly regularly passes bills without regard to the limitations on the legislative power the People placed in their Constitution.

The first of what may be many citizen-driven lawsuits to stop the abuse was filed May 29, 2015.

The Anti Commandeering Doctrine

An analogy that explains the Supremacy Clause

 


March 22, 2016 – Success! The Attorney General's Office Throws in the Towel

The circuit court decision became final and the 10 day window for appeal has elapsed. The case is over.

Although there will be no precedent setting appeals opinion, a precedent of sorts has, nonetheless, been set.

One of the prime objectives of this lawsuit was to put an end, or at least strike a blow, to what's called "judicial severance." That's a troubling practice in which the courts allow the original portion of a bill to survive even though they found that the addition of amendments to that bill violated the constitutional prohibitions on changing its original purpose or adding multiple subjects.

There are two reasons the practice judicial severance is so troubling:

  1. If the sponsor of a bill has no fear of his bill being struck down in court along with amendments that are added unconstitutionally, he has little incentive to oppose what is called "log rolling" many bills into one. Bills, or subjects, that are combined like that result in the passage of amendments to the original bill that wouldn't otherwise have the support of a majority of legislators.
  2. The second reason judicial severance is troubling is similar. Since the original bill is never actually voted on all by itself, there is no way to know for sure if even it would have passed without the log rolling. If the courts can slice up bills into components that were never voted on and are allowed to say what portion of a bill stands and what portions fall, they have made themselves legislators, not merely judges.

In both cases, the principles of representative government and separation of powers are greatly harmed.

 

THE BLOW TO JUDICIAL SEVERANCE

In his opinion, Judge Green dusted off what is very much appellate level precedent from the 1994 Hammerschmidt v. Boone County and 2013 Missouri Roundtable For Life v. State of Missouri cases. He wrote:

"If the Court is not convinced beyond a reasonable doubt, then the bill as a whole was passed in violation of the constitution and the challenged provisions cannot be severed.

In the instant cause, it is not even a close call, the four corners of the bill, the legislative history and the credible unrebutted testimony of all witnesses provide no doubt that the bill as a whole was passed in violation of the constitution."

The message is loud and clear to Missouri bill sponsors -- guard your bill against unconstitutional changes, or risk losing the entire bill!

 

MORE LAWSUITS TO COME

The statute of limitations for challenging most bills is up to the last day of the legislative session after the bill's enactment date, but some bills can be challenged with no such limits -- especially when the legal challenge is part of a criminal defense.

More cases like Calzone v. Koster are expected in the near future by other pro se plaintiffs. Unfortunately, the fields are ripe for harvest.

Trial Court's final judgment link

Link to SB 672.

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February 17, 2016 –Cole County judge rules SB 672 unconstitutional

The Court grants Plaintiff's Petition and:

1. Declares that SB 672 violates article II, § 23, of the Missouri Constitution, cannot be severed under the facts of this case, and therefore SB 672 is unconstitutional in its entirety;

2. Permanently enjoins Defendants, and each of them, and all those in active concert or participation with them, from taking any action, including but not limited to the use of public funds, to implement or otherwise effectuate any provisions of SB 672;

3. Orders Defendants, and each of them, to rescind all actions taken to implement or otherwise effectuate any provisions of SB 672; and

4. Each party to bear their own costs..

Trial Court's final judgment link

Link to SB 672.

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August 24, 2015 UPDATE– Cole County Courthouse

The second hearing before a judge in Calzone v. Koster produced the expected results. Judge Green denied the state's motion to dismiss and granted "standing" to the Plaintiff. That means we can continue with the constitutional challenge to SB 672.

The next status hearing is set for September 28, 2015.

Stay tuned for more developments, and read the briefs in the green right sidebar.



July 27, 2015 UPDATE– Cole County Courthouse

The first hearing before a judge in Calzone v. Koster was held today. The issue was the Attorney General's Motion to Dismiss based on the state's claim of lack of standing.

