Weinstock v. Holden

PER CURIAM. Article XIII, section 3 of the Missouri Constitution was adopted by the voters of Missouri as a part of their Constitution in 1994. The article establishes a Citizen’s Commission to review, study, and fix the relationship of compensation to the duties of all elected state officials, legislators, and judges. The schedule of compensation established by the Citizen’s Commission is “effective” if not disapproved by the general assembly, but “subject to appropriations”. Kenneth Weinstock brought this lawsuit to challenge the legislature’s disapproval of the Citizen’s Commission’s 1996 schedule of compensation.1 He also attacks the validity of an amendment allowing an increased per diem to legislators and judges. The trial court denied relief. We affirm the judgment of the trial court and hold that: 1) legislative disapproval of a Citizen’s Commission’s schedule of compensation must be done in accordance with article III, section 21 of the Missouri Constitution because the disapproval has the force and effect of law; 2) no affected officeholder in Missouri is entitled to an increase in compensation until the general assembly appropriates an amount to fund all or a pro rata portion of the schedule of compensation; 3) the general assembly cannot appropriate a per diem expense allowance, payable in the nature of a salary, independent of the provisions of article XIII, section 3; and 4) the general assembly may, however, appropriate amounts for the reimbursement of the reasonable and necessary actual expenses of its members pursuant to article II, section 1 and article III, section 16 of the Missouri Constitution. I. Weinstock served as a circuit court judge in St. Louis County from June 7, 1984, until November 13, 1997. Weinstock is now entitled to receive retirement benefits computed in accordance with section 476.630, RSMo 1994. Weinstock is also a taxpayer in the State of Missouri. Bob Holden is the Treasurer of the State of Missouri. He is responsible for making disbursements from the state treasury in accordance with the law. Jeremiah Nixon is the Attorney General of the State of Missouri. He is responsible for enforcing and defending the laws of the state. [414] John D. Schneider is a Senator who represents the 14th senatorial district of the State of Missouri. Weinstock claims that the general assembly failed to lawfully disapprove the schedule of compensation adopted by the Missouri Citizen’s Commission in 1996 and that he is entitled to receive state benefits computed in accordance with that schedule. In the alternative, Weinstock claims that the general assembly improperly increased its own per diem in disregard of the provisions of article XIII, section 3. The trial court granted summary judgment against Weinstock on both claims. We have jurisdiction pursuant to article V, section 3 of the Missouri Constitution.2 II. Prior to November 8, 1994, compensation for Missouri executive officers, legislators, and judges was determined through the traditional legislative process. Because of the obvious pressures involved with setting their own compensation, state elected officials confronted a difficult if not impossible task. As a result, salaries for elected officials and judges have little relation to the market place. Anomalies existed and remain present, generally with state employees whose compensation is determined through the legislative process being paid less than individuals in comparable public and private positions. For example, the 1998 compensation for the governor of Missouri was only $107, 269, approximately 55% of the $195,000 compensation for the president of the University of Missouri or of the $200,000 compensation for the superintendent of the Kansas City School District. House Joint Resolution No. 38 (HJR 38) was introduced in an attempt to remedy this problem. It was initially drafted to remove the schedule of compensation for executive officeholders, legislators, and judges entirely from the legislative process, “to ensure that the power to control the rate of compensation of elected officials of this state is retained and controlled by the taxpaying citizens of this state.” HJR 38 sought to create a new constitutional entity, the Citizen’s Commission, that would hold hearings across the state and then establish a schedule of compensation for the affected officeholders. HJR 38 provided that the schedule could only be challenged by “referendum upon petition of the voters”. Two pertinent amendments were made to HJR 38 on its path through the general assembly. First, the words “subject to appropriations” were added to section 8 of the resolution (House Amendment No. 4.) Second, a sentence was added stating, “The schedule of compensation shall become effective unless disapproved by concurrent resolution adopted by the general assembly before February 1 of the year following the filing of the schedule.” (Senate Amendment No. 4.) Unfortunately, no attempt was made during the legislative process to reconcile these two amendments