Gerken v. Sherman

• Decision Date: 13 January 2009
• Docket Number: No. WD 69053.,WD 69053.
• Citation: 276 S.W.3d 844
• Parties: Linda GERKEN, Sheila Holt, Nancy Lynn, Trudy Blood, Galen Blood, Emma Lou Swopes, Brenda Gardner, and Missouri Council of the Blind, Appellants, v. Gary SHERMAN, and Missouri Family Support Division, Respondents.
• Court: Missouri Court of Appeals

276 S.W.3d 844

Linda GERKEN, Sheila Holt, Nancy Lynn, Trudy Blood, Galen Blood, Emma Lou Swopes, Brenda Gardner, and Missouri Council of the Blind, Appellants, v. Gary SHERMAN, and Missouri Family Support Division, Respondents.

No. WD 69053.

Missouri Court of Appeals, Western District.

January 13, 2009.

Deborah S. Greider, St. Louis, MO, for appellant.

Mark E. Long, Attorney General Office, Jefferson City, MO, for respondent.

PAUL M. SPINDEN, Judge.

Since 1875, the Missouri Constitution has required the General Assembly to levy an annual property tax to fund the blind pension fund. From this fund, the State is to pay pensions to "the deserving blind" as provided by statute. MO. CONST. art. III, § 38(b) (1945) (originally art. VI, § 47). At dispute in this case is who belongs to the class of "the deserving blind."

The appellants are the Missouri Council of the Blind and blind persons who receive pensions from the fund. They contend that the director of the Department of Social Services¹ and the Family Support Division² have improperly asked the General Assembly to use fund resources to pay for pension programs other than the one program for which the fund was intended and have calculated increases in the blind pensions illegally for at least the past decade. They asked the circuit court for a judgment declaring that this was the case and for an accounting of the blind pension fund. The circuit court found that division was not requesting that the General Assembly improperly use resources from the fund and was calculating its requested blind pension increases lawfully. The circuit court further found that an accounting was not necessary. We affirm the circuit court's judgment in part and reverse and remand in part.

Article III, § 38(b), of Missouri's constitution says that the General Assembly shall levy an annual tax on all taxable property in the state "for the purpose of providing a fund to be appropriated and used for the pensioning of the deserving blind as provided by law." After payment of the pensions, the provision mandates that any balance remaining in the blind pension fund "may be appropriated for the adequate support of the commission for the blind,³ and any remaining balance shall be transferred to the distributive public school fund."

The General Assembly endeavored to implement this constitutional mandate in § 209.130, RSMo 2000, by levying an annual tax of three cents on each $100 valuation of taxable property in Missouri to create a fund to pay pensions "for the deserving blind." Like the constitutional provision, § 209.130 also says that any remaining balance in the fund after the payment of the pensions "may be appropriated for the adequate support of the commission for the blind, and any balance remaining at the end of the biennium shall be transferred to the distributive public school fund." The General Assembly funded the first pensions from the blind pension fund in 1922.

After creating the Blind Pension Program, the State initiated other benefits for blind persons. In 1951, the General Assembly passed the Aid to the Blind Law, which created the Aid to the Blind Program. Sections 209.210-209.350, RSMo Cum. Supp. 1951. This program's purpose was to match federal funds and to grant benefits to persons who met requirements beyond those for the Blind Pension Program. Its recipients received a monthly pension equal to the blind pension. State and federal funds financed the Aid to the Blind pensions, but the General Assembly specifically designated that the funds for the State's portion was to come from the blind pension fund. Section 209.290. In § 209.220.3, the General Assembly declared its intention to fund both Blind Pensions and Aid to the Blind and "that the words `pensioning of the deserving blind' as used in any law of this state shall be construed to include aid to the blind."

When Congress created the Supplemental Security Income (SSI) program in 1972, it replaced federal legislation that created the Aid to the Blind program. SSI adversely affected some people who qualified for Aid to the Blind pensions because of SSI's different qualification requirements and benefit payments. To rectify this problem, Congress authorized state governments to create programs, beginning on January 1, 1974, to aid individuals who would be adversely affected by SSI.

