FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Jon E.
FISCHER, CHIEF JUSTICE
Cope and the Missouri Democratic Party ("MDP")
appeal the circuit court's dismissal of a petition
seeking a declaratory judgment that Governor Michael L.
Parson's appointment of Mike Kehoe to the office of
Lieutenant Governor was unauthorized, per §
105.030. The circuit court concluded Cope and the
MDP had no standing to bring this action, private citizens
lack the authority to seek the removal of a public official
through litigation and that the Governor of Missouri has the
authority to appoint a Lieutenant Governor in the event of a
vacancy. The circuit court's judgment is affirmed in part
and reversed in part.
and Procedural History
L. Parson previously served as Missouri's Lieutenant
Governor, an office he held until the resignation of Governor
Eric Greitens. Governor Parson then succeeded Greitens to the
office of Governor, leaving the office of Lieutenant Governor
vacant. Governor Parson appointed Mike Kehoe to be the
Lieutenant Governor. The day of Kehoe's appointment, Cope
and the MDP filed a petition seeking injunctive and
declaratory relief against Governor Parson and Kehoe in the
circuit court of Cole County. The petition alleged Governor
Parson lacked legal authority, per § 105.030, to appoint
a Lieutenant Governor and that the office must remain vacant
until the next general election in 2020.
Parson and Kehoe filed a motion to dismiss the petition
claiming a private litigant does not have the authority to
remove the Lieutenant Governor from office, that Cope and the
MDP lacked standing to assert their claims, and that the
Governor has the authority to appoint a Lieutenant Governor
under article IV, § 4 of the Missouri Constitution. The
circuit court held a hearing on Governor Parson and
Kehoe's motion to dismiss. During the hearing, Cope and
the MDP withdrew their request for injunctive relief, leaving
only a request for declaratory relief regarding the validity
of Governor Parson's appointment of Kehoe.
circuit court sustained the State's motion to dismiss,
concluding Cope and the MDP did not have associational or
taxpayer standing to challenge Governor Parson's
appointment of Kehoe. Cope and the MDP filed a direct appeal
to this Court.
Court reviews the trial court's grant of a motion to
dismiss de novo." Mo. Municipal League v.
State, 489 S.W.3d 765, 767 (Mo. banc 2016). If the
dismissal is justified on any ground included in the motion
to dismiss, the circuit court's judgment will be
affirmed. Reed v. Reilly Co., LLC, 534 S.W.3d 809,
811 (Mo. banc 2017). "A motion to dismiss for failure to
state a claim on which relief can be granted is solely a test
of the adequacy of the petition." Bromwell v.
Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012). "When
considering whether a petition fails to state a claim upon
which relief can be granted, this Court must accept all
properly pleaded facts as true, giving the pleadings their
broadest intendment, and construe all allegations favorably
to the pleader." Id.
issues of this case boil down to whether petitioners have
standing to bring this declaratory judgment action and, if
so, whether the Governor has the authority to appoint a
Lieutenant Governor. Last at issue is whether this Court
should even entertain the questions presented, as the State
contends any opinion rendered in this case would be advisory
is a question of law, which is reviewed de novo."
Manzara v. State, 343 S.W.3d 656, 659 (Mo. banc
2011). For a declaratory judgment action, the petitioner must
"have a legally protectable interest at stake in the
outcome of the litigation." State ex rel. Kan. City
Power & Light Co. v. McBeth, 322 S.W.3d 525, 531
(Mo. banc 2010). This exists "if the plaintiff is
directly and adversely affected by the action in question or
if the plaintiff's interest is conferred by
statute." Weber v. St. Louis Cnty., 342 S.W.3d
318, 323 (Mo. banc 2011).
alleges standing as a taxpayer of the state of Missouri.
Taxpayers have a legally protectable interest in the proper
use and expenditure of tax dollars. See, e.g.,
Lebeau, 422 S.W.3d at 288-89; E. Mo. Laborers
Dist. Council v. St. Louis Cnty., 781 S.W.2d 43, 46 (Mo.
banc 1989). The interest "derives from the need to
ensure that government officials conform to the law."
Lebeau, 422 S.W.3d at 288. Acting as a necessary
check on government authority,
[t]axpayer standing gives taxpayers the opportunity to
challenge certain actions of government officials that the
taxpayer alleges are unauthorized by law, and it permits
challenges in areas where no one individual otherwise would
be able to allege a violation of the law. … Taxpayers
must have some mechanism of enforcing the law.
Id. at 289 (internal quotations omitted).
a legally protectable interest as a taxpayer the plaintiff
must be able to demonstrate: "(1) a direct expenditure
of funds generated through taxation; (2) an increased levy in
taxes; or (3) a pecuniary loss attributable to the challenged
transaction of a municipality." Manzara v.
State, 343 S.W.3d 656, 659 (Mo. banc 2011); see E.
Mo. Laborers Dist., 781 S.W.2d at 47.
alleges he is a taxpayer and citizen of Wright County,
Missouri. He challenges the authority of Governor Parson to
appoint Kehoe to the office of Lieutenant Governor,
contending such an appointment was outside the scope of the
Governor's constitutional and statutory authority to fill
vacancies in public offices. He alleges taxpayer standing to
challenge Governor Parson's authority to appoint Kehoe as
Lieutenant Governor "because such appointment will
require the expenditure of revenue collected by taxpayers to
fund the Office of the Lieutenant Governor." This is an
allegation of a direct expenditure of funds generated through
taxation. In 2018, the non-appointment of a Lieutenant
Governor would have saved the Missouri taxpayers, at a