Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 v. City of Chesterfield

PATRICIA BRECKENRIDGE, Judge. The cities of Chesterfield and University City separately appeal judgments entered against each city and in favor of the Eastern Missouri Coalition of Police, Fraternal Order of Police, Lodge 15 (the union). In each action, the trial court entered a declaratory judgment ordering the public employer to adopt collective bargaining procedures. In a consolidated opinion in [758] the two cases, this Court holds that the right to organize and bargain collectively recognized in article I, section 29 inherently imposes a duty on each city to bargain collectively with the exclusive bargaining representative elected by its police officers and sergeants with a goal of reaching an agreement. University City and Chesterfield are not excused from carrying out this duty because the public employees represented by the union are not covered by the procedures codified in the public sector labor law, section 105.500, et seq., RSMo.1 Each city has the ability to establish a procedural framework for collective bargaining with its excluded employees if necessary to effectuate its duty. Nevertheless, because the cities may be able to meet their duty without establishing a framework, the trial courts erred in ordering them to do so. Consequently, this Court affirms the trial courts’ declaration that the cities have a duty to bargain collectively but reverses the trial courts’ judgments ordering them to establish any procedural framework. Furthermore, as authorized by Rule 84.14, this Court enters judgment ordering the cities to recognize the union as the collective bargaining unit for the cities’ police officers and sergeants and to begin to meet and confer with the union for collective bargaining. Facts and Procedural Background A majority of police officers and sergeants in University City and Chesterfield signed “representation interest cards” supporting the certification of the union as their exclusive representative for collective bargaining under the public sector labor law. Consequently, the union requested that each city voluntarily recognize the union’s representative status and establish a procedural framework for collective bargaining. Both cities declined the union’s request. In separate actions, the union petitioned for declaratory judgment, asserting that each city has an affirmative duty, under the Missouri Constitution, to establish a meaningful procedural framework allowing law enforcement employees to bargain collectively with their employers. In answer to the suit, the cities claimed that they are under no duty to adopt a process for collective bargaining and that the court lacked the authority to force a public employer to adopt such a process. All of the parties filed cross-motions for summary judgment. In University City’s case, the trial court entered summary judgment in favor of the union. In the case against Chesterfield, the court ruled in favor of the union after a bench trial. In both cases, the courts ordered the cities to expeditiously establish procedures under which the police officers and sergeants could bargain collectively. The trial court orders required that the framework include: (1) the scope of an appropriate bargaining unit that would include police officers and sergeants; (2) procedures for an election to certify the union as the exclusive bargaining representative for the cities’ police officers and sergeants, including the date, time, and place of election; (3) the procedures for holding an election; and (4) the procedures for the meet and confer process. The cities appealed. After an opinion, the court of appeals granted transfer to this Court. Mo. Const. art. V, sec. 10. On appeal, both cities challenge whether article I, section 29 of the Missouri Constitution imposes a duty on public employers to establish a framework for collective bargaining where none exists. In addition, if such a duty exists, both cities contest whether a trial court can order a public employer to create such a framework. Specifically, the cities claim that the trial court erred in that the union lacks stand [759] ing to sue, a city has no legal duty to establish collective bargaining procedures, and, because adopting such a framework would amount to legislating, the separation of powers doctrine prohibits courts from ordering cities to adopt a collective bargaining framework. Standard of Review University City’s case was decided by summary judgment, which, because it is an issue of law, shall be reviewed de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria on appeal for testing the propriety of summary judgment are no different from those that should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. This Court reviews the record in the light most favorable to the party against whom judgment was entered. Id. Summary judgment is appropriate when the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Rule 70.04(c)(6); Grattan v. Union Elec. Co., 151 S.W.3d 59, 61 (Mo. banc 2004). With regard to Chesterfield’s case, because it was court-tried, it is held to the standard set out in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). While v. Director of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). Consequently, the trial court’s decision will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Guyer v. City of Kirkwood, 38 S.W.3d 412, 413 (Mo. banc 2001) (citing Murphy, 536 S.W.2d at 32 (Mo. banc 1976)). Discussion A. Standing As a threshold issue, the cities argue that the union lacks standing to sue on behalf of the police officers and sergeants. To gain associational standing in Missouri, an association must show: (1) its members would have standing to sue in their own right; (2) the interests that the association seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members. St. Louis Ass’n of Realtors v. City of Ferguson, 354 S.W.3d 620, 623 (Mo. banc 2011). University City contends the union fails the first element because its members have no legally pro-tectable interest in