reply brief of appellants frs and local 73
TRANSCRIPT
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Appeal No. ED100209
IN THE MISSOURI COURT OF APPEALSEASTERN DISTRICT
The Firemens Retirement System of St. Louis, et al.Plaintiffs/Appellants,
vs.
The City of St. LouisDefendant/Respondent
________________________________________________________________________
Appeal from the Circuit Court of City of St. LouisState of Missouri
The Honorable Robert H. DierkerCause No: 1222-CC02916
Consolidated with 1322-CC00006
JOINT REPLY BRIEF OF APPELLANTS
By: /s/ Richard A. BarryRichard A. Barry, Esq., #255921750 South Brentwood Blvd., Suite 295St. Louis, MO 63144(314) 918-8900E-mail: [email protected] ATTORNEY FOR APPELLANTSINTERNATIONAL ASSOCIATIONOF FIRE FIGHTERS LOCAL 73,et al.
By: /s/ Kara D. HelmuthDANNA MCKITRICK, P.C.Daniel G. Tobben, #24219David R. Bohm, #35166Kara D. Helmuth, #621837701 Forsyth Blvd., Suite 800St. Louis, MO 63105-3907(314) 726-1000/(314) 725-6592 faxE-Mail: [email protected]
[email protected]@dmfirm.com
ATTORNEYS FOR APPELLANTSTHE FIREMENS RETIREMENTSYSTEM OF ST. LOUIS
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i
T ABLE OF C ONTENTS
TABLE OF AUTHORITIES ii
STATEMENT OF FACTS 1
ARGUMENT 2
I. The Trial Court erred in declaring Board Bills 270, 12 and 109 valid because
the Citys home rule authority does not allow it to enact ordinances contrary
to permissive state enabling legislation, and the complex provisions of
87.120 R.S.Mo. et seq. show an intent by the Missouri General Assembly to
pre-empt the field. 2
II. The City enactment of Board Bill 109 was not a repeal of Chapter 4.18 RCC,
which codifies the ordinance provisions governing FRS, but is an
amendment of those ordinances without enabling legislation, which is
invalid. 11
III. Article VI, 22 would not be violated if the permissive legislation found in
87.120 R.S.Mo. et seq. is found to be the exclusive authority allowing the
City to enact a retirement system for firefighters. 18
IV. The ordinances creating FRP violate the contractual rights of all firefighters,
in violation of the provisions of both the U.S. and Missouri Constitutions. 20
CONCLUSION 31
CERTIFICATE OF COMPLIANCE 32
CERTIFICATE OF SERVICE 33
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ii
T ABLE OF AUTHORITIES
Alumax Foils, Inc. v. City of St. Louis, 959 S.W.2d 836
(Mo.App. 1998) ..................................................................................................... 8
Bakenhus v. City of Seattle , 296 P.2d 536 (Wash. banc 1956) ................................. 23, 24
Bender v. Anglin , 60 S.E.2d 756 (Ga. 1950) .................................................................... 23
Cape Motor Lodge, Inc. v. City of Cape Girardeau,
706 S.W.2d 208 (Mo. banc 1986) ......................................................................... 9
City of Springfield v. Belt, 307 S.W.3d 649 (Mo. banc 2010) ......................................... 4
City of St. Louis v. Kellman , 139 S.W. 443 (Mo. 1911) ................................................... 12
Cloutier v. New Hampshire , 42 A.3d 816 (N.H. 2012) .................................................... 22
Cures Without Cloning v. Pund , 259 S.W.3d 76 (Mo.App.
W.D. 2008) ..................................................................................................... 12, 13
Firemens Retirement System of St. Louis v. City of St. Louis,
754 S.W.2d 21 (Mo.App. E.D. 1988) ..................................................................... 6
Firemens Retirement System v. City of St. Louis,
789 S.W.2d 484 (Mo. banc 1990) .............................................................. 4, 18, 24
Fraternal Order of Police Lodge #2 v. City of St. Joseph ,
8 S.W.3d 257 (Mo. App. 1999) ........................................................................... 25
Grant v. Kansas City, 431 S.W.2d 89 (Mo. banc 1968) .................................................. 8
Kansas City v. Brouse, 468 S.W.2d 15 (Mo. banc 1971) ........................................... 3, 4, 8
Kemmerer v. ICI Americas, Inc. , 70 F.3d 281 (3d Cir. 1995) .......................................... 26
Levinson v. City of Kansas City, 43 S.W.3d 312 (Mo.App. 2001) .................................. 8
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Neske v. City of St. Louis , 218 S.W.3d 417 (Mo. 2007) ............................................ 22, 27
Olson v. Cory , 636 P.2d 532 (Cal. 1980) ....................................................................... 22
Police Pension and Relief Bd. of City and County of Denver v.
