Opinion
No. ED88894
October 9, 2007
Appeal from the Circuit Court of the City of St. Louis Hon. Julian L. Bush.
James J. Wilson, Elkin L. Kistner, Clayton, MO, Attorneys for appellant.
John M. Hessel, MO, Attorneys for respondent.
The St. Louis Police Officers' Association, Gary Phelps, and William Gooden (collectively "Association") appeal from the judgment of the trial court denying their petition for an injunction to prevent the Board of Police Commissioners of the City of St. Louis ("Police Board") from reducing the free health insurance benefits of retired police officers that is mandated by statute. Finding no error, we affirm.
Prior to 2001, the Police Board had provided health insurance coverage to police retirees at no cost to the retirees. In Fiscal Year 2001-2002, the Police Board tried to require retirees to pay a portion of the premiums for their health insurance coverage. The Association and several of its members filed a petition that sought to enjoin the Police Board from so doing. The trial court in that case issued an interlocutory judgment on April 30, 2002 in favor of the Association and the named plaintiffs. The trial court determined that:
The individual members of the Police Board have changed between 2001 and 2007, but given that the members are not being sued in their capacity as individuals, the change in Police Board membership is not relevant to this litigation.
. . . The Board is free to craft a basic health insurance plan for all retirees. Such a basic health insurance plan may incorporate a less than superlative plan with an array of cost-saving attributes for the Board. For a more comprehensive plan, a monthly charge to retirees could be required.
But, at a minimum, some basic health insurance must be furnished for these retirees. . . .
The Retiree Insurance Coverage Statute requires that the Police Board "provide health . . . insurance coverage" for the Plaintiffs. The statutory mandate compels the Police Board to make sure that the Plaintiffs receive — not merely have "access to" — at least some basic health insurance policy.
(Citations omitted). Thereafter on March 3, 2005, the Police Board and the class members of retirees entered into a consent decree that ended this initial litigation without admitting liability on the part of the Police Board.
Several individuals who were class members were specifically excluded from the consent decree.
Pursuant to Section 84.160.8(3) RSMo Cum. Supp. 2006, the Police Board "shall provide health, medical, and life insurance coverage for retired officers and employees of the police department." In Fiscal Year 2006, the Police Board altered the health insurance plans offered to police retirees. Two plans were presented: a basic plan ("Basic Plan"), which was provided at no premium cost to police retirees, and a premium plan ("Buy Up Plan"), which was offered for $251 per month. The free Basic Plan marked a significant change from the previous free health insurance plans offered to police retirees. Annual deductibles and the coinsurance maximum increased significantly, while the coinsurance coverage percentage decreased noticeably. Co-payments for office and hospital visits increased as well. The Buy-Up Plan offers police retirees the same comprehensive coverage that active police officers receive, which provides comprehensive medical coverage at a moderate cost, but is not free.
Section 84.160 RSMo has been amended several times since 2001, which resulted in a renumbering of some sections and some change in the language of the statute. The critical language at issue, however, has not changed since 2000. All further statutory citations, unless noted otherwise, are to RSMo. Cum. Supp. 2006.
Thereafter, the Association filed a petition seeking injunctive relief, naming the Police Board as defendants. The Association sought to enjoin the Police Board from implementing the new health insurance plan, alleging that the statutory mandate that the Police Board "shall provide" health insurance to police retirees requires "a commercially reasonable free health insurance plan." The Association also alleged that implementation of the Police Board's new free insurance plan would unreasonably, arbitrarily, and capriciously deprive police retirees of a vested property right without due process of law in violation of the U.S. Constitution and the Missouri Constitution, and their civil rights protected under 42 U.S.C. section 1983. The Association also requested that the Police Board pay its attorney's fees.
After adducing evidence, the trial court granted a preliminary injunction in favor of the Association. Thereafter, a bench trial took place in July 2006 at which a number of persons testified, including experts on health insurance. On August 4, 2006, the trial court entered judgment denying the Association's request for a permanent injunction, and denying the request for attorney's fees and court costs. The Association now appeals from this judgment.
In its first point relied on, the Association contends that the trial court erred in finding that the Basic Plan met the statutory mandate of section 84.160.8(3) to "provide . . . health insurance" to the police retirees because the Basic Plan provides "such a uniquely meager benefits package" that it does not satisfy the plain purpose of the statute. The Association contends that the trial court accordingly committed reversible error in denying its request for a permanent injunction.
An action for an injunction is an equitable action. Supermarket Merchandising Supply, Inc. v. Marschuetz, 196 S.W.3d 581, 585 (Mo.App. 2006). The trial court's judgment in an equitable suit will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Conseco Finance Servicing Corp. v. Missouri Dept. of Revenue, 98 S.W.3d 540, 542 (Mo. banc 2003).
Injunctive relief is a harsh remedy, one which is to be used sparingly and only then in clear cases. Marschuetz, 196 S.W.3d at 585. An absolute prerequisite for gaining injunctive relief is the wrongful and injurious invasion of a legal right belonging to the plaintiff. Id. A party seeking an injunction has the burden of proving that it is entitled to that relief. Id.
