Trying to best describe the legal status of local minimum wage increases is like wrapping your arms around an eel.
That’s because discussions around St. Louis and Kansas City minimum wage hikes have proceeded under the cloud of a now-vetoed bill, known as HB 722, that would have banned local minimum wage increases. And legal arguments around local wage hikes get decidedly slippery depending on whether that bill goes into effect or dies on the vine.
But tortured sea creature metaphors aside, proponents of local minimum wage hikes have put forth an intriguing argument to defend their potential action: They say the legislature wouldn’t have passed a bill barring localities from raising minimum wages if towns and cities didn’t already have such authority.
“House Bill 722 specifically contemplates that local minimum wage ordinances may continue to exist, so long as the ordinances are in effect on August 28, 2015,” wrote St. Louis counselor Winston Calvert in a memo defending the legality of a proposed minimum wage increase. “This recognition of existing ordinances setting higher minimum wages than the state law amounts to an acknowledgement that regulation of wages is not uniform throughout the state, thus undermining any suggestion that the attached ordinance would conflict with state law.”
(For what it’s worth: Detractors of the city’s potential minimum wage hike have pointed to a 1998 law that bans local minimum wage increases – which Associated Press reporter Summer Ballentine deftly noted is ensnared in legal uncertainty.)
Notwithstanding that uncertain statutory hurdle, Calvert said last month that the argument in his memo would stand even if Nixon vetoed HB 722 (which he did) and the legislature declined to override it (which may or may not happen). He reiterated that contention during a late June Board of Aldermen committee hearing.
“An acknowledgement of reality doesn’t change reality. It just acknowledges reality,” Calvert said. “And in HB 722, it acknowledged that municipalities have that authority.”
This line of thinking seems to have caught on with some skeptics of local minimum wage hikes.
Before HB 722 passed, Kansas City’s city attorney, William Geary, typed up a memorandum contending the city did not have the authority to raise its minimum wage. He ended by stating “to take an action that is, at least in my opinion, preempted by the state already can only generate fuel for the fire of stripping local governments of their ability to address local issues.”
But Calvert sent St. Louis Public Radio a May 6 email from Geary that stated, among other things, that passage of HB 722 presented “a strong argument” that “the General Assembly accepts the ability of cities to enact local minimum wage ordinances right now. This is surely not what the General Assembly meant to do, but it may be what it ends up doing.”
Geary declined to comment last month about his legal memo. In his place, Kansas City spokesman Chris Hernandez said: “If anything is ever brought forth to the council, obviously it gets a legal review. And obviously our law department would defend anything that was passed by our city council.”
He who does not feel me is not real to me
But Calvert’s argument is getting some strong pushback – including from a former Missouri Supreme Court judge who occasionally dealt with “legislative intent” controversies.
St. Louis University Law School Dean Michael Wolff said last month he has “not seen a situation where an argument was based upon a ‘legislative’ recognition embodied in a bill that was passed but that did not become law.” He went onto say “it is hard to ascribe any meaning to contents of a bill that does not become law.
“The question you’re really asking is can you infer some intent on the part of the legislature having passed a bill that’s been vetoed? No,” Wolff said. “Actually, I think the most proper interpretation of statute is to try to discern what the legislative purpose – not its intent. I mean, who the heck knows what they intended? They might have intended to vote for it because their friend Joe told them to.”
A less impartial observer – Sen. Kurt Schaefer, R-Columbia – had similar sentiments about the issue.
“You can’t make an argument that somehow ‘the legislature tried to pass a statute that didn’t go through – so that means something,’” said Schaefer, who has been one of the more vocal legislative critics of St. Louis and Kansas City’s minimum wage pushes. “That’s not a legitimate argument. It’s just not. It’s not recognized in Missouri law. It doesn’t pull any weight whatsoever.”
It should be noted that there was one recent example of legislators trying to ban something that may not have been legal in the first place.
Back in 2013, state lawmakers were considering nullifying foreclosure mediation ordinances in St. Louis and St. Louis County. Proponents of the bill clearly didn’t feel the ordinances were ever legal – since they were trying to strike them down in court. But they pushed for state legislation as something of a safety valve.
“This will probably go on to the Supreme Court, and we just don’t know how long that’s going to be,” said Missouri Bankers Association’s William Ratliff back in 2013. “And we thought, ‘Whether we win or lose on the county level, this could keep going if we don’t stop this thing.’”
In the end, the Missouri Supreme Court found the county foreclosure mediation ordinance to be unconstitutional – a ruling that may trip up any hypothetical local minimum wage hike. Of course, before the issue of a minimum wage increase even gets to the legal arena, the Board of Aldermen still needs to pass a bill – which isn’t exactly a sure thing right now.
Legal elephant in the room
Nanci Gonder, a spokeswoman for Attorney General Chris Koster, told St. Louis Public Radio that she couldn't find any opinions within her office about whether a vetoed bill can have legal relevance and added "nor can we remember a case that involved this question." So it's likely the judicial branch will likely have the final say over a hypothetical minimum wage hike’s legality.
That’s because opponents of the move are widely expected to sue if the city acts – an assumption that was plainly laid out in a letter to St. Louis Mayor Francis Slay from a number of hotel, restaurant and grocery store organizations.
“The undersigned organizations wish to express our view that the City of St. Louis lacks the legal authority to establish any minimum wage for private sector employers,” the letter states. “State law clearly occupies this field and sets the minimum wage for private employers on a statewide basis. Any adjustment to that wage must be through amendment of state statute.”
For his part, Calvert appears to be ready to vigorously defend the city’s ordinance. When this writer noted on Twitter that a lawsuit was likely regardless of what happened with HB 722, Calvert replied: “Bring it on.”
On the Trail, a weekly column, weaves together some of the intriguing threads from the world of Missouri politics.