I once drafted a legal brief for the dismissal of a lawsuit. While the legal arguments were nuanced, the crux of my case rested on a single decision from the 1940s. This worried me, so I vetted the argument with a firm partner. His advice, after reading the brief: Sometimes old law is good law. My client won the motion and the case was dismissed.
The Missouri Supreme Court recently heard oral arguments in the case of American Federation of Teachers v. Ledbetter. At issue is whether a public school district has a legal “duty” to collectively bargain in “good faith” with a teachers’ union.
Back in 1947, the Missouri Supreme Court, in City of Springfield v. Clouse, held that Springfield could not collectively bargain employment contracts with public employee unions. The reason was twofold. First, the Missouri Constitution’s clause guaranteeing the right to collectively bargain did not apply to public employees. Second, public entities such as cities act on behalf of the general public and therefore only elected legislators, as the peoples’ representatives, may set the terms of employment for public employees. Non-elected public officers lacked the requisite authority to collectively bargain with labor unions.
Fast forward 60 years. In Independence-NEA v. Independence School District, the Missouri Supreme Court overruled Clouse and held that the collective bargaining clause extended to public school teachers. The court rested its opinion in large part on the modern trend recognizing a legislature’s power to delegate its decision-making authority to administrative agencies. Because a legislature “may” delegate its power to establish the terms of public employment, the constitution’s collective bargaining guarantee was held to extend to all public employees, including teachers.
But did the Missouri Legislature specifically delegate this authority to public school districts? And how can one reconcile the majority’s broad recognition of the power to delegate with its stern rejection of the legislature’s discretionary choice to exclude public school teachers from its grant of collective bargaining rights?
Specifically, the Missouri General Assembly enacted the Public Sector Labor Law in 1965. The Act empowers certain public employees to join labor organizations for the purpose of negotiating terms of employment. But the legislature expressly excluded school teachers from its provisions. By exercising its power to delegate, the legislature “selectively” delegated its powers by withholding collective bargaining rights from teachers. But does the power to delegate not imply the power to withhold?
Unfortunately, the court wants to have it both ways. First, the collective bargaining guarantee is extended to public employees because of the legislature’s broad power to delegate. Yet the legislature may not limit its delegation by excluding school teachers. The Court is torturing the constitution and the statutes to get the results it wants, wielding unauthorized power as a supervening legislative authority. Perhaps we should recall James Madison’s astute observation (quoting Montesquieu):
Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Aubuchon is a policy analyst at the Show-Me Institute, which promotes market solutions for Missouri Public Policy.