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TGH Blocks Effort to Oust Administrative Law Judge

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Judge: Legislature violated Constitution with administrative law judge’s elimination

By Bob Watson          Jefferson City News Tribune          July 20, 2018

Missouri lawmakers violated the state Constitution last spring, Cole County Circuit Judge Jon Beetem has ruled, when they wrote budget language that eliminated only the administrative law judge post held by former state Labor Director Lawrence Rebman.

Beetem’s nine-page judgment, released Tuesday, included a permanent injunction against the state’s Workers’ Compensation Division from “terminating (Rebman’s) employment on the basis of” the budget language the judge declared to be unconstitutional.

The attorney general’s office didn’t comment on the ruling Wednesday.

If the state chooses to appeal, it likely would go directly to the state Supreme Court because the appeal would involve constitutional issues.

Columbia attorney J. Andrew Hirth, a former assistant attorney general, had filed the lawsuit to block Rebman’s removal, and told the News Tribune he was pleased with Beetem’s decision.

Then-Gov. Jay Nixon had named Rebman as an administrative law judge for the state division March 13, 2013 — the same day, Nixon removed Rebman from his job as Missouri’s Labor and Industrial Relations Department director.

This year, lawmakers passed a budget bill for the state business year that began July 1, funding the Workers’ Compensation Division with language that paid for administrative law judges only if they were appointed before Jan. 1, 2012, or after Jan. 1, 2015.

Rebman’s job was the only one excluded by that language.

However, Beetem found, “The Legislature’s attempt to eliminate (Rebman’s) ALJ position through the appropriations process violates the constitutional prohibition against special legislation.”

He also ruled the Legislature’s language “violates the constitutional separation of powers” because lawmakers were making a decision where the Constitution says: “The head of each department may select and remove all appointees in the department except as otherwise provided in this constitution, or by law.”

And, Beetem ruled, lawmakers’ effort to remove Rebman through the budget language violated the Constitution’s guarantee “all persons are created equal and are entitled to equal rights and opportunity under the law.”

The Department of Labor and Industrial Relations’ administrators had notified Rebman in late May he was being terminated from his job as of June 15 because of the budget language.

Hirth said Wednesday: “The Legislature may exercise the power of the purse to limit Executive (Branch) spending in general, but it cannot force the Executive to fire a specific state employee. Nor can it enact legislation that affects only one person and treats that person differently from his coworkers.”

In its briefs and at a recent hearing, the state had argued the Legislature had the right to remove Rebman because he’d been named in two employment cases the state ultimately settled for more than $3 million.

Former state Rep. Gracia Backer, D-New Bloomfield, who headed the Employment Security Division from 2009 until Nixon fired her in March 2013, received a $2 million settlement.

Lucinda Guthrie received $1.1 million to settle her complaints Rebman fired her inappropriately and, after she was reinstated after Rebman became an administrative law judge, that then-Employment Security Director Ken Jacob had passed over Guthrie in making promotions.

Beetem wrote: “The only evidence presented at the preliminary injunction hearing was that (Rebman) denied the prior allegations made against him, that there was no admission of liability by the State, and that the Attorney General’s Office decided to settle that case without (his) approval.

“In these circumstances, speculation that the Legislature believed (Rebman) posed ‘a risk of future discrimination settlements’ is not a rational basis for treating him differently from all other similarly situated workers’ comp ALJs.”

And, Beetem ruled: “Mere allegations of past wrongdoing — especially when they have been expressly denied by Defendants’ predecessors in office — are not substantial justification for enacting special legislation applying only to (Rebman). More importantly, no evidence was offered to support that any subsequent claims have even been made during (his) five year tenure as an ALJ.”

The judge said there already is a state law that sets a process to remove administrative law judges from their jobs, and the Legislature had no authority to go around that process — which “requires successive votes of ‘no confidence’ by the bipartisan ALJ review committee. As (Rebman) has never received any votes of no confidence from the committee, his attempted removal for cause violates” that law.

Hirth said: “This ruling is a victory for all state employees, who should be free to perform their jobs without fear of political reprisal from the General Assembly.”

Kerry Hirth