Schweich v. Nixon, No. SC 92750.

Citation408 S.W.3d 769
Decision Date01 October 2013
Docket NumberNo. SC 92750.
PartiesThomas A. SCHWEICH, Missouri State Auditor, Appellant/Cross–Respondent, v. Jeremiah W. NIXON, Governor of the State of Missouri, Respondent/Cross–Appellant.
CourtUnited States State Supreme Court of Missouri


Darrell L. Moore, State Auditor's Office, Jefferson City, for Appellant/Cross–Respondent.

James R. Layton, Solicitor General, Jefferson City, for Respondent/Cross–Appellant.


The Missouri State Auditor filed a declaratory judgment action challenging an announcement issued by the Governor of the State of Missouri allegedly withholding certain monies from the 2012 fiscal year (“FY 2012) state budget for the Missouri legislature, the Supreme Court of Missouri, and the office of the Auditor. The trial court found that the Governor has complete discretion to control the rate of expenditures and to withhold or reduce expenditures at any time provided that actual revenues are less than the estimated revenues—in practical terms, at any time until the final day of the fiscal year. It found for the Auditor on the latter's claim that the Governor is not authorized to increase appropriations based on an “estimated” or “E” designation on the line item.1

The Missouri Constitution specifically limits the Auditor's authority to that set out in the Constitution. The Constitution does not give the Auditor the authority to conduct a preaudit 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. For the same reason, the Auditor, who was acting solely in his official capacity, did not have standing to challenge the “E” appropriations.

The Auditor does have standing to seek a declaratory judgment as to the authority of the Governor to withhold portions of the appropriation for the Auditor's own office. But the challenge here was premature because it was brought prior to the end of FY 2012, the fiscal year as to which the Auditor claims funding improperly was withheld from his office. Until the end of that year it could not be determined whether the Governor merely was controlling the rate of appropriations or was withholding a portion of the Auditor's appropriation entirely nor could it be determined whether the constitutional requirements for permitting a permanent withhold were met. Accordingly, the issue of the Governor's authority to withhold a portion of the Auditor's budget was not ripe for adjudication.

For this reason, pursuant to Rule 84.14,2 this Court issues the judgment that the trial court should have entered and dismisses the petition without prejudice.


On June 10, 2011, the Governor announced that pursuant to his authority under article IV, section 27 of the Missouri Constitution he was going to withhold, in FY 2012, more than $600,000 from the legislature's FY 2012 budget, $300,000 from the Auditor's FY 2012 office budget, and $6 million from the Missouri judiciary's FY 2012 budget (“the withholds”).3

The Auditor began an audit of the Governor's office on June 27, 2011, prior to the start of FY 2012. On August 26, 2011, the Auditor filed a petition for declaratory judgment and injunctive relief challenging the Governor's authority under article IV, section 27 to withhold these amounts. That section states:

Power of governor to control rate of and reduce expenditures.

Section 27. The governor may control the rate at which any appropriation is expended during the period of the appropriation by allotment or other means, and may reduce the expenditures of the state or any of its agencies below their appropriations whenever the actual revenuesare less than the revenue estimates upon which the appropriations were based.

Mo. Const. art. IV, sec. 27.

The Auditor's petition asserted, inter alia, that (1) the Governor's FY 2012 withholds and reallocations are unconstitutional because they are arbitrary and capricious in regard to which budget allocations are reduced and which are not reduced and (2) the Governor's FY 2012 withholds are unconstitutional under article IV, section 27 of the Missouri Constitution because they were announced before FY 2012 began. He also argues that “E” appropriations in the budget are unconstitutional because article IV, section 23 requires specific appropriations by the legislature and that the separation of powers is violated if the Governor is permitted to authorize an expenditure in excess of the stated amount for the “E” or estimated amount set by the legislature.

In support, the Auditor recognizes the authority that section 27 gives to the Governor to reduce expenditures below appropriations but argues that this authority necessarily comes into effect only when and if actual revenues are less than revenue estimates for the fiscal year in question. As the withholds were announced prior to the beginning of FY 2012, the Auditor argues, the Governor could not then have known whether actual revenues would be less than revenue estimates and, therefore, did not have authority to reduce appropriations to any of these entities. The Governor responds that the withholds were not permanent or irreversible, that they were undertaken in furtherance of his constitutional duty to ensure a balanced budget, as were the “E” appropriations, and that his actions were not arbitrary and capricious but rather were a direct application of his constitutional authority under article IV, section 27.

