Supreme Court rules auditor lawsuit 'premature'

Court heard arguments six months ago

Missouri’s Supreme Court ruled 6-0 Tuesday that State Auditor Tom Schweich challenged Gov. Jay Nixon too soon, in Schweich’s 2011 lawsuit questioning Nixon’s decisions to withhold money from the state’s budget.

The court’s 17-page ruling, which didn’t identify the judge who wrote it, also said Schweich didn’t have the legal right to raise some of the issues in that suit, but that he could file another suit in the future.

“In unanimously rejecting this lawsuit, the Missouri Supreme Court has confirmed once again that Missouri governors have the authority and the responsibility to rein in spending and keep the budget in balance,” Nixon said in a statement.

But the court’s opinion didn’t give the governor clear authority, instead saying Schweich used the wrong procedures.

“The auditor has exceeded his constitutional authority in challenging the governor’s constitutional power to announce in advance a withhold ...” the court ruled, “because the auditor is limited to conducting a post-audit, which is an examination of a financial record performed after the fact.”

Schweich filed his lawsuit in August 2011, arguing the governor violated the state Constitution when he withheld money from the 2011-12 state budget even before that business year had begun.

The legal battle began in June 2011, when Nixon signed the budget bills for the 2011-12 business year that began July 1 — and announced immediately that he was withholding more than $172 million from the more than $23 billion budget plan lawmakers approved.

Nixon’s actions also sought to take money from some “estimated” expenses and use them, instead, for emergency costs including state aid to the Joplin area after the deadly May 2011 tornado.

But, in his lawsuit, Schweich argued Nixon had no authority to move money from one fund to another, and the Constitution only allows the governor to “reduce the expenditures of the state or any of its agencies below their appropriations whenever the actual revenues are less than the revenue estimates.”

Since the business year had not started, Schweich argued, the governor had no way of knowing if revenues were too little to support the lawmakers’ budget.

Schweich also had questioned Nixon’s withholding $300,000 from the auditor’s budget — and Tuesday’s high court ruling said that was the only area that Schweich had the legal right to question the governor’s actions.

So the court dismissed Schweich’s lawsuit without ruling on it, and said he could file it again in the future.

In a statement, Schweich said: “That leaves us with two options: do a post audit of the governor’s office now and file suit, or work with the Legislature to restrict the ability of the governor to make withholds when there exists adequate revenues to fully fund the budget.

“We will spend the next several days determining which option to pursue, or whether to pursue both options.”

House Speaker Tim Jones, R-Eureka, said it was troubling that the court dismissed the case on procedural grounds instead of the merits of the case.

“It is my hope that, at some point in the near future, the court will approach this issue directly and clarify what many in our state already know — that the governor’s rampant abuse of his withholding authority has circumvented the nature and intent of our Missouri Constitution,” Jones said.

Initial coverage, posted at 1:30 p.m. Tuesday:

In a 17-page opinion released this afternoon, the Missouri Supreme Court ruled that State Auditor Tom Schweich filed his lawsuit too soon.

Schweich sued Nixon in August 2011, arguing the governor violated the state Constitution when he withheld money from the 2011-12 state budget even before that business year had begun.

Cole County Circuit Judge Jon Beetem ruled, in June 2012, that, in the Supreme Court's words, "the Governor has complete discretion to control the rate of expenditures and to withhold or reduce expenditures at any time ..."

But the high court ruled today that Schweich has the legal right only to question the governor's actions as they affected the auditor's budget — not all of state government.

So the court dismissed Schweich's lawsuit without ruling on it, and "without prejudice," meaning the auditor could file the suit again, at some point in the future.

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