SUIT FILED CHALLENGING CONSTITUTIONALITY OF SENATE BILL 1 & 130

By Scott Wilson, The Hines Law Firm - Columbia

On November 30, 2005, several Missouri attorneys together with attorneys from the Center for Constitutional Litigation in Washington D.C. filed suit challenging the constitutionality of Senate Bill 1 and 130 passed in the 2005 legislative session and signed into law by Governor Blunt. The lawsuit, Missouri Alliance for Retired Americans, et al. v. Department of Labor and Industrial Relations, Division of Workers’ Compensation, was filed in the Circuit Court of Cole County on behalf of 72 Plaintiffs seeking Declaratory Judgment on nine counts. The Plaintiffs consist of local, regional, and statewide unions, and other groups whose members’ rights were effected by Senate Bill 1 and 130.

The 54-page Petition for Declaratory Judgment contains nine separate causes of action alleging violations of Missouri’s Constitution and the United States Constitution and requests that Senate Bill 1 be struck down, among other relief.

The lawsuit contends that “SB1 amended 30 different sections of Chapter 287 to limit the types of job-related injuries and deaths that would be compensable, reintroduce fault-related defenses available to employers, and place procedural hurdles in the path of workers with valid claims. Not a single provision benefiting injured workers or their families was added. SB1 breaches the social contract by unilaterally negating much of the quid pro quo given to employees in exchange for their common law rights. As a result, the Missouri Workers Compensation Act no longer serves as an adequate substitute for injured workers’ tort remedies.”

The Petition argues that “although the stated aim of SB1 was to attract and keep employers in Missouri, the enacted restrictions on workers’ compensation claims have no rational relationship to that end. Finally, specific provisions of SB1 violate rights Missourians have guaranteed for themselves in their state constitution and the Constitution of the United States.”

Count I: Due Process and Right to a Remedy Violations

Count I asserts that “SB1 violates the right of Missouri workers to due process guaranteed by Missouri Constitution, Art 1, §10, and the Fourteenth Amendment of the Constitution of the United States because the legislation so diminishes the rights of employees to a more certain, simpler, non-fault remedy that the Workers Compensation Act no longer serves as an adequate substitute for workers’ common law tort remedies.”

The Petition points out that the Missouri Supreme Court upheld the constitutionality of the Workers' Compensation Act when the statute afforded workers the choice to be covered by the Act or to pursue their constitutional right to a trial by jury in the tort system, holding that the Act was based on a valid waiver of due process rights. DeMay v. Liberty Foundry Co., 37 S.W.2d 640, 655 (1931). The DeMay court referenced that the work comp law was “wholly elective or voluntary” in upholding the law. However, the Missouri legislature eliminated that choice in 1974 by making the workers' compensation law the exclusive remedy for all injured workers falling under its scope.

The first cause of action contends that the 2005 amendments violate due process and so diminish the rights of employees that the workers' compensation law as a whole is no longer an adequate substitute for the remedies guaranteed by the Missouri and United States Constitutions, and should be struck down.

Count II: Unreasonable Barriers Violate Open Courts Guarantee

Count II asserts that Senate Bill 1 violates Art I, §14 of the Missouri Constitution which guarantees that “the courts of justice shall be open to every person, and certain remedy afforded for every injury.” The open courts guarantee has been held to include workers’ compensation claims, and the lawsuit contends that Senate Bill 1 imposes arbitrary and unreasonable barriers to employees seeking a remedy for a recognized injury.

Count III: Due Process Violated by Lack of a Rational Basis

Count III alleges that Senate Bill 1 violates the Due Process guarantee of Art 1, §10 of the Missouri Constitution and the Fourteenth Amendment of the federal Constitution because its provisions are arbitrary and lack a rational basis to their stated objective, and that legislation affecting economic rights must have a rational relationship to a legitimate legislative objective, but that Senate Bill 1 fails to meet its stated purpose.

Count IV: Discrimination and Equal Protection Violations

Count IV alleges violations of equal protection guaranteed by Art. I, §2 of the Missouri Constitution and the Fourteenth Amendment of the Constitution of the United States, including “numerous classifications and discriminations that have no rational basis.” The suit challenges the definition of “the prevailing factor” and the requirements of “objective symptoms of an injury” and that “objective medical findings shall prevail over subjective medical findings” in determining both compensability and disability. The suit alleges that Senate Bill 1 discriminates against older workers and makes other distinctions which lack any rational basis.

Count V: Americans with Disability Act Violations

Count V alleges the 2005 amendments conflict with the antidiscrimination provisions of Title II of the Americans With Disabilities Act. The suit alleges that because the new §287.020.3(4) excludes all injuries caused either directly or indirectly from idiopathic causes, certain injuries would otherwise be compensable, but are no longer because the injury was at least indirectly due to a disability. Under such scenarios, Senate Bill 1 is alleged to violate the ADA as it would render claims not compensable by reason of an employee’s prior disability.

Count VI: Excluded Workers Retain Right to Sue Employers in Tort

Count VI seeks a declaration of the legal rights of those employees whose claims will be denied based on the new amendments to pursue their claims in tort, given the exclusive remedy provisions of the workers' compensation act. The Petition specifically references the changes to Sections 287.020(2) and (3) which redefine “accident,” “injury,” and “arising out of and in the course of the employment” and §287.020(10) which abrogates all prior case law interpretations of “accident,” “occupational disease,” “arising out of,” and “in the course of the employment.” This cause of action requests declaratory judgment that any employees who are excluded from coverage by the workers' compensation act are entitled to pursue negligence tort actions against their employers, as they cannot be deprived of all remedy, citing Harryman v. L & N Pontiac, Inc., 431 S.W.2d 193 (Mo. banc 1968).

Count VII: Right to Counsel and Access to Court Violations

Count VII asserts violations of employees’ due process right to representation by counsel and right of access to courts by the new restrictions on attorneys’ fees on settlement offers contained in Section 287.390.5. This count alleges that the legislature may not impose unreasonable barriers to the exercise of the right to any attorney, and that unless reasonable attorneys’ fees are allowed in all cases, the new amendments would impede the ability of injured workers to retain counsel in some cases.

Count VIII: ALJ Review Committee Violates Separation of Power

Count VIII alleges that Senate Bill 1 violates separation of powers mandated by Art. II, §1 of the Missouri Constitution by invading the province of the judiciary. Sec. 287.610.2 creates an Administrative Law Judge Review Committee which is to perform “performance audits” of ALJ’s and give each ALJ a vote of “confidence” or “no confidence” and makes ALJ’s subject to retention votes by the Committee.

The suit contends that such control of ALJ’s violates Article V, §4, which grants to the Supreme Court “general superintending control over all courts and tribunals.” The Petition cites the Constitutional authority given the Judicial Commission on Retirement, Discipline and Removal, which is vested with jurisdiction over “all judges” and the Supreme Court’s ultimate responsibility to "remove, suspend, discipline or reprimand any judge of any court."

Count IX: Violation of Freedom from Unreasonable Searches

Count IX alleges that the drug and alcohol testing provisions of Senate Bill 1 violates Art. I, Sec. 15 of the Missouri Constitution and the Fourth Amendment of the Constitution of the United States which protect the people of Missouri against unreasonable searches.