In Re Finnegan

PATRICIA BRECKENRIDGE, Judge.

Introduction

Timothy J. Finnegan, family court commissioner for the Circuit Court of St. Louis City, requested that the Commission on Retirement, Removal and Discipline' (the commission) recommend to this Court that he be retired due to disability. After consideration of his request, the commission issued its findings of fact, conclusions of law, and recommendation that this Court retire Commissioner Finnegan for disability and award him retirement benefits as provided by law. Because the commission lacks authority over a family court commissioner, its recommendation that Commissioner Finnegan be approved for disability retirement is rejected.

Factual and Procedural Background

In April 2010, Commissioner Finnegan filed a request with the commission, pursuant to Rule 12.05, that he be retired for disability because of permanent sickness or physical or mental infirmity. In response to his request, the commission issued findings of fact and conclusions of law that Commissioner Finnegan was unable to discharge the duties of his office with efficiency due to permanent physical and mental disability. In its findings, the commission concluded that it has authority over a family court commissioner under article V, section 24 of the Missouri Constitution and section 487.020.3.¹

The commission recommends that this Court accept its recommendation to retire Commissioner Finnegan based on permanent disability and award him retirement benefits as provided by law. This Court has final authority, on the commission’s recommendation, to retire any judge or member of a judicial commission who is unable to discharge his or her duties because of permanent physical or mental disability. Mo. Const, art. V, sec. 24.2.

The Commission Has No Authority Over Retirement of Family Court Commissioners

Before considering the • merits of his request for retirement, it is necessary to determine whether Commissioner Finnegan, a court-appointed family court commissioner,² is subject to the authority of the commission. Article V, section 24 of the Missouri Constitution defines the scope of the commission’s authority as extending to three categories of individuals: judges, members of judicial commissions, and members of the commission. The constitutional provision states, in pertinent part, that “[t]he commission shall receive and investigate all requests and suggestions for retirement for disability, and all complaints concerning misconduct of all judges, members of the judicial commissions, and of this commission.” Mo. Const, art. V, sec. 24.1 (emphasis added).³ As Commissioner Finnegan clearly is not a member of the commission, this Court must determine only whether his position as family court commissioner makes him a judge or member of a judicial commission.

Commissioner Finnegan is not a judge. This Court first decided the issue of whether a family court commissioner is a judge in Slay v. Slay, 965 S.W.2d 845, 845 (Mo. banc 1998). In that case, the Court held that a document purporting to be a “judgment” signed by a family court commissioner was not a true judgment because the document was not signed by a judge. Id. In so holding, the Court found that the term “judge” only refers to those judicial officers who are selected in accordance with and authorized to exercise judicial power pursuant to article V of the Missouri Constitution. The Court noted that article V vests judicial power in only this Court, the court of appeals, and the circuit courts. Id. The Court has followed its holding in Slay in subsequent cases. See, e.g., Fowler v. Fowler, 984 S.W.2d 508, 511-12 (Mo. banc 1999); State ex rel. York v. Daugherty, 969 S.W.2d 228, 224-25 (Mo. banc 1998).

In accordance with Slay and its progeny, the Court finds that Commissioner Finnegan is not a “judge” within the meaning of article V, section 24 of the Missouri Constitution because he was not selected in accordance with or authorized to exercise judicial power pursuant to article V of the Constitution. As such, the commission lacks authority over Commissioner Finnegan’s request for disability retirement on the basis that he is a judge. The commission’s arguments to the contrary are without merit.

Having found that Commissioner Finnegan is not a judge, it is necessary to determine if he is a member of a judicial commission as that term is used in article V, section 24 of the Constitution.⁴ When interpreting a constitutional provision, the Court must consider the words used in their plain and ordinary meaning. StopAquila.org v. City of Peculiar, 208 S.W.3d 895, 902 (Mo. banc 2006). If a word used is not defined, the Court determines the plain and ordinary meaning of the word as found in the dictionary. Id. The dictionary defines “commission” as a “group of persons directed to perform some duty or execute some trust.” Webster’s Third New International Dictionary 457 (Philip Babcock Gove, et al., eds., Unabridged 1998). “Commission” also is defined as a “body of persons acting under lawful authority to perform certain public services.” Black’s Law Dictionary 306 (Bryan A. Garner, 9th ed.2009).

