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Missouri Supreme Court hears Clean Water Commission fight

Missouri Supreme Court hears Clean Water Commission fight

May 15th, 2019 by Bob Watson in Local News

The Missouri Supreme Court at 207 W. High St. in Jefferson City.

The Missouri Supreme Court was asked Tuesday to decide whether a law passed three years ago is constitutional — and whether the organization challenging the law even had the legal right to file their lawsuit.

In 2016, Missouri lawmakers took a bill about wastewater treatment and added several amendments to it.

The Missouri Coalition for the Environment sued in February 2017 over one of those changes — which required the Clean Water Commission's members to include at least two people who were knowledgeable about agriculture and at least one person who was knowledgeable about "the needs of publicly owned wastewater treatment works."

The coalition argued the final bill violated the Missouri Constitution's requirement that all parts of a bill be about the same subject — a requirement the state Supreme Court emphasized in its 1994 Hammerschmidt decision.

Last November, Cole County Circuit Judge Dan Green ruled the coalition didn't have the legal standing to file the lawsuit in the first place — and the changes made to the original bill "did not change the bill from its original purpose, described in the final title as 'relating to the regulation of water systems.'"

Tuesday afternoon, the seven-judge Missouri Supreme Court spent a lot of time asking questions and hearing arguments about the "standing" issue — whether the coalition and its members had a legal right to bring their lawsuit challenge to the law.

"It's been 25 years since the court's decision in Hammerschmidt v. Boone County," attorney Harold Robertson reminded the court, arguing for the coalition, "and in all that time, everyone's been so fixated with 'taxpayer standing' that they overlook the majority concurrence in that case, written by Judge (John) Holstein.

"Judge Holstein said that procedural challenges to the validity of bills don't involve individual, substantive rights — but they are, nevertheless, subject to judicial review."

State law and constitutional provisions give Missouri taxpayers a right to challenge laws because of their effect on how the state spends tax money.

People also can challenge a law if it has a direct, adverse effect on them.

Robertson noted Holstein had proposed time limits on lawsuits when no individual rights were at issue, and he said, "(Holstein's) suggestion (later) was enacted almost word-for-word by the Legislature."

That law says a challenge to the single-subject rule must be filed before the end of the next legislative session, he said, "so any party, aggrieved or not, may file suit within that first legislative session."

The Coalition for the Environment's lawsuit was filed within that time frame.

The unanimous, 1994 Hammerschmidt ruling was written by Judge Edward D. "Chip" Robertson.

But Holstein wrote what's called a "concurring" opinion, where he agreed with the main decision but added some thoughts — in this case, "to suggest that if there is a constitutional challenge to the form in which the Legislature enacts a bill, as opposed to a substantive challenge to the content of a bill, this Court should establish strict time standards for bringing an action to judicially review procedural defects."

Three other judges, including Chip Robertson, agreed with Holstein's opinion.

But during Tuesday's arguments, today's Supreme Court judges asked if attorney Harold Robertson was relying too much on Holstein's concurring opinion in the Hammerschmidt case.

Judge Laura Denvir Stith noted: "Judge Holstein's (opinion) can't grant or deny standing to anybody."

Assistant Attorney Justin D. Smith told the court: "It's important to note that, in the Hammerschmidt case, standing is not addressed."

Robertson had argued the Legislature could create a form of "citizenship" standing that could allow more people the right to sue over constitutional issues — which he said the law patterned after Holstein's opinion did.

But Smith said such a law "could raise constitutional concerns, because 'standing,' itself, is grounded in constitutional principles."

He added: "The best reading of (that law), we believe, is that it's not a 'standing' statute and it's not creating this new kind of 'citizenship' standing.

"That was not the intent of the Legislature or Judge Holstein."

He argued, if the court agreed with Robertson that the coalition has the legal standing to sue, "there are unintended consequences that may happen for actions taken at the city, county or even at the state level that currently aren't subject to review."

As usual, the court gave no indication when it might rule in the case.