Article

Conserving Fish, Forests, and the Separation of Powers: How Missouri Courts Must Protect the Authority of the Missouri Department of Conservation and Other State Agencies

Published on April 26, 2024

Conservation Comm’n. v. Bailey, 669 S.W.3d 61 (Mo. 2023) (en banc) (per curiam).

By: Annie Kreikemeier*

I.        Introduction

               It is the first warm day of spring in Missouri.  The sun is out, and you try to find a scenic place to walk and take in the beautiful weather.  Someone tells you about a nearby open grassy area they heard has a glorious variety of plants and animals.  You know Missouri’s native prairies are home to many different animals and plants, some of which can only be found in the grasslands.[1]  With that in mind, you eagerly head to the grassy land.  Unfortunately, when you arrive there is no wildlife or field in sight.  Like many prairies in Missouri, this one has been developed for other uses.  Although prairies once covered more than a third of the state, today they are scattered across only about 0.5% of Missouri.[2]  With little prairie habitat remaining, many species restricted to prairies are declining.[3] 

               To stem the tide of prairie loss, Missouri has become one of the nation’s leaders in conservation.[4]  The Missouri Department of Conservation (MDC) seeks to conserve wildlife by purchasing prairie land to protect the declining and endangered species relying on the habitat for survival. 

               The MDC is in charge of regulating the conservation of all wildlife and natural communities in the state.[5]  In the mid 1930s, the Missouri Constitution established a nonpartisan government entity to address Missouri’s conservation needs.[6]  The resulting agency, the Conservation Commission (the “Commission”), guides the MDC in controlling, managing, restoring, conserving, and regulating the wildlife resources of the state.[7]  As an executive agency, the Commission determines how conservation funds should be allocated and creates the budget for the department each year.[8]  The Missouri General Assembly (the “General Assembly”) must approve that budget and create an appropriation bill before the Commission is able to use conservation funds.[9]  Only once in the Commission’s history has the General Assembly attempted to restrict the Commission from spending appropriated funds for purposes provided by the Missouri Constitution.[10]  That lone attempt, which flies in the face of the Missouri Constitution, is the subject of this Note.

               This Note analyzes the conflict among constitutional grants of power to executive and legislative agencies, and how to resolve such conflicts when the constitution is ambiguous.  Part II sets forth the facts and holding from Conservation Comm’n. v. Bailey.  Part III examines the separation of powers doctrine as well as the constitutional empowerment of Missouri’s General Assembly and the Commission.  Part IV describes the majority opinion in Conservation Comm’n. v. Bailey.  Finally, Part V discusses how the decision of the majority best protects the legitimacy of the Missouri Constitution and upholds the core democratic value of the separation of powers.

    II.        Facts and Holding

                 The conflict arose during the 2020 legislative session when the Missouri General Assembly enacted House Bill No. 2019 (HB 2019).[11]  The bill appropriated $21 million to the Commission.[12]  This was the full amount requested by the Commission and included the $1 million purchase price for 510 acres of imperiled prairie habitat in St. Clair County.[13]

                 Before passing the proposed bill, the General Assembly removed some of the language authorizing the Commission to disburse its appropriated funds.[14]  The bill omitted authorization to use the appropriated funds for certain designated purposes including “financial assistance to other public agencies or in partnership with other public agencies” and “land acquisition for upland wildlife, state forests, wetlands, and natural areas and additions to existing area.”[15]  Due to this omission in HB 2019, the Commissioner of the Office of Administration subsequently denied the Commission’s request to certify payments and withdraw funds from the treasury to pay for the acquisition of land and for payments in lieu of taxes (“PILT”).[16]

                 In response to the denial, the Missouri Department of Conservation and Conservation Commission sued the Attorney General and Commissioner of the Office of Administration,[17] seeking certification of payments of conservation funds for the acquisition of land and PILT by the State.[18]  The Cole County Circuit Court determined that the constitution created the conservation fund and assigned exclusive authority to the Commission to decide how the money should be spent.[19]  As a result, the court found that the Missouri Constitution gave exclusive authority to the Commission to make spending decisions and entered judgment declaring that the General Assembly exceeded its authority by enacting the appropriation bill.[20]  Even if an appropriation bill was required to allow the Commission to expend such funds, the court held that “HB 2019 was a constitutionally invalid attempt to change the Commission’s authority.”[21]  In accordance with its findings, the circuit court ordered the Commissioner of the Office of Administration to certify the land purchase and PILT payments as requested.[22]  The State appealed.[23]

