"Alternative Method Required" and the Injection of Imaginary Language into the Missouri Constitution.

Date22 September 2020
AuthorMears, Calla M.

Cope v. Parson, 570 S.W.3d 579 (Mo. 2019) (en banc).

  1. INTRODUCTION

    Mike Kehoe was appointed to Lieutenant Governor of Missouri in 2018 after Michael Parson became Governor of Missouri following the resignation of Eric Greitens. (1) A lawsuit raising interesting questions about the constitutional process for filling public office vacancies quickly followed the appointment of Lieutenant Governor Kehoe. (2) Article IV, Section 4 of the Missouri Constitution states: "The governor shall fill all vacancies in public offices unless otherwise provided by law, and his appointees shall serve until their successors are duly elected or appointed and qualified." (3) First, what exactly does the phrase "unless otherwise provided by law" mean in the context of filling vacancies? Second, what are the legal implications of allowing the governor to appoint a lieutenant governor when Missouri law expressly disallows it? Finally, what are some other methods of filling vacancies that would be constitutional and more democratic?

    This Note first outlines the facts and holding of Cope v. Parson--the case at issue--in Part II. Next, Part III details the legal background, highlighting principles of constitutional and statutory interpretation. Part III reviews cases that interpreted the phrase that is the crux of the issue in this case--"unless otherwise provided by law." Part IV then summarizes the majority opinion of Cope v. Parson as well as the concurrence in part/dissent in part. Finally, Part V comments on the various legal implications of the decision in Cope v. Parson and proposes solutions to the issue.

    This Note's ultimate conclusion is that the majority in Cope v. Parson erroneously interpreted the phrase "unless otherwise provided by law" to require an alternative method of filling the lieutenant governor's vacancy, and that Section 105.030 sufficiently "otherwise provided by law" a method for filling the vacancy--leaving it vacant. This Note finally recommends two democratic solutions: the legislature could pass legislation requiring a special election in the event that the Office of the Lieutenant Governor becomes vacant, or it could pass legislation requiring that an alternative method be provided to fill the vacancy rather than the current "unless otherwise provided by law."

  2. FACTS AND HOLDING

    Eric Greitens was sworn in as the fifty-sixth Governor of Missouri on January 9, 2017. (4) Following a string of scandals, Greitens resigned on June 1, 2018. (5) Governor Parson served as Missouri's lieutenant governor from 2017-2018 until Greitens resigned. (6) He then took the Office of the Governor on June 1, 2018, and left the Office of Lieutenant Governor vacant. (7) Governor Parson appointed then-Missouri Senator Mike Kehoe to lieutenant governor on June 18, 2018. (8) Lieutenant Governor Kehoe served in the Missouri Senate from 2010-2018. (9)

    The Missouri Democratic Party ("MDP") is the Missouri affiliate of the United States Democratic Party. (10) Darrell Cope is a World War II veteran from southern Missouri. (11) Cope is a taxpayer (12) and citizen of Missouri who "want[ed] the opportunity to vote for the state's lieutenant governor, instead of having him picked 'in backroom deals.'" (13)

    On the same day that Kehoe was appointed, Cope and the MDP initiated a lawsuit in Cole County, Missouri against Governor Parson and newly-appointed Lieutenant Governor Kehoe (collectively, "the State"). (14) The petition sought a declaratory judgment and injunctive relief, alleging that the governor did not have legal authority to appoint a lieutenant governor and that the office should remain vacant until the 2020 election. (15) The State filed a motion to dismiss. (16) First, they argued that Cope--as a private litigant--did not have authority to remove the lieutenant governor from office. (17) Next, they argued that neither Cope nor the MDP had standing to bring the lawsuit. (18) Finally, they argued that the governor had authority under Article IV, Section 4 of the Missouri Constitution to appoint a lieutenant governor. (19)