Bills , 366 P.2d 581 (Colo. banc 1961) ................................................................ 23
Singer v. Topeka , 607 P.2d 467 (Kan. 1980).................................................................. 23
Snow v. Abernathy , 331 So.2d 626 (Ala. 1976) ............................................................. 23
State ex inf. Hannah , 676 S.W.2d 508 (Mo. banc 1984) ................................................ 7
State ex rel. Breshears v. Missouri State Emp. Retirement System ,
362 S.W.2d 571 (Mo. banc 1962) .................................................................. 23, 24
State ex rel. Phillip v. Public School Retirement System of
City of St. Louis , 262 S.W.2d 569 (Mo. banc 1953) ............................... 20, 21, 22
................................................................................................................. 23, 24, 26
Trantina v. Bd. of Trustees of Firemens Ret. Sys. of St. Louis,
503 S.W.2d 148 (Mo.App. 1973) ................................................. 5, 6, 7, 8, 11, 12
...................................................................................................... 13, 17, 18, 26
W. Central Missouri Regional Lodge No. 50 v. Board of Police
Commissioners of Kansas City , 939 S.W.2d 565
(Mo.App. W.D. 1997) ........................................................................................... 25
Wagoner v. Gainer , 279 S.E.2d 636 (W.Va. 1981) ......................................................... 23
Wehmeier v. Public School Retirement System of Missouri ,
631 S.W.2d 893 (Mo.App. E.D. 1982) ................................................................ 20
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iv
MISSOURI CONSTITUTION
Art. VI, 19 ............................................................................................................. 3, 4, 5, 8
Article VI, 22 ..................................................................................................... 18, 19, 24
Article VI, 25 ................................................................................................................ 4, 5
REVISED STATUTES OF MISSOURI
87.005 and 87.006 R.S.Mo .......................................................................................... 15
87.25 ............................................................................................................................... 5
87.120 .................................................................................................... 2, 3, 4, 5, 6, 7, 8, 9
................................................................................................................. 14, 15, 18, 19, 26
87.125 RSMo. ................................................................................................................. 7
87.130 ....................................................................................................................... 14, 23
87.175 ............................................................................................................................. 12
87.195-87.220 ................................................................................................................. 16
87.295 ............................................................................................................................. 16
87.360 ............................................................................................................................. 22
95.540.2 .......................................................................................................................... 10
REVISED CITY CODE
Chapter 4.18 .............................................................................................. 11, 12, 13, 14, 15
....................................................................................................... 16, 21, 25, 26
4.18.030 .......................................................................................................................... 16
4.18.145-4.18.209 ......................................................................................................... 16
4.18.260 .......................................................................................................................... 16
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STATEMENT OF F ACTS
The Statement of Facts offered by Respondent is argumentative and omits many
facts that favor Appellants position, and therefore, is in violation of Rule 84.04(c) and
should be stricken. See Motion to Strike Respondents Statement of Facts. Appellants rely
on their own Statement of Facts found in Appellants Brief.
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ARGUMENT
I. The Trial Court erred in declaring Board Bills 270, 12 and 109 valid because
the Citys home rule authority does not allow it to enact ordinances contrary to
permissive state enabling legislation, and the complex provisions of 87.120
R.S.Mo. et seq. show an intent by the Missouri General Assembly to pre-empt
the field.
The City implicitly argues that, because it is a charter city, it can create a pension
system not in compliance with enabling legislation, in that it has powers that are
co-extensive with those of the General Assembly, and therefore, can choose when the
statutes do and do not apply. (RB17)
The Citys reasoning for this proposition is that 87.120 R.S.Mo. et seq. (the FRS
statute) must be viewed in historical perspective (RB18); i.e., the City argues the FRS
statute was originally enacted at a time when it was widely believed that cities had no
authority to enact a pension system absent legislative authority, but since then, the home
rule provisions of the constitution have been enacted so that the City may enact a pension
system unless explicitly prohibited from doing so by law. (RB17) (emphasis added)
The City has determined that it is not prohibited by statute from freezing FRS and
creating FRP, because the City asserts it can choose when statutes apply. The City stated,
[t]he FRS Statutes only apply to the extent that there can be no conflict between how the
City funds and pays for benefits accrued under the FRS prior to the Effective Date and the
FRS Statutes Once the City opted out of the state-enabled system insofar as future
benefit accruals are concerned, the FRS Statutes ceased to apply (RB23, n.10)
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(emphasis added) These statements demonstrate that the City believes it can enact
ordinances contrary to permissive legislation, and unilaterally decide that statutes apply to
benefits before the Effective Date, but not after. Although Art. VI, 19(a) may grant the
City powers that the General Assembly has authority to confer upon any city, these powers
must be consistent with the constitution of this state and [not be] limited or denied either
by the charter so adopted or by statute. Mo. Const. Art. VI, 19(a) . Certainly the City
cannot chose when its powers are or are not limited by simply stating that the statutes no
longer apply.
A. Article VI, 25 Prohibits Charter Cities from Enacting Pension Plans
In order to find that the City has the authority to enact Board Bill 109, even though it
conflicts with 87.120 R.S.Mo. et seq. , one must ignore the first half of Article VI, 25 of
the Missouri Constitution, which states, [n]o county, city or other political corporation or
subdivision of the state shall be authorized to lend its credit or grant public money or
property to any private individual, association or corporation except that the general
assembly may authorize (pensions for governmental employees). Mo.Const. Art. VI, 25
(emphasis added) . This is a specific prohibition preventing cities, including charter cities,
from adopting public pensions without authority from the General Assembly.
The City claims that Kansas City v. Brouse, 468 S.W.2d 15 (Mo. banc 1971) is
directly on point and confirms that Article VI, 25 confers upon the City the right to enact
the FRP. (RB27) However, the City ignores the fact that there were no enabling statutes
present in Brouse, whereas here there are very detailed statutes that are being ignored. This
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was the main distinction made in Appellants Brief, not just that the plan in Brouse was
included in Kansas Citys charter unlike FRP, as claimed by City. (RB 27)
The limitation on the Citys ability to enact pension ordinances was addressed as
between these same two parties by the Missouri Supreme Court 24 years ago, 19 years after
Brouse. Contrary to the decision in Brouse , the Court in Firemens Retirement System v.
City of St. Louis, 789 S.W.2d 484, 486 (Mo. banc 1990) (FRS 1990), stated that: Article
VI, 25 of the Missouri Constitution prohibits charter cities generally from granting public
money to any private individual. It went on to state that authorization was needed from
the Missouri General Assembly to grant pensions, and that such authorization was found in
87.120 R.S.Mo. et seq. Id .
B. Article VI, 19(a)
While Article VI, 19 of the Missouri Constitution permits cities to adopt a charter
for their own government, the scope of that authority is limited by Article VI, 19(a),
which states that a citys powers must be consistent with the constitution of this state
and not limited or denied either by the charter so adopted or by statute . (emphasis
added) Consequently, the City is not authorized to enact any ordinance which is
inconsistent with or contravenes the limitations set out in the Constitution, statutes, or the
citys charter. City of Springfield v. Belt, 307 S.W.3d 649, 653 (Mo. banc 2010).