                 Acting under its power in Article V, Section 3 of the Missouri Constitution, the Missouri Supreme Court took the appeal directly from the circuit court.[24]  The Missouri Supreme Court affirmed the circuit court’s judgment, holding that the appropriation bill impermissibly attempted to alter the constitutional provisions authorizing the Commission to use conservation funds for a list of enumerated purposes.[25]  The court held that by attempting to restrict the Commission’s ability to use the funds, the relevant language of HB 2019 violated the Missouri Constitution.[26]    

      III.        Legal Background

                   This Part begins with an explanation of the doctrine of the separation of powers and the separate authority granted to governmental agencies by the Missouri Constitution.  It then discusses the General Assembly’s power of appropriation before explaining the constitutional grant of power to Missouri’s Conservation Commission.

        A.   The Separation of Powers

                   By the express language of the Missouri Constitution, one branch of government cannot exercise a power belonging to the other “except in the instances expressly directed or permitted [by the constitution].”[27]  The system provides each branch of government with individual powers and responsibilities to check the other branches.[28]  According to Article II, Section 1 of the Missouri Constitution, every department of government is distinct from the others and cannot lawfully restrict the powers of the others.[29]  A law violates Article II, Section 1 of the Missouri Constitution if it attempts to grant one branch of government the powers of another where there is no express direction or permission.[30]

                   Actions by members of the government can also violate the constitution.  One act that has been found to violate the separation of powers in Missouri is an interference by one branch of another’s performance of its constitutionally assigned power.[31]  Additionally, when one branch exercises a power that is more properly assigned to another, a violation of the separation of powers doctrine may occur.[32] 

        1.   Legislative Powers

                   To maintain and protect the rights of all Missouri residents and government actors, the Missouri Constitution defines the powers of the legislature.[33]  The legislature may exercise all authority or take all action that it has not been denied by the constitution.[34]  The General Assembly has the power and responsibility to make, amend, and repeal laws for Missouri.[35]  Additionally, state budgets are approved and tax legislation is initiated by the General Assembly.[36]  The General Assembly also possesses “the undoubted power to make or refuse to make an appropriation” as authorized by the constitution,[37] and the executive branch is prohibited from exercising that power unless expresslydirected or permitted by another provision of the constitution.[38]  All of the powers of the General Assembly are subject to the restrictions imposed by the Missouri and U.S. Constitutions.[39] 

                   While the Missouri Constitution provides the General Assembly with the power of appropriation, it limits the General Assembly from monitoring the expenditure of those funds after appropriation.[40]  Under the power of appropriation, the General Assembly has the authority to establish requirements for the withdrawal of money from the state treasury as well as make appropriations in specific amounts and for specific purposes.[41]  Since the adoption of the first Missouri Constitution in 1820, the Missouri Constitution has limited withdrawals from the treasury to circumstances where an appropriation made by law authorizes it.[42]  While Article III, Section 36 places a limitation on the General Assembly’s power to withdraw money, it recognizes the General Assembly’s authority to make appropriations.[43]  Additionally, the constitution requires that all appropriation laws specify the amount and purpose of the appropriation, and it makes evident “an appropriation is the authority to expend and disburse a specific amount of money for a specified purpose.”[44]  

                   When the General Assembly appropriates funds, it authorizes “the expenditure of a designated amount of public funds for a specific purpose.”[45]  To access funds, state departments and executive branch agencies provide budgetary information to the General Assembly and the governor.[46]  The governor then develops and submits a proposed budget to the General Assembly.[47]  The General Assembly reviews and adjusts the proposed budget until it finds it acceptable, and the budget is then passed by a majority of both houses.[48]  Then the General Assembly makes an appropriation for the funds in the budget including allocations of both the amount of money given to the department and what the money can be used for.[49]  The governor must either sign or veto all appropriation bills.[50]  To obtain money from the conservation fund, the Commission must submit a request for certification and the Commissioner of the Office of Administration must approve of the expenditure.[51]  The Missouri Supreme Court has held that “[o]nce appropriated, unless otherwise restricted by law, it is within the discretion of the office holder or agency to use the appropriation within the broad categories allowed by the [appropriation] bill.”[52]   

        2.   Executive Powers      

                   In contrast to the powers executed by the legislative branch, the executive branch is charged with implementing and enforcing the laws of the state.[53]  The governor has the power of line-item veto and maintains the power to approve or deny all or part of the budget proposed by the General Assembly.[54]  The governor also appoints certain positions in the executive department in addition to some circuit judges and all appellate judges.[55]  Executive departments and officials carry out the day-to-day administration of the state government and are responsible for enforcing the state’s laws.[56] 

