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Proposed Amendment Would Limit Court Powers

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Missouri State Photo
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The judges of the Missouri Supreme Court would have their powers limited if HJR-1 passes

By Steve Bell

http://stream.publicbroadcasting.net/production/mp3/kcur/local-kcur-587877.mp3

Kansas City, MO –
Resolution One would send to the voters a constitutional amendment that at no Missouri court could levy a tax or a tax increase or issue any order on whether or how to appropriate money. Supporters say it just makes it clear that judges can't legislate from the bench. Opponents like former state senator Harold Caskey see it as a kind of "Trojan Horse."

Caskey:
"It's a ploy a stealth attack on the public education, a stealth attack on the citizens of the state of Missouri, and it's just outrageous."

Caskey, a Butler attorney and Democrat accuses the Republican majority of trying to sneak the measure by as a protection for the constitution when they really want to end the power of the courts to tell them to spend more money on schools and are looking for a wedge issue to rally conservative voters in 2008. He says it would also enable to them to do some things the courts have told them they can't do.

Caskey:
"It would allow the vouchers for private and parochial schools, and there would be no way and no mechanism to keep the legislature from doing that kind of appropriations."

Governor Matt Blunt is one of those who proposed Resolution one. He says it is simply a way to make the Missouri constitution more clear about not allowing what he calls judicial taxation.

Blunt:
"The best way to protect against judicial taxation is to place in our constitution just a very clear statement of what I think most people believe today - and that's that judges can't order tax increases, and that the power to tax resides with the general assembly, and of course those taxes are approved by the governor, not by judges."

The governor says no Missouri court has ever imposed a tax increase, but he says it has happened in other states, and is likely to happen in Missouri unless the constitution's language is more specific.

Blunt:
"We don't need uh a judge to undermine the fiscal discipline that we've exercised in the state capital, and uh certainly undermine the desire that I have and others in the general assembly that we not increase the tax burden on Missouri families."

Blunt disagrees with Caskey on whether the amendment would remove any legitimate constitutional power of the courts.

Blunt:
"The courts could tell the legislature that they're not complying with the law. They would not be able to offer a specific remedy as to how much needed to be spent."

Kansas City attorney Pat McLarney says the governor is wrong on that issue -- that the amendment would hamstring the courts.

McLarney:
"It's really an attempt to hide the ball. Because it doesn't say the courts cannot order a remedy. It says the courts cannot DO this!"

McLarney, testified against Resolution One on behalf of the Missouri Bar Association, and Missouri Institute of Justice. He says even if the governor's interpretation were correct, people would have to pay an attorney cash in a case that could drag on for years because there would be no way to pay with a portion of the settlement, and that courts would refuse to takine cases in which they couldn't order a remedy.

McLarney:
"It's basically taking the right away from the citizens and the taxpayers of using the courts. The courts could care less because it would reduce their dockets."

McLarney says the examples supporters rely on are inaccurate. The Kansas Supreme Court did not, he says, order a tax increase; it ordered the legislature to honor its own education cost study. The legislature then reduced taxes. And he says s claim that a Nevada court passed a billion dollar tax increase is a distortion

McLarney:
"Number one, it never passed a tax. Number two, they reversed the decision. That case is widely cited, but it actually did none of those things."

Interpretations aside, McLarney says there is one overpowering reason the Missouri Bar Association opposes Resolution One.

McLarney:
"This is a watershed case, because this is the first time that the Missouri legislature will try to put in the constitution that a court can not do something. And that's a dangerous road to start down."

The House version of Missouri Resolution One has already passed. And with the support of Senate leadership, the Senate version is likely to pass. The governor plans to sign it. According to the language in the bills, that would submit the amendment to the voters in November of 2008.

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