Missouri Coalition for Environment v. Joint Committee on Administrative Rules

• Decision Date: 21 January 1997
• Docket Number: No. 78628,78628
• Citation: 948 S.W.2d 125
• Court: Missouri Supreme Court
• Parties: MISSOURI COALITION FOR THE ENVIRONMENT, et al., Relators, v. JOINT COMMITTEE ON ADMINISTRATIVE RULES, etc., et al., Respondents.

Page 125

948 S.W.2d 125

MISSOURI COALITION FOR THE ENVIRONMENT, et al., Relators, v. JOINT COMMITTEE ON ADMINISTRATIVE RULES, etc., et al., Respondents.

No. 78628.

Supreme Court of Missouri En Banc.

Jan. 21, 1997.

As Modified on Denial of Rehearing

Feb. 25, 1997.

Lewis C. Green, Bruce A. Morrison, Kathleen G. Henry, St. Louis, for Relators.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joseph P. Bindbeutel, Amy E. Randles, Asst. Attys. Gen., Jefferson City, for Respondents.

PRICE, Judge.

"At some point the right case will arise challenging the powers of the JCAR. It should come as no surprise to anyone when those powers are ruled unconstitutional." Kenneth D. Dean, Legislative Veto of Administrative Rules in Missouri: A Constitutional Virus, 57 Mo. L.Rev. 1157, 1216 (1992).

I.

Relators are individuals who reside near landfills in Missouri and the Missouri Coalition for the Environment, an organization concerned with enforcement of Missouri's Solid Waste Management Law (MSWML). They claim benefit from a regulation that was adopted by the Department of Natural Resources (DNR) under the MSWML and was submitted to the secretary of state for publication. The individual relators claim that they suffer foul odors, noise from passing landfill trucks, and a heightened risk of injury from traffic flowing to landfills adjacent to their homes. They further contend that the regulation at issue will curtail these nuisances and enhance their lifestyle.

Respondents are the Joint Committee on Administrative Rules (JCAR), its members, the secretary of state, the DNR, and the director of the DNR. The secretary of state refused to publish the regulation at issue because the DNR had not first submitted the proposed regulation to the JCAR, a committee empowered by the legislature to veto the proposed rule. Relators seek an order in mandamus requiring the secretary of state to publish that rule, a declaratory judgment holding legislative veto power unconstitutional, and an injunction preventing the JCAR from further actions. The trial court granted summary judgment for respondents, finding the case moot and, therefore, nonjusticiable.

Because the legislature may not grant itself power that unconstitutionally impinges upon the executive branch of our tripartite government, we declare § 260.225, RSMo Supp.1990, unconstitutional. Section 260.225, RSMo Supp.1990, violated the separation of powers provisions of Missouri Constitution article II, § 1 by permitting the legislature to suspend publication and promulgation of the DNR's final orders of rulemaking for up to twenty days while the legislature reviewed such rules. Section 260.225, RSMo Supp.1990, violated both the separation of powers provisions of Missouri Constitution article II, § 1 and the passage and presentment requirements of Missouri Constitution article III, §§ 21 and 31 by permitting the legislature to prevent promulgation and enforcement of DNR rules it disapproved and to suspend and withdraw rules already promulgated by the DNR. We reverse the trial court and order the secretary of state to publish in the Missouri Register the final order of rulemaking submitted to the secretary of state by the DNR on July 16, 1992.

II.

In 1975, the Missouri legislature created the Joint Committee on Administrative Rules (JCAR). Section 536.037, RSMo Supp.1975. The committee was composed of five senators appointed by the president pro tem of the Senate and five representatives appointed by the Speaker of the House. Section 536.037.1, RSMo Supp.1975. ¹ Initially, the committee merely "reviewed" rules and regulations promulgated by executive agencies. Section 536.037.3, RSMo Supp.1975. ² The committee was to report findings and recommendations to the General Assembly, to the Commissioner of Administration, and to the elected state officer who promulgated the rule. Section 536.037.4, RSMo Supp.1975. ³ The statute also provided that the necessary expenses of committee members attending JCAR hearings were to be paid out of the joint contingent fund. Section 536.037.5, RSMo Supp.1975. ⁴ Despite the fact that citizens of this state twice defeated proposed constitutional amendments attempting to grant the General Assembly power to invalidate administrative rules and regulations, ⁵ subsequent legislation granted the committee power to suspend rules, ⁶ the right to prior approval of rules, ⁷ and power to nullify rules already in effect. ⁸

The statute at issue in this case ⁹ mandated prior approval by the JCAR of rules proposed under the authority of the MSWML. Section 260.225, subsections 4 and 5, RSMo Supp.1990. ¹⁰ The agency was required to submit the proposed rules to the JCAR when it submitted the proposed rules to the secretary of state for notice and comment publication. Section 260.225.4, RSMo Supp.1990. The JCAR could "disapprove" such a rule. Id. If the JCAR failed to suspend the rule within twenty days, the agency was permitted to submit the rule for publication as a final order of rulemaking and it was deemed approved by the JCAR. Section 260.225.5, RSMo Supp.1990. The 1990 version of § 260.225 also provided that any rule promulgated under any section of the MSWML could be suspended after publication at any time by the JCAR. Section 260.225.6, RSMo Supp.1990.

