TGH Litigation


TGH obtains unanimous victory in Missouri Supreme Court

Supreme Court: Lawmakers violated Constitution in cutting Rebman job

April 18th, 2019by Bob Watsonin Local NewsRead Time: 2 mins.

Missouri lawmakers violated the Constitution’s “separation of powers” doctrine when they passed a budget that eliminated a specific job, the state Supreme Court ruled Tuesday.

In a unanimous ruling written by Judge W. Brent Powell, the seven-judge court upheld a ruling by Cole County Circuit Judge Jon Beetem that lawmakers couldn’t write an appropriations bill that removed the funding for only one, specific administrative law judge’s (ALJs) position.

“ALJs are employees of the executive branch of government, not the judicial branch,” Powell wrote. “As such, authority to appoint and remove ALJs is vested solely in the director of the department of labor and industrial relations.”

However, lawmakers a year ago passed a budget bill for the current, 2018-19 state business year, with language that paid for administrative law judges only if they were appointed before Jan. 1, 2012, or after Jan. 1, 2015 — leaving Lawrence Rebman’s job as the only one excluded by that language.

Rebman was the Labor Department director under then-Gov. Jay Nixon until March 13, 2013 — when Nixon removed him from the director’s post and appointed him as an ALJ based in Kansas City.

At the time, Rebman was at the center of some internal disputes with employees — including then-Employment Security Director Gracia Backer — and the state ultimately lost or settled employment discrimination cases costing the state government more than $3 million.

That legal dispute was cited in court arguments as a justification for lawmakers’ decision to cut the funding for Rebman’s job.

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

In its 14-page ruling, the Supreme Court said: “In the most general terms, the legislative branch is charged with making the law; the executive branch is charged with enforcing the law; and, as (U.S.) Chief Justice Marshall wrote more than two centuries ago, ‘It is emphatically the province and duty of the judicial department to say what the law is.’

“In this case, the funding restraints in (2018’s) House Bill 2007 demonstrate a manifest encroachment on executive authority by the General Assembly.”

The court rejected the state’s argument that the appropriations bill was a constitutional exercise of the General Assembly’s authority over appropriations and the disposition of tax revenue.

“To be sure, the General Assembly ‘has the undoubted power to make or to refuse to make an appropriation authorized by the Constitution, and it has the power to create or abolish an office when unrestrained by constitutional limitations,’” Powell wrote, quoting from a 1911 Supreme Court ruling.

However, he added, citing the Constitution’s Article IV, Section 19: “It is equally clear executive departments are constitutionally empowered to make personnel choices without interference by the General Assembly.

“It is from this principle this Court concludes the General Assembly may not compel an executive department, directly or indirectly, to fire a specific employee.”

The court said Beetem rightly severed the unconstitutional language that focused on Rebman’s job, while leaving the total appropriation in place — and leaving it to the department which ALJ should lose a job, since lawmakers only paid for 27 ALJs, and the department had 28 of them.

There was no indication Tuesday how the ruling would affect the budget for the 2019-20 state business year that begins July 1.

The House already has passed a version, which the Senate Appropriations Committee this week is working on, and full debate in the Senate is expected next week.

Kerry Hirth