        B.   The Conservation Commission’s Constitutional Empowerment

                   Missouri faced a host of serious ecological threats in the 1930s which spurred legislative action.[57]  Political influence, limited authority, and a lack of funding prevented progress in addressing the state’s conservation issues.[58]  In response to such challenges, the Missouri Constitution was amended in 1936 to establish the Commission, a nonpartisan government entity with the authority to address and respond to Missouri’s conservation needs.[59]  In the creation of the Commission, the Missouri Constitution vested it with the sole authority for “[t]he control, management, restoration, conservation and regulation of” all wildlife resources in the state, the acquisition and establishment of those same resources and wildlife, and the administration of all laws pertaining to those duties.[60] 

                   Throughout the mid and late 1900s, the Missouri Constitution underwent some significant change which affected the constitutional empowerment of the Commission.  Missouri adopted a new constitution in 1945, which included the Commission provisions as Article IV, Sections 40-44.[61]  A constitutional amendment in 1976 repealed the original provision related to the Commission’s authority to expend and use conservation funds and enacted Article IV, Section 43(a)-(c).[62]  Section 43(b) limited the expenditure and use of the money generated by activities and taxes of the Commission to a specific list.[63]  The Missouri Constitution was amended again in 1980 and granted the Commission the additional authority to make PILT and determine the amounts to be used for PILT.[64]  That change is still reflected today.[65]  Article IV, Sections 40-44 of the Missouri Constitution explicitly grant the Commission “plenary authority to expend and use conservation funds for enumerated purposes[.]”[66]  The plenary authority granted to the Commission is “power that is wide-ranging, broadly construed, and often limitless for all practical purposes.”[67]  Since the creation of the Commission, the Commission has used conservation funds to purchase significant amounts of land in Missouri for both conservation purposes and public enjoyment.[68]  Additionally, the Commission has made annual PILT consistently since 1980.[69]

                   The purposes enumerated in the constitution for which the Commission can expend and use funds help inform the Commission’s budget and expenditure decisions.[70]  Some of those purposes include “the purchase or acquisition of property … and … to make payments to counties for the unimproved value of land for distribution to the appropriate political subdivisions as payment in lieu of real property taxes[.]”[71]  Section 41 expressly grants the Commission the broad power to acquire property “necessary, useful or convenient for its purposes” by purchase, eminent domain, or other methods.[72] 

                   That constitutional language has appeared in nearly all appropriation bills.  In prior bills responding to the Commission’s budget, the General Assembly used language identical to that found in the original version of HB 2019.[73]  The altered version of HB 2019 is the only bill to delineate the constitutionally enumerated purposes for which the Commission could expend and use conservation funds.[74]  In the instant case, the question is not whether the General Assembly can give money to the Commission, but whether it can determine how that money can be spent.

         IV.        Instant Decision

                   This Part examines the Missouri Supreme Court’s 4-3 affirmation of the circuit court’s finding that the Missouri Constitution granted exclusive authority to the Commission to expend and use money from the treasury’s conservation fund without an appropriation bill.  In making this determination, the Missouri Supreme Court evaluated whether the Missouri Constitution permits the General Assembly to restrict the Commission’s authority to expend and use conservation funds for purposes expressly enumerated in the constitution.[75]  The court held that Article IV, Sections 40-44 of the Missouri Constitution grant the Commission the authority to use and expend conservation funds appropriated by the General Assembly for any of the purposes enumerated in section 43.[76] 

                   Several factors informed the court’s decision.[77]  First, the court considered the intent of Missouri voters in creating the Commission.[78]  The court believed its decision reflected the intent of Missouri voters to create a nonpartisan entity and set aside politics when addressing ecological threats.[79]  To allow the General Assembly to impede the Commission’s ability to perform its role was antithetical to the motivation behind the creation of the Commission.[80]  Second, the court looked at the intent of the voters who adopted the amendment and determined the plain language of the article was clear as to intent.  According to the court, the voters’ intent was to grant absolute authority for the use and expenditure of conservation funds for the enumerated purposes without legislative discretion or oversight.[81]  Lastly, the court found further evidence of the rights of the Commission in prior jurisprudence and historical practice.[82]  The court noted that before this instance, the General Assembly had never tried to restrict the Commission’s constitutional power to use its funding for the acquisition of land.[83]    