a collective bargaining process.2 Chesterfield claims that the union lacks standing because no individuals were parties to the action claiming a deprivation of their personal rights to collective bargaining and the union failed to prove its representative status as a bargaining unit. The union has associational standing to sue to enforce its members’ rights under article I, section 29. The first requirement is satisfied because, as discussed herein, the union members legally are entitled to bargain collectively. The second requirement is satisfied because the union’s main purpose is to defend and promote the rights of its members. The third requirement is satisfied because the relief requested — an order that the cities establish a framework for collective bargaining — is prospective only, and no request was made for money damages or some other relief specific to individual members. See Missouri Bankers Ass’n v. Director of Missouri Div. of Credit Unions, 126 S.W.3d 360, 363 (Mo. banc 2003).3 [760] B. Duty to Bargain Collectively Article I, section 29 of the Missouri Constitution gives employees “the right to organize and to bargain collectively through representatives of their own choosing.” Missouri’s public sector labor law, codified in section 105.500, et seq., and in 8 C.S.R. 40-2.010, et seq., provides a procedural framework for collective bargaining for most public employees, but it expressly excludes certain professions, such as law enforcement officers and teachers. Section 105.510. This Court’s decision in Independence-Nat’l Educ. Ass’n v. Independence Sch. Dist., 223 S.W.3d 131 (Mo. banc 2007), addressed the collective bargaining rights of teachers. There, a teachers’ union sought to enforce its members’ constitutional right to collective bargaining after the school district rescinded a prior agreement, unilaterally instituted new terms, and refused to engage in further discussions with the union. Id. at 133. While still recognizing that public employees are forbidden from striking, and that nothing requires a public entity to reach an agreement with its employee unions, this Court ultimately held that the district’s actions violated the teachers’ rights. Id. Article I, section 29 grants public employees the right to bargain collectively, including those excluded from Missouri labor laws. Id. at 136. In collective bargaining, “proposals are made and either accepted or rejected,” id. at 138, and the employer remains free to reject any proposal, id. at 136. For most public employees, Missouri’s public sector labor law requires an employer to “meet, confer, and discuss” with designated employee representatives. Section 105.520. The results of such a meeting are reduced to writing, and a proposal is presented to the employer for adoption, modification, or rejection. Id. While discussing the scope of the article I, section 29 right to collective bargaining, this Court recognized that although similar procedures do not exist for employees excluded from the statute, the very notion of collective bargaining still entails “negotiations between an employer and the representatives of organized employees to determine the conditions of employment ...” Independence, 223 S.W.3d at 138 n. 6 (citing Black’s Law Dictionary 280 (8th ed.2004)). Indeed, “[t]he point of collective bargaining, of course, is to reach an agreement.” Id. at 138. Therefore, an employer of statutorily excluded employees has a duty to bargain collectively with those employees and, when necessary, adopt procedures to participate in that process. Id. The absence of such a duty would render meaningless the rights guaranteed to public employees under article I, section 29. Because the police officers and sergeants are excluded from Missouri’s public sector labor law, the cities may create their own procedures when necessary, so long as they satisfy the constitutional requirements. See id. at 137. While conceding that the language of Independence identifies the role of public employers in collective bargaining, the cities rely on Quinn v. Buchanan, 298 S.W.2d 413 (Mo. banc 1957), to contend that article I, section 29 does not impose on public employers a legally enforceable duty to bargain collectively. [761] Until now, Quinn was the only case in which this Court has specifically addressed whether article I, section 29 imposes this affirmative duty. In Quinn, this Court held that article I, section 29 does not guarantee union members the right to bargain collectively with their employers; instead, it found that the section only protects employees from government actions that would contravene that right. Id. at 419. Relying on Quinn, the cities assert that the constitution does not impose an affirmative duty on employers to bargain collectively and that this Court lacks the authority to compel a public employer to do so. The primary rationale for Quinn’s holding is based on two erroneous inferences. The first is that a Bill of Rights, in this case the Missouri “Declaration of Rights” found in article I of its constitution, does not grant “new” rights; it merely declares those rights that the people already possess, regardless of whether they are the subject of a governmental grant. Id. at 417. The second inference is that provisions in a Bill of Rights may be only self-executing limitations on government that do not require any additional legislation to guarantee their observance.4 See id. at 417-19. Under these inferences, any constitutional provision placed under a “Bill of Rights” heading may serve only as a shield against governmental action and not as a sword allowing individuals to require its enforcement. Id. at 419. However, the authority cited in Quinn, Judge Thomas Cooley’s treatise about constitutional limitations as well as a section of the first edition of American Jurisprudence, does not support either inference. In each of those works, the authors observed that a Bill of Rights is generally a list of fundamental rights, recognized and declared in the document and not granted to the people by a constitution. 