Kinder v. Holden

Decision Date17 December 2002
Docket NumberNo. WD 61067.,WD 61067.
PartiesSenator Peter KINDER, et al., Appellants, v. Robert HOLDEN, Governor of the State of Missouri, Respondent.
CourtMissouri Court of Appeals
92 S.W.3d 793
Senator Peter KINDER, et al., Appellants,
Robert HOLDEN, Governor of the State of Missouri, Respondent.
No. WD 61067.
Missouri Court of Appeals, Western District.
December 17, 2002.

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Richard Paul, III, George Leonard, Kansas City, MO, Daniel Bloom, Charles Kramer, St. Louis, MO, David M. Kight, Kansas City, MO, for Appellant.

Alana M. Barragan-Scott, Jefferson City, MO, for Respondent.




A group of plaintiffs consisting of Missouri state legislators, organizations, and individual state employees sought a judicial declaration that an executive order issued by Governor Holden violated laws of Missouri and the United States.

At the core of this declaratory judgment action is whether a Missouri Governor's executive order dealing with binding arbitration in labor negotiations between state employees and executive agencies and departments, as to wages, hours, and working conditions, usurps what is a strictly legislative function and may, therefore, be declared invalid. While emotions and opinions in this area of public sector labor law readily appear, Missouri case precedent evaluating the extent of a Governor's power to issue executive orders is scarce and almost non-existent with regard to the issue of labor negotiation between the executive department and its employees.

To better understand the issue at bar, a brief summary of Missouri public sector labor law is in order. In 1965, the Missouri General Assembly enacted the Public Sector Labor Law, § 105.500 RSMo1 et seq., which provides that public employees, excluding certain professions, have "the right to form and join labor organizations and to present proposals to any public body relative to salaries and other conditions of employment through the representative of their own choosing." § 105.510. Whenever a proposal is presented by a bargaining representative to a public body, the public body or its representative is required to "meet, confer, and discuss such proposals relative to salaries and other conditions of employment." § 105.520. Upon the completion of such discussions, the results must be reduced to writing and presented to the appropriate body for adoption, modification, or rejection. § 105.520. This statutory scheme has been described as a "meet, confer, and discuss law," and has been upheld by our Supreme Court. See Sumpter v. Moberly, 645 S.W.2d 359 (Mo. banc 1982); Curators, Univ. of Mo. v. Pub. Serv. Employees Local No. 45, Columbia, 520 S.W.2d 54 (Mo. banc 1975); State ex rel. Missey v. City of Cabool, 441 S.W.2d 35 (Mo.1969).

The seminal case in this area is City of Springfield v. Clouse, 356 Mo. 1239, 206 S.W.2d 539 (1947). The Court in Clouse acknowledged that, while the United States and Missouri Constitution gave public employees the right to organize and to speak freely to public officers or the legislature, those constitutional rights did not extend to collective bargaining as to qualifications, tenure, compensation, and working conditions, because those matters

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were strictly legislative and could not be delegated or contracted away by administrative or executive officers. Id. at 542-46. The Court in Clouse stated, in sweeping language:

[T]he whole matter of qualifications, tenure, compensation and working conditions for any public service, involves the exercise of legislative powers. Except to the extent that all the people have themselves settled any of these matters by writing them into the Constitution, they must be determined by their chosen representatives who constitute the legislative body. It is a familiar principal of constitutional law that the legislature cannot delegate its legislative powers and any attempted delegation thereof is void. If such powers cannot be delegated, they surely cannot be bargained or contracted away; and certainly not by any administrative or executive officers who cannot have any legislative powers. Although executive and administrative officers may be vested with a certain amount of discretion and may be authorized to act or make regulations in accordance with certain fixed standards, nevertheless the matter of making such standards involves the exercise of legislative powers. Thus qualifications, tenure, compensation and working conditions of public officers and employees are wholly matters of lawmaking and cannot be the subject of bargaining or contract. Such bargaining could only be usurpation of legislative powers by executive officers; and, of course, no legislature could bind itself or its successor to make or continue any legislative act. (citations omitted).

Id. at 545.

