Cope v. Parson, SC 97284

• Citation: 570 S.W.3d 579
• Decision Date: 16 April 2019
• Docket Number: No. SC 97284,SC 97284
• Parties: Darrell COPE and the Missouri Democratic Party, Appellants, v. Michael L. PARSON and Mike Kehoe, Respondents.
• Court: United States State Supreme Court of Missouri

570 S.W.3d 579

Darrell COPE and the Missouri Democratic Party, Appellants,

v.Michael L. PARSON and Mike Kehoe, Respondents.

No. SC 97284

Supreme Court of Missouri, en banc.

Opinion issued April 16, 2019

The challengers were represented by Matthew B. Vianello and Joe D. Jacobson of Jacobson Press PC in Clayton, (314) 899-9789.

The state was represented by First Assistant and Solicitor D. John Sauer of the attorney general’s office in Jefferson City, (573) 751-3321.

Zel M. Fischer, Chief Justice

Darrell Cope and the Missouri Democratic Party ("MDP") appeal the circuit court's dismissal of a petition seeking a declaratory judgment that Governor Michael L. Parson's appointment of Mike Kehoe to the office of Lieutenant Governor was unauthorized, per § 105.030.¹ The circuit court concluded Cope and the MDP had no standing to bring this action, private citizens lack the authority to seek the removal of a public official through litigation and that the Governor of Missouri has the authority to appoint a Lieutenant Governor in the event of a vacancy. The circuit court's judgment is affirmed in part and reversed in part.

Factual and Procedural History²

Michael L. Parson previously served as Missouri's Lieutenant Governor, an office he held until the resignation of Governor Eric Greitens. Governor Parson then succeeded Greitens to the office of Governor, leaving the office of Lieutenant Governor vacant. Governor Parson appointed Mike Kehoe to be the Lieutenant Governor. The day of Kehoe's appointment, Cope and the MDP filed a petition seeking injunctive and declaratory relief against Governor Parson and Kehoe in the circuit court of Cole County. The petition alleged Governor Parson lacked legal authority, per § 105.030, to appoint a Lieutenant Governor and that the office must remain vacant until the next general election in 2020.

Governor Parson and Kehoe filed a motion to dismiss the petition claiming a private litigant does not have the authority to remove the Lieutenant Governor from office, that Cope and the MDP lacked standing to assert their claims, and that the Governor has the authority to appoint a Lieutenant Governor under article IV, § 4 of the Missouri Constitution. The circuit court held a hearing on Governor Parson and Kehoe's motion to dismiss. During the hearing, Cope and the MDP withdrew their request for injunctive relief, leaving only a request for declaratory relief regarding the validity of Governor Parson's appointment of Kehoe.

The circuit court sustained the State's motion to dismiss, concluding Cope and the MDP did not have associational or taxpayer standing to challenge Governor Parson's appointment of Kehoe. Cope and the MDP filed a direct appeal to this Court.³

Standard of Review

"This Court reviews the trial court's grant of a motion to dismiss de novo. " Mo. Municipal League v. State , 489 S.W.3d 765, 767 (Mo. banc 2016). If the dismissal is justified on any ground included in the motion to dismiss, the circuit court's judgment will be affirmed. Reed v. Reilly Co., LLC , 534 S.W.3d 809, 811 (Mo. banc 2017). "A motion to dismiss for failure to state a claim on which relief can be granted is solely a test of the adequacy of the petition." Bromwell v. Nixon , 361 S.W.3d 393, 398 (Mo. banc 2012). "When considering whether a petition fails to state a claim upon which relief can be granted, this Court must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and construe all allegations favorably to the pleader." Id.

Analysis

The issues of this case boil down to whether petitioners have standing to bring this declaratory judgment action and, if so, whether the Governor has the authority to appoint a Lieutenant Governor. Last at issue is whether this Court should even entertain the questions presented, as the State contends any opinion rendered in this case would be advisory in nature.

Standing

"Standing is a question of law, which is reviewed de novo." Manzara v. State , 343 S.W.3d 656, 659 (Mo. banc 2011). For a declaratory judgment action, the petitioner must "have a legally protectable interest at stake in the outcome of the litigation." State ex rel. Kan. City Power & Light Co. v. McBeth , 322 S.W.3d 525, 531 (Mo. banc 2010). This exists "if the plaintiff is directly and adversely affected by the action in question or if the plaintiff's interest is conferred by statute." Weber v. St. Louis Cnty. , 342 S.W.3d 318, 323 (Mo. banc 2011).