From the definitions above and the legislature’s use of the phrase “member of the judicial commission,” it is clear that the term “commission” refers to a group or body that performs some delegated public function. Family court commissioners do not conduct their tasks as a group or body. Consequently, family court commissioners are not members of a “commission” based on the plain and ordinary meaning of that word. The mere fact that a family court commissioner is given the title “commissioner” is of no consequence because the language of article V, section 24 gives the commission authority over members of a judicial commission, not a commissioner. The language in article V, section 24 is unambiguous, and this Court lacks authority to read words into the provision that are not there. Independence-Nat. Educ. Ass’n v. Independence School Dist., 223 S.W.3d 131, 137 (Mo. banc 2007). Because Commissioner Finnegan is not a member of a judicial commission, the commission does not have authority to consider his request for disability retirement on that basis.

Because Commissioner Finnegan is neither a judge nor a member of a judicial commission, his request for disability retirement falls outside the scope of the commission’s authority. However, that does not mean he is ineligible for retirement or disability benefits. Under section 487.020.3, a commissioner is entitled to the same retirement benefits as an associate circuit judge. Moreover, section 104.518.1 authorizes the Missouri State Employees’ Retirement System (MOSERS) to provide disability benefits to employees covered by section 476.515.1(4). That section covers “any person who has served ... as commissioner or deputy commissioner of the circuit court-” Section 476.515.1(4). Therefore, Commissioner Finnegan can apply to MOSERS for long-term disability benefits.

Conclusion

Because Commissioner Finnegan is neither a judge nor a member of a judicial commission, the commission lacks authority to recommend his disability retirement. Therefore, the commission’s recommendation that Commissioner Finnegan be retired due to disability is rejected.

PRICE, C.J., TEITELMAN, RUSSELL, FISCHER and STITH, JJ., concur; WOLFF, J., concurs in separate opinion filed.

1 . Unless otherwise noted, all statutory references are to RSMo 2000.

2 . Article V, section 15.4 of the Constitution authorizes "[p]ersonnel to aid in the business of the circuit court” to be selected as provided by law. By statute, the legislature has created various commissionerships to aid the business of the circuit courts. See, e.g., section 487.020 (creating family court commissioners); section 478.265 (creating probate court commissioners); section 478.003 (creating drug court commissioners); section 211.023 (creating juvenile court commissioners).

3 . In fact, the full text of the Constitution emphasizes, by repetition, the limit on the scope of the commission's authority as extending to only judges, members of judicial commissions, and members of the commission:

1. ... The commission shall receive and investigate all requests and suggestions for retirement for disability, and all complaints concerning misconduct of all judges, members of the judicial commissions, and of this commission ....

2. Upon recommendation by an affirmative vote of at least four members of the commission, the supreme court en banc shall retire from office any judge or any member of any judicial commission or any member of this commission who is found to be unable to discharge the duties of his office with efficiency because of permanent sickness or physical or mental infirmity. A judge, except a municipal judge so retired shall receive one-half of his regular compensation during the remainder of his term of office. Where a judge subject to retirement under other provisions of law, has been retired under the provisions of this section, the time during which he was retired for disability under this section shall count as time served for purposes of retirement under other provisions of this constitution or of law.

3. Upon recommendation by an affirmative vote of at least four members of the commission, the supreme court en banc, upon concurring with such recommendation, shall remove, suspend, discipline or reprimand any judge of any court or any member of any judicial commission or of this commission, for the commission of a crime, or for misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency or any offense involving moral turpitude, or oppression in office ....

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8. Additional duties shall not be imposed by law or supreme court rule upon the commission on retirement, removal and discipline.

Mo. Const, art. V, sec. 24 (emphasis added).

4 . The actual language of article V, section 24.1 of the Constitution gives the commission authority over "members of the judicial commissions.” (Emphasis added.) The word "the” indicates that article V, section 24.1 references specific judicial commissions created under the Constitution. The nonpartisan judicial commissions established by article V, section 25(d) to nominate candidates to fill judicial vacancies clearly falls within the definition of "judicial commissions.” The Court need not determine whether any other "judicial commission” is included in such definition because family court commissioners are not members of any commission.