                   The thorough analysis of intent and prior practice led the court to believe that in the adoption of Article IV, Sections 40-44, Missouri created the Commission within the executive branch and “constitutionally empowered” it to expend and use funds, buy land, and make PILT.[84]  The court held that in attempting to limit the executive function of the Commission and restrict the Commission’s use of conservation funds, HB 2019 violated the constitutional provisions governing the Commission[85] and the doctrine of separation of powers.[86]  Further, the court found that the constitution not only details the duties and powers of the Commission, but also provides a direct source of funding for the Commission to carry out those duties.[87]  Accordingly, the majority held that that the Commission is constitutionally empowered to act as directed in the Missouri Constitution and the General Assembly lacks the authority to limit or restrict that power.[88] 

        V.        Comment

                   The potential “invasion” of the authority of the Missouri Conservation Commission by lawmakers caused significant division among the court.  Allowing the General Assembly to limit the Commission’s ability to spend appropriated funds permits the legislative branch to overstep its powers and impede on the powers of the executive branch.  Since the Missouri Constitution already limits the powers of the Commission to expend funds to an enumerated list of activities,[89] the action by the General Assembly was an overcorrection or unnecessary check on executive power.

                   Where the constitution has express limits on the authority or power of an agency or department, secondary checks on the exercise of that power by other branches of government are unnecessary and cumbersome.  Such a check undermines the constitution.[90]  Since the Missouri Constitution is the highest body of authority in the state,[91] no governmental actors from any branch of government should be able to take an action which conflicts with the grants of power written in the constitution.  If the court permitted the General Assembly to restrict the Commission’s use of conservation funds, the court would have signaled that the legislative branch is free to dominate the executive powers of the Commission.  The system of checks and balances is intended to prevent one branch of government from becoming too powerful.[92]  If the branches of government could consistently override and limit one another, there would be no stability in the government, and it is unlikely that anything productive would be accomplished. 

                   While overlap between the functions of government is often unavoidable, the constitution does not permit one department to exercise the powers reserved for the other.  Within its provisions, the Missouri Constitution limits the power of the Commission to expend and use the funds granted to it by the state.[93]  To further restrict those uses would directly conflict with the constitution’s grant of power.  The Missouri Constitution is intended to be the supreme law of the state, and all Missouri laws are required to abide by its rules.[94]  The restrictions placed on the Commission did not follow constitutional provisions.  If those restrictions were found to be valid, they would have invalidated the Missouri Constitution as the supreme law of the state and undermined the powers it grants to each branch of government. 

                   There are two ways to interpret the separation of powers constitutional provision in the Missouri Constitution in regard to the present issue.  One understanding is that the provision prevents the General Assembly from using its powers to infringe on executive powers.[95]  Under this view, when the constitutional provisions governing the Commission were adopted, Missouri created the Commission within the executive branch and constitutionally empowered it to use conservation funds for any of the enumerated purposes without an invasion by the General Assembly.[96]  On the other hand, Article II, Section 1 can be seen as prohibiting the Commission from exercising appropriation powers which belong to the legislative branch without an express direction by a different constitutional provision.[97] 

                   In attempting to resolve the conflicting interpretations of the Missouri Constitution’s separation of powers provision, the Missouri Supreme Court has held that “it is not the business of the legislative branch to operate executive agencies.”[98]  As an agency of the executive branch, the Commission does not have the legislative authority to appropriate funds.[99]  However, the General Assembly, as an extension of the legislative branch, cannot impede the administrative duties of the executive department.[100]  Of all government entities, the Commission is the most aware of and informed about conservation problems that need to be addressed.[101]  Because of its enhanced knowledge, the Commission should be able to allocate funds to address conservation issues in accordance with its enumerated authority in the constitution.  HB 2019 prevents the commission from doing so and fulfilling its role as a nonpartisan entity.

                   When venturing to reconcile conflicting interpretations of constitutional provisions, the court should consider all supplemental sources of information.  In obtaining passage of an amendment to a state constitution, all surrounding facts may affect its passage.  Some of those factors may include the historical period in which it was passed, judicial precedent, and voters’ intent in passing it.[102]  No single technique or source of information is sufficient to fully interpret constitutional questions.[103]

                   One method the court could adopt in interpreting the constitution is a textual approach.[104]  If the court were to implement a purely textual approach to interpreting the division of power among the legislative and executive branch when it comes to appropriating funds, it does not appear that the Commission is required to seek appropriation and approval from the General Assembly.  Some provisions of the Missouri Constitution give express authority to expend and use funds to certain departments or commissions.[105]  Others list the ways in which funds can be used or expended, but separately refer to the appropriations and the General Assembly.[106]  The constitutional provisions which empower and govern the Commission include the words expended and used, but do not separately refer to appropriations by the General Assembly.[107]  Under this interpretation, the Missouri Constitution appears to give the Commission express authority to expend and use funds for the acquisition of property and to make PILT.

