Senator Jane Cunningham has caused us to think of Yellowstone Park. There are several places that are marked “thin crust area,” making places where the ground you walk on is actually a thin crust that could give way, plunging your leg or even all of yourself into something very hot right beneath you. It’s dangerous to walk in a thin crust area.

We thought of those signs as we watched Senator Cunningham work on her Facebook Fix bill this week and claim she could do whatever she wanted with it despite the governor’s seeming limitations in his call for the issue to be handled in the special session.

There are dangers in trying to broadly apply a court decision on a narrowly-defined issue. The dangers are greater if one or two lines are taken from the narrowly-written opinion and applied to a broader issue. But laymen and legislators sometimes try to do that. Senator Jane Cunningham of Chesterfield is relying on that one or two lines from a 1922 state supreme court decision to push a bill that does something Governor Nixon has specifically said he does NOT want the legislature to do in this special session.

If her interpretation goes unchallenged, the entire special legislative session playing field could change.

She is not a lawyer. Neither are any of the people at the Senate press table who have read the ruling she is using. She has gotten some advice. We have discussed it among ourselves. What follows is not intended as an argument one way or another. But if she is correct in feeling that the 1922 ruling says a governor can call a special session to address a topic but cannot limit what the legislature does with that topic, the game suddenly involves about 40 wild cards.

This will take some time to go through.

Cunningham relies on a case called Rice v. Edward. During the Senate Education Committee meeting to consider her bill, she read these two sentences from the ruling: “The legislature is authorized to legislate upon the subject or matter in any way it sees fit. It does not have to follow the views of the governor and legislative in a particular way upon the submitted subject.”

Governor Nixon probably disagrees but we haven’t been able to talk to him directly about it. However his spokesman says Cunningham’s bill goes beyond the call of the special session. Here is what Nixon’s instructions to the legislature are on this topic: “To enact legislation repealing subsections 162.069.1 through 162.069.4, RSMO. This matter is limited to the repeal of subsections 162.069.1 through 162.069.4, RSMo, and should not be construed to allow or permit amendments to those subsections or to otherwise enact revised or new language in place thereof.” RSMo is the acronym for Revised Statutes of the State of Missouri. Some folks refer to them as “Rizzmo” which kind of sounds like a Muppet or the brother of Dustin Hoffman’s character in “Midnight Cowboy.”

But back to our story.

So the governor says the legislature is authorized only to repeal the language that a court says cannot be enforced (the Missouri State Teachers Association lawsuit). He says the legislature is not authorized to enact replacement language. Cunningham says the 1922 ruling gives the legislature free rein to do exactly that because, as she put it during floor debate, “He calls the matter. We determine the actions.”

Let us begin with the state constitution. Article 4, Section 9 says in part, “On extraordinary occasions he may convene the general assembly by proclamation, wherein he shall state specifically each matter on which action is deemed necessary.”

Article 3, section 39 (7) says the legislature cannot act in special sessions “upon subjects other than those specially designated in the proclamation calling said session or recommended by special message to the general assembly after the convening of the extra session.”

Jim Ertle, the director of the senate’s research division, sent a memo to Senate Majority Leader Tom Dempsey that notes the Rice v. Edwards language Cunningham relies on and points to an opinion from Attorney General Norman Anderson in 1965 saying, “…the Governor may in his recommendations spell out in detail his ideas and proposals for consideration by the Legislature although the legislature is not bound by the specific detail so spelled out by the Governor.”

(Several years ago, it should be noted, a court ruled that an opinion of the Attorney General is no more legally binding than an opinion from any other lawyer.)

And Ertle tells Dempsey, “There are a number of cases examining whether the General Assembly acted within the call of the Governor, but there are none that directly assess whether the Governor’s call contains an unconstitutional attempt to dictate how the General Assembly addresses the issue raised by the call.”

