JEFFERSON CITY, Mo. -- Attorney General Jay Nixon's office has asked a judge to dismiss with prejudice a lawsuit challenging the governor's constitutional power to reduce approved spending for public schools in order to keep the state budget in balance.

Gov. Bob Holden, a Democrat, ordered $190 million withheld from the education budget for the fiscal year that began July 1, saying the Republican-led Missouri Legislature failed to provide revenue sufficient to cover expenditures. The governor's action prompted 12 school districts to seek a court order mandating the release of the funds, which would be distributed among all Missouri school systems.

In a dismissal motion filed Friday, assistant attorney general Paul Wilson said the governor is obligated under the Missouri Constitution to keep the budget in balance.

"Nothing in the constitution requires the governor to stumble blindly along spending money at a rate that the state may not be able to sustain," Wilson wrote.

Cole County Circuit Court Judge Richard Callahan has scheduled a hearing on the motion for Nov. 5. If granted, the districts would be barred from refiling the lawsuit unless Callahan is overruled by an appellate court.

The constitution precludes the governor from using his line-item veto power on budget bills to reduce spending for public schools below levels approved by lawmakers.

However, the next section authorizes the governor to reduce the expenditures of any state agency below appropriated amounts in the event of a revenue shortfall.

The plaintiffs, led by the Liberty School District, claim the sections should be read together, with the first imposing a limitation on the governor's power under the second.

The state contends that the clear constitutional language shows that appropriations and expenditures are two different things. While the governor may not reduce the former in regard to public schools, he is specifically allowed to control the latter.

Sidestepping 1992 caseThe Missouri Supreme Court sidestepped interpreting the two sections in a 1992 case brought by the Sikeston School District in response to education withholdings by Gov. John Ashcroft. However, the court did define an appropriation as "the legal authorization to expend funds from the treasury."

In that case and subsequent decisions, the high court said the governor has broad constitutional authority to reduce spending to keep the budget in balance.

All of the plaintiffs, except for the Springfield School District, are located in the Kansas City area. The Kansas City School District is among those that recently joined the lawsuit.

The case is Liberty School District, et al., v. Gov. Bob Holden and Commissioner of Education Jacquelyn White.

mpowers@semissourian.com

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