Acting on this authority, the General Assembly repealed Missouri's Aid to the Blind Law in 1973 and enacted legislation enabling persons eligible for Aid to the Blind pensions on December 31, 1973, to continue to receive the same benefit after January 1, 1974. Section 208.030, RSMo Cum. Supp. 1973. The law provides that, if recipients of Aid to the Blind pensions receive SSI benefits that are less than their Aid to the Blind pension on December 31, 1973, the State will supplement SSI benefits so that they are equal to the Blind Pension. Section 208.030.2, RSMo 2000. State officials dubbed this program "Aid to the Blind, Conversion" or "AB Conversion."

At the same time, the General Assembly created the "Supplemental Aid to the Blind" or "SAB" program. SAB allows those persons who would have met the requirements for participating in Aid to the Blind on or after January 1, 1974, to receive the same pension as those who were eligible for the Aid to the Blind pension on December 31, 1973. Section 208.030.4, RSMo 2000. The State guarantees that it will pay SAB recipients the same as the Blind Pension less any SSI benefits.

The General Assembly enacted appropriation legislation in 1973 to fund these programs from the blind pension fund. C.C.S.H.B. 6, 77th Gen. Assem., 1st Reg. Sess. (Mo. 1973). The General Assembly has funded these programs from the blind pension fund every year since then.

Another State program for blind people is Rehabilitation Services for the Blind, formerly known as the Commission for the Blind. The State established this program to promote employment and training of blind persons and to aid in efforts to prevent blindness. 13 CSR 40.91-010, et seq. The federal government provides 80 percent of Rehabilitation Services' funding. The remaining 20 percent comes from the blind pension fund.

More than 2800 persons participate in the Blind Pension program. Less than 50 persons participate in the AB Conversion program. SAB has approximately 700 participants, and Rehabilitation Services provides services for 10,000 to 12,000 persons. The division manages all of these programs.

The division also is responsible for administering the blind pension fund. Section 207.010, RSMo 2000. Each year, the Department of Social Services, of which the division is a part, prepares a budget request pursuant to the State's budget process, including a request for funds for the blind pension fund. The department submits its budget request to the Office of Administration, which works with the Governor's staff to develop the Governor's recommended budget. The Governor's recommended budget can alter the department's request. The General Assembly then enacts a budget, subject to the Governor's approval, to provide for appropriations to be made. Appropriations are the General Assembly's authorizations to spend designated amounts from designated funds for particular purposes. Pursuant to the General Assembly's appropriations, the division expends funds to finance the Blind Pension pensions, AB Conversion pensions, SAB pensions, and Rehabilitation Services.

In their first point, the appellants complain that the circuit court erred in finding that the division's requesting to use funds from the blind pension fund to finance AB Conversion and SAB pensions was not contrary to Article III, § 38(b), and § 209.130. Interpretation of a constitutional or statutory provision is a question of law and is subject to our de novo review. Akers v. City of Oak Grove, 246 S.W.3d 916, 919 (Mo. banc 2008); City of Springfield v. Sprint Spectrum, L.P., 203 S.W.3d 177, 182 (Mo. banc 2006). Generally, we subject constitutional provisions to the same rules of construction as other laws, except that we construe them more broadly "due to their more permanent character." Neske v. City of St. Louis, 218 S.W.3d 417, 421 (Mo. banc 2007). When interpreting a statute, our task is to ascertain the General Assembly's intent according to plain and ordinary meaning of the statute's language. Cline v. Teasdale, 142 S.W.3d 215, 222 (Mo.App.2004).

Article III, § 38(b), says that the blind pension fund is to be "appropriated and used for the pensioning of the deserving blind as provided by law." Section 209.130 says that pensions are to be paid with funds from the blind pension fund "for the deserving blind as herein provided." It adds that pensions should be paid "as provided by law."

A pension is "a fixed sum paid regularly to a person." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1671 (1993). The three cash assistance programs funded by the blind pension fund—Blind Pension, AB Conversion, and SAB—pay a monthly sum to eligible recipients and are, therefore, pensions. Likewise, all three have the same statutory blindness requirements, but have different eligibility requirements based on age, income, assets, and behavior. See §§ 209.030, 209.040, and § 208.030. The appellants based their contention that only Blind Pension recipients constitute "the deserving blind" on these different eligibility requirements.

Neither the constitutional provision nor statutes define "the deserving blind." Precisely who constitute the "deserving blind" is not readily apparent. That the General Assembly would not define it significantly thwarts our efforts to give operation to the legislature's intent. We are left to divine whom the General Assembly intended to include in the class of the "deserving blind."

The appellants contend that the class should be restricted to those individuals who satisfy the eligibility requirements set out in Chapter 209 of the...