Appeals court asked to reinstate suit against Holden

PAYING A FAIR SHARE

By Steve Brisendine ~ The Associated Press

KANSAS CITY, Mo. -- Lawmakers have the power to negate a governor's executive order without resorting to court action, an assistant attorney general said Wednesday in asking a state appeals panel not to reinstate a lawsuit against Gov. Bob Holden.

Senate President Pro Tem Peter Kinder, R-Cape Girardeau, and others sued Holden last September over his order authorizing collective bargaining for thousands of state employees. They contend the order unconstitutionally circumvents the legislature and forces employees to pay a "fair share" fee even if they don't join a union.

"If this order is something they want to repeal, then they have the power to write a law that repeals it," Assistant Attorney General Alana Barragan-Scott told the three-judge panel on Wednesday.

That assertion proves the plaintiffs' point, said Richard Paul, an attorney for the plaintiffs.

"If the legislature can come in and undo what the executive order does, then that just proves this is a legislative power," Paul said.

Dismissed in December

A Cole County judge dismissed the lawsuit in December, ruling that no state worker had yet been forced to pay such a fee. The plaintiffs, who also include Rep. Charles Quincy Troupe, D-St. Louis, and several business groups, appealed after Cole County Circuit Court Judge Thomas Brown declined to reconsider his dismissal.

Barragan-Scott also reminded the appeals panel of Brown's ruling that Holden's order is not enforceable, and therefore not actionable in civil court.

"It doesn't matter if it's not enforceable in a court of law," Paul responded. "The governor's order carries weight."

Overturning the order in the legislature also would not be easy, Kinder said after Wednesday's oral arguments.

"Theoretically, I suppose it might be possible," he said, "but you would have to get past a gubernatorial veto, and there have been only seven successful veto overrides in 182 years of statehood."

However, Kinder said, "The remedy is not legislative. It's for the judicial branch to come in and remind the governor of his proper place in the constitutional system."

The court set no timetable for a ruling.

Holden's order, issued in June 2001, granted collective bargaining rights to as many as 30,000 of Missouri's 65,000 state workers. It affects workers only in agencies controlled by the governor and does not affect public school teachers or law enforcement officers.

It is opposed by the Missouri Chamber of Commerce and Associated Industries of Missouri, who for years have opposed legislative efforts to grant collective bargaining power to state employees.