I. Procedural and Factual History A. The Executive Order

On June 29, 2001, the defendant, Governor Robert Holden, issued Executive Order 01-09 ("Order"). Paraphrased, and set out in pertinent part below, the Order established a mechanism for negotiation between state agencies and the employees of those agencies.

Paragraph one of the Order requires executive branch departments and agencies, which are directly under the control of the Governor, to meet and confer in good faith with the certified bargaining representatives of the public employees to resolve disputes and to reach a written memorandum of understanding as to agreed upon items.

Paragraph two states that if unresolved issues remain after sixty days, then "impasse negotiation" procedures are instituted which include: (1) assistance by an impartial person or representative from the Federal Mediation and Conciliation Service who will render "non-binding advice"; and, if that is not successful, then (2) submission of those unresolved issues to an arbitrator to conduct hearings and render "a final and determinative recommendation." Paragraph three lists factors the arbitrator should consider in making a recommendation.

Paragraph four states that all memoranda of agreement must contain a grievance procedure and must provide for binding arbitration of issues arising under the agreement "that may be legally binding under the Missouri Constitution and laws ...." This paragraph also contains language that no arbitration award under this section shall require any additional appropriation of funds.

Paragraph five provides that, where the state and the employees have reached a negotiated agreement, "any provision of the agreement which requires an additional appropriation of funds or which is found

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to be in conflict with the Missouri Constitution or laws shall take effect only on required approval of the appropriation of such funds or required legislative or Constitutional enactment." Paragraph five also states that if a recommendation of an arbitrator made pursuant to the second paragraph: (1) requires legislative approval; (2) requires an appropriation; (3) is "contrary to law"; or (4) requires action by the executive or legislative branch, then the recommendation "shall be of no force and effect until such action is taken."

Paragraph six provides that state agencies "may" include in memoranda provisions requiring employees to remit dues and service fees to the certified bargaining representative.

Finally, paragraphs seven through nine state that failure of the General Assembly to approve any portion of a memorandum agreed to by the state agency will not constitute bad faith negotiation. The Order also has a severability clause so that if any portion of the Order is invalidated by the courts or the General Assembly, the rest of the order is to remain in force. (Executive Order 01-09 is set forth in its entirety as an appendix).

B. Plaintiffs and their Petition

On September 24, 2001, plaintiffs filed a four-count petition seeking a declaratory judgment that the Order violated various Missouri statutes and provisions of the Missouri and United States Constitutions.

Plaintiffs consist of: (1) two Missouri state legislators; (2) several organizations; and (3) individual executive department employees. The two Missouri state legislators are: Peter Kinder, President Pro— Tern of the Missouri Senate; and Charles Quincy Troupe, a member of the Missouri House of Representatives. Kinder and Troupe brought suit in their capacity as legislators and as Missouri taxpayers.

The organizational plaintiffs are: (1) The Coalition to Repeal Executive Order 01-09, an incorporated coalition of various associations and individuals, including all of the other plaintiffs; (2) The Missouri Chamber of Commerce, a state-wide business organization that represents approximately 3,000 employers and almost 200 local chambers in dealings with the Missouri General Assembly and other governmental entities; (3) The Missouri Municipal League, a not-for-profit corporation that is a wholly-owned instrumentality of 618 Missouri municipal governments; (4) The Associated Industries of Missouri, a corporation representing businesses that operate in Missouri and/or sell to Missouri customers; and (5) The Heartland of America Chapter of Associated Builders and Contractors, Inc., a not-for-profit corporation representing independent construction contractors that operate in Missouri. Each of these organizations also brought suit as a taxpayer itself and as a representative of individual taxpayers that comprise the organization.

The five individual plaintiffs are state employees. Gary Gross is an employee of the Missouri Department of Corrections; Lori Etter and Laura Powell are employees of the Department of Revenue; Earl Buck is an employee of the Department of Natural Resources; and Mary Hoffmeyer is an employee of the Division of Employment Security (which is a division within the Department of Labor and Industrial Relations). The individual plaintiffs brought suit as taxpayers and as state employees since they would be subject to the Order in that they...

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