                   Judicial precedent[108] also weighs in favor of finding the restrictions by the General Assembly constitutionally invalid.  The Missouri Supreme Court has previously held that the constitution requires that conservation funds be used and expended pursuant to the enumerated list of purposes, which the Commission attempted to do here.  The court in Missouri v. Hanson found the General Assembly’s use of conservation funds without authorization from the Commission improper.[109]  If, as the court stated in Hanson, the constitution does not permit the appropriation of funds beyond any purpose that is not an authorized use or expenditure under the constitution, it does not logically follow that the General Assembly should be able to limit that authorization. 

                   The proposition that the legislature should control the disbursement of funds is hardly, if ever, debated or challenged.  However, rather than conferring a distinct legislative power upon the General Assembly, Article IV, Section 28 of the Missouri Constitution limits government power and action beyond what has been expressly allocated.[110]  All government action regarding funds must be taken pursuant to the provisions of the Missouri Constitution.  Therefore, appropriations, while valid grants of funds by the legislature, may not place unconstitutional limits on the expenditure of funds where the state constitution has already limited the exercise of powers.

        VI.        Conclusion

                   All Americans are united by the core democratic values expressed in the Declaration of Independence, United States Constitution, state constitutions, and other significant documents and writings of the nation.  These fundamental beliefs and constitutional principles of American society are some of the first topics we learn in our history classes growing up, and we are taught that they are what separates our country from others.  The doctrine of the separation of powers and the belief that the Constitution is the ultimate law of the land are key distinguishing principles of American democracy.  Since these values are so ingrained in our way of life and our government function, we can often take them for granted.  Moreover, when they are challenged or infringed upon on the state or federal level, the implications can be so broad and shocking that courts must step in and protect these core values of American constitutional democracy.

                   While the court remained divided on the constitutional division of power among the General Assembly and the Commission, the majority was ultimately correct in finding that the General Assembly overstepped its legislative powers of appropriation when choosing to limit the Commission’s expenditure and use of conservation funds.  Where the constitution itself provides limits or checks on branches of government, a second layer of restrictions from the legislative branch is not necessary.  Finding otherwise would undermine not only the powers of the executive branch, but also the legitimacy and supremacy of the Missouri Constitution.  The General Assembly has made several attempts to limit the power and function of executive agencies of the state.  Consequently, the court took necessary action by intervening and disincentivizing this type of behavior, so future agencies will be able to fully exercise the powers and authority granted to them in the Missouri Constitution.

        _____________________________________

        *B.A., Miami University, 2021; J.D. Candidate, University of Missouri School of Law, 2025; Associate Member, Missouri Law Review, 2023–2024.   I would like to extend my gratitude to Professor Thomas Bennett for his insight, guidance, and support in the writing of this Note, to the Missouri Law Review editorial staff for their help in the writing and editing process, and to my family and friends for their continued support.

        [1] Prairies, Mo. Dep’t of Conservation,https://mdc.mo.gov/discover-nature/habitats/grasslands-prairies-savannas/prairies (last visited April 18, 2024).

        [2] Id.; Remnant Prairie and Grasslands, Mo. Dep’t of Conservation,https://mdc.mo.gov/your-property/improve-your-property/habitat-management/grassland-management/remnant-prairie#:~:text=Today%20only%20about%200.5%25%20of,of%20habitat%20in%20the%20world (last visited Apr. 18, 2024).

        [3] Prairies, supra note 1.

        [4] About Us,Mo. Dep’t of Conservation, https://mdc.mo.gov/about-us#:~:text=A%20History%20of%20Serving%20Nature%20and%20People&text=That%20consistent%20funding%2C%20plus%20a,connect%20with%20their%20natural%20heritage (last visited Apr. 18, 2024).

        [5] Id.

        [6] Conservation Comm’n v. Bailey, 669 S.W.3d 61, 63 (Mo. 2023) (en banc) (per curiam); Mo. Const. art. XIV, § 16 (1875) (as amended in 1936).

        [7] Conservation Commission,Mo. Dep’t of Conservation, https://mdc.mo.gov/about-us/conservation-commission (last visited April 18, 2024).

        [8] Id.

        [9] See Separations of Powers: Appropriation Powers, Nat’l Conf. of State Legislatures (Nov. 17, 2022), https://www.ncsl.org/about-state-legislatures/separations-of-powers-appropriation-powers.