11 Am. Jur. Constitutional Law § 309 (1937); Thomas M. Cooley, Constitutional Limitations 36-39, 93, 166, 358 (1868). These sources also observed that such a Bill of Rights is generally a list of “thou shalt nots” that are written strictly as limitations on government and, as such, are self-executing by nature. See 11 Am.Jur. Constitutional Law § 309 (1937). The Quinn court interpreted those observations as absolute requirements and applied them to section 29. While in most cases the broad observations of those learned treatises hold true, they do not encompass the breadth of modern constitutional law. Consistent with article I, section 29’s variance from the nature of the provisions in the Bill of Rights of the United States Constitution discussed by Judge Cooley, the people of Missouri have added subsequent provisions to Missouri’s Declaration of Rights that are not self-executing. Section 32 of that article provides an adequate illustration. Section 32 lists various crime victims’ rights, including the right to information, the right to restitution, and the right to reasonable protection. However, the explicit language of this section contemplates executing legislation. The section begins by stating: “Crime victims, as defined by law, shall have the following [762] rights, as defined by law....” (Emphasis added). Moreover, inclusion in Missouri’s “Declaration of Rights” does not mean that a provision cannot grant an affirmative right. The people of Missouri may place anything they wish within their constitution so long as it is not contrary to the federal constitution. See St. Louis Fire Fighters Ass’n Local No. 73 AFL-CIO v. Stemmler, 479 S.W.2d 456, 458 (Mo. banc 1972) (“[W]hen the people of the State of Missouri write or amend their constitution, they may insert therein any provision they desire, subject only to the limitation that it must not violate restrictions which the people have imposed on themselves and on the states by provisions which they have written into the federal constitution.”). Other jurisdictions already have recognized that provisions of their own Bills of Rights impose affirmative duties. For example, Connecticut’s highest court found that section 20 of its Bill of Rights, which guarantees a right to equal protection under the law, combines with article 8, section 1 of that same constitution, guaranteeing the right to a free public education, to impose on the Connecticut legislature a non-self-executing, affirmative duty to provide a substantially equal educational opportunity for all of its students. Sheff v. O’Neill, 238 Conn. 1, 678 A.2d 1267, 1284-85 (1996) (citing Conn. Const. of 1965, art. I, § 20, art. 8, § 1). In Great Falls Tribune v. Mont. Pub. Serv. Comm’n, 319 Mont. 38, 82 P.3d 876, 886 (2003), the Supreme Court of Montana did not need to look beyond Montana’s article II “Declaration of Rights” to find an affirmative duty. Observing that Montana citizens have the right “to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law,” Mont. Const. of 1972, art. II, § 8, and to not “be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions ...id at art. II, § 9, it held that the Montana government has an affirmative duty to make all of its records and proceedings available to public scrutiny. Likewise, article I, section 29 of the Missouri Constitution imposes on employers an affirmative duty to bargain collectively. Consequently, Quinn’s holding was in error, providing an incorrect reading of the limits of article I, section 29. It, therefore, is overruled. C. Separation of Powers The cities argue that the trial court’s orders directing them to adopt collective bargaining procedures violate the separation of powers doctrine.5 In its judgment, the trial court ordered University City to: [Ejxpeditiously establish a reasonable framework of its choosing for collective bargaining that will include: the scope of an appropriate bargaining unit that will include the City’s police officers and sergeants; procedures for the election process for certifying FOP Lodge 15 as the exclusive bargaining unit for the City’s police officers and sergeants, including the date, time and place of election; the procedures for holding an elec [763] tion; and the procedures for the meet and confer process. The trial court’s instructions to Chesterfield are virtually identical. These court orders direct the cities to establish a framework in accordance with the rights recognized in Independence while preserving the cities’ prerogative to define the details like any other administrative measure relating to employees. The cities contend that compliance with these orders requires legislative action, thereby implicating the separation of powers doctrine, which defines and limits the powers of each branch of government. Mo. Const. art. II, sec. 1. Although the trial courts’ orders do not specifically direct either city to pass an ordinance, Independence suggests that the adoption of a collective bargaining framework may require the cities to pass ordinances. See Independence, 223 S.W.3d at 136 (noting that a public employer’s ability to reject any proposals of employee organizations to “prescribe wages and working conditions” is a use of its “governing authority”). See also Layne v. City of Windsor, 442 S.W.2d 497, 500 (Mo. banc 1969) (recognizing that a municipality only can take official action, other than in the performance of administrative functions, by passing an ordinance). Although legislative power remains the province of legislative bodies, it is a proper role of the courts to compel legislative bodies to meet their constitutional obligations while leaving it to those bodies to determine how to meet them. See Lenette Realty & Inv. Co. v. City of Chesterfield, 35 S.W.3d 399, 408-09 (Mo.App.2000). Accord Huttig v. City of Richmond Heights, 372 S.W.2d 833, 843-44 (Mo. banc 1963). See also Sheff, 678 A.2d at 1275-76 (finding that, just as the legislature has a constitutional duty to fulfill its affirmative obligation, the judiciary has a constitutional duty to review whether the legislature has fulfilled that