Nixon relishes new role as advocate

As his argument before the Missouri Supreme Court wound down, Jay Nixon paused a bit as he dissected the grammar of a recent change to insurance law. He wanted to make sure he used the correct tense, he said as an aside, because otherwise “Georganne will kill me.”

Nixon was referring, of course, to his wife, Georganne Wheeler Nixon, a lawyer, former school teacher and once the First Lady of Missouri. Most appellate attorneys can’t name-drop their spouses during oral arguments and expect the court to know who they are talking about. But two years after ending his term as the 55th governor of Missouri, Jay Nixon isn’t most appellate attorneys.

After leaving office in January 2017, Nixon joined Dowd Bennett in St. Louis — a move he first announced to Missouri Lawyers Media. Since then, Nixon has made regular appearances in high-profile appellate cases, whether on the briefs or in person.

Last year, he argued (and won) a suit in the Supreme Court to get regulatory permission for a 780-mile power line that would carry wind-generated electricity through northern Missouri. Earlier this month, he was back in the Supreme Court arguing in favor of a law that allows insurance companies to intervene in certain complex settlements. The same morning, Nixon was among the counsel of record in a dispute involving a sizeable bequest to the University of Missouri, though an attorney from a different firm argued the case. And Nixon recently entered his appearance on behalf of the natural gas utility Spire in a pending appeal involving infrastructure costs the utility is trying to recover.

In an interview, Nixon said appellate work is about half of his practice, which also involves advising businesses and counseling on public policy. The move from governor to advocate has been a refreshing change of pace after a career spent coordinating efforts and reaching compromises as a public servant.

“It’s just been liberating to me as a lawyer to represent your client in a fulsome way, in essence 100 percent on one side on things,” he said.

Nixon’s transition has been natural but not inevitable. Prior to his eight years as governor, he spent 16 years as Missouri’s attorney general. The primary job of attorney general is to run the agency, rather than make the arguments — though Nixon did argue from time to time, including personally arguing two cases before the U.S. Supreme Court.

Jim Layton, the state’s former solicitor general and now of Tueth Keeney Cooper Mohan Jackstadt in St. Louis, has been both co- and opposing counsel with Nixon since they entered private practice. Layton recalls helping his former boss prepare for those high court arguments, as Nixon didn’t have a lot of appellate experience at the time. Prior to his election as attorney general in 1992, Nixon had been a state senator from Jefferson County.

“He was not an appellate lawyer before he became attorney general. He was not an appellate lawyer while he was attorney general,” Layton said. “But he did deal with complex legal issues as attorney general and as governor, and he did have a great deal of practice articulating his views.”

Nixon said his long and varied career in public service lets him see the law in a longer-term context. Very often, he not only knows the policy arguments that went into a particular law but also has firsthand knowledge of the precedents that shape it. One case referenced during Nixon’s recent oral argument was Kelly v. Hanson, a 1998 case involving the effect of repealing and replacing language in a statute. The case, argued while Nixon was attorney general, featured the state’s auditor and its commissioner of administration in a dispute involving the application of the “Hancock Amendment” to the Missouri Constitution that limits state taxation and spending.

“I know Margaret Kelly. I knew Dick Hanson. I knew the Hancock amendment when it passed,” Nixon said. “I knew those arguments, I knew those people.”

At times, Nixon still sounds like a governor when speaking before the court. During the April 2018 argument for the Grain Belt Express Clean Line, Nixon wove statutory interpretation with boosterism.

“For our state, this would bring not only clean, renewable wind power to tens of thousands of Missourians, but also generate millions of dollars in savings on energy bills and provide over $7 million in yearly property-tax payments to our schools, first responders and other entities along its path,” he told the court.

At other times, Nixon’s legal positions seem at odds with those he took as governor. His pending Supreme Court case involves so-called 537.065 agreements, which allow a plaintiff to obtain an essentially uncontested judgment against a defendant and then try to collect it from his insurer. A recently passed law allows the insurer to intervene in such cases, which they previously couldn’t do.

Nixon defended the new law on its merits, saying it gives insurers a chance to push back against inflated damage awards. He told the court that lawmakers were responding to decades of expansive court readings of the statute.

“In a narrow fashion, what the legislature did in overwhelming numbers was pass this statute that in my view . . . couldn’t be clearer,” Nixon said.

The law was passed in 2017 as part of a series of bills that overhauled Missouri’s tort laws. Several of those bills — including a highly controversial change to the legal standard in discrimination cases — were measures that Nixon, a Democrat, had vetoed as governor but that his Republican successor, Gov. Eric Greitens, enthusiastically supported.

It’s not clear what Nixon would have made of the intervenor law were he still governor — the bill, involving a technical and relatively obscure part of the law, passed largely on party lines. Similar bills were proposed during Nixon’s tenure but never made it to his desk.

Rep. Bruce DeGroot, R-Chesterfield and the author of the bill that rewrote the intervenor law, chuckled when told that Nixon had defended it in court.

“I respected Jay Nixon as a governor and now as an attorney, and as an attorney he has a duty to his client,” said DeGroot, who is also of counsel at Brown & James. “I’m thankful that he is interpreting this as the legislature intended it.”

Similarly, Nixon said his priorities these days are his clients and the law, not his record in office.

“Whatever I say, all those experiences are part of the way I look at things,” he said. “But I think as a private lawyer and as a litigant, you want to put the client first and you want to make sure you’re making the argument that’s right and you want to make sure you’re helping the court before you think about what my legacy is. That’s pretty far back.”

Nixon’s Republican successor did more than sign bills that Nixon wouldn’t. Greitens also was one of the most famous recent clients of Nixon’s law firm. Last year, Dowd Bennett represented Greitens against two criminal charges and a House investigation that might have led to his impeachment had Greitens not resigned.

Nixon’s name came up frequently in news coverage, not just because the two men had shared the same elected position but also because Nixon appointed St. Louis Circuit Judge Rex Burlison, who oversaw the criminal cases. (Nixon named many of the judges he now appears before, as he made 125 court appointments under the Nonpartisan Court Plan during his two terms.)

Nixon said he played no role in Greitens’ defense. He found it hard to watch the unfavorable light the case threw on Missouri.

“As far as the legal part of it, I really was locked out of it,” he said. “As far the public or political part of it, once you’ve been governor you want your state to look good. You want things to go well for your state.”

Nixon remains proud of winning repeated statewide elections as a Democrat even as the state increasingly has turned to Republican leaders — a shift he attributes to a combination of loose campaign-contribution laws, term limits and the national focus of news coverage. The national Democratic Party, he said, “in many ways has slid away or slid to the left of where I was and am.”

“I think the voters are still out there. I think you have to work for them and you’ve got to connect to them, and I think the national identification of the Democrats doesn’t help here in Missouri,” he said.

Nixon said he has no interest in running for elected office again, but he cites his distant predecessor, Gov. David Francis, who served from 1889 to 1893, for the possibility that a future Democratic president might call on him to serve again.

“Gov. Francis got to be secretary of the interior and ambassador to Russia after he was governor,” Nixon said. “There are opportunities afterwards, and neither one of those involved an election.”