Supreme Court hears rights-of-way arguments

Can the Legislature change a law that a court has overturned — but the court’s ruling isn’t final because of appeals?

That is one of the questions the Missouri Supreme Court was asked Tuesday to answer, as the city of Springfield, the Missouri Municipal League and its deputy director, Richard Sheets, challenged the General Assembly’s passage of laws in 2013 and 2014 limiting local governments’ control over telecommunications infrastructure permitting and the rights-of-way of which public utilities place infrastructure.

The Legislature passed two bills in 2013, making changes to state law including language prohibiting political subdivisions from requiring any public utility — with certain existing access to their rights-of-way — to enter into an agreement or obtain a permit for general access to or the right to remain in the right-of-way.

Those laws were challenged, and in October 2013, Cole County Circuit Judge Pat Joyce ruled both bills violated the Missouri Constitution’s requirement that bills maintain the original purpose of the first bill and contain a single subject.

But the state appealed that ruling so — legally — it didn’t go into effect until August 2014.

But the 2014 Legislature passed two new bills replacing the language of the 2013 bills.

Two days before those bills were to go into effect, Springfield, the Municipal League and Sheets filed a lawsuit challenging the new laws as being unconstitutional.

Last June, Cole County Circuit Judge Jon Beetem upheld, among other things, the state’s motions the plaintiffs didn’t have legal standing to sue.

Jefferson City lawyer Michael Berry told the high court Tuesday: “In 1981, this court entered an opinion that is directly on-point with legislation that was very much like the legislation that we’re talking about here.

“In the case of ‘Planned Industrial,’ the Supreme Court ruled that a city did have standing to challenge (a law), finding that — under the Declaratory Judgment Act — the city is a ‘person’ which has standing.

“And in finding that the interests of the city in managing its right-of-way, and the important interests of the residents who have entrusted that responsibility to the city, required finding standing.”

Even though Joyce’s 2013 ruling had been appealed, Berry argued, no court action had changed her decision that the 2013 laws were unconstitutional, so the Legislature’s 2014 bills using the same language should meet the same fate as the 2013 laws.

Solicitor General James Layton disagreed, arguing a more recent high court ruling, known as “Savannah R-3” for the Northwest Missouri school district that had challenged a different state law involving pensions, should prevail over Berry’s use of the 1981 decision.

“Cities lack vested rights vis-a-vis the General Assembly, except where those rights are granted to cities by the Constitution,” Layton told the judges. “If one of my children gives a particular privilege to one of my grandchildren, my grandchildren don’t get vested rights in that privilege — because those rights are dictated by my (adult) children, as the parents.”

Likewise, he explained, “The General Assembly decides what rights cities and other political subdivisions have — except where there’s a constitutional declaration.”

But nothing in the Missouri Constitution gives the cities the rights they want to protect in this lawsuit, Layton said.

He also argued, since Joyce’s ruling was not final because of the appeal.

“It is not a final judgment in the sense of disposing of the issues that are pending in the case,” Layton said. “The injunction is an injunction against enforcement of the statute.

“(It) is an injunction that says to the General Assembly, ‘Ignore that you put (this language) on the books.’”

Layton acknowledged Missouri’s 1980 Hancock Amendment to the Constitution allows taxpayers to sue, but Layton argued Sheets didn’t have any standing to sue in this case because he’s not affected by the challenged laws.

“The only taxpayer here is a taxpayer who alleged in the petition that he is from Cole County,” he said. “There is no allegation that this taxpayer resides in any city, whether it is a member of the Missouri Municipal League or not.

“So, we have a county taxpayer (and) there is no allegation in the petition that there is impact on counties.”

The court didn’t indicate when it might rule in the case.