Rebecca Karney and Johnny Miller v. The Department of Labor and Industrial Relations and Todd Smith, and Darryl Forte and Jackson County, Missouri

SUPREME COURT OF MISSOURI
en banc
REBECCA KARNEY and ) Opinion issued March 31, 2020
JOHNNY MILLER, )
)
Respondents, )
)
v. ) No. SC97833
)
THE DEPARTMENT OF LABOR AND )
INDUSTRIAL RELATIONS and )
TODD SMITH, )
)
Appellants, )
)
and )
)
DARRYL FORTE and JACKSON )
COUNTY, MISSOURI, )
)
Defendants. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
The Honorable James F. Kanatzar, Judge
The Missouri Department of Labor and Industrial Relations, Darryl Forte of the
Jackson County Sheriff's Office, Jackson County, Missouri, and Todd Smith, chair of the
State Board of Mediation (collectively, "Appellants") appeal the circuit court's
declaration that § 105.585(2) 1 is unconstitutional as it relates to picketing. No party
1
All statutory references are to RSMo Supp. 2018, unless otherwise noted.
challenges the circuit court's order "that nothing in this judgment shall be construed to
grant plaintiffs or any public employee in the State of Missouri the right to strike," which
is consistent with the well-settled doctrine that "public employees—unlike their private-
sector counterparts—are not permitted to strike." Independence-Nat'l Educ. Ass'n v.
Independence Sch. Dist., 223 S.W.3d 131, 141 (Mo. banc 2007). The circuit court's
judgment is affirmed to the extent it enjoins Appellants from enforcing or implementing
§ 105.585(2)'s mandated prohibition against "picketing of any kind" in its negotiations
for a new labor agreement with the CWA Local 6360.
Factual and Procedural History
Rebecca Karney and Johnny Miller (collectively, "Karney") are dispatchers in the
Jackson County Sheriff's Office and members of the Communication Workers of
America Local 6360. The dispatchers are currently engaged in negotiations with the
Jackson County Sheriff's Office for a new labor agreement. Their previous labor
agreement expired December 31, 2018, and did not prohibit picketing. Karney filed a
petition in the circuit court, seeking a judgment declaring § 105.585(2) unconstitutional
and enjoining [Appellants] from "enforcing or otherwise implementing … § 105.585(2)."
Section 105.585 was enacted in 2018 via House Bill No. 1413 and governs labor
agreements negotiated between public entities and labor organizations. The challenged
provision provides:
Every labor agreement shall expressly prohibit all strikes and picketing of
any kind. A strike shall include any refusal to perform services, walkout,
sick-out, sit-in, or any other form of interference with the operations of any
public body. Every labor agreement shall include a provision
acknowledging that any public employee who engages in any strike or
2
concerted refusal to work, or who pickets over any personnel matter, shall
be subject to immediate termination of employment[.]
§ 105.585(2).
Karney alleges the prohibition of "picketing of any kind" and "pickets over any
personnel matter" violates article I, §§ 2, 8-9, and 29 of the Missouri Constitution, which
provide:
That all constitutional government is intended to promote the general
welfare of the people; that all persons have a natural right to life, liberty,
the pursuit of happiness and the enjoyment of the gains of their industry;
that all persons are created equal and are entitled to equal rights and
opportunities under the law; that to give security to these things is the
principal office of government, and that when government does not confer
this security, it fails in its chief design.
Mo. Const. art. I, § 2.
That no law shall be passed impairing the freedom of speech, no matter by
what means communicated: that every person shall be free to say, write or
publish, or otherwise communicate whatever he will on any subject, being
responsible for all abuses of that liberty; and that in all suits and
prosecutions for libel or slander the truth thereof may be given in evidence;
and in suits and prosecutions for libel the jury, under the direction of the
court, shall determine the law and the facts.
Mo. Const. art. I, § 8.
That the people have the right peaceably to assemble for their common
good, and to apply to those invested with the powers of government for
redress of grievances by petition or remonstrance.
Mo. Const. art. I, § 9.
That employees shall have the right to organize and to bargain collectively
through representatives of their own choosing.
Mo. Const. art. I, § 29.
3
After a bench trial, the circuit court declared § 105.585(2) unconstitutional under
both the Missouri Constitution and the United States Constitution as it relates to
picketing, and enjoined defendants from using or applying § 105.585(2)'s prohibition
against picketing "in negotiating any collective bargaining agreement with Plaintiffs."
This Court has jurisdiction. Mo. Const. art. V, § 3.
