Missouri Court of Appeals Hears Oral Argument in Case of Fired ALJs

Jason Rosenbaum, Missouri Lawyers Weekly

Western District debates who can fire ALJs

Appeals court judges Thursday asked how, beyond the language of a state statute, administrative law judges can be fired.

Ron Holliger, general counsel for Missouri Attorney General Chris Koster, told the judges the Legislature has the power to create, abolish, modify or change any position – including through appropriations legislation.

“It’s been a general proposition of American law for many, many years that the body that creates a public office can abolish that position,” Holliger said at the hearing before the Missouri Court of Appeals Western District, at the University of Missouri Law School.

“If the position is established by the constitution, then it can be abolished by the people through only a constitutional amendment,” said Holliger, who served on the court before taking his job as Koster’s general counsel.

Last year, the Legislature passed a budget bill to cut positions at the Division of Workers’ Compensation. After the bill was signed into law, a number of administrative law judges received letters saying their tenure would end at the end of June. Gov. Jay Nixon’s administration cited the state’s worsening financial situation for the decision.

Three of the judges – Matthew Murphy, Henry Herschel and John Tackes – sued, arguing that they could be dismissed only through a process delineated in a statute. Cole County Circuit Judge Jon Beetem ultimately agreed, as he issued a permanent injunction last year keeping the three judges in their positions.

“Once appointed and assuming they remain otherwise qualified to serve, an administrative law judge appointed pursuant to [state statutes] may be removed only by the Governor after two or more votes of no confidence by the Committee or by a vote of non-retention taken at the end of their term,” Beetem wrote in a 10-page decision.

But on Thursday, Holliger told the judges, “The precedent is that the Legislature can use either its appropriations power or its other legislative power to eliminate positions or eliminate funding.”

John Comerford – the attorney for Murphy, Herschel and Tackes – argued that the administrative law judges could only be ousted either at the end of their terms – or if they receive votes of no confidence from a state board. Judge Mark Pfeiffer asked if it was Comerford’s position that under no scenario could budget legislation reduce the number of ALJs.

“Well, I certainly don’t believe … the specific removal methods that are spelled out in that statute authorize an additional removal method through the appropriations process,” Comerford said. “I think as a practical matter, the Legislature could simply change the statutorily authorized ALJs in the first sentence [of the statute] and do it that way.”

Judge Alok Ahuja said his concern is if the Legislature actually authorized the director of the division to eliminate the ALJs’ positions. He said the language of the budget bill in question showed the amount of money and positions allowed but didn’t say anything specifically about eliminating the judges’ positions.

“In your view, is there any warrant to look beyond the face of [the budget legislation] to determine the need of the bill?” Ahuja asked Comerford.

“Absolutely not,” Comerford said, adding that it’s “incumbent on them as the executive branch to enact their appropriation in a way that comports with the law.”

Copyright 2010  Missouri Lawyers Media

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