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State high court considers legislative powers

January 16, 2019 at 6:05 a.m. | Updated January 16, 2019 at 2:41 p.m.
The Missouri Supreme Court at 207 W. High St. in Jefferson City.

The Missouri Supreme Court heard three cases Tuesday raising questions about the Legislature's powers.

And the appeals of all three cases began with rulings by Cole County Circuit Judge Jon Beetem.

Beetem agreed with former state Labor Director Lawrence Rebman that the Legislature didn't have the authority to eliminate one administrative law judge's job - Rebman's - through the appropriations process, and the state appealed.

Beetem agreed with the state in two different lawsuits filed by Ron Calzone, of Dixon, that lawmakers can modify bills during the legislative process - even if that process changes the bill's title or original purpose.

Calzone thinks those changes violate requirements of Missouri's Constitution, and he appealed Beetem's rulings.

As usual, the court gave no indication when it might rule in the three cases, after hearing the oral arguments Tuesday morning.

Rebman v. Parson

Rebman's case is the more recent of the three.

He sued after lawmakers last year passed a budget that cut funding only for his administrative law judge's job.

Then-Gov. Jay Nixon had named Rebman as an ALJ for the state Worker's Compensation Division on March 13, 2013 - the same day Nixon removed Rebman from his job as Missouri's Labor and Industrial Relations Department director.

Rebman then 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 state government more than $3 million.

Lawmakers last May passed a budget bill for the state business year that began July 1, funding the division with language that paid for administrative law judges only if they were appointed before Jan. 1, 2012, or after Jan. 1, 2015 - and Rebman's job was the only one excluded by that language.

Gov. Mike Parson approved that budget language.

After hearing arguments, Beetem found: "The Legislature's attempt to eliminate (Rebman's) ALJ position through the appropriations process violates the constitutional prohibition against special legislation."

Beetem ordered the state Labor Department to continue paying Rebman.

Eventually, the high court was told Tuesday, a more recently hired ALJ was removed.

However, Deputy Solicitor Julie Marie Blake told the seven-judge Missouri Supreme Court: "It's questionable at all whether appropriations statutes fall under the 'special law' analysis in the first place.

"It is black-letter law that the Legislature has plenary appropriations power, and may, of course, use this power to control the executive branch. Here that appropriations authority was funded in a way that funded two classes of people."

Blake also said it wasn't a special law, because Rebman could ask to be reinstated to his job and then would be outside that restricted window.

J. Andrew Hirth, of Columbia, Rebman's attorney and a former assistant attorney general, countered: "The power of the purse is an important legislative check on both the judicial and the executive branch - but that power is not without limitation."

He noted the high court has already ruled the "General Assembly may not use the appropriations process to target a specific employee of the executive branch for termination. That's precisely what the Legislature did in this case."

Blake said the budget wasn't a special law because the Legislature didn't use Rebman's specific name. Hirth said that didn't matter.

Blake said lawmakers had a right to single out Rebman because of the court settlements.

"The troubling and serious allegations of discrimination made against Mr. Rebman, that resulted in a $3.1 million settlement, is a substantial justification to end his position," she argued. "The Legislature is elected by the people to be a check on the executive, and say that the people's tax money shouldn't go to things the Legislature doesn't want to fund."

Hirth countered the attorney general's office had reached the settlements "without (Rebman's) consent and, in settling, did not admit any liability."

Also, he noted, Missouri's Constitution leaves the power to "select and remove all appointees within the department, except as otherwise provided in this Constitution or by law."

And, he noted, the high court already has said lawmakers can't "legislate" through appropriations - "the only thing the appropriations bill can do is dictate what money goes where."

Calzone v. DESE and Calzone v. Agriculture

Calzone challenged two bills lawmakers passed in 2016, saying both had violated the Constitution because they began with specific language changed during the legislative process.

One bill began as a measure making two changes to state law "relating to civics education," while the other measure involved the "establishment of a fee structure for sellers electing to use the AgriMissouri trademark associated with Missouri agricultural products."

The final measures approved by the Legislature and governor covered a broader territory and, Calzone argued, the people have approved constitutional language that limits lawmakers "in the procedures that they use to pass bills."

That includes "fair and open debate" on bills, "to consider one subject at a time and not use gamesmanship to sneak laws past the checks and balances that normally sift out the foolish and the unjust chaff."

Calzone focused on Article 3, Sections 21 and 23, which prohibit lawmakers from amending a bill "as to change its original purpose," and limit all bills to containing only "one subject which shall be clearly expressed in its title."

However, most often, he said, "that's not happening."

Instead, lawmakers wait until the last couple of weeks of the session, then "pile on amendment after amendment, sometimes germane and sometimes not" - violating their constitutional duties.

Assistant Attorney General Jason K. Lewis told the court the civics education bill "is analogous to the dozens of bills that this court has upheld against similar attacks."

Throughout its passage through the Legislature, he said, "Its original purpose remained the same - to promote and regulate elementary and secondary education in the state," while only "the mere details" of the proposed law were changed during the debate process in the House and Senate.

Assistant Attorney General Justin D. Smith made a similar argument about the agriculture fees bill.

"It started as an agriculture bill," he said. "It finished as an agriculture bill.

"All of the final bill's provisions relate to agriculture" - including a provision involving petroleum sales, because "it's a program entirely housed within the Department of Agriculture."

Smith and Lewis pointed to a number of previous Supreme Court rulings supporting their argument.

Judge Laura Denvir Stith told Calzone she understood where he could be confused by those rulings, since "there are cases that are not fully consistent, generally."

Calzone, who is not an attorney, represented himself at the trial and at Tuesday's Supreme Court hearing.

And Judge Paul Wilson noted that, as an attorney, Calzone doesn't have the same legal training as lawyers and judges, making "it difficult to see how we ended up with that analysis that is reflected in our prior cases."

Calzone wrapped up his arguments in the two cases with a warning: "I would suggest that you'll see more and more challenges (to legislation) if we don't establish some more clear, bright-line standards. Some of the (court's) opinions seemingly - certainly from an average citizen's perspective - have been all over the board.

"And there certainly seems to be no real, guiding principle - without getting a subscription to some law review."

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