Administration argues committee can't subpoena
Friday, June 28, 2013
During a half-hour conference call with reporters Thursday afternoon, House Speaker Tim Jones, R-Eureka, noted several times that his subpoenas to several members of Gov. Jay Nixon’s administration were “absolutely within the lawful investigatory power of any committee of the House.”
But Nixon argued in legal papers filed with the Cole County circuit court that Jones’ legal analysis was wrong.
“(The) subpoenas were not issued to compel appearance before a legislative committee, are procedurally deficient, impose an undue burden on (the administration) and interfere with the performance of critical government functions required to be performed by the executive branch of government,” lawyer Jim McAdams argued in a petition filed with the Cole County court Thursday morning.
Circuit Judge Dan Green issued a preliminary prohibition order, “to refrain from all action (on the subpoenas) until further notice,” and gave Jones and Rep. Stanley Cox, R-Sedalia, until July 28 to answer McAdams’ arguments.
Jones, who is a lawyer, told reporters the “Bipartisan Investigative Committee on Privacy Protection” had the same authority as any other House committee, but McAdams said its inclusion of non-lawmaker members erased that argument.
“(State law) authorizes committees of the Senate or House of Representatives to issue subpoenas for witnesses,” McAdams wrote. “This provision does not confer authority to require appearance before a non-legislative body.”
The legal papers then listed the 12 House members (including Caleb Jones, R-California), five sheriffs (including Republicans Greg White of Cole County and Michael Dixon, Osage County), two prosecutors and two others whom Jones appointed to the panel.
One of those prosecutors, Russ Oliver of Stoddard County, is a part-time prosecutor allowed by law to continue a private legal practice and who, earlier this year, filed a civil lawsuit in Dexter challenging the Revenue department’s policies on scanning and recording the personal documents used to get a driver’s or non-driver’s license or a concealed weapons permit.
“Because this Committee includes non-legislators, it is not a committee of the House ... authorized to receive the testimony of witnesses appearing pursuant to legislative subpoenas,” McAdams argued.
He also noted a House rule requires committees to have members “in the same proportion as the number of majority and minority party members in the House.
Democrats are 32.72 percent of the current House membership, but the “Bipartisan Investigative Committee” has only two Democrats among its 12 lawmakers.
Additionally, three of the five sheriffs and both prosecutors on the panel are Republicans, and the other two members are former Rep. Gary Fuhr, R-St. Louis County, and Omar Davis, a lawyer who held several positions in Republican Matt Blunt’s administration, including the Revenue department’s legal counsel.
Of the committee’s 21 members, only four — 19 percent — are Democrats.
McAdams’ petition also noted that Cox, who chairs the Privacy panel, was told Wednesday that five of those administration officials the committee said it wanted to question — Administration Commissioner Doug Nelson, Policy Director Jeff Harris, Nixon Chief Counsel Chris Pieper, Peter Lyskowski and Kristy Manning — “are senior members of the Executive Branch who are currently in the process of meeting the Governor’s constitutional responsibility to act on the budget and all pending legislation. ... The subpoenas (for Thursday) prevent (them) from engaging in the proper performance of constitutionally required duties.”
And former Revenue Director Alana Barrigan-Scott now is an administrative hearing commissioner who had two days of hearings scheduled in Fulton at the same time the committee wanted her to testify.
When asked why the courts aren’t an appropriate place to decide the committee’s power, Jones said: “I’ll say again, I think it’s shocking that the governor would use legal machinations and legal tricks instead of coming forward to tell the truth and answer the questions. ...
“It seems there are, obviously, facts that he does not want the people of the state of Missouri to know.”
The only comment Nixon’s office made on the issue Thursday was notifying reporters of Judge Green’s temporary order blocking the subpoenas.
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