Missouri Pacars v. Pemiscot County

• Decision Date: 28 March 2007
• Docket Number: No. 27325.,27325.
• Citation: 217 S.W.3d 393
• Parties: MISSOURI PROSECUTING ATTORNEYS AND CIRCUIT ATTORNEYS RETIREMENT SYSTEM, an agency of the State of Missouri, Plaintiff-Appellant, v. PEMISCOT COUNTY, Charles Moss, Wendell Hoskins, Sr., and David Wilkerson, Defendants-Respondents.
• Court: Missouri Court of Appeals

217 S.W.3d 393

MISSOURI PROSECUTING ATTORNEYS AND CIRCUIT ATTORNEYS RETIREMENT SYSTEM, an agency of the State of Missouri, Plaintiff-Appellant, v. PEMISCOT COUNTY, Charles Moss, Wendell Hoskins, Sr., and David Wilkerson, Defendants-Respondents.

No. 27325.

Missouri Court of Appeals, Southern District, Division Two.

March 28, 2007.

James E. Spain, Kristi J. Booker, Spain, Merrell & Miller, LLC, Poplar Bluff, for Appellant.

Wendell L. Hoskins, Caruthersville, for Respondents.

PHILLIP R. GARRISON, Judge.

The Missouri Prosecuting Attorneys and Circuit Attorneys Retirement System ("PACARS") filed a petition for writ of mandamus against Pemiscot County and its County Commissioners, Charles Moss, Wendell Hoskins, Sr. and David Wilkerson (collectively referred to as "Defendants"). In its petition, PACARS sought to compel Defendants to pay PACARS an amount it believed was required by Section 56.807.5(3).¹ Faced with competing motions for summary judgment, the trial court entered summary judgment in favor of Defendants, which PACARS now appeals. We reverse and remand.

The material facts presented for the trial court's consideration in the competing motions for summary judgment were undisputed, and both PACARS and Defendants agree this appeal presents an issue of law for our determination. Therefore, our standard of review is de novo. Bumm v. Olde Ivy Development, LLC, 142 S.W.3d 895, 896 (Mo.App. S.D.2004). "We do not defer to the trial court's order granting summary judgment. Rather, our job is to decide whether, as the party moving for summary judgment, Defendant[s] [were] entitled to judgment as a matter of law." Id. at 896-97 (internal citations omitted).

The undisputed material facts are as follows: Prior to August 1998, the prosecuting attorney in Pemiscot County, a third class county, was a part-time position. In August 1998, the voters of that county voted to make the position full time. Mike Hazel ("Hazel"), who had been the part-time prosecutor, was elected to the full-time position in November 1998.

As an elected prosecuting attorney, Hazel is a member of PACARS, subject to its retirement system. Section 56.807, governing the amount counties must pay to PACARS to fund the retirement system for prosecutors, provides, in relevant part, as follows:

1. Beginning August 28, 1989, and continuing monthly thereafter until August 27, 2003, the funds for prosecuting attorneys and circuit attorneys provided for in subsection 2 of this section shall be paid from county or city funds.

2. Beginning August 28, 1989, and continuing monthly thereafter until August 27, 2003, each county treasurer shall pay to the system the following amounts to be drawn from the general revenues of the county:

(1) For counties of the third and fourth classification except as provided in subdivision (3) of this subsection, three hundred seventy-five dollars;

. . . .

(3) For counties of the first classification, counties which pursuant to section 56.363 elect to make the position of prosecuting attorney a full-time position after August 28, 2001, or whose county commission has elected a full-time retirement benefit pursuant to subsection 3 of section 56.363, and the city of St. Louis, one thousand two hundred ninety-one dollars and sixty-seven cents.

. . . .

(emphasis added). Subsection 5 was added to the statute in 2003 and reads as follows:

5. Beginning August 28, 2003, each county treasurer shall pay to the system the following amounts to be drawn from the general revenues of the county:

(1) For counties of the third and fourth classification except as provided in subdivision (3) of this subsection, one hundred eighty-seven dollars;

. . . .

(3) For counties of the first classification, counties which pursuant to section 56.363 elect to make the position of prosecuting attorney a full-time position after August 28, 2001, or whose county commission has elected a full-time retirement benefit pursuant to subsection 3 of section 56.363, and the city of St. Louis, six hundred forty-six dollars.