Standard of Review
"When reviewing a declaratory judgment, an appellate court's standard of review
is the same as in any other court-tried case." Guyer v. City of Kirkwood, 38 S.W.3d 412,
413 (Mo. banc 2001). The circuit court's judgment will be upheld "unless there is no
substantial evidence to support it, unless it is against the weight of the evidence, unless it
erroneously declares the law, or unless it erroneously applies the law." Murphy v.
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
"This Court reviews a constitutional challenge to a statute de novo." Kansas City
Premier Apartments, Inc. v. Mo. Real Estate Comm'n, 344 S.W.3d 160, 167 (Mo. banc
2011). "A statute is presumed valid and will not be held unconstitutional unless it clearly
contravenes a constitutional provision. The person challenging the statute's validity bears
the burden of proving the act clearly and undoubtedly violates the constitution." Kansas
City, 344 S.W.3d at 167.
Analysis
Karney alleges § 105.585(2)'s prohibition against picketing violates her
constitutional rights to equal protection, free speech, peaceable assembly, and collective
bargaining under the Missouri Constitution article I, §§ 2, 8-9, and 29. Accordingly, she
4
sought an order from the circuit court declaring § 105.585(2) unconstitutional and
permanently enjoining Appellants from "enforcing or otherwise implementing …
§ 105.585(2)."
Plain Text and Ordinary Meaning of Section 105.585(2)
Appellants contend the plain meaning of § 105.585(2) prohibits picketing only in
conjunction with a labor strike. Such construction, they argue, would be constitutional
and, therefore, favored over any unconstitutional interpretation.
"This Court's primary rule of statutory interpretation is to give effect to legislative
intent as reflected in the plain language of the statute at issue." Parktown Imports, Inc. v.
Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo. banc 2009). This Court resorts to other
rules of statutory interpretation only when the plain meaning of the statute is ambiguous
or defeats the purpose of the statute. Ivie v. Smith, 439 S.W.3d 189, 202 (Mo. banc
2014). "The rules of statutory interpretation are not intended to be applied haphazardly
or indiscriminately to achieve a desired result." Parktown Imports, Inc., 278 S.W.3d at
672.
Appellants are asking this Court to apply the rule of statutory interpretation that
"[i]f a statutory provision can be interpreted in two ways, one constitutional and the other
not constitutional, the constitutional construction shall be adopted." State v. Vaughn, 366
S.W.3d 513, 517 (Mo. banc 2012). The plain language of § 105.585(2), however, offers
no room to derive ambiguity. Without ambiguity, this Court is bound to give effect to the
intent reflected in the statute's plain language and cannot resort to other means of
5
interpretation. Parktown, 278 S.W.3d at 672. The statute plainly requires all public labor
agreements to prohibit "picketing of any kind."
Appellants point to a narrow dictionary definition of the noun, "picket", to argue
"picketing of any kind" actually means "picketing in conjunction with a strike."
However, the term's plain meaning is not so narrow and, if this Court were to limit the
term to Appellants' proffered definition, it renders a large part of the statute superfluous.
The statute already provides that any person engaged in a strike "shall be subject to
immediate termination." There is no reason to repeat the prohibition of picketing in
conjunction with a strike because it is already expressly prohibited by the prohibition
against employee strikes. Further, "picketing" is commonly understood to encompass
much more than a demonstration in conjunction with a labor strike 2 and had the
legislature intended that usage, it would have narrowed its language. Thus, the plain
meaning of the phrase "picketing of any kind" must be construed to include
demonstrations and protests unrelated to an employee strike.
Section 105.585(2) Violates article I, Section 8 of the Missouri Constitution
Mo. Const. art. I, § 8 provides:
That no law shall be passed impairing the freedom of speech, no matter by
what means communicated: that every person shall be free to say, write or
2
"The terms 'loiter' and 'picket' are not defined either in the ordinance or in authoritative State
decisions. Therefore, they must be judged as covering all the activities embraced by the
prohibition against the carrying of signs in the vicinity of a labor dispute for the purpose
mentioned." Carlson v. California, 310 U.S. 106, 112 (1940) (emphasis added); see also Snyder
v. Phelps, 562 U.S. 443, 454-56 (2011); Cox v. Louisiana, 379 U.S. 559, 565-68 (1965); Retail
Clerks Int'l. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 375 U.S. 96, 105 (1963) ("On the
other hand, picketing in order to get an employer to execute an agreement to hire all-union
labor in violation of a state union-security statute lies exclusively in the federal domain."
(emphasis added)); Thornhill v. Alabama, 310 U.S. 88, 100-01 (1940).