    The trial court held a hearing for the State's motion to dismiss. (20) At the hearing, Cope and the MDP withdrew their request for injunctive relief, but preserving their request for declaratory judgment challenging the validity of the governor's appointment of Kehoe. (21) The trial court sustained the State's motion to dismiss on the ground that Cope and the MDP had neither taxpayer nor associational standing to challenge the governor's appointment. (22) Cope and the MDP appealed the trial court's decision to the Supreme Court of Missouri. (23) At issue on direct appeal was the substantive question of whether the governor had authority to appoint Kehoe. (24) The Supreme Court of Missouri concluded that Governor Parson had the authority to appoint Kehoe to the Office of Lieutenant Governor. (25) The court's rationale was that the governor is permitted to fill all public office vacancies unless an alternative method is provided by law, and Section 105.030 of the Missouri Revised Statutes does not provide an alternative method. (26)

  3. LEGAL BACKGROUND

    Article IV, Section 4 of the Missouri Constitution provides: "The governor shall fill all vacancies in public offices unless otherwise provided by law, and his appointees shall serve until their successors are duly elected or appointed and qualified." (27) The clause "unless otherwise provided by law" was added to the provision in 1875. (28)

    Section 105.030.1 of the Missouri Revised Statutes provides guidance for how vacancies in public offices may be filled. (29) The statute provides that when

    any vacancy, caused in any manner or by any means whatsoever, occurs or exists in any state or county office originally filled by election of the people, other than in the offices of lieutenant governor, state senator or representative, sheriff, or recorder of deeds in the City of St. Louis, the vacancy shall be filled by appointment by the governor." (30) Section 105.030.2 further provides that vacancies in any county offices may be filled by the appointment of a county commission. (31)

    1. Principles of Constitutional Interpretation

      When interpreting the Missouri Constitution, the Supreme Court of Missouri must "ascribe to the words of a constitutional provision the meaning that the people understood them to have when the provision was adopted." (32) The court is to assume that every word in a constitutional provision has meaning. (33) When words do not have a legal or technical meaning, the court must apply their plain or ordinary meaning, unless doing so would "defeat the manifest intent of the constitutional provision." (34)

    2. Previous Statute Challenged under Article IV, Section 4

      A statute's constitutionality under Article IV, Section 4 of the Missouri Constitution has only been determined once before Cope v. Parson (35) In Labor's Educational and Political Club Independent et al. v. Danforth, the Court held that Section 130.070(1), part of the Missouri Campaign Finance and Disclosure Act ("the Act"), was unconstitutional. (36) Missouri voters passed the Act by a ballot initiative, and it contained various campaign finance and disclosure regulations. (37) Section 130.070(1) of the Act "void[ed] an election where violations of the Act occur, or if it is impossible to hold a special election prohibit[ed] the guilty candidate from becoming a candidate for any public office for ten years." (38) The court held that the ten-year prohibition was unconstitutional in that it created an eligibility requirement for public office in addition to those outlined in the Missouri Constitution. (39)

      The plaintiffs in Danforth further challenged the Act as a violation of the Equal Protection Clause of the United States Constitution, because violators of the Act running for positions where a special election could be held were not subject to the same eligibility requirement. (40) To satisfy the equal protection clause, a strict scrutiny test required the government to provide a compelling interest for the classification. (41) The State argued, "because there is no authority to hold special elections for some public offices, these offices would be left vacant if voiding an election would be the government's only recourse for a violation of the Act, and this would be of little or no benefit to the public," but the State did not name any specific offices. (42) The court found that Section 130.070(1) violated the Fourteenth Amendment because the discrepancy that few if any offices--other than that of the lieutenant governor--would stay vacant in Missouri. (43)

    3. Interpreting "Unless Otherwise Provided by Law "

      Three cases have interpreted the phrase "unless otherwise provided by law" in different contexts, and the results were mixed. First, State ex rel. St. Joseph Lead Co. v. Jones confronted the venue question of whether a suit by summons could be instituted against an out-of-state business licensed to do business in Missouri in a county other than where the cause of action happened or where the company keeps an office or agent to conduct usual business. (44) The relevant statutes were Section 1751 and 1754. (45) Section 1751 stated that lawsuits "instituted by summons shall, except as otherwise provided by law, be brought... when all the defendants are nonresidents of the state, suit may be brought in any county in this state." (46) Section 1754 stated that lawsuits "against corporations shall be commenced either in the county where the cause of action accrued... or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business." (47) The court noted that Section 1751, by the express terms "except otherwise provided by law," indicated that there was no legislative intent for the Section to "prevail over any conflicting statute." (48) The court found that Section 1754 was controlling because it...

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