1. History of Article VI, 19(a)
The City argues that, for a statute to limit its powers, it must be an express limitation,
as Missouri courts do not infer prohibition of home rule authority from mere statutory
silence. (RB22) However, the history of Article VI, 19(a) belies this argument. The
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original draft of 19(a), which was passed by the House, stated: provided such powers
are consistent with the Constitution of the State and are not expressly limited or denied
by statute of the State of Missouri. Thomas N. Sterchi, Comment, State-Local Conflicts
Under the New Missouri Home Rule Amendment, 37 MO. L. REV . 677, 686 (1972)
(Sterchi). 1 The word expressly was ultimately removed from 19(a), as adopted. This
demonstrates that the express pre-emption that the City argues must be present in statutes
to limit the Citys authority was not the intention of the drafters. The provision of 87.25
R.S.Mo. authorizing the City to enact a pension system subject to 87.120 R.S.Mo. et
seq. was clearly intended to limit the Citys authority to enact pensions for City firefighters,
so that the City cannot exercise its home rule authority to adopt a non-conforming pension
system. Further, Art. VI, 25 also expressly prohibits the City from adopting a pension
plan without authorization from the General Assembly.
Furthermore, Article VI, 19(a) was enacted in 1971, long before Trantina v. Board
of Trustees of the Firemens Retirement System of St. Louis , which held that the Citys
pension ordinances must conform to the enabling statutes, which language has been cited
with approval in subsequent appellate and Supreme Court opinions in cases between FRS
and City. If the City was not bound by 87.120 R.S.Mo. et seq. after 1971, when the home
rule amendment was enacted, then Trantina and its progeny have been decided incorrectly.
1 This article, which the City cites as authority for its interpretation of the home rule
amendment, was written by a then law student, and only one year after the home rule
amendment was enacted.
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If the City is on the same footing as the General Assembly with respect to pensions, and
could ignore 87.120 R.S.Mo. et seq. , then it could have enacted ordinances that in essence
amended the statutory enabling legislation, and its ordinances would not have had to
conform to the statutes at all.
However, this argument was rejected by this Court in 1988 in Firemens Retirement
System of St. Louis v. City of St. Louis, 754 S.W.2d 21, 25 (Mo.App. E.D. 1988), wherein
this Court stated:
[T]he City would have us interpret Trantina as granting the City carte
blanche to amend FRSs ordinances because the enabling statute, now
87.125 RSMo (1986), was found to be permissive. . . and, therefore, the
City ought to have a free hand in legislating for it. We disagree
(emphasis added). It also does not appear that even the City believed it could act contrary
to statute for many years, as the City always sought enabling legislation for changes to
pension benefits for St. Louis firefighters before enacting them through ordinances until
recently.
C. Permissive Legislation is Binding on the City
The Citys brief demonstrates a fundamental misunderstanding of the meaning of
permissive legislation, and seems to view it as suggestions which the City can choose to
follow or not, and views Appellants argument seeking the Citys compliance with such
statutes as an attempt to make them mandatory. ( See RB30-32) Trantina described the
difference between permissive and mandatory legislation. Mandatory legislation would
require the City to pass implementing ordinances. Trantina, 503 S.W.2d at 152. While
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permissive legislation does not require the City to enact implementing ordinances, it does
require that City ordinances conform to the legislation if it chooses to legislate on the topic.
Id .
The City claims that Appellants position is a tortured argument that Chapter 87s
permissive language is in fact mandatory and that the permissive nature of the FRS
Statutes distinguish them from the cases upon which Appellants rely. (RB31, 32) In
support, the City cites to State ex inf. Hannah v. City of St. Charles , 676 S.W.2d 508 (Mo.
banc 1984), where the following statute was at issue:
Should any city, town, or village, not located in any first class county which
has adopted a constitutional charter for its own local government, seek to
annex an area to which objection is made, the following shall be satisfied:
Id . at 510 (emphasis added) (RB31). The City claims that because the statute in Hannah
contained mandatory language, St. Charles was not permitted to exercise its annexation
power in a manner inconsistent with the statutes mandatory requirements. But, as
Trantina recognized, the FRS Statutes are not mandatory, and thus they are very different
from the statute at issue in Hannah. (RB31) However, nowhere in the case is the word
mandatory even mentioned, because the statute is in fact permissive, not mandatory.
The statute did not require St. Charles to annex land, but instead, it prescribed procedures
for annexation that must be followed should any city seek to annex land. Hannah , at 513.
This is very similar to 87.125 R.S.Mo., which does not require the City to enact a pension
plan, but if it chooses to do so, it is subject to the provisions of sections 87.120 to 87.370.
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The City makes a similar argument with respect to Alumax Foils, Inc. v. City of St.
Louis, 959 S.W.2d 836 (Mo.App. 1998) and Levinson v. City of Kansas City, 43 S.W.3d
312 (Mo.App. 2001). Specifically, the City states, [w]hile it is true that in both cases the
cities could have elected not to impose a tax, once they did they were bound by the
exclusive and mandatory manner by which the state statute prescribed the tax that could be
imposed. (RB32) This Court has held that 87.120 R.S.Mo. et seq. operates as an almost
identical limitation. Trantina, 503 S.W.2d at 152 (The City may or may not elect to enact
such an ordinance. If it does, it must comply with the provisions of the enabling statute
which is in effect at the time the ordinance is adopted. Otherwise, the ordinance will be in
conflict with the provisions of the statute and thereby void.)
The City also makes the argument that municipal pensions are a matter of local
concern, and therefore, should not be subject to statutory interference. (RB32-33) In
support, the City cites Grant v. Kansas City, 431 S.W.2d 89 (Mo. banc 1968), which
contrasted matters of state concern with matters of local concern, and Brouse for the
proposition that municipal pensions are a matter of local concern. (RB33) However,
according to the Sterchi law review article relied upon by the City with respect to
interpretation of Article VI, 19(a), the test of whether an activity was of statewide
concern or of local concern, was utilized to determine whether a statute or ordinance
prevailed prior to adoption of 19(a). Sterchi, at 679. This test was rejected with the
revision of Article VI, 19(a) in 1971, because it was generally recognized that both the
state and the municipality have a valid interest in any public affair and a matter cannot be
classified as solely within the province and interest of one entity. Id . at 680. Clearly, the
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City is trying to confuse the issues by relying on a test that is no longer applicable, and that
was confusing and cumbersome according to the authority relied upon by City.
