State Auditor v. Joint Committee on Legislative Research, 79454

• Decision Date: 30 September 1997
• Docket Number: No. 79454,79454
• Citation: 956 S.W.2d 228
• Parties: STATE AUDITOR, Appellant, v. JOINT COMMITTEE ON LEGISLATIVE RESEARCH, et al., Respondents.
• Court: Missouri Supreme Court

Page 228

956 S.W.2d 228

STATE AUDITOR, Appellant, v. JOINT COMMITTEE ON LEGISLATIVE RESEARCH, et al., Respondents.

No. 79454.

Supreme Court of Missouri,

En Banc.

Sept. 30, 1997.

As Modified on Denial of Rehearing

Nov. 25, 1997.

Marc H. Ellinger, Keith A. Thornburg, Jefferson City, for Appellant.

John E. Bardgett, James B. Deutsch, R. Thomas Avery, Jefferson City, for Respondents.

ROBERTSON, Judge.

In this case, we consider whether article II, section 1 of the Missouri Constitution, which divides Missouri government into "three distinct departments," permits the legislative department to conduct a management audit of an executive department agency pursuant to sections 23.150, 23.160 and 23.170, RSMo 1994.

The trial court sustained the legislature's claim of authority. This appeal followed. Our jurisdiction rests on article V, section 3 of the constitution. We reverse.

I.

May 11, 1995, the Joint Committee on Legislative Research (the "Joint Committee") adopted a resolution directing the Oversight Division of the Joint Committee to conduct a management audit of the State Auditor's office pursuant to authority granted the Joint Committee under sections 23.150 and 23. 170. While performing the audit, the Oversight Division sought access to documents which the Auditor claimed were privileged "working papers." Working papers are those papers created by the employees of the State Auditor's Office in the course of conducting an audit of another agency.

July 25, 1995, Margaret Kelly, the State Auditor, filed a petition requesting a declaratory judgment and an injunction in the Cole County Circuit Court. On September 21, 1995, Kelly amended her petition to include six counts. The first count claimed the statutes authorizing the Joint Committee to conduct management audits, sections 23.150, 23.160 and 23.170, RSMo, violate the constitutional requirement that the departments of government remain separate. MO. CONST. ART. II, SEC. 1. The remaining five counts raise a number of statutory issues which, for reasons that will be apparent shortly, are not relevant to our decision here.

November 3, 1995, Kelly filed a motion for summary judgment on counts one and two of the petition. On December 8, 1995 the Joint Committee filed a motion for summary judgment on the same counts. On January 9, 1996, the trial court overruled Kelly's motion and sustained the Joint Committee's summary judgment motion. Subsequent procedural skirmishes produced additional summary judgment motions filed on the remaining counts, all of which the trial court sustained in the Joint Committee's favor on November 8, 1996.

Kelly appealed to this Court.

II.

A.

Section 23.150.1 provides: "The committee on legislative research shall organize an oversight division to prepare fiscal notes and to conduct management audits and program audits of state agencies." Section 23.170.1 provides:

The oversight division of the committee on legislative research shall, pursuant to a duly adopted concurrent resolution of the general assembly, or pursuant to a resolution adopted by the committee on legislative research, conduct management audits and program audits of agencies as directed by any such resolution.

Article II, section 1 of the Missouri Constitution provides:

The powers of government shall be divided into three distinct departments--the legislative, executive and judicial--each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.

1.

"The legislative power shall be vested in a senate and house of representatives to be styled 'The General Assembly of the State of Missouri.' " MO. CONST. ART. III, SEC. 1. A careful reading of article shows that the constitution assigns the General Assembly the single power and sole responsibility to make, amend and repeal laws for Missouri and to have the necessary power to accomplish its law-making responsibility. "[A]ll the power to make laws in the name and with the authority of its constituent elements--its citizens en masse--is lodged in the temporary Legislature, subject only to the restraining clauses of the Constitutions of the state and nation." Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339, 205 S.W. 196, 197 (1918). The power of the legislature to make laws is plenary within its sphere of responsibility.

2.

"The supreme executive power shall be vested in a governor." MO. CONST. ART. IV, SEC. 1. "The executive department shall consist of all state elective and appointive officials and employees except officials and employees of the legislative and judicial departments ... ." MO. CONST. ART. IV, SEC. 12. "Under our system of government, it is universally agreed that it is the function of the executive department, honestly and efficiently, to administer and enforce the laws as written...." 16 C.J.S. CONSTITUTIONAL LAW, SEC. 214. Thus, the power to administer and enforce the law lies solely with the executive branch.