        [10] Bailey, 669 S.W.3d at 65.

        [11] Id. at 63.

        [12] Id.

        [13] Id. at 65.

        [14] Id. at 63.

        [15] Id. at 65.  Lawmakers did not include money for PILT and eliminated language which allowed land acquisition.  See id.

        [16] Id. at 66.  The Office of Administration is the administrative sector of the Missouri government, responsible for the principal management of state government to help state departments operate successfully and efficiently.  Commissioner’s Office, Office of Administration Comm’r’s Office, https://oa.mo.gov/commissioners-office#:~:text=Kenneth%20(Ken)%20Zellers%20was%20confirmed,Parson%20on%20October%2012%2C%202021 (last visited April 18, 2024).  The Commissioner of the Office of Administration is appointed by the Missouri Governor with the advice and consent of the Missouri Senate and must be confirmed by the Senate.  Id.

        [17] Bailey, 669 S.W.3d at 66.  Commissioner Zellers took over for Commissioner Steelman while the case was pending and was automatically substituted as a party pursuant to Rule 52.13(d).  Id. n.7.  Likewise, Attorney General Andrew Bailey was automatically substituted for Eric Schmitt, his predecessor, pursuant to Rule 52.13(d).  id. n.7. 

        [18] Id.

        [19] Judgment Entered in Conservation Comm’n. v. Schmitt et al., No. 20AC-CC00342 at 2 (Cole Cnty. Apr. 22, 2021). The court found that creation and authorization memorialized in Article IV, Sections 43(a), (b), and (c).  id.

        [20] Id. at 23–24(holding those decisions must be made in accordance with the requirements of the constitution); Bailey, 669 S.W.3d at 66 (finding the Commission did not need an itemized appropriation bill to expend such funds).

        [21] Bailey, 669 S.W.3d at 66; Schmitt et al., No. 20AC-CC00342 at 23 (“[I]f the General Assembly had authority to change the authority of the Conservation Commission (it does not), it could not have accomplished the change through an appropriation bill because to do so would violate the ‘single subject’ requirement of Article III, § 23.”).

        [22] Schmitt et al., No. 20AC-CC00342 at 2 (“Together these constitutional provisions leave the Commissioner of Administration no choice but to certify the disputed payments pursuant to the direction of the Conservation Commission without regard to the language (if any) used by the General Assembly in an appropriation bill.”).

        [23] Bailey, 669 S.W.3d at 66.

        [24] Id. n.8.  Article V, Section 3 of the Missouri Constitution provides that the Supreme Court of Missouri has exclusive jurisdiction over five types of cases on appeal, including the validity of a Missouri statute or constitutional provision.  Mo. Const. art. V, § 3.  Therefore, the Missouri Supreme Court had the sole legal power to hear this case.

        [25] Bailey, 669 S.W.3d at 63.

        [26] Id.

        [27] Mo. Const. art. II, § 1.

        [28] Separation of Powers, Cornell L. Sch. Legal Info. Inst., https://www.law.cornell.edu/wex/separation_of_powers_0#:~:text=The%20Checks%20and%20Balances%20system%20provides%20each%20branch%20of%20government,branch%20from%20becoming%20too%20powerful (last visited Apr. 18, 2024).  

        [29] See Mo. Const. art. II, § 1; Mo. Coal. for Env’t v. Joint Comm. on Admin. Rules, 948 S.W.2d 125, 133 (Mo. 1997) (en banc).

        [30] Mo. Coal. for Env’t, 948 S.W.2d at 133.

        [31] State Auditor v. Joint Comm. on Legis. Rsch., 956 S.W.2d 228, 231 (Mo. 1997) (en banc.).

        [32] Id.

        [33] Pestka v. State, 493 S.W.3d 405, 408 (Mo. 2016) (en banc).

        [34] Id.

        [35] State Auditor, 956 S.W.2d at 230.

        [36] See Mo. Const. art. III, § 36; see also Mo. Const. art. X, § 1.

        [37] Rebman v. Parson, 576 S.W.3d 605, 610 (Mo. 2019) (en banc).

        [38] Mo. Const. art. II, § 1; See Conservation Comm’n. v. Bailey, 669 S.W.3d 61, 71 (Mo. 2023) (en banc) (per curiam) (Breckenridge, J., dissenting).

        [39] State Auditor, 956 S.W.2d at 231.

        [40] See Mo. Const. art. IV, § 28.

        [41] Id. (stating “[n]o money shall be withdrawn from the state treasury except by warrant drawn in accordance with an appropriation made by law”).