D. Pre-Emption of the Field
The only response the City made to the argument that the Missouri General
Assembly pre-empted the field by enacting 87.120 R.S.Mo. is that
the specificity of the FRS Statutes should not be viewed as suggesting the
General Assemblys intent to limit the Citys authority, but rather as
evidence of its desire to clarify the Citys authority under the prior scheme
The specificity found in the FRS Statutes is not evidence of the States intent
to preempt the field, as Appellants suggest. Rather, the specificity is due to
the subject matter of the FRS Statutes a pension system, which is itself
organically complex, and necessitated the use of experts by both Parties to
explain how the FRS and the FRP operate.
(RB38) However, the admission that the statutes are complex is a fact that points toward a
finding of preemption by the Missouri General Assembly. Cape Motor Lodge, Inc. v. City
of Cape Girardeau, 706 S.W.2d 208, 212 (Mo. banc 1986).
The Citys argument that the specificity and complexity of the statutes is
necessitated by the subject matter of pensions is simply not true. The Employees
Retirement System, which governs all non-public safety employees of the City, is enabled
by one statutory provision, which includes the following: [a]ny city of this state that now
has or may hereafter have a population of more than four hundred and fifty thousand
inhabitants is hereby authorized to provide by ordinance or otherwise for the pensioning of
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its employees and officers 95.540.2 R.S.Mo . (AB39) This statute, which applies to
the Citys own non-uniformed employees, could not be simpler. This contrast was
completely ignored by the City, and seems a tacit acknowledgment that the Missouri
General Assembly preempted the field with respect to pensions for St. Louis firefighters.
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II. The City enactment of Board Bill 109 was not a repeal of Chapter 4.18 RCC,
which codifies the ordinance provisions governing FRS, but is an amendment
of those ordinances without enabling legislation, which is invalid.
A. Amendment versus Repeal
The crux of the Citys entire argument with respect to its ability to freeze FRS and
create FRP is that the City is repealing FRS. (RB20) However, absolutely no analysis is
provided, even in light of the fact that Board Bill 109 actually repealed Board Bill 270s
repeal of Chapter 4.18 RCC and FRS, so that FRS and Chapter 4.18 RCC remain in effect,
although amended or frozen. ( See RB20-22) (A69, 146)
The Citys argument is one of necessity, as the City only reserve[d] the right to
amend or repeal [Chapter 4.18] at any time in 4.18.345 RCC. As the City admits in its
own pleadings, any amendments to FRS must first be enabled by the Missouri General
Assembly. (LF571); Trantina, 503 S.W.2d at 152. Given that there is no enabling
legislation for Board Bill 109, the only remaining argument available to the City is that it
constitutes a repeal of FRS. Therefore, the City argues that Board Bill 109 repeals the
FRS but provides for payment of benefits accrued under the FRS prior to the termination
date to ensure that such benefits are paid in full by the FRS. (RB20-21) While the City
asserts that FRS will terminate with no further action by the City when the last benefits
are paid, it is important to remember that this will not be until the last firefighter employed
by the City as of February 1, 2013, or the last of their beneficiaries dies, which will likely
not be for at least another 60 years. How the City can contend that FRS is repealed, while
it continues to operate for another 60 years with Trustee meetings, certification of benefits,
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and annual required City contributions strains credulity. The fiction of termination was
an effort to rationalize this outcome.
A close reading of the available case law reveals that Board Bill 109 amends
Chapter 4.18 RCC. An ordinance is repealed when it is destroyed, abolished, abrogated,
recalled or rescinded by a subsequent legislative act. City of St. Louis v. Kellman , 139
S.W. 443, 445 (Mo. 1911). The repeal is accomplished when the later enactment becomes
effective. See id. 2 There can be no repeal where the text of the original enactment remains
in effect and is merely modified by the subsequent enactment. This is demonstrated by
Cures Without Cloning v. Pund , 259 S.W.3d 76, 81-82 (Mo.App. W.D. 2008), which held
that use of repeal in a ballot initiative summary was an inaccurate description of an
enactment that would leave in place the existing text defining cloning and add a section
further expanding the effect of the constitutional ban on human cloning.
If a statute or ordinance is abolished and replaced in its entirety by a subsequent
enactment, then the original legislation has been both repealed and amended. Trantina ,
503 S.W.2d at 152 (describing an act of the General Assembly that struck out the entire
existing text of 87.175 R.S.Mo. and replaced it with a new statute as a repeal and
amendment). The use of these definitions in Trantina is critical, because the City has
2
This principle about when the repeal is accomplished makes the Citys characterization of
Board Bill 109 as a repeal [of FRS] over time nonsensical. (RB21) As is discussed infra ,
Board Bill 109 leaves the text of Chapter 4.18 RCC intact, so Board Bill 109 can only be
construed to amend Chapter 4.18 RCC.
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admitted that Trantina stands for the proposition that the FRS ordinance can only be
amended in accordance with the enabling legislation. (LF571) As it is used in Trantina ,
the word repeal refers to striking out the text of a statute or ordinance, and the word
amend refers to replacing a statute or ordinance with a new provision that supersedes the
earlier one. See Trantina , 503 S.W.2d at 152.
Under these definitions, it is undeniable that Board Bill 109 is an amendment, not a
repeal, of Chapter 4.18. Nowhere in the merged copies of Board Bills 270, 12, and 109 is
there a repeal of any of the ordinances which comprise Chapter 4.18 RCC. ( See
A176-249) This is to be contrasted with the several times Board Bill 109 specifically
repeals portions of Board Bills 12 and 270. (A145-175)
This reading of Board Bill 109 is also supported by the new function and operation
of FRS and FRP. As the City admitted in its brief, FRS remains in existence and in
operation; it has not been shut down or abolished. It has merely changed from its original
status to a frozen status under which accruals have been halted. (RB35 n.12) A
legislative enactment that leaves a governmental entity intact and in existence, but changes
the rules by which it operates, can only be described as an amendment, not a repeal. See
Pund , 259 S.W.3d at 81-82; Trantina , 503 S.W.2d at 152. The wind down period
discussed in the Citys brief (RB21) is another example of an amendment being obfuscated
under the guise of pension terminology.