Establishing standing is the first step in any civil lawsuit and often foils the whole effort. Although today's hearing will be continued, the judge made it clear that he would grant standing.

We win the first round and this is a very significant victory!

It will be interesting to see how this unfolds. This lawsuit has the potential to have much broader implications than just striking down one bill. It may result in the expansion of the concept of “citizen standing”, making procedural challenges to unconstitutional bills easier in the future. It also has the potential to prevent the General Assembly from changing a bill's title after it has been filed. Additionally, it could tighten up the passing of “special laws” which unconstitutionally target an area or group for special treatment.

Most of the really bad bills include one or more of the abuses addressed in this lawsuit, so it may be an important part of the fight for liberty in Missouri.

Stay tuned for more developments, and read the briefs in the green right sidebar.



05/29/2014 - Lawsuit Filed

Case style: 15AC-CC00247 - RONALD CALZONE V CHRIS KOSTER -- Judge Dan Green has been assigned to the case (See right sidebar for links to court documents.)

  • NOTE: Neither A.G. Chris Koster nor any of the defendants are responsible for the unconstitutional way in which SB 672 (2014) was passed. They are named as defendants simply because they are the heads of the Missouri state agencies given new powers or responsibilities by the passage of the bill. The lawsuit calls for an injunction to prevent the enforcement of any of the bill's provisions, and these heads of departments will ultimately be told by the court that they can't enforce the provisions of SB 672.

 

List of defendants:

  1. Chris Koster, Missouri Attorney General
  2. Richard Fordyce, Director of the Missouri Department of Agriculture
  3. Kevin Keith, Director of the Missouri Department of Transportation
  4. Nia Ray, Director of the Department of Revenue
  5. Margie Vandeven, Commissioner of the Dept. of Elementary and Secondary Education
  6. Gail Vasterling, Director Department of Health and Senior Services
  7. John Huff, Director Dept. of Insurance, Financial Institutions, & Professional Registration.

 

Nature of Legal Action:

  • This action is for a declaratory judgment by the court that Senate Bill 672 is unconstitutional due to procedural and substantive infirmities and void, and an injunction to prevent the enforcement of any of its provisions.

 

What was SB 672's original purpose / subject?

  • “AN ACT To repeal section 56.363, RSMo, and to enact in lieu thereof one new section relating to county prosecutors.”
  • Less than 3 pages dealing exclusively with county prosecutors

 

What subjects did the bill evolve to include?

  1. County Property – § 49.266
  2. Prosecuting Attorneys - §§ 56.067, 56.363, 56.807, & 56.816
  3. Law Enforcement Officer Immunity - § 57.095
  4. Installation Of Fire Sprinklers - § 67.281
  5. Jefferson County Municipal Courts - § 67.320
  6. Initiative Petition In Savannah- §§ 79.130 & 79.135
  7. City Fees In Flordell Hills And Edmundson - § 94.270
  8. Court Volunteers - § 105.1415
  9. Public Financial Incentives - § 135.980
  10. Public Library District - § 182.802
  11. Ambulance District Detachment - § 190.088
  12. Health Officers In St. Charles - § 192.310
  13. Lateral Sewer Service Line Repair Program - § 249.424
  14. Farm-To-School Program - §§ 262.960, 262.962, & 348.407
  15. Motor Vehicle Height And Weight Limits - § 304.190
  16. Annexation Procedures In Harrisonville - § 321.322
  17. Missouri Real Estate Appraisers Commission -§§ 339.507 & 339.531
  18. Speculative Accumulation Of Asphalt Shingles - § 407.1610
  19. Garnishments - §§ 408.040, 488.305, 525.040 To 525.310

 

Final Bill Title:

  • “AN ACT To repeal sections 49.266, 56.067, 56.265, 56.363, 56.807, 56.816, 67.281, 67.320, 79.130, 94.270, 182.802, 192.310, 304.190, 321.322, 339.507, 348.407, 408.040, 488.305, 525.040, 525.070, 525.080, 525.230, and 525.310, RSMo, and to enact in lieu thereof thirty-three new sections relating to political subdivisions, with an existing penalty provision, and an effective date for certain sections.”

