Friday, July 09, 2010
Attorney General: Kinder had no business filing health care lawsuit in his official capacity
Koster said the attorney general is the only person who can legally represent the state of Missouri. "Because Missouri law vests authority for initiating litigation exclusively with the attorney general, Lt. Gov. Kinder is authorized to file suit only in his private capacity as a citizen. Thus to the extent he attempts to do so, Lt. Gov. Kinder's effort to participate in the litigation in his official capacity or on behalf of the state is improper."
In Kinder's complaint, Koster notes, the lieutenant governor says he is filing the action both in his individual capacity "and also in his statutory capacity as lieutenant governor."
Kinder's lawsuit notes, "In addition to his enumerated duties as they are set forth in the Missouri Constitution, Lt. Gov. Kinder has been empowered to advocate for Missouri senior citizens and those in long-term care facilities as the head of the Office of Advocacy and Assistance for Senior Citizens."
Koster says his action does not affect any of the three private citizens who joined Kinder in filing the lawsuit, nor does it affect Kinder as long as he is involved in the suit as a private citizen and not in his capacity as lieutenant governor.
In asking the court to dismiss Kinder from the lawsuit in his official capacity, Koster notes, "For example, if Lt. Gov. Kinder is authorized to file suit, then arguably every member of the General Assembly and every statewide officeholder may do the same, as well as every state agency. Such a result may lead to fractured, inconsistent positions being pursued in the same case on behalf of the state, thereby providing no clarity to the seminal question identified earlier: Who speaks for the state of Missouri in the courts?"