Posted on Tue, May. 06, 2008

What would you do if the tax assessor overcharges you but denies a partial refund? Or if the city causes a flood on your land? Or if state workers destroy your garage?

Ever since Missouri achieved statehood in 1821, the state constitution has guaranteed citizens the right to challenge government actions in court. A measure pending in the legislature would drastically limit this basic right.

House Joint Resolution 41 would prohibit courts from ordering state or local government entities to reimburse citizens unless the General Assembly first allows reimbursement in legislation signed by the governor.

Missouri would become the only state with such a prohibition, which would close courthouse doors in an estimated 3,000 cases each year.

The resolution provides that “no court shall order … any … officer of the state or any political subdivision … to … expend public funds except as expressly approved by legislation …”

Supporters say Missourians must amend the state constitution to prevent courts from ordering tax increases.

The truth that Kansas City attorney C. Patrick McLarney and I realize is that the constitution already provides that only the legislature, not the courts, may impose taxes.

Regardless of the anti-tax rhetoric, HJR 41 would achieve its destructive outcome by upsetting two fundamental constitutional guarantees: the “open-courts” right and the “separation of powers” doctrine.

These are not legal technicalities.

In 1821, Missouri’s first constitution specified that “courts of justice ought to be open to every person, and certain remedy afforded for every injury.”

The people strengthened this mandate in the constitution of 1875, which guaranteed that “the courts of justice shall be open to every person …” This strong language — “shall,” not “ought to be” — remains unchanged.

Separation of powers is as old as the United States itself, and as old as Missouri. When the Framers drafted the U.S. Constitution in 1787, we became the first modern nation to create a republic with three separate co-equal branches of government: the executive, the legislature and the judiciary.

In a poll conducted in December, 73 percent of Missourians said that “Missouri judges should be independent of elected officials like the governor and the legislature to ensure judges make decisions based only on the law and the constitution.”

With HJR 41, Missouri would enable the executive and legislative branches to deny courts authority to hold government accountable.

This would not hurt the courts or judges or lawyers. The real losers each year would be thousands of Missourians, shut out of the courts they support with their hard-earned tax dollars.

Douglas E. Abrams is a professor at the MU School of Law. He lives in Columbia.