with each other or with the remainder of the resolution that was otherwise drafted without contemplation of any role by the general assembly. As submitted to and adopted by the voters of Missouri, HJR 38 amending article XIII of the Constitution contained the following relevant provisions: ... [I]n order to ensure that the power to control the rate of compensation of elected officials of this state is retained and exercised by the tax paying citizens of the state, ... no elected state official, member of the general assembly, or judge, ... shall receive compensation ... other than in the amount established for each office by the Missouri citizen’s commission_ The term “compensation” includes the salary rate established by law, mileage allowances, per diem expense allowances. Mo. Const. art. XIII, sec. S.l. [415] The commission shall, ... every two years ... review and study the relationship of compensation to the duties of all elected state officials, all members of the general assembly, and all judges, ... and shall fix the compensation for each respective position. [[Image here]] The schedule of compensation shall become effective unless disapproved by concurrent resolution adopted by the general assembly before February 1.... [[Image here]] The schedule shall, subject to appropriations, apply and represent the compensation for each affected person.... [[Image here]] In addition to any compensation established by the schedule, the general assembly may provide by appropriation for periodic uniform general cost-of-living increases or decreases for all employees of the state of Missouri and such cost-of-living increases or decreases may also be extended to those persons affected by the compensation schedule fixed by the commission. Mo. Const. art. XIII, sec. 3.8. Schedules filed by the commission shall be subject to referendum upon petition of the voters.... Mo. Const, art. XIII, sec. 3.11. The entire text of article XIII, section 3 of the Constitution is set forth in Appendix B. III. The Missouri Citizen’s Commission timely filed its first schedule of compensation on November 30, 1996. Laws of Missouri, 1997, pp. 1492-3, attached as Appendix C. The schedule provided for increases in compensation for legislators and judges and a per diem expense increase. On January 9, 1997, Senate Concurrent Resolution 3 (SCR 3) was introduced and first read in the senate. SCR 3 stated that the schedule of compensation was excessive and sought to disapprove it. SCR 3 proceeded through the senate in accordance with the provisions of article III, section 21, et seq. It was duly assigned to and reported out of committee, read on second and third separate days and adopted in the senate. As recorded in the House Journal, however, SCR 3 was not “read by title on three different days” in the house of representatives before being passed on January 28, 1997. SCR 3 was presented to the Governor and signed on January 29, 1997. In 1997, the general assembly also passed Senate Bill 299. Senate Bill 299 amended section 21.145, RSMo 1994, to change the daily expense allowance available to each senator or representative from “the amount of $35 per day” to “an amount not to exceed eighty percent of the federal per diem.” The precise language of the amended section 21.145 provides: “Each senator or representative shall be reimbursed from the state treasury for actual and necessary expenses in an amount not to exceed 80% of the federal per diem established by the Internal Revenue Service for Jefferson City for each day on which the journal of the senate or house, respectively, shows the presence of such senator or representative.” (Emphasis added.) Senate Bill 299 also amended section 476.380 to provide the same benefit to judges attending the annual 1-2 day judicial conference. IV. Article III, sections 21-32 of the Missouri Constitution establish a number of procedural requirements concerning the manner in which the general assembly may exercise its legislative function of enacting laws. It is acknowledged by all of the parties that article III, section 21 requires that “No law shall be passed except by bill ...” and that “Every bill shall be read by title on three different days in each house.” The purpose of these requirements is clear. Both the public and the members of the legislature are entitled to a minimal amount of time to learn of, [416] consider, and respond to any proposed lawmaking. The House Journal establishes that SCR 3 was read in the house of representatives only on two different days, not three, prior to its being passed. The state argues that the three-day requirement of article III, section 21 is not applicable because article XIII, section 3.8 requires that the Citizen’s Commission’s schedule of compensation be disapproved by “concurrent resolution” and article IV, section 8, instead, controls the procedure for enacting concurrent resolutions. Article IV, section 8 reads: Every resolution to which the concurrence of the senate and house of representatives may be necessary, ... shall be