Hawkins v. Missouri State Emp. Retirement System

• Decision Date: 26 October 1972
• Docket Number: No. KCD,KCD
• Parties: Calvin W. HAWKINS et al., Plaintiffs-Appellants-Respondents, v. MISSOURI STATE EMPLOYEES' RETIREMENT SYSTEM, Defendant-Respondent-Appellant. 25983.
• Court: Missouri Court of Appeals

Page 580

487 S.W.2d 580

Calvin W. HAWKINS et al., Plaintiffs-Appellants-Respondents, v. MISSOURI STATE EMPLOYEES' RETIREMENT SYSTEM,

Defendant-Respondent-Appellant.

No. KCD 25983.

Missouri Court of Appeals, Kansas City District.

Oct. 26, 1972.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 4, 1972.

Application to Transfer Denied Jan. 8, 1973.

Cullen Coil, Jefferson City, for appellants-respondents.

John C. Danforth, Atty. Gen., Jefferson City, B. J. Jones, Asst. Atty. Gen., for respondent-appellant.

WASSERSTROM, Judge.

This declaratory judgment suit was brought by eight named plaintiffs as a class action on behalf of all official court reporters serving in the circuit courts and common pleas courts in Missouri. The plaintiffs and the class represented by them are referred to hereinafter as 'Court Reporters'. The object of their action is to obtain a declaration that they are entitled to participate in the Missouri State Employees' Retirement System, hereinafter referred to as 'Retirement System'. The Retirement System was established by statute in 1957, and it has consistently since that time refused to admit the Court Reporters to membership on the theory that the latter are not 'employees' as defined by the statute.

The trial court held that the Court Reporters are entitled to participate in the Retirement System, but only to a limited extent. Both parties appealed to the Missouri Supreme Court. That Court, pursuant to subsequent motions by the parties and because of lack of jurisdiction, transferred the cause to this Court.

I

The principal position taken by the Retirement System continues to be, as it always has been, that the Court Reporters are not entitled to participate to any extent whatever in the Retirement System. This constitutes the main issue in this case. The denial by the Retirement System of any right of participation to the Court Reporters rests upon its contention that the Court Reporters do not qualify under the definition of 'Employee' contained in § 104.310(15), ¹ which provides as follows:

"Employee', any elective or appointive officer or employee of the state who is employed by a department and earns a salary or wage in a position normally requiring the actual performance by him of duties during not less than one thousand five hundred hours per year * * *'

The Retirement System contends that a Court Reporter is neither 'an employee of the state' nor 'employed by a department'.

A. Our first inquiry therefore must be whether a Court Reporter is an 'employee of the State'. In this connection, an analysis is in order of the statutory provisions which govern the Reporter's appointment, duties and manner of payment. § 485.040 provides that the judge of each circuit court and court of common pleas shall appoint an official Court Reporter for each court or each division of the circuit court, and such Court Reporter shall be a sworn officer of the court and shall hold office during the pleasure of the judge appointing him. § 485.050 specifies the duties of the Court Reporter, which consist of attending sessions of the court, taking stenographic notes of the evidence, and furnishing transcripts of the court proceedings. § 485.055(1) further provides that the Court Reporter may be transferred from one circuit court or court of common pleas to another upon order of the Missouri Supreme Court. § 485.060 provides that the Court Reporter shall receive an annual salary of $12,000; and § 485.065 provides that of that salary, $6,500 is to be paid out of the county treasury, and $5,500 is to be paid out of the state treasury.

A review of these statutory provisions shows very clearly that the position of Court Reporter is closely identified with the circuit court or court of common pleas in which he is appointed. As specifically provided in § 485.040, the Court Reporter is an 'officer of the court' and for purposes of present analysis stands in the same relationship to the State as the judge of the court who appointed him. The law of Missouri is now settled that circuit judges "are judges of the State of Missouri and not merely judges of the circuit in which they are elected or appointed". State ex rel. St. Louis County et al. v. Kirkpatrick, Mo., 426 S.W.2d 72. Since the circuit judge is an officer or employee of the State, rather than of the County in which his court is located, so also it must follow that the Court Reporter appointed by him and who devotes his time exclusively to the circuit judge is also a 'state employee'.

