570 S.W.3d 579
Mo.2019Background
- Governor Parson, formerly Lieutenant Governor, became Governor when Greitens resigned, leaving the Lieutenant Governor post vacant; Parson appointed Mike Kehoe to fill it.
- Darrell Cope (a Missouri taxpayer) and the Missouri Democratic Party (MDP) filed suit seeking declaratory (and initially injunctive) relief that the appointment violated § 105.030 and that the office must remain vacant until the next general election.
- Parson and Kehoe moved to dismiss, arguing plaintiffs lacked standing, private parties cannot remove a public official via litigation, and the Governor has constitutional authority to appoint under Mo. Const. art. IV, § 4.
- Cope withdrew injunctive relief, leaving only a declaratory-judgment claim; the circuit court dismissed for lack of standing (associational and taxpayer standing) and other grounds.
- The Missouri Supreme Court held Cope has taxpayer standing to pursue declaratory relief; it also held the Governor has constitutional authority under art. IV, § 4 to fill the Lieutenant Governor vacancy because the legislature did not provide an alternative method.
- The Court rejected the argument that a declaratory judgment would be an impermissible advisory opinion, finding a justiciable, ripe controversy existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to bring declaratory action | Cope: as a taxpayer he has a protectable interest because appointment incurs taxpayer-funded salary/expenditures | Parson/Kehoe: plaintiffs lack taxpayer or associational standing; private litigant cannot remove official | Cope has taxpayer standing (allegation of direct expenditure sufficient); MDP's associational standing not decided (unnecessary) |
| Governor's authority to appoint Lt. Governor | Cope: § 105.030's exclusion of lieutenant governor implies legislature intended that office remain vacant until election | Parson/Kehoe: art. IV, § 4 gives Governor power to fill vacancies unless law provides otherwise; no statute provides an alternative method for this office | Art. IV, § 4 controls; because no alternative method exists, Governor constitutionally may appoint Lt. Governor; Parson's appointment valid |
| Whether § 105.030 implicitly preempts Governor's appointment power | Cope/dissent: statutory language "other than ... lieutenant governor" shows legislature forbids appointment and intended vacancy until election | State: legislature did not expressly preempt constitutional appointment power; courts should not infer preemption where statute is silent | Court: no implicit preemption; statute simply excepted certain offices from its scheme and did not abrogate Governor's express constitutional power |
| Whether declaratory relief would be an advisory opinion | State: with injunctive relief withdrawn, judgment would be advisory and nonbinding on Governor/Kehoe | Plaintiffs: an actual controversy exists because Kehoe occupied office and plaintiffs have legally protectable interests | Court: controversy is justiciable and ripe; declaratory relief is permissible and not advisory |
Key Cases Cited
- Mo. Municipal League v. State, 489 S.W.3d 765 (Mo. banc 2016) (standard for de novo review of motion to dismiss)
- Reed v. Reilly Co., LLC, 534 S.W.3d 809 (Mo. banc 2017) (affirmance of dismissal if any ground in the motion justifies it)
- Bromwell v. Nixon, 361 S.W.3d 393 (Mo. banc 2012) (motion to dismiss tests adequacy of petition; pleadings construed favorably)
- Manzara v. State, 343 S.W.3d 656 (Mo. banc 2011) (standing is question of law; taxpayer-standing standards)
- State ex rel. Kan. City Power & Light Co. v. McBeth, 322 S.W.3d 525 (Mo. banc 2010) (declaratory-judgment plaintiff must have legally protectable interest)
- Weber v. St. Louis Cnty., 342 S.W.3d 318 (Mo. banc 2011) (direct and adverse effect or statutory conferment for standing)
- Lebeau v. City of St. Louis, 422 S.W.3d 288 (Mo. banc 2014) (taxpayer standing protects ensuring officials conform to law)
- Bank of Washington v. McAuliffe, 676 S.W.2d 483 (Mo. banc 1984) (constitutional appointment power should be construed to ensure uninterrupted government functioning)
- State ex rel. Williams v. Marsh, 626 S.W.2d 223 (Mo. banc 1982) (court not authorized to issue advisory opinions)
- Mo. Health Care Ass'n v. Atty. Gen. of the State of Mo., 953 S.W.2d 617 (Mo. banc 1997) (elements of a justiciable declaratory-judgment controversy)