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Government, Politics & Issues

Nixon lawyers include former Supreme Court judge, challenge Schweich's suit

This article first appeared in the St. Louis Beacon, Sept. 21, 2011 - Missouri Gov. Jay Nixon is citing specific and broad constitutional powers to keep Missouri's budget balanced in court filings this week that challenge state Auditor Tom Schweich's assertion in a suit that the governor violated the state's constitution when he withheld money from some state programs to pay for Joplin disaster relief.

The Missouri attorney general's office, which is representing Nixon, has hired two outside lawyers for the case. One is former state Supreme Court Judge Chip Robertson, who is serving without payment, and lawyer Paul Wilson, who is being paid $150 an hour.

Among other things, the governor's filing quotes from the Missouri constitution, where it states that the chief executive "may control the rate at which any appropriation is expended during the period of the appropriation by allotment or other means."

The filings on Nixon's behalf were made Tuesday. Among other things, the governor is challenging Schweich's legal standing and many of the auditor's assertions in the original suit filed Aug. 26.

Schweich was challenging Nixon's action to withhold $150 million from various programs and state agencies in the state's budget for the current fiscal year, which began July 1, and to allocate that money instead for disaster relief in Joplin, Mo., which was hit by a deadly tornado May 22.

Schweich's suit appears to be the first time that a Missouri auditor has challenged the powers of the governor to engage in "withholds,'' in which a governor holds back money allocated by the Missouri General Assembly. If state revenue comes in as expected, governors often restore some or all the money. Withholds are different from line-item cuts, which Missouri governors also have the power to make.

Nixon's court documents note that he already has restored some of the $150 million.

Attorney general spokeswoman Nanci Gonder released a statement explaining why Wilson and Robertson were hired.

"The attorney general's office sometimes hires outside counsel in complex cases for their particular expertise.  In this case, both have expertise on the state budget issues and Missouri constitutional law," the statement said.

"In addition, both Paul Wilson and Chip Robertson were involved in the last significant case addressing the auditor's powers, Kelly vs. Hanson, in 1997.  Paul argued the case on behalf of the attorney general's office, and Judge Robertson sat on the Supreme Court, which heard the case."

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