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B. Conflicts Between Board Bill 109 and 87.120 R.S.Mo. et seq. and
Implicit Amendment of Chapter 4.18 RCC
In analyzing whether or not there is a conflict between Board Bill 109 and 87.120
R.S.Mo. et seq ., the City, like the Trial Court, primarily focused on 87.130 R.S.Mo.,
which contains the exclusivity clause. (RB34-35) The clause prohibits firefighters from
contributing to or receiving retirement benefits from any other pension plan because of the
same years of service. Appellants used several charts to demonstrate that FRS and FRP
will be paying benefits based upon the same years of service as soon as a firefighter
receives a salary increase. (AB49-51)
The City argues this provision is not violated because:
[t]he FRS and the FRP will both consider total years of service for purposes
of vesting which is the point demonstrated by Appellants charts but
benefit payments will be paid only by the plan under which they accrued
based on service recognized by that plan. Vesting relates only to the
forefeitability of the benefits already earned; not to the amount of the
benefit payable.
(RB35) However, as demonstrated by testimony of the Citys expert actuary, this is at best
factually inaccurate, and at worst an attempt to mislead this Court.
The charts have nothing to do with vesting. Instead, they concern the source of
benefits paid and demonstrate that FRP and FRS will be paying benefits based upon the
same years of service due to salary increases after February 1, 2013. This is supported by
the Citys own expert testimony, when Kim Nicholl stated, [t]he benefits that have
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accrued to date, based on service and salary as of the effective date of Board Bill 109, will
be paid from FRS. Any future accruals, including future salary increases on behalf of
service already rendered, will be paid from FRP . (Tr.Vol.III, 41-42) (emphasis added)
While the statement that FRP will only pay benefits based upon service recognized by that
plan may be accurate if one realizes that FRP will be paying a benefit based upon all of the
years of service that a firefighter works, even those while a part of the FRS system, that is
clearly not the import of the Citys statement, and shows a clear violation of the exclusivity
clause found in 87.120 R.S.Mo.
Another conflict with not only the statutes that apply only to FRS, but with statutes
that apply to all pension plans for firefighters, concerns the heart/lung presumption
found in 87.005 and 87.006 R.S.Mo., which mandate that all firefighter heart and lung
related diseases are presumed to have been incurred in the line of duty for disability and
retirement purposes, and that this presumption can only be overcome by competent
evidence. Because this presumption is a statutory provision applicable to all firefighters
in Missouri, it does not appear in Chapter 4.18 RCC. However Board Bill 109,
4.19.070(B)(2) not only lowers the standard to rebut the presumption to any evidence of
habitual smoking, which is much lower than competent evidence, but also does not
provide any presumption for heart disease, which is contrary to Chapter 87 R.S.Mo. (A209)
The City completely ignores this conflict in its brief.
Appellants also argued that the statutes regarding average final compensation,
membership service, and creditable service have all been violated and implicitly amended
in Chapter 4.18, as an end date of February 1, 2013, has been added for purposes of FRS
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benefits which is not present in the statutes or ordinances. (AB57-58) The City makes an
interesting argument that these statutes are not violated because a firefighters average
compensation during his last two years of service and his total years of service will still be
used to calculate his total retirement benefit from both the FRS and the FRP, and thus there
is no conflict. (RB36)
The FRS Statute and Ch. 4.18 RCC require that the full amount of service and the
final two years of compensation be utilized to compute benefits under FRS, not a
combination of FRS and FRP. Also, the change from an 8% refundable contribution to a
now 9% non-refundable contribution for firefighters with less than 20 years of service
[4.18.260 RCC (A268); 87.295 R.S.Mo.; 4.19.060(C) and 4.18.030(B) (A191,
198-199)] clearly fails to follow the language of the enabling statutes; as do the numerous
changes to disability, death and survivor benefits under FRP as compared to the FRS
Statute. ( 4.18.145-4.18.209 RCC A259-266 ; 87.195-87.220 R.S.Mo. ; Board Bill 109
2(A) at A177; 4.19.070-4.19.080 at A207-219)
The Citys only other justification for its violations of the enabling legislation is to
say it had to be done to effectuate the Citys goals. (RB36) (To repeal the FRS, however,
the City had to freeze compensation and years of service for purposes of calculating the
benefit due under the FRS; a plan simply cannot terminate if all factors that determine the
pension benefit continue to be taken into account indefinitely into the future.) This is
similar to the necessary and proper analysis of the Trial Court, after acknowledging that
the dual plan system does affect how FRS will operate in the future. (A56) There is no
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necessary and proper exception to the requirement that ordinances amending FRS must
comply with the enabling statutes as recognized by Trantina .
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III. Article VI, 22 would not be violated if the permissive legislation found in
87.120 R.S.Mo. et seq. is found to be the exclusive authority allowing the City
to enact a retirement system for firefighters.
The City argued that, if 87.120 R.S.Mo. et seq. is found to be the exclusive means
by which it may enact a pension for City firefighters, the statute would violate Article VI,
22 of the Missouri Constitution, which prohibits the state from fixing the compensation of
municipal employees. (RB39) In the FRS 1990 case, the Missouri Supreme Court rejected
this argument, because [t]he establishment of a firemens pension plan is permissive the
statute is directory, not mandatory. FRS 1990 , 789 S.W.2d at 487. The City quotes this
portion of the decision in its brief (RB39), but then states in the very next sentence that
[c]onstruing the FRS Statutes to require the City to choose between providing the pension
prescribed therein or providing no pension would impermissibly limit the authority of the
City to fix the compensation of its firefighters (RB39), an argument that was clearly
rejected in the portion of the FRS 1990 decision cited by the City.