Any possible doubt on this score would be removed by the provision for salary payment to the Court Reporter of 'fifty-five hundred dollars out of the state treasury'. § 485.065. It is interesting to point out that prior to 1955 no part of the Reporter's salary was paid by the State, but rather, all of the salary was paid by the County. The change in salary arrangement whereby the State did assume direct payment of at least a portion of the salary fortifies the conclusion that the Court Reporter has become an 'employee of the state'. Rider v. Julian, Banc, 365 Mo. 313, 282 S.W.2d 484, cited by the Retirement System, is actually authority against it in this respect.

Further evidence of the status of the Court Reporter as an 'employee of the state' is found in the form of the checks received by him monthly accompanied by a 'State of Missouri Employee Earnings Statement', on which is shown all of the payroll deductions usually made by an employer. In addition thereto, the earning statement in question includes an invitation to join the Missouri State Employees Credit Union which the statement says is 'not for profit . . . but to serve the employees of the State of Missouri'.

The Retirement System relies on the case State ex rel. Rucker v. Hoffman, Mo.App., 294 S.W. 429, for the proposition that a Court Reporter is a 'County officer', rather than being 'an employee of the State'. That decision by a divided court is not in point, since it relates to a very specialized problem which has no bearing on the present question. Moreover, the case was decided at a time when the statutes were different.

We conclude that a Court Reporter is an 'employee of the state'.

B. The next question, as to which the Retirement System aids its heaviest barrage, is whether a Court Reporter is 'employed by a department'. The answer to this requires reference to the special definition of the term 'department' contained in § 104.310(11):

"Department', any department, institution, board, commission, officer, court or any agency of the state government receiving state appropriations including allocated funds from the federal government and having power to certify payrolls authorizing payments of salary or wages against appropriations made by the federal government or the state legislature from any state fund, or against trusts or allocated funds held by the state treasurer;'

The interpretation placed upon this definition by the Retirement System is that the circuit courts and courts of common pleas (which appoint, control and requisition the monthly pay with reference to the Court Reporters) do not qualify individually or collectively as a 'department' because no appropriations are made directly to those courts. In support of that position, the Retirement System makes reliance upon the form of the appropriation bill, the most recent one of which up to the time of trial was introduced into evidence. This appropriation bill shows that $535,920 was appropriated 'For Personal Service and expenses of the court reporters of circuit courts and courts of criminal corrections'. However, the Retirement System emphasizes that this item is shown as appropriated 'To the Comptroller'. The Retirement System contrasts this manner of appropriation to the way in which sums were appropriated to the appellate courts, which are shown as appropriated directly 'to the Supreme Court', 'to the Kansas City Court of Appeals', 'to the St. Louis Court of Appeals', and 'to the Springfield Court of Appeals'. The Retirement System deduces from all this that the appellate courts constitute 'departments' within the statutory definition, but that the circuit courts do not.

We find this argument strained and unpersuasive. If nothing else, it leaves out of account the title of the appropriation bill, which declares a purpose 'To appropriate money to pay the salaries * * * of the civil officers and employees of the state, as follows: * * * the Judiciary * * *'. Most certainly the circuit courts and the courts of common pleas of this State constitute part of 'the Judiciary'. There can be no possible doubt on this score in light of the Missouri Constitution, 1945, Article V, §§ 1, 14, 15 and 28, V.A.M.S. The title of the appropriations bill shows an intention to appropriate funds to the court system of this State as a single unified department of government; it constitutes a part of the statute and is entitled to consideration in the interpretation thereof. Bullington v. State, Mo., 459 S.W.2d 334, l.c. 341; State ex rel. Agard v. Riederer, Mo.Banc, 448 S.W.2d 577, l.c. 581; State ex rel. Lee American Freight System, Inc. v. Public Service Commission, Mo.Banc, 411 S.W.2d 190, l.c. 194.

We need not speculate in order to come up with some explanation of why the appropriation bill deals somewhat differently with the appellate courts as compared with the trial courts. If such speculation were important, it would be a fair guess that the reason for the difference lies in the fact that each of the appellate courts is geographically compact with a single office and staff; whereas, the trial courts are scattered geographically throughout the State with no single central administrative head. Whatever the true explanation for this difference of administrative treatment in the appropriation bill, that is basically unimportant inasmuch as all these courts constitute part of 'the Judiciary' referred to in the title....