In 2004, Anthony Bonuchi prepared a paper for the Missouri Legislative Academy, exploring the limits of a governor’s control over special session issues, specifically whether he can withdraw an issue once he has called the legislature into special session to consider it. His study of the constitution and the cases of Rice v. Edwards (1922) and Wells v. Railroad Co. (1892) as well as some attorney general opinions led him to conclude, “…the governor’s power over the general assembly ceases once it has convened, thus he may not revoke issues from his proclamation convening the general assembly once it has so convened.” The key phrase for Cunningham’s thinking is “the governor’s power over the general assembly ceases once it has convened.” Of course, this is just a paper, not a legal opinion.

Later in his paper he observes that if the legislature exceeds the scope of the proclamation anyway and the governor goes ahead and signs a bill, the action does not make the bill constitutional. More about that soon.

Our friend Marc Powers—you have met him before on this blog as our King of Arcania, a small territory on the second floor of the capitol—is one of those who is given the time to research statutes, legislative precedent, and court rulings, among other things, for the Democrats in the House. He submitted a memo to the House Minority Leader about the same time Ertle was sending his memo to Dempsey. Marc points out that the most recent Supreme Court ruling on subject matter limitations and legislative authority on special sessions came down more than 80 years ago, before our present state constitution was approved. However the wording of the 1875 constitution on this matter is similar to wording in the 1945 constitution. He tracks several major cases on this issue including two that are part of Bonuchi’s paper.

Wells v. Missouri Pacific Railway Co. (1892) concerned a governor’s call for the legislature to implement a constitutional amendment on railroad and corporation business practices. The court threw out legislation requiring railroads to adopt safety measures because the legislation went beyond the scope of the call. The governor had signed the bill but the court threw it out. This is the case where the court ruled that a bill passed in special session that exceeded the governor’s call was not a constitutional law even though the governor signed it.

Mark looks at Rice v. Edwards and a related case, Byrne v. Edwards, both from 1922. In those cases the governor asked legislature to divide St. Louis into new Justice of the Peace districts. The legislature also revised the constable districts. Wrong, said the court, because the legislature was not asked to do the constable districts. This is the case that Cunningham relies on and the ruling from which she quotes. But she does not quote the rest of the paragraph. Here’s more of what the court wrote, including the language she uses:

“We find no fault with those cases which hold that when the subject or matter is submitted to the Legislature, the Legislature is authorized to legislate upon the subject or matter in any way that it sees fit. It does not have to follow the views of the Governor, and legislate a particular way upon the submitted subject. But this rule does not change the rule that the Governor can limit the subject-matter for consideration, and for legislative action. The matter to be legislated upon at a special session is within the discretion of the governor.”

So the paragraph Senator Cunningham likes to quote takes a somewhat different turn when the additional language is considered.

The ruling goes on later that the governor asked lawmakers to revise the law that covered both justices of the peace and constables, “yet he had the right to place before the legislature the single matter of districts for justices of the peace, and this he did in language too plain to dispute. Had he desired language for constables, he could have submitted it; but he did not.”

So in the case Cunningham cites, the court has ruled that the governor can limit the subject matter and in language “too plain to dispute” can place limits on what will be enacted. At least that’s how some non-lawyers read the ruling that the non-lawyer senator’s excerpts.

Here’s another case from Marc’s research. Stocke v. Edwards. It’s also a 1922 case. This one involved the governor asking the legislature to make the position of assessors in cities of more than 500,000 population (St. Louis at the time) elective offices. The legislature did make the position elective. But it also defined the duties and powers of those officers, fixed their salaries, and crated a board of equalization to hear assessment appeals. Over the top, said the Supreme Court. Beyond the call. Yes, said the court, the duties, powers, salaries, etc., might be “incidental to the office and duties of the assessor,” but they did not “fall within the subject matter” in the call, which was only to make the position elective. The court ruled the legislature exceeded its authority “and the act fell within the constitutional inhibitions.”

That’s an interesting phrase: constitutional inhibitions.

In 1925, the court ruled on Lauck v. Reis. The governor had asked the legislature to act on “the subject of regulating or licensing motor vehicles, and fixing the amount and manner of collecting…registration and license fees” for motor vehicles. The legislature made several changes to the vehicle statutes and also changed traffic offenses. In this case, the court held the bill was okay because it fit the governor’s call for “regulating…motor vehicles.”

