Good-bad news for Holden backs legislative authority

The good news for Gov. Bob Holden is that the Missouri Court of Appeals Western District bought his argument. And, to be sure, the bad news for Holden, most assuredly, is that the appeals court bought his argument. Herewith, some explanation.

Late on a Friday afternoon at the end of June 2001, heading into a long Independence Day weekend during which he knew the vacationing public wouldn't be paying attention, Holden stunned longtime observers of Missouri politics and government with an amazing executive order. Sweeping in scope, audacious in design, the order purported to do by a stroke of the governor's pen what more than three decades of dedicated legislative effort, even while both House and Senate remained under Democratic control, could never accomplish: Collective bargaining for public employees.

This writer responded by assembling a remarkably broad-based coalition of individuals and organizations of Missourians, including a Democratic state representative, and suing the governor to void his order in a lawsuit styled Kinder, et al. vs. Holden.

In the first round, a circuit court ruled against my side, and we headed for the Court of Appeals in Kansas City. After oral argument in August, the three-judge panel handed down a ruling last week.

The appeals court affirmed the trial court in refusing to allow my lawsuit to go forward -- a clear defeat for me in my effort to set aside his order, and an occasion for the governor to dance the Funky Chicken in the end zone. But the court did so in a manner that left Holden's executive order in place as a mere "directive" to executive-branch department heads, on the order of urging state employees to give blood to the Red Cross or attend the Veterans Day parade.

Don't take my word for it. Let's go to the appellate court ruling, where you will find these sentences: "A Missouri governor does not have constitutional or statutory authority to set up a mechanism which results in a state employee collective bargaining agreement which must be acted upon or paid for by the appropriation process. Despite intent or language, this order is not actionable because it lacks constitutional or statutory authority."

There you have it: The governor's executive order possessed of neither "constitutional or statutory authority." The court's concise phrase is the next thing to a nullity, a non-order, almost a dead letter.

The elected representatives of the people are in control, through the appropriations process, as the court's explicit nod in our direction reconfirms.

A favorite story is Ronald Reagan's, about why he was so optimistic. Reagan told of the little boy who excitedly plunged into a large package on Christmas morning.

As he dug deeper, all he could find was lots of manure. Asked why he kept smiling, the boy replied, "There must be a pony in there somewhere!"

In the court's opinion denying the relief we sought, we found our pony, in the above-quoted sentences.

Governor Holden: Call your legal counsel. We'll see you downstairs, in Senate Hearing Room 1, at the Appropriations Committee.

Peter Kinder is assistant to the chairman of Rust Communications and president pro tem of the Missouri Senate.