The trial court granted in part and denied in part the Auditor and the Governor's cross-motions for summary judgment. The Auditor and the Governor both appeal from the trial court's judgment. This Court has exclusive appellate jurisdiction pursuant to article V, section 3 of the Missouri Constitution because this case involves the validity of portions of appropriations bills enacted by the General Assembly and approved by the Governor. See Shipley v. Cates, 200 S.W.3d 529, 534 (Mo. banc 2006); State v. Planned Parenthood of Kan. and Mid–Mo., 37 S.W.3d 222 (Mo. banc 2001).


“Because standing is a question of law, review of the issue on appeal is de novo.” CACH, LLC v. Askew, 358 S.W.3d 58, 61 (Mo. banc 2012). Resolution of this case also involves interpretation of article IV, sections 13 and 27 of the Missouri Constitution. Constitutional interpretation is a question of law and is reviewed de novo. Akers v. City of Oak Grove, 246 S.W.3d 916, 919 (Mo. banc 2008).


Prior to addressing the Auditor's claim that the Governor acted beyond his constitutional authority in withholding appropriations to offices other than his own and in his handling of “E” appropriations, this Court must determine whether these issues present a justiciable controversy. Justiciability is a “prudential” rather than a jurisdictional doctrine. “A justiciable controversy exists where [1] the plaintiff has a legally protectable interest at stake, [2] a substantial controversy exists between parties with genuinely adverse interests, and [3] that controversy is ripe for judicial determination.” Mo. Health Care Ass'n v. Attorney Gen. of Mo., 953 S.W.2d 617, 620 (Mo. banc 1997), citing State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172, 176 (1949).

The first two elements of justiciability are encompassed jointly by the concept of “standing.” “Prudential principles of justiciability, to which this Court has long adhered, require that a party have standing to bring an action. Standing requires that a party have a personal stake arising from a threatened or actual injury.” State ex rel Williams v. Mauer, 722 S.W.2d 296, 298 (Mo. banc 1986). Accord, Harrison v. Monroe Cnty., 716 S.W.2d 263, 265–66 (Mo. banc 1986) (standing is “a component of the general requirement of justiciability” and is the state analogue to the federal “case or controversy” requirement).

[A] primary objective of the standing doctrine is to assure that there is a sufficient controversy between the parties that the case will be adequately presented to the court. That, plus the purpose of preventing parties from creating controversies in matters in which they are not involved and which do not directly affect them are the principal reasons for the rule which requires standing. Ryder v. St. Charles Cnty., 552 S.W.2d 705, 707 (Mo. banc 1977). Standing is a necessary component of a justiciable case that must be shown to be present prior to adjudication on the merits.4CACH, LLC, 358 S.W.3d at 61;Farmer v. Kinder, 89 S.W.3d 447, 451 (Mo. banc 2002). 5

Even when a plaintiff is able to show standing, the merits will not be reached unless the case is ripe. Ripeness is determined by whether “the parties' dispute is developed sufficiently to allow the court to make an accurate determination of the facts, to resolve a conflict that is presently existing, and to grant specific relief of a conclusive character.” Mo. Health Care Ass'n, 953 S.W.2d at 621. “A court cannot render a declaratory judgment unless the petition presents a controversy ripe for judicial determination.” Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 26 (Mo. banc 2003), quoting Mo. Health Care Ass'n, Id. at 621.

Most courts tend to address standing first and reach the ripeness issue only if standing requirements are satisfied.6 This makes sense, for [p]arties seeking relief ‘bear the burden of establishing that they have standing.’ St. Louis Ass'n of Realtors v. City of Ferguson, 354 S.W.3d 620, 622 (Mo. banc 2011), quoting Manzara v. State, 343 S.W.3d 656, 659 (Mo. banc 2011). If a particular party is unable to show that it has standing to bring the action at all, there is no point in reaching the hypothetical issue whether the action would be timely if it could have been brought.

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