Cope alleges standing as a taxpayer of the state of Missouri. Taxpayers have a legally protectable interest in the proper use and expenditure of tax dollars. See, e.g. , Lebeau , 422 S.W.3d at 288-89 ; E. Mo. Laborers Dist. Council v. St. Louis Cnty. , 781 S.W.2d 43, 46 (Mo. banc 1989). The interest "derives from the need to ensure that government officials conform to the law." Lebeau , 422 S.W.3d at 288. Acting as a necessary check on government authority,

[t]axpayer standing gives taxpayers the opportunity to challenge certain actions of government officials that the taxpayer alleges are unauthorized by law, and it permits challenges in areas where no one individual otherwise would be able to allege a violation of the law. ... Taxpayers must have some mechanism of enforcing the law.

Id. at 289 (internal quotations omitted).

To show a legally protectable interest as a taxpayer the plaintiff must be able to demonstrate: "(1) a direct expenditure of funds generated through taxation; (2) an increased levy in taxes; or (3) a pecuniary loss attributable to the challenged transaction of a municipality." Manzara v. State , 343 S.W.3d 656, 659 (Mo. banc 2011) ; see E. Mo. Laborers Dist. , 781 S.W.2d at 47.

Cope alleges he is a taxpayer and citizen of Wright County, Missouri. He challenges the authority of Governor Parson to appoint Kehoe to the office of Lieutenant Governor, contending such an appointment was outside the scope of the Governor's constitutional and statutory authority to fill vacancies in public offices. He alleges taxpayer standing to challenge Governor Parson's authority to appoint Kehoe as Lieutenant Governor "because such appointment will require the expenditure of revenue collected by taxpayers to fund the Office of the Lieutenant Governor." This is an allegation of a direct expenditure of funds generated through taxation. In 2018, the non-appointment of a Lieutenant Governor would have saved the Missouri taxpayers, at a minimum, the salary of the Lieutenant Governor. Thus, these allegations are sufficient to give Cope standing to proceed with his declaratory judgment action as a taxpayer of the state of Missouri.

The MDP alleges it has associational standing "because Governor Parson's purported appointment of a Lieutenant Governor will create an electoral disadvantage for the Party and its members, Democratic voters in the State of Missouri." The injury alleged is that if Kehoe decides to run as an incumbent in the next election, it will result in an electoral disadvantage. However, in light of the holding that Cope has standing to proceed, the question of MDP's associational standing need not be addressed. Mo. Coal. for Env't v. Joint Committee on Administrative Rules , 948 S.W.2d 125, 132 (Mo. banc 1997).

Governor's Authority

The Governor of Missouri's authority to appoint a Lieutenant Governor derives from article IV, § 4 of the Missouri Constitution which provides: "The governor shall fill all vacancies in public offices unless otherwise provided by law ..." (emphasis added).

The crux of this case is resolved by interpreting what was intended by the phrase "unless otherwise provided by law," a phrase which was included in the provision at the time the Missouri Constitution was enacted.⁴ Using the words' plain, ordinary meaning in the context of the constitution, the Governor has the constitutional authority to fill all vacancies in public offices unless another way of filling the vacancy is furnished by law.

Cope acknowledges "Missouri law ... provides no way to fill a vacancy in the office of Lieutenant Governor." However, he relies on § 105.030 to support his argument that "the General Assembly's intent that should a vacancy arise in the office of Lieutenant Governor, the office will remain vacant until the next applicable election." Section 105.030, in pertinent part, provides:

Whenever any vacancy, caused in any manner or by any means whatsoever, occurs or exists in any state or county office originally filled by election of the people, other than in the offices of lieutenant governor, state senator or representative, sheriff, or recorder of deeds in the city of St. Louis, the vacancy shall be filled by appointment by the governor ...

Cope's argument — that this statute shows an intent for the listed offices to remain vacant should a vacancy occur — ignores that the law provides a way to fill every office expressly mentioned in the statute apart from Lieutenant Governor. See Mo. Const. art. III, § 14 ("Writs of election to fill vacancies in either house of the general assembly shall be issued by the governor."); § 57.080 ("Whenever from any cause the office of sheriff becomes vacant, the same shall be filled by the county commission; if such vacancy happens more than nine months prior to the time of holding a general election, such county commission shall immediately order a special election to fill the same[.]"); ST. LOUIS , MO. CODE , art. VIII, § 6 ("Any vacancy in any elective office ... shall be filled by appointment of the mayor until a successor is elected and qualifies").

Both the dissenting opinion and Cope argue this Court should infer a preemption of the constitutional power of the Governor to appoint, however "[t]here is no need for courts to infer a preemption ... where the legislature does not say so." Overcast v. Billings Mut. Ins. Co. , 11 S.W.3d 62, 69 (Mo. banc 2000). More so, this Court has held the Governor's express article IV, § 4 power to appoint cannot be abrogated by mere implication, as "[t...