presented to the governor, and before the same shall take effect, shall be proceeded upon in the same manner as in the ease of a bill;.... The state contends that the Constitution provides no procedural requirements for concurrent resolutions prior to presentment to the governor. Weinstock and Schneider argue, however, that the requirement in article IV, section 8 that concurrent resolutions “shall be proceeded upon in the same manner as in the case of a bill” refers back to and incorporates the article III, section 21, et seq. requirements, including the requirement of reading “on three different days in each house”. Neither argument precisely hits the mark. Article IV, section 8 discusses the post-presentment procedural requirements of “concurrent resolutions” from the governor’s perspective. See, State ex rel. Royal Ins. v. Director of Missouri Dep’t of Ins., 894 S.W.2d 159, 162 (Mo. banc 1995); Bohrer v. Toberman, 360 Mo. 244, 227 S.W.2d 719, 723 (banc 1950). As a section in the executive department article, however, article IV, section 8 does not speak to the procedural requirements applicable to the legislative department, which are set out in article III. Article III does not specifically define what “joint resolutions” or “concurrent resolutions” are. Neither does article III set out what procedures are to be followed by the legislature concerning “joint resolutions” or “concurrent resolutions,” nor does it authorize the general assembly to legislate by “joint resolutions” or “concurrent resolutions”. It speaks only to “bills”. Our case law has addressed this issue in detail. In State ex rel. Jones v. Atterbury, 300 S.W.2d 806, 817 (Mo. banc 1957), we stated that: A court will look through the form of a parliamentary maneuver and determine the substance regardless of whether the term “concurrent resolution,” “joint resolution” or “bill” is used. In Atterbury, and in Padberg v. Roos, 404 S.W.2d 161 (Mo. banc 1966), which followed, the Court held that the requirements for legislative action set out in article III were limited to situations when the general assembly was acting in a “legislative capacity”. Correspondingly, we have recently held in Mo. Coalition for Environment v. Joint Committee on Administrative Rules, 948 S.W.2d 125, 134 (Mo. banc 1997), that: ... legislative actions, whether by committee, by resolution of one house, or by joint resolution of the whole legislature, cannot amend, modify, rescind, or supplant any rule promulgated by an agency unless the legislature follows the bill passage requirements. [[Image here]] A preemptive action of the legislature, whether such action be suspension of a rule, revocation of a rule, or prior approval of a proposed rule, must be a “legislative” action. Here, the legislature was attempting to disapprove a schedule of compensation submitted by the Citizen’s Commission, a constitutional body. The schedule otherwise would have become effective February 1, 1997. As such, this was legislative action with the force and effect of law. The legislature was bound to follow the requirements for legislative actions set out in article III, section 21, et seq., including [417] the article III, section 21 requirement that the measure be read by title on three different days in each house. Because the house of representatives did not read SCR 3 by title on three different days, the resolution was not validly approved and the Citizen’s Commission’s schedule of compensation became effective on February 1,1997. V. Because the general assembly failed to validly disapprove the Citizen’s Commission’s schedule of compensation, it became “effective” on February 1, 1997. This, however, does not end our analysis. Effect must still be given to the remainder of section 3 of article XIII. This is a difficult task given that the two amendments, House Amendment No. 4 and Senate Amendment No. 4, do not fit smoothly within the whole of that section. As section 3 of article XIII was originally proposed, it is clear that the general assembly would have played no role in the compensation process. The introductory language in article XIII, section 3.1, stated that its purpose was “to ensure that the power to control the rate of compensation of elected officials of this state is retained and exercised by the tax paying citizens of the state”. A Citizen’s Commission made up of representative citizens, not elected officials, was to be selected to establish a schedule of compensation. Mo. Const, art. XIII, subsections 3.2-7. The schedule of compensation was to be published as a part of the “session laws of the general assembly”. Mo. Const. art. XIII, sec. 3.8. No provision was made for a salary other than that set out in the schedule of compensation after July 1, 1997. Mo. Const. art. XIII, sec. 3.10. And, finally, the schedule was made “subject to referendum” as its sole check and balance. Mo. Const. art. XIII, sec. 3.11. House Amendment No. 4 and Senate Amendment No. 4 to the proposed article indicate the unwillingness of each respective house to allow