 

Count 1:

  • The Purpose of SB 673 Was Changed By Amendments Subsequent to the Introduction of the Bill And the Purpose of the Finally Passed Version Was Not the Same as the Introduced Version in Violation of Missouri Constitution Article III Section 21

Count 2:

  • The Finally Passed Version of SB 673 Contained Multiple Subjects in Violation of Missouri Constitution Article III Section 23

Count 3:

  • The Title for SB 672 Was Changed in Violation of Missouri Constitution Article III Section 21

Count 4:

  • SB 672 Contains Numerous Provisions Which Are Unconstitutional Special Laws in Violation of Missouri Constitution Article III Section 40(30)

 

 

What is Mercantilism?

“Mercantilism, which reached its height in the Europe of the seventeenth and eighteenth centuries, was a system of statism which employed economic fallacy to build up a structure of imperial state power, as well as special subsidy and monopolistic privilege to individuals or groups favored by the state.”

From “Conceived In Liberty” -- Murray N. Rothbard

 


Case Timeline and Files:

03/21/2016: Deadline for appeal. The state chose not to appeal. The case is over, with a complete victory.

02/17/2016: Final judgment of the court.
Trial Court's final judgment.

01/22/2016: State files trial brief and proposed judgment.
State's trial brief.
State's proposed judgment.

01/20/2016: Plaintiff files proposed judgment, including suggested findings of facts and conclusions of law.
Plaintiff's proposed judgment.

01/12/2016: Trial held. Plaintiff calls four witnesses, including two former legislators and two citizen activists. Defense had no witnesses or evidence to present.

11/09/2015: Hearing held at which time the parties announced that they could not agree on stipulated facts.

10/27/2015: Court instructs parties to attempt to enter into a joint stipulation.

08/27/2015: State files answer to petition.
Answer to petition.

08/24/2015: Second hearing on Motion to Dismiss based on lack of standing held. Judge denies motion to dismiss and grants standing to sue. Next hearing set for September 28th.

07/27/2015: Hearing on Motion to Dismiss based on lack of standing held. Judge indicates that he will almost certainly grant standing for Plaintiff to sue. A.G. still has a chance to object. Next hearing set for August 24th.

07/22/2015: A.G. files Response to Plaintiff's Suggestions in Opposition to Motion to Dismiss.
Response to Plaintiff's Suggestions

07/22/2015: Plaintiff files Suggestions in Opposition to the Motion to Dismiss
Suggestions in Opposition

06/29/2015: A.G. files motion to dismiss based on lack of standing
Motion to Dismiss


05/29/2014: Petition filed in Cole County Circuit Court

Plaintiff's original petition to the court

First Set of Exhibits (8 megs)

See the constitutional clauses influencing this case, below.


Article I, Section 1 explains who's in charge:

That all political power is vested in and derived from the people; that all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.


Article I Section 2 explains the primary role of Missouri government:

“That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.” (emphasis added) (MO Const. Art. I, Sec. 2)


Article III Section 21 stipulates that no bill can be changed from its original purpose:

The style of the laws of this state shall be: "Be it enacted by the General Assembly of the State of Missouri, as follows." No law shall be passed except by bill, and no bill shall be so amended in its passage through either house as to change its original purpose. Bills may originate in either house and may be amended or rejected by the other. Every bill shall be read by title on three different days in each house.


Article III Section 23 stipulates that no bill can have more than one subject and that subject must be clearly identified by the bill's title:

No bill shall contain more than one subject which shall be clearly expressed in its title, except bills enacted under the third exception in section 37 of this article and general appropriation bills, which may embrace the various subjects and accounts for which moneys are appropriated.


Article III Section 40(30) disallows most "special laws":

The general assembly shall not pass any local or special law: … (30) where a general law can be made applicable, and whether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on that subject..


 


 


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