6
publish, or otherwise communicate whatever he will on any subject, being
responsible for all abuses of that liberty[.]
(Emphasis added). "While provisions of our state constitution may be construed to
provide more expansive protections than comparable federal constitutional provisions,
analysis of a section of the federal constitution is strongly persuasive in construing the
like section of our state constitution." Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. banc
2006) (internal citation and quotations omitted). 3
The Supreme Court of the United States, interpreting the freedom of speech clause
in the First Amendment context, has held public employees, by virtue of their
employment with the government, must as to their individual employment "accept certain
limitations on his or her freedom." Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). This
includes a restraint on the freedom of speech, to the extent it is "justified by the
consensual nature of the employment relationship and by the unique nature of the
government's interest." Borough of Duryea, Penn. v. Guarnieri, 564 U.S. 379, 387
(2011). Such speech restrictions against public employees are therefore subject to a
3
Though this Court may construe a corresponding state constitutional provisions to provide
more expansive protections than its federal constitutional counterpart, this Court has consistently
construed like provisions similarly. See Doe, 194 S.W.3d at 841 ("This Court rejects the …
invitation to interpret the Missouri due process, equal protection or ex post facto clauses more
broadly than comparable federal constitutional provisions here."); State v. Justus, 205 S.W.3d
872, 878 (Mo. banc 2006) ("The confrontation rights protected by [art. I, § 18(a) of] the Missouri
Constitution are the same as those protected by the Sixth Amendment."); State v. Pike, 162
S.W.3d 464, 472 (Mo. banc 2005) (holding "the same analysis applies to cases under the
Missouri Constitution as under the United States Constitution" in the Fourth Amendment context
because "[t]he Missouri constitution offers the same level of protection"); State ex rel. Munn v.
McKelvey, 733 S.W.2d 765, 767 (Mo. banc 1987) ("The privilege against self-incrimination is
secured by the Fifth Amendment to the United States Constitution and by Article I, section 19 of
the Missouri Constitution. The principles to be followed in applying these two provisions are
consistent.").
7
unique analysis by the Court because "Congress may impose restraints on the job-related
speech of public employees that would be plainly unconstitutional if applied to the public
at large." United States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 465 (1995).
Individualized free speech claims against the government by public employees are
analyzed under the framework established in Pickering v. Board of Education of
Township High School District 205, Will County, Illinois, 391 U.S. 563 (1968), and
reiterated in Connick v. Myers, 461 U.S. 138 (1983).
"Our task … is to seek a balance between the interests of the employee, as a
citizen, in commenting upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through its
employees." Connick, 461 U.S. at 142 (internal quotations omitted). Though a public
employee's speech concerning private, in-office matters of little public interest is not
protected and may be freely restrained, 4 the same cannot be said for matters of public
concern. "[S]peech on matters of public concern may be restricted only if the interest of
the state as an employer, in promoting the efficiency of the public services it performs
through its employees outweighs the interests of the employee as a citizen, in
commenting upon matters of public concern." Harris v. Quinn, 573 U.S. 616, 653 (2014)
(emphasis added) (internal quotations omitted). For example, in Pickering, the Court
held a high school teacher's public rebuke of the school board's allocation of school funds
4
"When employee expression cannot be fairly considered as relating to any matter of political,
social, or other concern to the community, government officials should enjoy wide latitude in
managing their offices, without intrusive oversight by the judiciary in the name of the First
Amendment." Connick, 461 U.S. at 146.
8
was "a matter of legitimate public concern" for which "free and open debate is vital to
informed decision-making by the electorate." Pickering, 391 U.S. at 571-72. 5
The Pickering framework, however, "was developed for use in a very different
context—in cases that involve 'one employee's speech and its impact on that employee's
public responsibilities.'" Janus v. Am. Fed'n of State, Cty., and Mun. Emps., Council 31,
138 S. Ct. 2448, 2472 (2018) (emphasis added) (quoting Treasury Emps., 513 U.S. at
467).
The Supreme Court has "looked to Pickering in considering general rules that
affect broad categories of employees … [and] acknowledged that the standard Pickering
analysis requires modification in that situation." Id. (citing Treasury Emps., 513 U.S. at
466-48). The appropriate framework to apply to challenges to general rules affecting
broad categories of employees, such as all public employees who enter into a labor
agreement with the State, is set forth in Treasury Employees. To withstand a
constitutional challenge, "[t]he Government must show that the interests of both potential
audiences and a vast group of present and future employees in a broad range of present
and future expression are outweighed by that expression's 'necessary impact on the actual
operation' of the Government." Treasury Emps., 513 U.S. at 468 (quoting Pickering, 391
U.S. at 571). The primary difference between this test and that set forth in Pickering is
5
In Pickering, the Court noted:
Teachers are, as a class, the members of a community most likely to have
informed and definite opinions as to how funds allotted to the operations of the
schools should be spent. Accordingly, it is essential that they be able to speak out
freely on such questions without fear of retaliatory dismissal.