this power to be removed completely from the legislature. The solution adopted in the senate was to allow the legislature up until February 1 to disapprove the schedule. The house solution was simply to make the schedule “subject to appropriations”. Both amendments were ultimately adopted, apparently with little consideration of their effect upon each other or upon the remainder of the section. Regardless, we are bound to harmonize these two amendments and to give each, and the remainder of article XIII, section 3, full meaning and effect to the extent possible. Bank of Washington v. McAuliffe, 676 S.W.2d 483, 485 (Mo. banc 1984); State Highways and Transp. Comm’ v. Director, Missouri Dep’t of Revenue, 672 S.W.2d 953, 955 (Mo. banc 1984). We must determine what it means for a “schedule of compensation” to be “effective” yet still “subject to appropriations”. Weinstock argues that because the “schedule of compensation” is “effective”, the additional “subject to appropriations” language is largely ministerial, dependent only upon sufficient state funds to reach “civil lists” in accordance with article III, section 36. We believe this argument overreads the term “effective” and under-reads the term “subject to appropriations”. There can be no doubt that if the “schedule of compensation” filed by the Citizen’s Commission is not “disapproved” before February 1, it becomes “effective” and that these terms must have a meaning. As article XIII, section 3.8 continues, the “schedule” is to be published “as a part of the session laws of the general assembly” and as “a part of the revised statutes of Missouri.” See, Laws of Missouri, 1997, pp. 1492-3 attached as Appendix C; RSMo Supp.1998, pp. 3153-4, attached as Appendix D. It is the “schedule” that “subject to appropriations” applies to and represents each affected person’s compensation. We can only conclude that an “effective” “schedule of compensation”, as a matter of law, establishes “the relationship of compensation to the duties of all elected state officials, all members of the general assembly, and all judges,” and “fix[es] the compensation for each respective position.” Mo. Const. art. XIII, sec. 8. [418] The practical value of any “schedule of compensation” to an affected person, however, may be somewhat minimal. Although the schedule establishes the appropriate level of compensation for each position and the relationship of the compensation amounts for all of the positions relative to each other, we must also allow the words “subject to appropriations” to have their full meaning. Those words allow the legislature to choose, in each of the two years covered by the schedule, whether to fund the “schedule of compensation” in whole or pro rata part, subject only to article V, section 20. Only after appropriation does the schedule become “the compensation for each affected person” in the sense that it is legally enforceable. In 1997, the legislature made no additional appropriation to fund any increase proposed by the “schedule of compensation”. Therefore, Weinstock had no enforceable right to any corresponding increase in his individual compensation. Retirement benefits, pursuant to section 476.530, are calculated at fifty percent of the “compensation provided by law” at the time of the judge’s retirement. Wein-stock’s “compensation” at retirement was not increased solely by the schedule of compensation becoming effective without additional appropriation by the legislature. The trial court was correct in granting summary judgment against him on this claim. VI. Weinstock also makes an alternative claim as a taxpayer. He challenges the appropriation of state funds for the increase in the expense allowance pursuant to S.B. 299, passed in 1997. He argues that article XIII, section 3.1 defines “compensation” as including “the salary rate established by law, mileage allowance, [and] per diem expense allowances” and that article XIII, section 3.1 is the exclusive method by which the “compensation” of the affected state employees may be established. He maintains that if the legislature did not fund the “schedule of compensation” by appropriation for any other affected individuals, it could not fund the schedule only for its own per diem. Weinstock’s argument has merit regarding its interpretation of article XIII, section 3. Because the section refers almost exclusively to a “schedule of compensation” and the “schedule” establishes the “relationship of compensation to the duties of all elected state officials, all members of the general assembly, and all judges,” and because it is the “schedule” that is “subject to appropriations”, the legislature may not pick and choose individuals or individual offices or individual departments of government for increases. For example, the legislature could not choose to increase compensation only for its members who voted a particular way on a given bill, for members of a particular political party, or for members from particular geographic regions. Neither could the legislature choose to increase