        [42] Mo. Const. art. III, § 31 (1820); Mo. Const. art. XI, § 6 (1865); Mo. Const. art. X, § 19 (1875).  Missouri’s third Constitution was in effect when the conservation commission provisions were first adopted.  Bailey, 669 S.W.3d at 70 n.1 (Breckenridge, J., dissenting).

        [43] See Mo. Const. art. III, § 36 (“All revenue collected and money received by the state shall go into the treasury and the general assembly shall have no power to divert the same or to permit the withdrawal of money from the treasury, except in pursuance of appropriations made by law.”); See also Mo. Const. art. IV, § 28 (“No money shall be withdrawn from the state treasury except by warrant drawn in accordance with an appropriation made by law, nor shall any obligation for that payment of money be incurred unless the commissioner of administration certifies it for payment and certifies that the expenditure is within the purpose as directed by the general assembly of the appropriation and that there is in the appropriation an unencumbered balance sufficient to pay it.”).

        [44] Mo. Const. art. IV, § 23; Doyle v. Tidball, 625 S.W.3d 459, 463 (Mo. 2021) (en banc).

        [45] Separations of Powers: Appropriation Powers, supra note 9.

        [46] Cameron Gerber, An Insider’s Look at How the Missouri Legislative Budget Process Works, The Missouri Times (Mar.17, 2020), https://themissouritimes.com/an-insiders-look-at-how-the-missouri-legislative-budget-process-works/; Bailey, 669 S.W.3d at 64.

        [47] Separations of Powers: Appropriation Powers, supra note 9.

        [48] Id.

        [49] Bailey, 669 S.W.3d at 64.

        [50] Daniela Sirtori, Explained: Take a Closer Look at Missouri’s Budget Process, Columbia Missourian (Feb. 2, 2015), https://www.columbiamissourian.com/news/local/explained-take-a-closer-look-at-missouris-budget-process/article_e0d25235-05a3-5ae4-a3a2-3f868c281cdb.html.

        [51] Bailey, 669 S.W.3d at 64.

        [52] Schweich v. Nixon, 408 S.W.3d 769, 778 (Mo. 2013) (en banc) (per curiam).

        [53] Executive Branch, Mo.gov, https://www.mo.gov/government/executive-branch/#:~:text=Missouri%27s%20Executive%20Branch%20consists%20of,and%20six%20statewide%20elected%20officials (last visited Apr. 18, 2024).

        [54] Mo. Const. art. IV, § 26; Office of the Governor, Mo.gov, https://www.mo.gov/government/guide-to-missouris-government/office-of-the-governor/ (last visited Apr. 18, 2024).

        [55] Office of the Governor, supra note 54.  All judges appointed by the governor are selected from a non-partisan panel.  Id.

        [56] Executive Branch, supra note 53.

        [57] Conservation Comm’n. v. Bailey, 669 S.W.3d 61, 63 n.3 (Mo. 2023) (en banc) (per curiam).

        [58] Id. at 63.

        [59] Id.; Mo. Const. art. XIV, § 16 (1875) (amended 1936).

        [60] Mo. Const. art. XIV, § 16 (1875) (amended 1936); Mo. Const. art. IV, § 40(a).

        [61] Bailey, 669 S.W.3d at 64.

        [62] Id.

        [63] Id. at 63–64.

        [64] Mo. Const. art. IV, § 43(b); Bailey, 669 S.W.3d at 64.

        [65] See Mo. Const. art. IV, § 43.

        [66] Bailey, 669 S.W.3d at 63.

        [67] Plenary Authority, Cornell L. Sch., Legal Info. Inst., https://www.law.cornell.edu/wex/plenary_authority (last visited Apr. 18, 2024).

        [68] About Us, supra note 4; Bailey, 669 S.W.3d at 64.

        [69] Bailey, 669 S.W.3d at 64; id. at 63 n.1 (Explaining PILT as “payments made by the Conservation Commission to county governments to help offset losses in property taxes to counties that occur when particular lands achieve tax-exempt status, such as when they become state owned.”).

        [70] Conservation Commission, supra note 7.

        [71] Mo. Const. art. IV, § 43(b).

        [72] Mo. Const. art. IV, § 41.

        [73] Bailey, 669 S.W.3d at 65 n.6 (referring to the prior appropriation bills known as HB 2019 (2018) and HB 19 (2019)).

        [74] Id.

        [75] See generally Bailey, 669 S.W.3d 61.

        [76] Id. at 67.

        [77] See id.

        [78] Id. at 67–68.

