Collective bargaining suit dismissed, but Kinder claims victory

Wednesday, December 18, 2002

JEFFERSON CITY, Mo. -- Gov. Bob Holden acted within his authority to set executive branch policy when he signed an executive order 18 months ago granting collective bargaining rights to many state employees, a state appeals panel said Tuesday.

But state Sen. Peter Kinder of Cape Girardeau, one of the lawsuit's plaintiffs, and the Missouri Chamber of Commerce both claimed Tuesday's ruling was a victory because the court also found that the governor's order carries no force of law.

A three-judge panel of the Missouri Court of Appeals Western District in Kansas City ruled a lower court judge was correct in dismissing a lawsuit that claimed the Democratic governor's June 2001 order was an unconstitutional usurpation of legislative powers.

"Like the optimistic little boy on Christmas morning, we have looked deep into the recesses of this box of manure and found a very handsome pony," said Kinder, who is president pro tem of the Senate and lead plaintiff in the lawsuit.

In light of the decision, Kinder called the governor's order "a meaningless gesture to labor."

Mary Still, Holden's spokeswoman, said the court's interpretation of the scope of the order was consistent with the governor's past statements regarding its effects.

"It was perhaps paranoia that others thought it invoked other conditions," Still said. The fact that two courts have ruled there was no issue for them to decide proves Kinder's case was "frivolous," she said.

In a decision written by Judge Harold L. Lowenstein, the appeals court acknowledged there is scant legal precedent in Missouri on the extent of a governor's power to issue executive orders.

However, a 1983 case established that there are three types of orders: ceremonial, advisory and those exercising a power specifically granted to the governor by state law or the Missouri Constitution.

While the third type of order carries the force of law, the first two do not. The court said the collective bargaining order merely advises departments under the governor's direct control as to how they should deal with labor unions.

"Although the order here utilizes mandatory-style language as to the collective bargaining scheme and resulting contract, it is still nothing more than a directive from the chief executive -- sans constitutional or legislative approval -- to his appointed executive department head," Lowenstein wrote.

Holden's order says that executive branch agencies, excluding those run by independent commissions, must negotiate in good faith with unions. If an impasse is reached, the matter goes before an independent arbiter.

However, it specifically states that any results of collective bargaining that require the appropriation of funds or other legislative action are invalid unless the required legislative action is taken.

Lack of standing

Exactly one year ago, Cole County Circuit Court Judge Thomas J. Brown III dismissed the case, claiming the plaintiffs lacked the standing to bring it. Brown added that even if the plaintiffs had standing, the case should be dismissed because the order was narrowly drafted and didn't encroach on legislative authority in violation of the separation-of-powers doctrine.

The appeals panel disagreed with Brown on the issue of standing but supported his other reasons for dismissal.

Both courts said the plaintiffs' additional claim that the order was unconstitutional because it could require non-union employees to pay so-called fair share fees for union representation wasn't ripe for review since no union has attempted to collect the fees.

Kinder said no decision had been made on whether to appeal this latest order to the Missouri Supreme Court.

Other plaintiffs include pro-business groups such as the Missouri Chamber of Commerce and Associated Industries of Missouri, several state employees who oppose collective bargaining and state Rep. Quincy Troupe, D-St. Louis.

Like Kinder, a Republican, state chamber president Dan Mehan claimed victory with the ruling, though he conceded it wasn't as decisive as the plaintiffs had hoped.

"We are disappointed that taxpayers did not have their day in court, but union bosses likely are more disappointed because all they have is an empty order that cannot be acted upon," Mehan said.

While state department heads cannot be legally compelled to follow Holden's directive on collective bargaining, since they serve at the pleasure of the governor it is unlikely they would refuse to follow his orders on the matter.

Tuesday's ruling is in the case of Kinder, et al, vs. Holden.

mpowers@semissourian.com

(573) 635-4608

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