compensation in accordance with the schedule only for certain executive officeholders or for certain judges, but not for others. “Schedule” means an entity or package. A schedule is not a schedule if the legislature is free to pick and choose from the list which positions to fund partially and which to fund fully. If the latter were true, the Citizen’s Commission would simply have established a series of salary “caps”, not a schedule of compensation. The entire appropriations process is, of course, a means of allocating resources among the various functions of state government. Those in charge of appropriations must decide the relative worth of social services, education, agricultural programs, public safety, corrections, operations of the executive office and the general assembly - to name but a few - and to fund these governmental activities within a balanced budget. To give full meaning to the phrase “subject to appropriations”3 is [419] not to mandate that the general assembly must fund schedule increases subject only to article III, section 36, but to allow the general assembly the discretion to fund the cost of the schedule in whole, in part, or not at all, in accordance with its sense of values and priorities. However, the general assembly’s discretion is limited to funding the schedule as a whole, not to redetermining the relationships established by the Citizen’s Commission. If only a certain portion of the total schedule is funded, each position and item on the schedule must be given the same pro rata treatment. Any amounts appropriated to the schedule must be applied to increase existing compensation levels by the same pro rata amount from existing compensation toward the effective scheduled amount. The constitutional provision also specifies that the legislature is free to grant, in addition to the schedule of compensation, “periodic uniform general cost-of-living increases or decreases for all employees of the state of Missouri and such cost-of-living increases or decreases may also be extended to those persons affected by the compensation schedule ...” whether or not the schedule is effective or funded. Mo. Const. art. XIII, sec. 8.8. Designation of the cost-of-living (COLA) benefit that may be extended as one that is “uniform” “for all employees” cannot be ignored. As a “uniform” benefit it must be extended uniformly. No authority is allowed the legislature to extend this benefit other than on a “uniform” basis to those individuals affected by the schedule. Otherwise, the legislature could negate an “effective” schedule established by the Citizen’s Commission by granting COLA increases to some but not to others. While the legislature is free to fund COLA increases, or not, for individuals covered by the schedule, whatever amount is appropriated must be uniform to all. To hold otherwise would allow the legislature to destroy the Citizen’s Commission’s schedule by altering the relationships of the various offices included by the use of disproportionate COLAs. Article XIII contemplates a single “schedule of compensation” that is to be funded in whole or in pro rata part to obtain the “relationship of compensation” established by the Citizen’s Commission in relation to the duties of those affected. Had the legislature attempted to fund only the per diem in accordance with the Citizen’s Commission’s schedule, but disregarded the remainder of the schedule, it would have violated article XIII, section 3.8. See also, Mo. Const. art. II, sec. 1. It does not appear, however, that the legislature sought to rely upon article XIII, section 3.8 as authority for increasing the expense allowance. S.B. 299 was passed after the general assembly purportedly disapproved the Citizen’s Commission’s schedule of compensation. Nor was S.B. 299 exclusive to members of the general assembly; it also provided an expense allowance for judges attending the annual 1-2 day judicial conference. S.B. 299 amended sections 21.145 (legislative per diem) and 476.380 (judicial per diem). Prior to their amendment, section 476.380 authorized a per diem “not to exceed thirty-five dollars per day” for certain expenses of judges, while section 21.145 authorized a per diem “in the amount of thirty-five dollar’s per day”, regardless of the actual expense involved for legislators. Some legislators actually may have spent more, while others may have spent less. After the enactment of S.B. 299, the amended version, however, adopted the “not to exceed language” for both judges and legislators authorizing only “actual and necessary expenses in an amount not to exceed eighty percent of the federal per diem.” (Emphasis added.) Thus, under the amended statutes, a judge attending the judicial conference or a legislator at [420] tending sessions of the general assembly is entitled only to his or her “actual and necessary expenses” not to exceed 80% of the federal per diem rate. The payment of actual and necessary expenses of legislators and judges is not prohibited by any provision of the constitution. Indeed, article III, section 16, specifically provides, “Until otherwise provided by law, each senator or representative shall be reimbursed from the state treasury for actual and necessary expenses incurred by him in attending sessions of the General Assembly.” Moreover, article V, section 21, provides, “Judges may receive reasonable traveling and other expenses allowed by law.” In addition, article II, section 1, provides that that the “powers of government shall be divided into three distinct departments - the legislative, executive and judicial - each of which shall be confided to a separate magistracy, .... ” In this regard, we have long recognized the inherent power within each department to accomplish its respective duties. Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977 (banc 1937); In re Richards, 333 Mo. 907, 63 S.W.2d 672 (banc 1933); In re Pate, 107 S.W.2d 157 (Mo.App.1937). An element of this power is the right of each department of government to the reasonable and necessary actual expenses to do that work constitutionally required of it. We acknowledge that article XIII, section 3.1 begins with the phrase “Other provisions of this constitution to the contrary notwithstanding”. This language, however, does not mitigate against our duty to read article XIII, section 3, consistent with the remainder of the Missouri Constitution. The phrase applies, by its terms, only to the other provisions of the Constitution that are “to the contrary” and not possible of harmonization. Consolidated School Dist. No. 1 of Jackson County v. Jackson County, 936 S.W.2d 102, 104 (Mo. banc 1996); State ex rel. Upchurch v. Blunt, 810 S.W.2d 515, 516 (Mo. banc 1991); State ex rel. Jones v. Atterbury, 300 S.W.2d 806, 810 (Mo. banc 1957). A number of other constitutional provisions are relevant to the interpretation of article XIII, section 3 and can be read in harmony with it: article II, section 1; article III, section 16; article III, section 21, et seq.; article III, section 36; article IV, section 8; article V, section 20; and article V, section 21. The purpose of article XIII, section 3 was to return the power of setting the salaries of state elected officials, legislators, and judges to the people in the form of the Citizen’s Commission. Allowances for per diem payments that are not tied to reasonable and necessary actual expenses, and that are not allowed on the same basis to all other state employees, are in the nature of compensation and cannot be allowed except pursuant to article XIII, section 3. However, reimbursement of reasonable and necessary actual expenses allows article XIII, section 3 to be read consistently with article III, section 16; article V, section 20; and article II, section I. This is no different than allowing individuals covered by article XIII, section 3, to benefit from COLA increases along with all other employees of the state, irrespective of the schedule. See, article XIII, sec. 3.8. Because the statute, on its face, authorizes no more than the payment of reasonable and necessary actual expenses, it is not facially unconstitutional. In addition, there is no claim that any judge or legislator was paid more than his or her actual and necessary expenses for daily attendance at the judicial conference or at a legislative session, nor is any claim made that any increase in actual and necessary expenses paid under S.B. 299 exceeded what is paid to all other state employees while attending to state business away from home. Thus, S.B. 299 is not shown to be unconstitutional as applied.. VII. The judgment of the trial court is affirmed. [421] BENTON, C.J., PRICE, COVINGTON, WHITE, HOLSTEIN and WOLFF, JJ., concur. LIMBAUGH, J., concurs in separate opinion filed. Appendix 1996 Report and Compensation Schedule (Appendix A) of the Missouri Citizens Commission on Compensation for Elected Officials November 30, 1996 Appendix A, 1 of 13 [422] 1996 Report and Compensation Schedule (Appendix A) of the Missouri Citizens Commission on Compensation for Elected Officials November 30, 1996 [423] [[Image here]] [424] [[Image here]] [425] [[Image here]] [426] [[Image here]] [427] [[Image here]] [428] [[Image here]] [429] [[Image here]] [430] [[Image here]] [431] [[Image here]] [432] [[Image here]] [433] [[Image here]] [434] [[Image here]] [435] [[Image here]] [436] [[Image here]] [437] [[Image here]] [438] [[Image here]] [439] [[Image here]] [440] [[Image here]] [441] [[Image here]] Footnotes [1] A copy of the Missouri Citizen's Commission's 1996 Report and Compensation Schedule is attached as Appendix A. [2] In Weinstock I, we noted the necessity of our deciding this case. Weinstock v. Holden, 995 S.W.2d 408 (Mo. banc 1999). [3] That “appropriations” is plural, not singular, does not help to discern its meaning because each schedule of the Citizen’s Commis [419] sion is subject to appropriation in each of two succeeding years. Thus, the word "appropriations” in the plural means nothing other than the recognition that the compensation schedule is subject to two annual appropriations.