Not only does FRS 1990 state [t]he enabling statute does not violate article VI 22
of the Missouri Constitution, but it cites to Trantina wherein the Court specifically stated,
[t]he City may or may not elect to enact such an ordinance [creating a pension plan]. If it
does, it must comply with the provisions of the enabling statute which is in effect at the
time the ordinance is adopted. Otherwise, the ordinance will be in conflict with the
provisions of the statute and thereby void. Id.; Trantina, 503 S.W.2d at 152. Therefore,
the Supreme Court directly held that, because the City had the choice to enact a pension
plan for firefighters consistent with 87.l20 R.S.Mo. et seq., or no pension plan at all, the
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enabling statutes do not violate Article VI, 22. This Court is bound to follow this
precedent from the Supreme Court, deciding this identical issue between these same parties,
under the doctrines of res judicata and stare decisis .
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IV. The ordinances creating FRP violate the contractual rights of all firefighters,
in violation of the provisions of both the U.S. and Missouri Constitutions.
A. St. Louis firefighters have contractual rights to FRS pension benefits.
Appellants position in this case is based on the now widely recognized principle
that statutes creating pensions for public employees are a part of the contract of
employment as much as if written therein. State ex rel. Phillip v. Public School
Retirement System of City of St. Louis , 262 S.W.2d 569, 575 (Mo. banc 1953); Wehmeier v.
Public School Retirement System of Missouri , 631 S.W.2d 893, 896 (Mo.App. E.D. 1982).
A public employees pension benefits do not remain constitutionally unprotected until the
employees retirement date or date of vesting.
The Supreme Court in Phillip could have resolved the employees challenge to the
statute in at least three ways. First, the court could have upheld the amendment, holding
that the employees had no contractual rights to benefits not yet payable. Second, the court
could have held that the employees had no contractual right to any benefits not yet accrued,
striking down the amendment only with respect to benefits already earned. Third, the court
could have ruled that the pension legislation in existence as of the beginning of the
employment relationship became part of the employment contract, even with respect to
future benefits, and that the statutory amendment was invalid for that reason.
Even the City admits that the first position is incorrect as a matter of law. (RB49)
The City asks this Court to adopt the second position. (RB43) But the position advocated
by Appellants, the third position, is the position the court in Phillip utilized. See id. at
577-78. Instead of recognizing a constitutional difference between benefits already
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accrued and those to be accrued in the future, as the City suggests, Phillip holds that the
pension legislation did provide for the creation of specific contractual rights in the
members of the Retirement System to obtain specific benefits upon compliance with the
terms, and refused to enforce the amendment. Id. Under the logic of Phillip , firefighters
have contractual rights to future pension benefits, and these rights vest upon acceptance of
employment with the City under the provision of Chapter 4.18 RCC. Therefore, the Citys
attempt to impair these contractual rights violates the Contracts Clauses of the federal and
state constitutions. The seriousness of the impairment is also greater than sustained by
relators in Phillip , since City firefighters do not receive Social Security and are subject to
20 year cliff vesting.
1. The Citys attempts to distinguish cases from other jurisdictions fails,
as the City obscures and misstates the facts and legal conclusions of
many of these cases.
The Citys brief attempts to sidestep the growing body of law holding that a
government employee has contractual rights to pension benefits as provided upon
employment, or sometime well before retirement, by pigeonholing the precedential cases
into four categories, and then distinguishing each category separately. (RB59-62)
However, the Citys analysis misinterprets the rationale and misstates or obscures the
actual facts of these cases. The City also ignores critical language of the FRS legislation
evidencing an intent to grant FRS members contractual rights.
Specifically, the City argues that contractual rights to pension benefits have only
been recognized based on (1) explicit language in the statute at issue, (2) the voluntary
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nature of employees participation in the pension system, (3) the supposedly
non-refundable nature of employee contributions, or (4) the pension systems treatment of
benefits as compensation. (RB59-62) On the first of these four points, the City cites to
Cloutier v. New Hampshire , 42 A.3d 816 (N.H. 2012), and Olson v. Cory , 636 P.2d 532
(Cal. 1980). However, both cases support Appellants position in this appeal. (AB82)
Cloutier held that the pension statutes created an implied contract between the state and its
employees, with the employees rights in the pension vesting upon their accepting
employment. 42 A.3d at 823. Similarly, the court held in Olson that the plan members had
contractual rights to future salary increases that vested upon their acceptance of
employment. 636 P.2d at 535-37. The City attempts to distinguish these cases based on
the unremarkable fact that both cases referred to the applicable statutory language. (RB59)
Yet the FRS enabling legislation and ordinances contain similar language, which states that
maintaining the FRS investments and paying out benefits are hereby made obligations of
the City. 4.18.325 RCC (A270) (emphasis added); 87.360 R.S.Mo. (emphasis added)
See Neske v. City of St. Louis , 218 S.W.3d 417, 425-26 (Mo. 2007). This shows the Citys
intent to bind itself to pay the benefits promised to St. Louis firefighters.
The City also argues that there are no contractual rights because participation in
FRS is required for all City firefighters. (RB59-60) However, Missouri courts have
repeatedly recognized the contractual nature of public pension benefits, even in cases
where all employees were required to be members of the pension system as a condition of
employment. The Court in Phillip held that, even though new employees were required to
join the retirement system there at issue as a condition of employment, participation was
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voluntary, because the employee had a choice whether to participate. 262 S.W.2d at 575,
577; see also State ex rel. Breshears v. Missouri State Emp. Retirement System , 362
S.W.2d 571, 575 (Mo. banc 1962). Merely because membership in FRS is a condition of
firefighters employment with the City (as is the ban on firefighters participating in any
other state or local public pension system), 87.130.1 R.S.Mo ., this does not prevent
firefighters from possessing contractual rights in FRS benefits.
Next, the City argues that cases from other jurisdictions have found contractual
rights only when employees contributions to the pension fund are non-refundable.