Section 56.363.3 provides, in relevant part, as follows:

In counties that, prior to August 28, 2001, have elected pursuant to this section to make the position of prosecuting attorney a full-time position, the county commission may at any time elect to have that position also qualify for the retirement benefit available for a full-time prosecutor of a county of the first classification. . . . Such election shall also obligate the county to pay into the Missouri prosecuting attorneys and circuit attorneys' system retirement fund the same retirement contributions for full-time prosecutors as are paid by counties of the first classification.

Pursuant to the amount specified in Section 56.807.2(1), Pemiscot County has paid $375 per month into PACARS, since July 1993. This is apparently true, even though, under its theory that its voters did not elect to make the prosecutor's position a full-time one after August 28, 2001, and its county commission had not elected to have the position qualify for the retirement benefits available for a full-time prosecutor of a first class county (see Sections 56.807.5(3) and 56.363.3), the required contributions for prosecutors of third class counties after August 28, 2003, has been $187.

Because Pemiscot County elected to make their prosecutor a full-time position, PACARS believed that the County should pay $646 per month pursuant to Section 56.807.5(3). After Defendants refused PACARS demands, PACARS filed a petition for writ of mandamus seeking to compel Defendants to pay the difference between what it had paid and the $646 monthly amount claimed ($4,336). Defendants filed a motion for summary judgment, arguing that, under its interpretation of Section 56.807, it was not required to pay PACARS the same amount as first class counties, because Pemiscot County had elected to make the position of prosecuting attorney a full-time position before August 28, 2001, and the county commission had not affirmatively chosen to pay the amounts required of first class counties. PACARS filed a motion for summary judgment of its own, arguing a different interpretation of Section 56.807, and alleging that under Defendants' interpretation, Section 56.807 violated the equal protection clause of the United States and Missouri Constitution. The parties agreed that there were no disputed issues of fact, and that resolution of the case was a matter of statutory construction.

The trial court entered summary judgment in favor of Defendants. In its written judgment, it incorporated findings it recited in a docket entry which read, in pertinent part, as follows:

[T]here are no uncontroverted material facts at issue in this cause. That in reading 56.087[sic][ ] together with 56.363.3[ ] the Court finds that the legislative intent is clear that the legislature did not intend to require counties that had elected `full-time' prosecuting attorneys prior to August 28, 2001[,] to have that position qualify for the retirement benefits available for a full-time prosecutor of a first class county absent affirmative action by the county commission.

The trial court also said the following:

The Court has entered these Orders based upon the Court's interpretation of sections 56.807 and 56.363.3[]. The Court finds that the action and intent of the legislature have been to create, intentionally or not, a small group of `second class' prosecuting attorneys in the state of Missouri. It seems absurd to the Court that those prosecuting attorneys from counties who elected to have full[-]time prosecutors prior to August 28, 2001[,] shall be treated differently from those where similar action was taken subsequent to that date. Reluctantly, it is this Court's opinion that only action by the legislature or the Pemiscot County Commission can cure this injustice.

This appeal followed.

PACARS brings two points on appeal. For the sake of clarity, we will first address its second point, which reads as follows:

The trial court erred in granting summary judgment in favor of [Defendants] and denying [PACARS'] motion for summary judgment because the use of "after August 28, 2001" in [Section] 56.807 refers to when the payments were to begin, not that payments were only to be paid to full[-]time prosecutors elected after August 28, 2001[,] in that the only reasonable construction of the statute and the intent of the legislature was that all full[-]time prosecuting attorneys— whether elected before or after August 28, 2001—are entitled to full[-]time benefits.

(emphasis in original). We disagree.

We first note that PACARS' petition sought relief in the form of a writ of mandamus. A writ of mandamus is an appropriate remedy only where a party has a clear duty to perform a certain act. Maxwell v. Daviess County, 190 S.W.3d 606, 610 (Mo.App. W.D.2006). The purpose of mandamus is to enforce an existing right by requiring the performance of a duty already defined by the law, and it may not be used to establish new rights. Id. We must therefore determine whether Defendants have a clear duty under existing law to pay a greater amount to PACARS.

The issue presented in this point on appeal requires this Court to interpret the language of Sections 56.807 and 56.363.3. Our primary role, when interpreting a statute, is to determine the intent of the legislature and, whenever possible, give effect to that intent. Keling v. Keling, 155 S.W.3d 830, 833 (Mo.App. E.D.2005). "In ascertaining legislative intent, the words present in the statute are to be considered in their plain and ordinary meaning." Id. Where the language of a statute is clear and unambiguous, we will give effect to the language as written, and we will not resort to statutory construction. Id.

Here, the statute at issue is clear and unambiguous. Therefore, we need not resort to statutory construction. Pursuant to Section 56.807, there are three circumstances where a county must pay to PACARS the...