Three years later, State ex rel. Carpenter v. City of St. Louis questioned whether the legislature acted properly when it amended the Library Act in a special session called by the governor to address seven issued relating to roads and road bonds. That was a no-brainer for the court. Beyond the scope of the call.

The most recent ruling is from 1929, State of Missouri v. Adams. It was decided in 1929. The state had abolished capital punishment in 1917. But in 1929 the governor asked the legislature to consider repealing the abolition of the death penalty “and the re-enactment of such a statute in lieu thereof as you may determine” to restore capital punishment. The legislature had asked the governor to allow it to restore “the punishment by death either by hanging in the counties or electrocution within the walls of the state prison.” The governor issued the call. The legislature reinstituted capital punishment as it was before it was abolished. But the legislature added, “The jury shall decide which punishment shall be inflicted.” That’s going too far, said the court. Saying that only a jury could hand down a death penalty was beyond the call to just reinstate the death penalty, ” said the judges.

So here we are, laymen trying to interpret the law.

Senator Cunningham believes two sentences in one of several opinions justifies her positions. The governor’s office could, we suppose, argue that his instructions are in ” language too plain to dispute” when he elaborated on his call to repeal certain language. Are his instructions not to amend or replace the existing language merely an elaboration or continuation of his repeal language or are they separate and outside the bounds of his powers to instruct the special session?

The situation poses some interesting questions for what happens next.

If the legislature passes Cunningham’s bill that repeals the language Nixon wants repealed (and it does) but it inserts language he does not want (no amendments, no revisions “in place thereof’), where does that leave the bill?

A perfectly legal bill, Cunningham will probably argue. The other side can argue that the replacement language is beyond the scope of the call because it does not “fall within the scope of the call,” which is only for repeal and conflicts with constitutional inhibitions.

If the general assembly sends him Cunningham’s bill, what should Governor Nixon do with it? He could veto it, arguing that it goes beyond the scope of the call although all of the teacher groups now endorse it, including the MSTA. Under those circumstances why force the issue into the 2012 session? He could sign it although the court has ruled that signing a bill enacted unconstitutionally does not make it constitutional and if the governor’s position is that the bill is outside the call of the session, it clearly is unconstitutional in his eyes on those grounds.

He could do nothing. Under state law the bill would become law without his signature, indicating that he supports the idea but opposes the method used to enact it. If the bill becomes law, it could face a legal challenge.

Nixon has called for repeal and repeal only. He did not call for additional action on this subject. The supreme court a long time ago ruled that additional action (requiring a jury to approve a death sentence) was beyond the scope. To some laymen, the rulings other than the 1892 case seem to contradict Cunningham’s contention that “He calls the matter. We determine the actions.”

Of course Governor Nixon could resolve the issue by amendment is special call again to allow the legislature to pass new language. Cunninghams’s bill has widespread support now, even from the MSTA, which got the court order blocking the original law.

But this discussion involves more than Cunningham and her Facebook Fix bill. The wily Senator Jason Crowell already is pondering what he can add to the bills in the economic development package, at least some of which he would like to kill. Think of what a creative mind can do with this part of the governor’s special session call:

“To enact legislation implementing comprehensive reforms to existing tax credit programs that produce substantial savings to the state treasury throught he elimination of programs, imposition or lowering of caps, establishment of program sunsets and other reforms that create efficiencies and safeguard the taxpayers’ money. This matter is restricted and nothing in this Proclamation should be construed to authorize the enactment of legislation amending the five year limitation on interest costs eligible for issuance of tax credits under section 99.12-5.3, RSMo.”

Let that phrase “and other reforms that create efficiencies and safeguard the taxpayers’ money” rattle around in your head for a while and think what might fit under that verbal umbrella.

This has been a long, long, long entry. But one thing we have learned from years of reporting is that the citation of one or two lines from one legal case is a perilous way to justify a position and broadly interpreting a narrowly-defined ruling can be a stroll on some thin legal crust.

But what do we know? We’re no more a lawyer than Senator Cunningham is.