B.

The constitutional demand that the powers of the departments of government remain separate rests on history's bitter assurance that persons or groups of persons are not to be trusted with unbridled power. For this reason, the separation of the powers of government into three distinct departments is, as oft stated, "vital to our form of government." State on Information of Danforth v. Banks, 454 S.W.2d 498, 500 (Mo. banc), cert. denied, 400 U.S. 991, 91 S.Ct. 452, 27 L.Ed.2d 439 (1971), because it prevents the abuses of power that would surely flow if power accumulated in one department. See State Tax Commission v. Administrative Hearing Commission, 641 S.W.2d 69, 73-74 (Mo. banc 1982) (separation of powers "prevent[s] the abuses that can flow from centralization of power"). Thus, "[t]he doctrine of the separation of powers [is not meant to] promote efficiency but to preclude the exercise of arbitrary power." Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160 (1926) (Brandeis, J., dissenting).

In practice, the functional lines between the two political departments are not hard, impenetrable ones. There is a necessary overlap between the functions of the departments of government. This is nowhere more evident than in the administrative law area, where the legislature delegates rule-making authority to executive expertise. But the constitution does not permit one department to exercise the powers reserved for the other. Thus, it is apparent that the constitution intends for the legislature's power to cease when a bill becomes law and the executive branch begins to exercise its power to administer and enforce that law. "Once the legislature 'makes its choice in enacting legislation, its participation ends.' " Missouri Coalition for the Environment v. Joint Committee on Administrative Rules, 948 S.W.2d 125, 134 (Mo. banc 1997), quoting Bowsher v. Synar, 478 U.S. 714, 733-734, 106 S.Ct. 3181, 3191-92, 92 L.Ed.2d 583 (1986).

C.

There are two broad categories of acts that violate the constitutional mandate of separation of powers. "One branch may interfere impermissibly with the other's performance of its constitutionally assigned [power] ... [citations omitted]. Alternatively, the doctrine [of separation of powers] may be violated when one branch assumes a [power] ... that more properly is entrusted to another. [citations omitted]." I.N.S. v. Chadha, 462 U.S. 919, 963, 103 S.Ct. 2764, 2790-91, 77 L.Ed.2d 317 (1983). (Powell, J., concurring).

Although "we presume that [a] statute is valid unless it clearly contradicts a constitutional provision." Asbury v. Lombardi, 846 S.W.2d 196, 199 (Mo. banc 1993), sections 23.150, 23.160 and 23.170 violate article II, section 2 in each of the ways Justice Powell describes in Chadha. First, the statutes permit the legislature to interfere impermissibly with a co-equal department's performance of its constitutional power. Second, the statutes empower the legislative department to perform a duty reserved expressly to the executive department's authority by article IV, section 13.

1.

In this case, the Joint Committee directed the Oversight Division to conduct a management audit of the State Auditor's office. Section 23.160.1, RSMo 1994, provides:

As used in this chapter, the term "management audit " means a post-audit which determines, with regard to the purpose, functions, and duties of an audited agency:

(1) Whether the agency is managing and utilizing its resources in an economical and efficient manner; and

(2) Which identifies causes of inefficiencies or uneconomical practices including inadequacies in the use and management of information systems, internal and administrative procedures, organizational structure, use of resources, allocation of personnel, and purchasing policies.

The Joint Committee relies heavily of Director of Revenue v. State Auditor, 511 S.W.2d 779 (Mo.1974), and claims that that case interprets the constitution to prohibit the state auditor from conducting management audits as part of her authority to post-audit the accounts of state agencies.

State Auditor addresses the limited question "whether the Auditor, in performance of his constitutional duty to postaudit the Department of Revenue, is entitled to access to individuals' tax returns in custody of the Department of Revenue and which are protected by law from disclosure by the Department." Id. at 780. The Court determined that the "identity of the [individual tax] return by name and enterprise is not representative of any financial information" the auditor requires to conduct a post audit. Id. at 783. Accordingly, the Court denied the auditor access to taxpayers' returns.

The Joint Committee reads State Auditor to require this Court to adopt a technical definition of the words "post-a...