(RB60-61) However, five of the six cases cited by the City provide absolutely no support
to this argument in that they do not even state that the employees contributions were
non-refundable. (RB60-61); see Wagoner v. Gainer , 279 S.E.2d 636 (W.Va. 1981); Snow
v. Abernathy , 331 So.2d 626 (Ala. 1976); Police Pension and Relief Bd. of City and County
of Denver v. Bills , 366 P.2d 581 (Colo. banc 1961); Bender v. Anglin , 60 S.E.2d 756 (Ga.
1950); Singer v. Topeka , 607 P.2d 467 (Kan. 1980).
The one remaining case cited by the City is Bakenhus v. City of Seattle , which, does
actually state that the employee contributions were non-refundable. 296 P.2d 536, 537
(Wash. banc 1956) ( see RB60). Yet the majority opinion, which did find that the employee
had a contractual right to his retirement benefits, simply mentioned the non-refundable
nature of the contributions in passing and did not expressly assign any particular
significance to this fact. See id. at 537. Only the dissenting justice believed that the
distinction between refundable and non-refundable contributions had any impact on the
Contracts Clause analysis. Id. at 543 (Hill, J., dissenting). Moreover, the majority opinion
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espouses the same theory of pension rights as did the courts in Phillip , Breshears and the
many other cases cited in Appellants initial brief. (AB100-107) Much like the court in
Phillip , the Court had an opportunity to draw the distinction between past and future
accruals, which is so strongly urged by the City. ( See RB43) But the Bakenhus court
refused to do so, holding that the plaintiff had a right to rely on the continuance of benefit
accruals that were promised to him in the statute as it existed as of his hiring date. Id. at
539.
The City also attempts to distinguish cases in which pension benefits were
characterized as compensation (RB61-62), but this argument is mistaken for two
reasons. First, the Citys reliance on Article VI, 22 of the Missouri Constitution is
misplaced. The Missouri Supreme Court decided over 20 years ago that FRS does not
violate the Constitution. FRS 1990 , 789 S.W.2d at 487. That decision expressed no view
as to FRS benefits being part of compensation, either in its holding or dicta. Second, the
Citys discussion of what it calls the compensation rationale (RB61) ignores the essential
difference between salary and pension benefits. Pension benefits raise a unique set of
constitutional issues because pension plans are designed to reward long-term commitment
by the employee. (AB83-84) The special nature of pensions is the very reason that so
many courts now recognize constitutionally protected contract rights in future pension
benefits. (AB100-107)
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2. The Citys reliance upon Fraternal Order of Police Lodge #2 and W.
Central Missouri Regional Lodge #50 is misplaced.
In Fraternal Order of Police Lodge #2 v. City of St. Joseph , the pension board began
treating lump sum payments for unpaid overtime and vacation pay as part of an officers
salary for the purpose of calculating benefits. 8 S.W.3d 257, 260-61 (Mo. App. 1999).
The critical fact of the case which the City glosses over in its brief was that the board
began using this calculation method unilaterally, without any direction or prompting by
statutes or ordinances. See id. Since this practice was administrative, the plaintiffs had no
vested right in this calculation method. Id. at 264. In contrast, the benefits due to FRS
members are stated in great detail in both enabling statutes and implementing ordinances.
The case of W. Central Missouri Regional Lodge No. 50 v. Board of Police
Commissioners of Kansas City , 939 S.W.2d 565 (Mo.App. W.D. 1997), is also not on
point. The benefits in which the plaintiffs asserted a contractual right were not found in
any legislation; only being mentioned in an employee handbook. Id. at 566. There is no
comparison between a statute and an employee handbook, as handbooks by themselves do
not create contractual rights, as Missouri courts have repeatedly held. Id. at 567-68.
3. The reservation of rights clause does not make the pension rights of
firefighters modifiable.
The reservation of rights clause, found at 4.18.345 RCC, does not nullify the Citys
clearly manifested intent to bind itself to a contract with FRS members. Notably, the City
assumes the clause is valid. (RB64-66) The reservation of rights clause is not authorized
by the enabling legislation. See Chapter 87 R.S.Mo. The City admits that Chapter 4.18
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RCC was enacted under the authority granted by 87.120 R.S.Mo., et seq . (RB1)
Therefore, all FRS ordinances must conform to the enabling legislation. Trantina , 503
S.W.2d at 152. Nothing in Chapter 87 R.S.Mo. authorizes the City to enact a reservation of
rights clause, and there is certainly no authorization for the City to impair the contractual
rights of FRS members through subsequent ordinance amendments. ( See AB, Point
II(D)(4)) Thus, 4.18.345 RCC is invalid, as not authorized by the FRS Statute. Nor can
the City impair rights of firefighters extended by contract by reserving such power to itself,
in that the right of the legislature to alter, amend or repeal legislation is subject to
constitutional restrictions and inhibitions, including the Contracts Clauses. Phillip, 262
S.W.2d at 579, Kemmerer v. ICI Americas, Inc. , 70 F.3d 281, 287-88 (3d Cir. 1995).
B. Board Bill 109 materially and substantially impairs the rights of all
firefighters
Although the City occasionally invokes the discredited gratuity theory of pensions,
its main arguments are based upon a contract theory, with limitations. (RB43) The City
argues that it can change contributions, benefits, and conditions of retirement on a
prospective basis for current firefighters with less than twenty years of service, so long as
past accruals are not reduced. (RB43) Yet the City, through enactment of Board Bill 109,
accepts that it cannot alter the rights of vested firefighters or those in pay status. (RB43,
54) Thus, the City Board Bill 109 concedes that at least some firefighters have contractual
right to future accruals of their pension benefits as provided in the FRS ordinances.
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1. Board Bill 109 substantially impairs the rights of all firefighters by
relieving the City of its ultimate obligation to make benefit payments.
