Wednesday, September 23, 2015

Obiter dictum and Disingenuousness

ob·i·ter dic·tum
ōbidər ˈdiktəm/
noun: obiter dictum; plural noun: obiter dicta
  1. a judge's incidental expression of opinion, not essential to the decision and not establishing precedent.
    • an incidental remark.
Judge Dierker's Obiter Dictum

In 2001, Judge Robert Dierker of Missouri's 22nd Circuit ruled invalid an ordinance requiring the City of St. Louis to contract only with entities that pay a living wage. Judge Dierker ruled that the City ordinance in question was void due to the City ordinance's vagueness and due to several technical (though fixable) defects. One Missouri statute that the ordinance did not contravene, according to Judge Dierker, was the Missouri statute (RSMO 67.1571) enacted in 1998 prohibiting local minimum wage increases more than the state minimum wage:
"To the extent that [the living wage ordinance] applies to contractors and direct recipients of City financial assistance, there surely is no conflict between the ordinance and the state minimum wage statute. [The City of St. Louis] indubitably has the authority to regulate the terms of its contracts."
Though Judge Dierker himself saw no conflict between Missouri's local minimum wage prohibition statute and the City's living wage ordinance, Dierker nevertheless decided to engage in a bit of obiter dictum regarding the Missouri statute. Dierker found that the statute was unconstitutional because it violated the Missouri Constitution's "single-subject" provisions (Article III, sections 21 & 23). The statute enacted in 1998 prohibiting local minimum wage increases was part of a bill in the Missouri Legislature that enacted several statutes providing for state "community improvement districts." In Dierker's opinion, this rendered the state minimum wage statute unconstitutional because locally-mandated minimum wages and state community improvement districts are not the same subject.

The plaintiffs in the case, a collection of business associations, appealed to the Missouri Supreme Court. The plaintiffs appealed on two very narrow questions: 1. whether the question of the constitutionality of the minimum wage statute had been properly raised, and 2. whether the state minimum wage statute itself did not violate the "single subject" rule and therefore was constitutional.

The City of St. Louis asked the Missouri Supreme Court to dismiss the appeal. The City's reasoning was that it did not matter to the case at hand whether the state minimum wage statute was unconstitutional; the City's living wage ordinance was voided by Dierker due to its vagueness and due to its technical defects:
"While recognizing that the St. Louis Living Wage Ordinance was enjoined, Appellant seeks to establish that Section 67.1571 is constitutional and bars future living wage ordinances that are not before this Court, and are not the subject of this litigation. [...]  Respondents moved to dismiss the appeal on the grounds that Appellant is not aggrieved by the circuit court’s decision and therefore lacks standing to appeal, and that this Court accordingly lacks jurisdiction over the appeal because no actual controversy is before it. That motion was taken with the case. We respectfully refer the Court to our briefs of that motion."
In 2002, the Missouri Supreme Court did just what the City asked it do and did it based on the City's reasoning:
"[The] ruling by the Missouri Supreme Court dismissed [the] appeal. Noting that the lower court had struck down the original ordinance, the Court concluded that it lacked jurisdiction in the case."
The Missouri Supreme Court, at the urging of the City of St. Louis, took as obiter dictum a 22nd Circuit Court judge's finding that the state minimum wage statute was unconstitutional. Dierker's finding as such was not essential to his decision in the living wage ordinance case and did not establish precedent.

The City Counselor of St. Louis' Minimum Wage Ordinance Case

Fast-forward 13 years to 2015. At the urging of the Mayor of the City of St. Louis, the City's Board of Aldermen has passed (and the Mayor has signed) a local minimum wage ordinance mandating a gradual increase of the minimum wage to $11 by 2018.

In June, while the City and its Board of Aldermen were hotly debating both the legality and the merits of raising the minimum wage, local media raised the subject of the Missouri statute prohibiting local minimum wage increases. St. Louis City Counselor Winston Calvert was quick to reply:
Now litigation has commenced over the City's minimum wage ordinance. In a memorandum to the court defending the City's minimum wage ordinance, Calvert cited Judge Dierker's obiter dictum as rendering unconstitutional Missouri's local minimum wage prohibition statute:
"There is no enforceable state statute that expressly preempts the ordinance. Plaintiffs incorrectly contend that § 67.1571, RSMo., preempts the ordinance. That statute provides that "[n]o municipality . . . shall establish, mandate or otherwise require a minimum wage that exceeds the state minimum wage.” § 67.1571, RSMo. On its face, this statute seems to preempt the City’s ordinance. However, § 67.1571 is unconstitutional. See Missouri Hotel and Motel Associationn v. City of St. Louis, Case No. 004-02638 (Mo. 22nd Jud. Cir. Ct. July 31, 2001)"

The City Counselor's case for the legality of the City of St. Louis' minimum wage ordinance rests upon a state circuit court judge's obiter dictum from 14 years ago. But how ever persuasive the circuit court judge's pronouncement on the constitutionality of the state statute, it is not precedent.

Furthermore, it is now too late to raise the issue of whether Missouri's local minimum wage prohibition statute, enacted in 1998, is unconstitutional for violating the "single-subject" rule:
"516.500. No action alleging a procedural defect in the enactment of a bill into law shall be commenced, had or maintained by any party later than the adjournment of the next full regular legislative session following the effective date of the bill as law, unless it can be shown that there was no party aggrieved who could have raised the claim within that time. In the latter circumstance, the complaining party must establish that he or she was the first person aggrieved or in the class of first persons aggrieved, and that the claim was raised not later than the adjournment of the next full regular legislative session following any person being aggrieved. In no event shall an action alleging a procedural defect in the enactment of a bill into law be allowed later than five years after the bill or the pertinent section of the bill which is challenged becomes effective." 
I find it difficult to believe that the Mayor and his City Counselor, both of whom are attorneys, were ignorant of the facts that Dierker's 2001 pronouncement is not precedent, and that it is too late to challenge Missouri's local minimum wage prohibition statute as unconstitutionally violative of the "single subject" rule. I find it much easier to believe that, like so many other things as of late, Room 200's "fight" for a local minimum wage is heavy on the show and light on the substance. A fancy word for that kind of thing could be disingenuous.

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