Capitol Perspectives: Judicial Correction of Legislative Gaffes

by By Phil Brooks

A recent New York Times article about U.S. Supreme Court edits of wording mistakes reminded me about how Missouri's Supreme Court has dealt with legislative mistakes.

The New York Times story referenced an editing correction the U.S. Supreme Court in a 1928 property-rights case in which decision incorrectly used the word "property" for what was supposed to be "properly."

Missouri's Supreme Court has a formal process for subsequent court "modification" of a typo in a decision issued by the court.

The state's high court also has a fascinating history dealing with legislative gaffes.

In 1985 the legislature passed and Gov. John Ashcroft signed into law a major anti-crime bill that would have repealed the crime of rape.

It generated national news, but repeal of the rape crime actually was not approved by legislators.

Instead, a Senate staffer mistakenly included repeal in the title of the official copy of the final version that was signed by legislative leaders and sent to the governor.

A bill changing a law begins by repealing the existing law followed by reenactment of the revised version of the statute. Rape-law repeal was included at the top of the bill along with a long list of other criminal statutes being changed, but there was no change to the rape crime, so no reenacting clause.

I suspect the clerical error including rape in the formal, official final version arose from a proposed House amendment to remove an exemption of martial rape from the rape statute. But the amendment was defeated.

"It was one of those victims of chaos...Clerks don't repeal laws," said the governor's legislative director, Joe Frappier, who predicted the courts would not uphold the repeal.

Missouri's Supreme Court validated Frappier's prediction.

In a unanimous decision, the court held that the governor had no authority to sign the anti-crime bill into law because it was not what the legislature actually passed, demonstrated by legislative records.

The court threw out the entire omnibus anti-crime bill which had been a major priority of the governor and legislative leaders.

A similar legislative fiasco arose 22 years later, in 2007, when legislators did not pay attention to the exact wording of legislation they approved.

The bill originally covered health insurance issues.

But when the House-passed bill reached the Senate, Sen. John Louden, R-St. Louis County, pulled a fast one.

In the closing hours of that year's legislative session he offered a 74-page substitute that few had time to read.

His substitute included a short paragraph that exempted those with "tocological" certificates from state medical licensing or physician oversight.

Nobody else in the Senate seemed to realize "tocological" meant midwifery which would be exempted from existing state medical requirements -- something pushed by faith-based advocates for home births.

In an article, former Missouri Supreme Court Judge Mike Wolff, now an emeritus faculty member of St. Louis University Law School, titled one section "Mastering the Legislative Game with Stealth and Faith."

The law was challenged by medical organizations including the Missouri Medical Association.

But this time, the Missouri Supreme Court refused to save the legislature's bacon by rejecting the argument that midwifery licensing exceeded the bill's original topic of health insurance.

More than two decades later, that midwife provision passed by "stealth" remains in state law without much controversy.

Years earlier, the Supreme Court again upheld a possible legislative gaff. It arose with the 1982 passage of the state's tougher drunken driving law minutes after the midnight adjournment required by the state Constitution.

News reports cited the post-midnight passage which I know for sure occurred because I had my TV reporter in the Senate turn the camera to the Senate clock before the vote which showed it was minutes past midnight when the final vote was taken.

However, in an appeal by a person convicted under the new drunken-driving law, the state Supreme Court held they would not question the Senate journal which reported that passage came before the adjournment deadline.

Good point.

Years earlier the night before the last day of the session, Sen. Clifford Jones, R-St. Louis County, had a staffer advance the Senate chamber's clock by several minutes.

The inaccurate clock caused the Senate to adjourn well before midnight, killing a number of bills awaiting what should have been swift final Senate approval.

These incidents reinforce lessons I stressed to generations of my statehouse journalism students to read the actual copies of bills and pay strict attention to chamber sessions.

A note from Phill

Friends, I owe a tremendous thanks to Mike Wolff in confirming some of these incidents and providing substantial background.

Mike a retired emeritus at St. Louis University Law School, had been on the Mo. Supreme Court when the midwifery issue was decided.

[Phill Brooks has been a Missouri statehouse reporter since 1970, making him dean of the statehouse press corps. He is the statehouse correspondent for KMOX Radio, director of MDN and an emeritus faculty member of the Missouri School of Journalism. He has covered every governor since the late Warren Hearnes.]



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