Although the City claims a scriveners error (RB70), the City has walked away from
its ultimate obligation to make sure benefits are fully paid. As the Trial Court recognized
in its September 28, 2012 Memorandum and Order, the language that the City assumes no
liability or responsibility for FRP benefits unconstitutionally impairs firefighters
contractual rights to their full retirement benefits, and was found in both 4.19.170(B) and
4.19.020(C). (AB87) While the City did amend 4.19.020(C) to state that the payment
of all benefits accrued under this Plan is hereby made an obligation of the City, it left the
limitation of liability language in 4.19.170(B). Leaving in this language that had been
specifically criticized by Judge Dierker in a prior order cannot reasonably be viewed as a
matter of oversight.
The Citys argument that the change in 4.19.020(C) solves the problem of the
limitation language in 4.19.170(B) does not hold true. Although the issue is not before
the Court at this time, the ultimate resolution of these two sections may well be that the
City has agreed to fully pay its actuarially required contribution to FRP each year (see
Neske ), but that if there are insufficient funds in the plan to pay benefits if the plan is one
day terminated, retirees, firefighters and beneficiaries would only be entitled to receive
benefit payments to the extent of assets in that Plan. That is a very significant impairment
of rights. Section 4.19.170(B) RCC is more than just boilerplate language (RB74); it is a
significant impairment.
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2. The increase in contribution rate upon exit from the DROP program
and denial of return of contributions impair the rights of firefighters
with over 20 years of service.
The City then makes two arguments relating to the contractual rights of firefighters
with over 20 years of service that directly contradict its main arguments about the
Contracts Clause. First, although Board Bill 109 contains no provision explicitly
providing that firefighters with over 20 years of service are entitled to a return of their
contributions under FRP upon retirement, the City suggests that it is implied from the text
of Board Bill 109. ( See RB69) In order for this conclusion to be reasonably inferable, it
must be assumed that: (a) firefighters with over 20 years of service have contractual rights
which cannot be impaired; and (b) in enacting Board Bill 109, the City intended to
recognize and respect those contractual rights as non-modifiable.
Second, the City asks this Court to reform the section requiring firefighters to make
contributions to FRP at the rate of 9% after they exit the DROP program. (RB70) At the
same time, the City argues that the 9% contribution rate is perfectly enforceable even
against firefighters with 20 years of service, because the rights of any firefighters even
those who are vested under FRS can be impaired on a prospective basis. (RB69-70) If
the City truly believed that the right to continuing accruals can be impaired for vested FRS
members, then there would be no basis whatsoever for claiming that the 9% contribution
rate in Board Bill 109 is an obvious scriveners error. The Citys admission that it is a
scriveners error implicitly concedes that the rights of firefighters with over 20 years of
service cannot be modified, even on a prospective basis.
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The Citys request that the Court change 9% to 8% is also an unjustifiable
misapplication of the scriveners error doctrine. (RB70) Even the one source cited by the
City a law review article that focuses on the personal opinions of Justice Scalia, as
opposed to actual Missouri law argues that this proposed application of the scriveners
error doctrine would be wildly inappropriate. (RB70) David M. Sollors, The War on
Error: The Scrivener's Error Doctrine and Textual Criticism: Confronting Errors in
Statutes and Literary Texts , 49 S ANTA CLARA L. REV. 459, 488 (2009). ([I]nterpreting
the word 7 to mean 5 would certainly be unheard-of and beyond the limits of the
scrivener's error doctrine given by Scalia in the above quote).
3. The increased contribution rate, while eliminating the return of
contributions, and the actuarial reduction of benefits significantly
impairs the contractual rights of firefighters with less than twenty
years of service on the Effective Date, as does the actuarial reduction
of benefits based on age at retirement.
Despite the Citys attempts to minimize the impairment inflicted on firefighters
with less than 20 years of service (RB72), Board Bill 109 substantially impairs these
firefighters contractual rights in several ways. Board Bill 109 increases the contribution
rate from 8% to 9%, which by itself is an impairment, but it also makes these contributions
non-refundable. 4.19.030(B); 4.19.060(C) . In essence, it is requiring a 9% increase in
contributions to FRP as compared to FRS, which certainly is a significant impairment of
contract. (AB92-94) Another impairment is the application of an actuarial reduction
factor to any service after the Effective Date if the firefighter retires before age 55,
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regardless of years of service. 4.19.060(D) (A199) As set forth more fully in Appellants
Brief this would amount in a reduction of several hundred dollars per year in a firefighters
pension benefit for the rest of a firefighters life, and the actuarial reduction applied to the
DROP benefit coupled with the lack of return of contributions, would result in a lump sum
difference of $11,910 to $24,656 to Mr. Washington depending upon when he retired.
(AB111-112; Ex59)
The City would have the Court uphold Board Bill 109 itself, even if it is found to be
unconstitutional as applied to one or more firefighters, based solely upon a single
citation to a decision by a federal trial court in Pennsylvania. (RB72) However, these
impairments can be readily discerned from the legislative text itself without resorting to
any facts detailing the circumstances of any one named firefighter. Board Bill 109 is
unconstitutional on its face, and it should be stricken down in its entirety.
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C ONCLUSION
For all the reasons set forth in this brief and the initial Appellants Joint Brief, the
Trial Courts Judgment should be reversed, and this Court should enter such additional
orders as are necessary to effect the decision reversing the Trial Court.
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C ERTIFICATE OF C OMPLIANCE
By submitting this Brief, the undersigned counsel for Appellants hereby certifies thefollowing:
1. This brief conforms with Missouri Rule of Civil Procedure 55.03;
2. This brief conforms with this Courts Order of January 30, 2013 grantingAppellants 7,650 words for their brief;
3. The number of words used in this brief is 7,573.
/s/ Kara D. Helmuth
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C ERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing was sent, through theelectronic filing system to all attorneys of record this 21 st day of February, 2014, with acopy being sent via e-mail only to:
Honorable Chris Koster, Attorney Generalc/o Joan Gummels, Legislative DirectorMissouri Attorney General's OfficeConsumer Protection Division815 Olive Street, Suite 200St. Louis, MO 63101E-mail: [email protected]
/s/ Kara D. Helmuth
907765.docx