152 SW3D 275 - Smith v. State

RONNIE L. WHITE, Chief Justice,

¶1concurring.

¶21 concur in the principal opinion. I write separately only to object to the obi-ter dicta suggestions offered to the legislature by our respected colleague, Judge Price, in his concurrence. There is no question that the courts are the final arbiters of the law and that the judiciary may not shirk their duty to interpret the law.1 Coupled with this noble pursuit, however, is the unqualified need and long-standing tradition of exercising judicial restraint and avoiding the political thicket to serve the public interest of “allowing the political process to function free from judicial supervision.” 2

¶3Appellate courts lack jurisdiction to issue advisory opinions on matters of law that are not part of a live case or controversy and do not decide nonexistent issues.3 “Courts having a proper respect for the constitutional divisions of state power cannot invade the province of another coequal branch of the government.”4 “It is not the Court’s province to question the wisdom, social desirability or economic policy underlying a statute as these are matters for the legislature’s determination.” 5

¶4. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803).

¶5. Colegrove v. Green 328 U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946); O’Brien v. Brown, 409 U.S. 1, 5, 92 S.Ct. 2718, 34 L.Ed.2d 1 (1972); State ex rel. Holland v. Moran, 865 S.W.2d 827, 832 (Mo.App.1993).

¶6. Riverside-Quindaro Bend Levee Dist, Platte County, Missouri v. Missouri American Water Co., 117 S.W.3d 140, 153 (Mo.App.2003); State ex rel. Mathewson v. Board of Election Com’rs of St. Louis County, 841 S.W.2d 633, 635 (Mo. banc 1992).

¶7. Lutman v. American Shoe Mach. Co. 151 S.W.2d 701, 708 (Mo.App.1941)(overruled on other grounds).

¶8. Greenlee v. Dukes Plastering Service, 75 S.W.3d 273, 277 (Mo. banc 2002).

WILLIAM RAY PRICE, JR., Judge,

¶9concurring.

¶10I agree with the statutory construction set out in the majority opinion. There can be no serious doubt that the St. Louis Board of Police Commissioners is an agency of the State of Missouri. As such, the *281literal interpretation of the State Legal Expense Fund (SLEF), as established in section 105.711 et seq., RSMo 2000, provides coverage. Nonetheless, section 105.711 is somewhat at odds with the spirit of chapter 84, particularly section 84.210, RSMo 2000, which requires the City of St. Louis to pay the expenses of the Board of Police Commissioners and the St. Louis Police Department.

¶11This Court cannot rule on the basis of speculation, especially in the face of the literal language of a statute. Should the general assembly find the result of this case undesirable, it might simply except either the St. Louis Police Department or the St. Louis Board of Police Commissioners, or both, from coverage by the SLEF and provide that this expense should be paid by the City of St. Louis. Alternatively, of course, should the general assembly find that the result of this case is precisely what it intended, no further action would be necessary.