391 U.S. at 572.
9
"the Government's burden is greater with respect to this statutory restriction on
expression than with respect to an isolated disciplinary action." Id.
The statute's blanket prohibition against "picketing of any kind"—even if such
prohibition extends only to the bounds of being related to a labor agreement—ignores
there are matters of public concern about which the state would have no ability to limit its
employees' right to speak when the speech is unobtrusive to the efficiency of the services
it performs through its employees. A perfect example of this unobtrusive speech is
before this Court today. Karney presented evidence that she and a group of Jackson
County dispatchers picketed the Jackson County Sheriff's Office to "try to get public
pressure to … help increase [Jackson County dispatcher] wages." 6 This picket was
performed on public ground by dispatchers on their own time. The picket was
precipitated by in-person and text message notice to the Sheriff of the date and time of
the picket. The picket was not performed in conjunction with a strike, walk-out, sick-out,
or sit-in. It included no requests for people to boycott the sheriff's office or refrain from
entering the building. The picket was also openly aided by officers in the office, who
came outside to bring the protesters coffee.
6
The standard wages of a public employee are inherently matters of public concern, as they
directly relate to the allocation of public funds. Harris, 573 U.S. at 654. Karney contends the
allegedly low wages of Jackson County dispatchers led to "a big rollover in dispatchers" in
which Jackson County ends up training new 911 dispatchers before "they go to other units that
pay more money." In addition, it is beyond dispute that § 105.585 contemplates picketing over
wages in its prohibition against picketing of any kind. "Labor agreements negotiated between a
public body and a labor organization may cover wages, benefits and all other terms and
conditions of employment for public employees within the bargaining unit[.]" § 105.585.
10
Though the State may impose some limits on the speech of its employees, even
about matters of public concern, § 105.585(2)'s prohibition against "picketing of any
kind" is unconstitutionally broad. Public employees have a right to exercise their
freedom of speech about matters of public concern when that speech does not impede the
efficiency of the public services the state performs through its employees.
The later provision requires labor agreements to "include a provision
acknowledging that any public employee … who pickets over any personnel matter[]
shall be subject to immediate termination." Were this interpreted to include matters of
public concern, then the concerns expressed in Treasury Employees would be at issue.
§ 105.585(2). Speech regarding a particular "personnel matter" 7 was the type of public
employee speech the Supreme Court held is not protected by the First Amendment.
Connick, 461 U.S. at 147. 8
In Connick, the Supreme Court held all but one question posed in a questionnaire
distributed around the office by a public employee did not touch on matters of public
concern and, therefore, were not protected by the First Amendment. Id. at 149. The
questions posed by the public employee primarily sought to gauge "the confidence and
trust that Myers' coworkers possess in various supervisors, the level of office morale, and
7
"Personnel" is "the division of an organization concerned primarily with the selection,
placement, and training of employees and with the formulation of policies, procedures, and
relations with employees or their representatives[.]" WEBSTER'S NEW INTERNATIONAL
DICTIONARY 1687 (3d ed. 2002).
8
We hold that only when a public employee speaks not as a citizen upon matters of
public concern, but instead as an employee upon matters only of personal interest,
absent the most unusual circumstances, a … court is not the appropriate forum in
which to review the wisdom of a personnel decision taken by a public agency[.]
Connick, 461 U.S. at 147.
11
the need for a grievance committee." Id. at 148. In holding these questions were not of
public concern, the Supreme Court reasoned:
To presume that all matters which transpire within a government office are
of public concern would mean that virtually every remark—and certainly
every criticism directed at a public official—would plant the seed of a
constitutional case. While as a matter of good judgment, public officials
should be receptive to constructive criticism offered by their employees, the
First Amendment does not require a public office to be run as a roundtable
for employee complaints over internal office affairs.
Id. at 149. To the extent the prohibition of public employee pickets over "personnel
matters" in § 105.585(2) is interpreted narrowly to apply to matters approved in Treasury
Employees rather than to matters of public concern, its prohibition does not violate the
Missouri Constitution nor the United States Constitution.
