This article first appeared in the St. Louis Beacon, Oct. 1, 2013: The Missouri Supreme Court has tossed out state Auditor Tom Schweich’s suit challenging Gov. Jay Nixon’s authority to withhold money allocated in state budget, ruling among other things that the auditor acted too quickly.
The 6-0 decision, released Tuesday, also reaffirmed that the Missouri constitution grants the governor broad powers to reduce or restrict state spending during the budget year.
Under the Missouri constitution, state government must end each fiscal year with a balanced budget, and the governor long has been considered to have substantial powers to ensure that happens. The governor can cut budgeted money outright or “withhold” it until it’s clear that the state has enough revenue to cover the allocation.
Nixon swiftly lauded the court’s decision. “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 – and over the past four and a half years, that is exactly what we have done,” Nixon said.
Schweich, however, saw a way forward. “The Supreme Court effectively ruled that we filed our suit too soon,” the auditor said in a statement. “The court dismissed our suit without prejudice to re-file. 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."
In a first by a Missouri state auditor, Schweich had filed suit in 2011 accusing Nixon of violating the state constitution "when he withheld more than $170 million from state agencies, programs and educational institutions prior to the start of the current fiscal year.."
Schweich contended in his suit that Nixon's withholdings "violate the separation of powers, and that they are arbitrary and capricious."
Schweich also challenged Nixon’s actions to reallocate some of the $170 million to pay for disaster relief following the deadly tornado that hit Joplin, Mo., on May 22, 2011. Schweich contended that Nixon didn’t have the power to do so.
Nixon's actions were in line many previous governors, notably Republican John Ashcroft, who would withhold budgeted money early in the fiscal year, and then restore some or all of it later.
Court rules against auditor's standing, timing
Although a lower court allowed the auditor's case to proceed, the state Supreme Court said that the suit should have been dismissed early on.
The high court said that Schweich didn’t have the legal standing to challenge most of Nixon’s withholds – with the exception of $300,000 withheld from the auditor’s office budget.
“The auditor does not have standing to bring the claims raised other than a claim relating to his own office appropriation,” the court wrote.
But aside from backing Nixon’s powers, the high court said that Schweich had filed his suit too early in the fiscal year – in August 2011 -- since it wasn’t clear when Nixon withheld the money whether the state’s revenues would meet the projections used to draw up the budget. The state budget year runs from July 1 through June 30.
For example: “It was premature for the auditor to bring a declaratory judgment action as to whether the $300,000 withheld from his office budget was to be a permanent withhold or restored later in the budget year,” the court wrote.
Later, the court added, “The constitution does not give the auditor the authority to conduct a pre-audit of other state officials’ spending, which is in effect what the auditor attempted to do by challenging the governor’s general authority to withhold funds prior to the end of the fiscal year in which those withholds were to occur. Accordingly, the auditor did not have standing to bring this claim.”