obligation). The case of Lenette Realty is illustrative of this principle. There, the plaintiff sought a court order forcing a city to adopt his zoning proposal. Lenette Realty, 35 S.W.3d at 403. The trial court deemed that city’s zoning classification unconstitutional as applied to the plaintiff, but it refused to order it to adopt the plaintiffs proposal. Id. at 404. Rather, the court directed the city “to place a reasonable zoning classification on the properties,” leaving the specifics to the city’s discretion. Id. at 409. The court of appeals affirmed, reasoning that “[a]ny such judicial command to a legislative body [as proposed by the plaintiff] raises serious questions regarding the constitutionally mandated distinction between legislative and judicial branches of this state’s government.” Id. at 408. While withholding judgment as to whether the trial courts’ orders offend the separation of powers, this Court finds that the trial courts’ orders were too broad. If it is unnecessary for the cities to pass an ordinance to carry out their constitutional duty to bargain collectively, then there is no reason to order the cities to do so.6 Therefore, the trial courts erred in requiring the cities to establish a procedure for a meet and confer process rather than simply ordering them to meet and confer with the union, allowing the cities, on their own, [764] to make whatever arrangements are necessary to carry out that order. In addition, the trial courts erred in ordering the cities to organize an election to designate the union as the exclusive bargaining representative because it is not a proper role for ah employer to be responsible for holding an election. Here, the undisputed facts show that the majority of each city’s police officers and sergeants selected the union as their exclusive bargaining representative.7 Because an undisputed majority of employees have chosen the union as their representative and because the election process was not challenged in this proceeding, holding’ an election is not an issue, and it should not have been ordered. Conclusion Under article I, section 29 of the Missouri Constitution, the cities of Chesterfield and University City have a legally enforceable duty to bargain collectively. Even when a framework does not yet exist for employees excluded by section 105.510, that does not excuse employers from their duty to bargain collectively with their employees. While the trial courts’ declarations favoring the unions were correct, their orders were too broad. Consequently, this Court affirms in part and reverses in part. This Court affirms the trial courts’ declarations that the cities must meet and confer. In addition, because Rule 84.14 grants this Court the authority “to give such judgment as the court ought to give,” this Court reverses the trial courts’ summary judgments and orders the cities to recognize the union as the exclusive bargaining representative for the cities’ police officers and sergeants and to collectively bargain with the union by meeting and conferring with the union. TEITELMAN, C.J., RUSSELL and STITH, JJ., and HARTENBACH, Sr.J., concur; FISCHER, J., dissents in separate opinion filed. DRAPER, J., not participating. Footnotes [1] Unless otherwise indicated, all statutory references are to RSMo 2000. [2] "Legally protectable interest” signifies "standing” in the context of a declaratory judgment action. Ste. Genevieve School Dist. v. Board of Aldermen of City of Ste. Genevieve, 66 S.W.3d 6, 10 (Mo. banc 2002). [3] The union’s desired status as a representa [760] tive bargaining unit is unrelated to its gaining associational standing to sue to enforce the union members’ right to a collective bargaining process. Therefore, the union need not prove status as a representative bargaining unit to establish standing in this case. Because the union has established associational standing according to the criteria laid out in St. Louis Association of Realtors, all other challenges based on standing or representative status are moot. 354 S.W.3d at 623. [4] While at the beginning of the opinion, Quinn does not go so far as to make the broader statement that Bill of Rights provisions may be only self-executing limitations on government, see Quinn, 298 S.W.2d at 417 ("Provisions of a Bill of Rights are primarily limitations on government.” (emphasis added)), the rest of the opinion leaves little room for the possibility of a non-self-executing affirmative right in a Bill of Rights, see id. at 418-19 ("[Article I, section 29] is a declaration of a fundamental right of individuals. It is self-executing to the extent that all provisions of a Bill of Rights are self-executing, namely: Any governmental action in violation of the declared right is void.”). [5] The doctrine is set forth in article II, section 1 of the Missouri Constitution: 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, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted. [6] While Missouri’s public sector labor law governs the right of many public labor organizations to bargain collectively, it gives little, if any, guidance as to the structure of the meet and confer process, i.e. it does not speak as to how often groups meet and discuss, the timing of discussions, how many people may participate in each discussion, etc. All that the law provides is that representatives must meet, confer, and discuss proposals, and the results of that discussion are to be reduced to writing and presented to the appropriate administrative, legislative, or governing body. See section 105.520. [7] Missouri's public sector labor law establishes an administrative procedure for challenging the election of an exclusive representative. Such process does not govern the cities’ police officers and sergeants because they expressly are excluded from the coverage of those statutes. Section 105.510. Despite this exclusion, if the choice of an exclusive bargaining representative is disputed by an employer or a class of statutorily excluded employees, the validity of the election still can be challenged in a court proceeding.