Severance is Applicable and Appropriate
Having held the portion of § 105.585(2) prohibiting "picketing of any kind"
violates article I, § 8 of the Missouri Constitution and the First Amendment of the United
States Constitution, this Court must determine whether those words can be severed.
Section § 1.140 provides:
The provisions of every statute are severable. If any provision of a statute
is found by a court of competent jurisdiction to be unconstitutional, the
remaining provisions of the statute are valid unless the court finds the valid
provisions of the statute are so essentially and inseparably connected with,
and so dependent upon, the void provision that it cannot be presumed the
legislature would have enacted the valid provisions without the void one; or
unless the court finds that the valid provisions, standing alone, are
incomplete and are incapable of being executed in accordance with the
legislative intent.
In Dodson v. Ferrara, this Court laid out the test for when an unconstitutional provision
of a statute may be severed:
12
[T]his Court must uphold valid portions of a statute despite the invalidity of
other portions when: (1) after separating the invalid portions, the remaining
portions are in all respects complete and susceptible of constitutional
enforcement; and (2) the remaining statute is one that the legislature would
have enacted if it had known that the rescinded portion was invalid.
491 S.W.3d 542, 558 (Mo. banc 2016). Section 105.585(2) was enacted via HB 1413 in
2018. During debate on the house floor, the bill's sponsor indicated the provision was
intended as "clarifying language" of law already in place. Apart from the
unconstitutional prohibition on "picketing of any kind", the plain language of the statute
evidences this intention.
"[P]ublic employees do not have the right to strike against their government
employer." St. Louis Teachers Ass'n v. Bd. of Educ. of the City of St. Louis, 544 S.W.2d
573, 575 (Mo. banc 1976) (citing § 105.530, RSMo 1969). 9 Additionally, public
employees' speech concerning internal office affairs is not of public concern and,
therefore, is not protected speech. Connick, 461 U.S. at 149.
Though the portion providing "and picketing of any kind" renders § 105.585(2)
constitutionally infirm, its severance leaves the remaining statute intact, complete, and
constitutional. Further, the phrase's mere supplementary nature leaves no question the
remaining statute is one the legislature would have enacted had it known the rescinded
portion was invalid. 10
9
Today, § 105.530 provides: "Nothing contained in sections 105.500 to 105.598 shall be
construed as granting a right to public employees covered in sections 105.500 to 105.598 to
strike."
10
As severed, § 105.585(2) reads:
Every labor agreement shall expressly prohibit all strikes. A strike shall include
any refusal to perform services, walkout, sick-out, sit-in, or any other form of
13
Permanent Injunction is the Appropriate Remedy
After declaring § 105.585(2) unconstitutional, the circuit court issued a permanent
injunction preventing the State from "the use or application of the prohibition against
picketing found in" § 105.585(2). "[A] party seeking a permanent injunction must show
only irreparable harm and a lack of adequate remedy at law." Rebman v. Parson, 576
S.W.3d 605, 611 (Mo. banc 2019).
Karney has shown irreparable harm, as the CWA Local 6360 and the Jackson
County Sheriff's Office have entered negotiations for a new labor agreement. The
previous agreement did not prohibit employee picketing. Thus, were the Sheriff's Office
required to continue negotiations with the prohibition of "picketing of any kind" in place,
Karney and the local CWA chapter would have to choose between getting a new labor
agreement in place or retaining their right to peacefully and unobtrusively picket about
matters of public concern related to the labor agreement.
Karney has also shown no adequate remedy at law due to the ongoing nature of
the labor agreement negotiations. Should this permanent injunction not issue, Karney
would be forced to accept a labor agreement that prohibits picketing, a right that her and
the 911 dispatchers held and exercised under the previous agreement.
interference with the operations of any public body. Every labor agreement shall
include a provision acknowledging that any public employee who engages in any
strike or concerted refusal to work, or who pickets over any personnel matter,
shall be subject to immediate termination of employment[.]
14
CONCLUSION
Section 105.585(2)'s prohibition against "picketing of any kind" fails to recognize
there are matters of public concern about which public employees retain their
constitutional right to comment on so long as their speech does not impede the efficiency
of the state services performed through state employees. However, the remainder of
§ 105.585(2) is in accord with constitutional limitations on public employee speech.
Severance of the phrase "and picketing of any kind" is appropriate and renders the
provision constitutional. The circuit court's judgment is affirmed to the extent it enjoins
the state from prohibiting unobtrusive picketing about matters of public concern in
negotiations for a new labor agreement with the CWA Local 6360.
___________________________
Zel M. Fischer, Judge
All concur.
15