In 1992, the DNR attempted to promulgate a rule that required, among other things, that those seeking permits from the DNR for landfills and waste processing plants first submit documents indicating that they had complied with all local zoning, planning, licensing, and permit requirements. The DNR submitted the proposed rule to the secretary of state for notice and comment publication in the Missouri Register. The secretary published the proposed rule on April 17, 1992. Missouri Register, Volume 17, Number 8, p. 519. On July 16, 1992, the DNR submitted to the secretary of state a final order of rulemaking on the proposed regulations. On July 20, 1992, the secretary of state refused to publish the final order of rulemaking, stating that the promulgation requirements of § 260.225 had not been fulfilled because the proposed order of rulemaking had never been submitted to the JCAR for its approval or veto.

On September 4, 1992, relators filed this suit. The General Assembly amended § 260.225 in 1993 to permit the JCAR to suspend rules for thirty legislative days ¹¹ and to allow the General Assembly to ratify the JCAR's suspension by separate resolution ¹² and to revoke rules already in effect by concurrent resolution. ¹³ Section 260.225, RSMo 1994. In 1995 the legislature passed Section 536.024, RSMo Supp.1995, ¹⁴ which applies to all rulemaking by the executive branch, repealed the 1993 version of § 260.225, and incorporated by reference § 536.024. ¹⁵ The provisions of § 536.024 are substantially the same as the veto provisions of the 1993 version of § 260.225. On April 18, 1994, the DNR purportedly withdrew the final order of rulemaking it had submitted to the secretary of state on July 16, 1992.

The St. Louis County Circuit Court granted respondents' motion for summary judgment, ruling the cause moot because the proposed rules had been withdrawn, the statute had been amended, and the legislature had not actually exercised the veto. This appeal followed.

We have jurisdiction. Mo. Const. art. V, § 3.

III.

As a preliminary matter, the individual relators have standing to bring this action both as to the secretary of state's refusal to publish the final order of rulemaking submitted to him on July 16, 1992, and as to the broader constitutional issues.

"The principle at the heart of [the writ of mandamus] is that public officers are required to perform ministerial duties without any request or demand, and the entire public has the right to that performance." State ex rel. Twenty-Second Judicial Circuit v. Jones, 823 S.W.2d 471, 475 (Mo. banc 1992). "Where the duty sought to be enforced is a simple, definite ministerial duty imposed by law, the threshold for standing is extremely low." State ex rel. Cabool v. Texas County Bd. of Equalization, 850 S.W.2d 102, 105 (Mo. banc 1993).

Here, the individual relators seek enforcement of the secretary of state's duty to publish a final order of rulemaking. The secretary of state has no discretion in publishing such rules. Once the rule has been properly submitted, the secretary must publish it. Section 536.021.7, RSMo Supp.1992 (providing that "[a]ll rules shall be published in full" (emphasis added)). This is a "definite ministerial duty imposed by law." Cabool, 850 S.W.2d at 105. Because the secretary declined to perform the duty imposed upon him by law, a member of the general public can bring an action to enforce his duty to publish the final order of rulemaking.

Additionally, the individual relators have standing as taxpayers to challenge the constitutionality of JCAR's expenditure of public funds. Harris v. Missouri Gaming Comm'n, 869 S.W.2d 58, 60 (Mo. banc 1994). The statute creating the JCAR provides in pertinent part that "members of the committee ... may receive their necessary expenses while attending the meetings of the committee, to be paid out of the joint contingent fund." Section 536.037.5, RSMo Supp.1975. "[A] taxpayer has standing to challenge an alleged illegal spending of public funds if there is a 'direct expenditure of funds generated through taxation....' " Harris, 869 S.W.2d at 60 (quoting Eastern Mo. Laborers Dist. Council v. St. Louis County, 781 S.W.2d 43, 47 (Mo. banc 1989)) (emphasis in original). Relators allege expenditure of public funds by the JCAR in the years 1986 through 1992. The stipulation of facts indicates that JCAR reviewed and disapproved rules that agencies had proposed. Thus, the individual relators have taxpayer standing and may challenge the constitutionality of the current JCAR statute.

The question of the standing of the Missouri Coalition for the Environment is more troublesome. In essence, the Coalition alleges two grounds...