The Association essentially contends that the trial court erred in its construction of section 84.160.8(3). Statutory construction is a matter of law. City of St. Joseph v. Village of Country Club, 163 S.W.3d 905, 907 (Mo. banc 2005). We review questions of law de novo. Otte v. Missouri State Treasurer, 141 S.W.3d 74, 76 (Mo.App. 2004). The primary role of statutory construction is to determine the intent of the legislature by considering the plain and ordinary meaning of the words used in the statute. State ex rel. Womack v. Rolf, 173 S.W.3d 634, 638 (Mo. banc 2005). "[E]ach word, clause, sentence and section of a statute should be given meaning." Id. (quoting Hadlock v. Director of Revenue, 860 S.W.2d 335, 337 (Mo. banc 1995)). Courts will reject a statutory interpretation that requires ignoring the very words of the statute. Id. Courts avoid interpreting statutes to include qualifying language "where `[s]uch an interpretation impermissibly adds language to the statute.'" BHA Group Holding, Inc. v. Pendergast, 173 S.W.3d 373, 379 (Mo.App. 2005) (quoting Kincade v. Treasurer of State of Missouri, 92 S.W.3d 310, 312 (Mo.App. 2002)). This Court is not permitted to "`engraft upon the statute provisions which do not appear in explicit words or by implication from the words in the statute.'"State Department of Social Services, Division of Medical Services v. Brundage, 85 S.W.3d 43, 49 (Mo.App. 2002) (quoting Wilson v. McNeal, 575 S.W.2d 802, 810 (Mo.App. 1978)).
Section 84.160.8(3) states that the Police Board "[s]hall provide health, medical, and life insurance coverage for retired officers and employees of the police department." Generally the use of the word "shall" connotes a mandatory duty. Bauer v. Transitional School District of City of St. Louis, 111 S.W.3d 405, 408 (Mo. banc 2003). Where the legislature fails to include a penalty for failure to do that which "shall" be done, courts have said that "shall" is directory, not mandatory. Id. However, the absence or presence of a penalty provision is only one method for determining if a statute is directory or mandatory. Id. "Indeed, `[t]he absence of a penalty provision does not automatically override other considerations.'" Id. (quotingSouthwestern Bell Telephone Co. v. Mahn, 766 S.W.2d 443, 446 (Mo. banc 1989)). Whether the use of the word "shall" in a statute is mandatory or directory is primarily a function of context and legislative intent.Id.
We agree with the trial court's finding that "shall provide" in the statute means that the Police Board is obligated to provide police retirees with some form of health insurance without requiring that the retirees pay a premium. The statutes cited by the Police Board for the proposition that section 84.160.8(3) should be interpreted to permit it to meet the legislative mandate by simply offering access to a plan, even if reasonably priced, are distinguishable from the statutory language at issue here. Section 84.160.8(3) is silent as to precisely what satisfies this legislative mandate. The Association effectively contends that the Basic Plan is an illusory plan. The evidence presented at trial reflects that the Basic Plan is not the most generous of health care plans in terms of its deductibles, co-pays, and prescription drug benefits. This does not, however, make the health care insurance that it provides an illusory plan. The evidence presented at trial is that the Basic Plan offers comprehensive medical coverage, and as part of the Anthem Blue Cross Blue Shield network, gives its members a choice of over ninety percent of the health care providers in the St. Louis area, and offers prescription drug benefits. The coverage provided by the Basic Plan is not illusory. The Association argues that the Police Board is trying to reduce its budgetary expenditures at the expense of retirees, and to an extent this is correct. However, the record also reflects that under the Basic Plan, the Police Board pays approximately as much to provide "free" health insurance coverage for each retiree as it does for each active duty police officer. In this regard, the police retirees are not being treated worse than active duty police officers. This is not such a clear case that demands injunctive relief, and the Association has not met its burden of showing that it is entitled to this harsh remedy. Point denied.
In its second point relied on, the Association argues that the trial court erred in finding that the Police Board's actions in reducing the benefits of the health insurance offered at no premium to police retirees did not violate the police retirees' substantive due process rights. The Association avers that the actions of the Police Board in reducing the benefits offered at no premium to the police retirees is "truly irrational" state action in violation of section 84.160.8(3).
The Missouri Supreme Court recently has addressed the issue of substantive due process claims regarding allegations of the deprivation of a property right in Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157 (Mo. banc 2006), a case cited by both parties in this appeal. In that case, the Missouri Supreme Court held that two elements must be established in order for a plaintiff to prevail in an action under 42 U.S.C. section 1983. Id. at 170. The claimant must first establish that there is a protected property interest to which the due process protection of the Fourteenth Amendment applies. Id. Then the claimant must additionally establish that the governmental action was "truly irrational," which requires something more than arbitrary or capricious action, or even action in violation of state law.Id. Given the construction of section 84.160.8(3) as discussed above, the Association has not been deprived of a constitutionally protected property interest, as the Basic Plan meets the requirements of the statute. Assuming arguendo that there was a protected property interest of which the Association was deprived, the evidence adduced at trial did not establish that it was "truly irrational." The decision of the Police Board to cut the free benefits to police retirees, admittedly a cost-cutting measure directed against a group that is arguably more vulnerable to such actions, might be considered harsh. The failure to request bids for alternative plans that might have less of an impact on the health insurance benefits provided at no premium to the police retirees might be regarded as lacking a depth of planning. This does not, however, make the decision "truly irrational." Point denied.
The judgment of the trial court is affirmed.
Roy L. Richter, P.J., concurs.
Glenn A. Norton, J., concurs.
OPINION SUMMARY
The St. Louis Police Officers' Association, Gary Phelps, and William Gooden (collectively "Association") appeal from the judgment of the trial court denying their petition for an injunction to prevent the Board of Police Commissioners of the City of St. Louis ("Police Board") from reducing the free health insurance benefits of retired police officers that is mandated by statute.
AFFIRMED.
DIVISION THREE HOLDS:
1. The trial court did not err in finding that the basic plan of health insurance ("Basic Plan") provided by the Police Board to retired police officers for no premium met the statutory mandate of section 84.160.8(3) RSMo Cum. Supp. 2007 that it "shall provide health, medical, and life insurance to retired officers. . . ."
2. The reduction in health insurance benefits in the Basic Plan offered by the Police Board to retired officers from the previous health insurance plan with no premium did not deprive the retired officers of a protected property interest, and was not a "truly irrational" governmental action.