        [79] Id. at 68; Budget Provisions of Constitution or Statute in Relation to Appropriation of State Funds, 40 A.L.R. 1067 (1926) (citing Mo. Const. Art. 2, § 1; Mo. Const. Art. 4, §§ 40(a), 40(b), 41, 42, 43(a), 43(b), 43(c), 44).

        [80] Bailey, 669 S.W.3d at 68.

        [81] Id. at 67.

        [82] Id. at 68.

        [83] Id.

        [84] Id. at 69 (citing Rebman v. Parson, 576 S.W.3d 605, 610 (Mo. 2019) (en banc)); Budget Provisions of Constitution or Statute in Relation to Appropriation of State Funds, supra note 79.

        [85] Bailey, 669 S.W.3d at 67.

        [86] See id.; Mo. Const. Art. II, § 1.

        [87] Bailey, 669 S.W.3d at 68 (citing Rebman, 576 S.W.3d at 610) (Determining that the constitution “unambiguously (1) requires the Conservation Commission to fulfill enumerated purposes, (2) grants the Conservation Commission power to expend and use funds, purchase land, and make PILT to carry out those purposes, and (3) provides a direct source of funding solely devoted to the Conservation Commission’s performance of those purposes.”); Budget Provisions of Constitution or Statute in Relation to Appropriation of State Funds, supra note 79.

        [88] See Bailey, 669 S.W.3d at 69.

        [89] See Mo. Const. art. IV, § 43(b).

        [90] It is not typically understood that certain articles of the constitution take precedence over others.  The constitution’s power comes from a combination of all of its parts, and it cannot be understood without looking at how all of the provisions interact with and supplement one another.  The Constitution, The White House, https://www.whitehouse.gov/about-the-white-house/our-government/the-constitution/ (last visited Apr. 18, 2023).

        [91] Missouri Law, Justia, https://law.justia.com/missouri/ (last visited Apr. 18, 2024).

        [92] Separation of Powers: An Overview, Nat’l Conf. of State Legislatures (May 1, 2021), https://www.ncsl.org/about-state-legislatures/separation-of-powers-an-overview; Separation of Powers, supra note 28. 

        [93] Mo. Const. art. IV, §§ 41, 43(b); See Schweich v. Nixon, 408 S.W.3d 769, 772 (Mo. 2013) (en banc) (per curiam) (finding the Missouri Constitution specifically limits the authority granted to state agencies and actors to that set out in the Constitution).

        [94] Missouri Law, supra note 91.

        [95] Conservation Comm’n. v. Bailey, 669 S.W.3d 61, 69 (Mo. 2023) (en banc) (per curiam).

        [96] Id.

        [97] Id. at 70.

        [98] State Auditor v. Joint Comm’n on Legis. Rsch., 956 S.W.2d 228, 233 (Mo. 1997) (en banc).

        [99] Separation of Powers: An Overview, supra note 92.

        [100] Id.; State Auditor, 956 S.W.2d at 233.

        [101] To be selected as a member of the Commission, individuals are required to have an interest in and knowledge of wildlife conservation.  Conservation Commission, Mo. Dept. of Conservation, https://mdc.mo.gov/about-us/conservation-commission (last visited Apr. 22, 2024). 

        [102] Six modalities of argument form the foundation for constitutional interpretation.  The six modalities of argument include the 1) historical, 2) textual, 3) structural, 4) doctrinal, 5) ethical, and 6) prudential.  Philip Bobbitt, Constitutional Interpretation in the US 12–13 (1991).

        [103] See id. at 22; See Tabatha Abu El-Haj, Linking the Questions: Judicial Supremacy As A Matter of Constitutional Interpretation, 89 Wash. u. L. Rev. 1309 (2012).

        [104] Bobbitt, supra note 102 at 12 (1991) (Defining textual arguments as those “looking to the meaning of the words of the Constitution alone, as they would be interpreted by the average contemporary ‘man on the street.’”).

        [105] See Mo. Const. art. IV, § 30(b)1.

        [106] See Mo. Const. art. III, § 47; see also Mo. Const. art. IV, § 479(a).

        [107] See Mo. Const. art. IV, § 40–43.

        [108] Another modality of constitutional interpretation is a doctrinal approach, in which the court turns to precedent and applies the rules created by the precedent.  Bobbitt, supra note 102 at 13 (1991).

        [109] Conservation Federation of Missouri v. Hanson, 994 S.W.2d 27, 28-30 (Mo. banc 1999).

        [110] See Mo. Const. art. IV, § 28.