Kinder v. Holden

Overview

A group of plaintiffs consisting of Missouri state legislators, organizations, and individual state employees sought a judicial declaration that an executive order issued by Governor Holden violated laws of Missouri and the United States.

At the core of this declaratory judgment action is whether a Missouri Governor’s executive order dealing with binding arbitration in labor negotiations between state employees and executive agencies and departments, as to wages, hours, and working conditions, usurps what is a strictly legislative function and may, therefore, be declared invalid. While emotions and opinions in this area of public sector labor law readily appear, Missouri case precedent evaluating the extent of a Governor’s power to issue executive orders is scarce and almost non-existent with regard to the issue of labor negotiation between the executive department and its employees.

To better understand the issue at bar, a brief summary of Missouri public sector labor law is in order. In 1965, the Missouri General Assembly enacted the Public Sector Labor Law, § 105.500 RSMo 1 et seq., which provides that public employees, excluding certain professions, have “the right to form and join labor organizations and to present proposals to any public body relative to salaries and other conditions of employment through the representative of their own choosing.” § 105.510. Whenever a proposal is presented by a bargaining representative to a public body, the public body or its representative is required to “meet, confer, and discuss such proposals relative to salaries and other conditions of employment.” § 105.520. Upon the completion of such discussions, the results must be reduced to writing and presented to the appropriate body for adoption, modification, or rejection. § 105.520. This statutory scheme has been described as a “meet, confer, and discuss law,” and has been upheld by our Supreme Court. See Sumpter v. Moberly, 645 S.W.2d 359 (Mo. banc 1982); Curators, Univ. of Mo. v. Pub. Serv. Employees Local No. 45, Columbia, 520 S.W.2d 54 (Mo. banc 1975); State ex rel. Missey v. City of Cabool, 441 S.W.2d 35 (Mo.1969).

The seminal case in this area is City of Springfield v. Clouse, 356 Mo. 1239, 206 S.W.2d 539 (1947). The Court in Clouse acknowledged that, while the United States and Missouri Constitution gave public employees the right to organize and to speak freely to public officers or the legislature, those constitutional rights did not extend to collective bargaining as to qualifications, tenure, compensation, and working conditions, because those matters *798 were strictly legislative and could not be delegated or contracted away by administrative or executive officers. Id. at 542-46. The Court in Clouse stated, in sweeping language:

[T]he whole matter of qualifications, tenure, compensation and working conditions for any public service, involves the exercise of legislative powers. Except to the extent that all the people have themselves settled any of these matters by writing them into the Constitution, they must be determined by their chosen representatives who constitute the legislative body. It is a familiar principal of constitutional law that the legislature cannot delegate its legislative powers and any attempted delegation thereof is void. If such powers cannot be delegated, they surely cannot be bargained or contracted away; and certainly not by any administrative or executive officers who cannot have any legislative powers. Although executive and administrative officers may be vested with a certain amount of discretion and may be authorized to act or make regulations in accordance with certain fixed standards, nevertheless the matter of making such standards involves the exercise of legislative powers. Thus qualifications, tenure, compensation and working conditions of public officers and employees are wholly matters of lawmaking and cannot be the subject of bargaining or contract. Such bargaining could only be usurpation of legislative powers by executive officers; and, of course, no legislature could bind itself or its successor to make or continue any legislative act. (citations omitted).

Id. at 545.

I. Procedural and Factual History

A. The Executive Order

On June 29, 2001, the defendant, Governor Robert Holden, issued Executive Order 01-09 (“Order”). Paraphrased, and set out in pertinent part below, the Order established a mechanism for negotiation between state agencies and the employees of those agencies.

Paragraph one of the Order requires executive branch departments and agencies, which are directly under the control of the Governor, to meet and confer in good faith with the certified bargaining representatives of the public employees to resolve disputes and to reach a written memorandum of understanding as to agreed upon items.

Paragraph two states that if unresolved issues remain after sixty days, then “impasse negotiation” procedures are instituted which include: (1) assistance by an impartial person or representative from the Federal Mediation and Conciliation Service who will render “non-binding advice”; and, if that is not successful, then (2) submission of those unresolved issues to an arbitrator to conduct hearings and render “a final and determinative recommendation.” Paragraph three lists factors the arbitrator should consider in making a recommendation.

Paragraph four states that all memoran-da of agreement must contain a grievance procedure and must provide for binding arbitration of issues arising under the agreement “that may be legally binding under the Missouri Constitution and laws.... ” This paragraph also contains language that no arbitration award under this section shall require any additional appropriation of funds.

Paragraph five provides that, where the state and the employees have reached a negotiated agreement, “any provision of the agreement which requires an additional appropriation of funds or which is found *799 to be in conflict with the Missouri Constitution or laws shall take effect only on required approval of the appropriation of such funds or required legislative or Constitutional enactment.” Paragraph five also states that if a recommendation of an arbitrator made pursuant to the second paragraph: (1) requires legislative approval; (2) requires an appropriation; (3) is “contrary to law”; or (4) requires action by the executive or legislative branch, then the recommendation “shall be of no force and effect until such action is taken.”

Paragraph six provides that state agencies “may” include in memoranda provisions requiring employees to remit dues and service fees to the certified bargaining representative.

Finally, paragraphs seven through nine state that failure of the General Assembly to approve any portion of a memorandum agreed to by the state agency will not constitute bad faith negotiation. The Order also has a severability clause so that if any portion of the Order is invalidated by the courts or the General Assembly, the rest of the order is to remain in force. (Executive Order 01-09 is set forth in its entirety as an appendix).

B. Plaintiffs and their Petition

On September 24, 2001, plaintiffs filed a four-count petition seeking a declaratory judgment that the Order violated various Missouri statutes and provisions of the Missouri and United States Constitutions.

Plaintiffs consist of: (1) two Missouri state legislators; (2) several organizations; and (3) individual executive department employees. The two Missouri state legislators are: Peter Kinder, President Pro-Tem of the Missouri Senate; and Charles Quincy Troupe, a member of the Missouri House of Representatives. Kinder and Troupe brought suit in their capacity as legislators and as Missouri taxpayers.

The organizational plaintiffs are: (1) The Coalition to Repeal Executive Order 01-09, an incorporated coalition of various associations and individuals, including all of the other plaintiffs; (2) The Missouri Chamber of Commerce, a state-wide business organization that represents approximately 3,000 employers and almost 200 local chambers in dealings with the Missouri General Assembly and other governmental entities; (3) The Missouri Municipal League, a not-for-profit corporation that is a wholly-owned instrumentality of 618 Missouri municipal governments; (4) The Associated Industries of Missouri, a corporation representing businesses that operate in Missouri and/or sell to Missouri customers; and (5) The Heartland of America Chapter of Associated Builders and Contractors, Inc., a not-for-profit corporation representing independent construction contractors that operate in Missouri. Each of these organizations also brought suit as a taxpayer itself and as a representative of individual taxpayers that comprise the organization.

The five individual plaintiffs are state employees. Gary Gross is an employee of the Missouri Department of Corrections; Lori Etter and Laura Powell are employees of the Department of Revenue; Earl Buck is an employee of the Department of Natural Resources; and Mary Hoffmeyer is an employee of the Division of Employment Security (which is a division within the Department of Labor and Industrial Relations). The individual plaintiffs brought suit as taxpayers and as state employees since they would be subject to the Order in that they work for departments or agencies under the direct control of the Governor. Finally, Paula Shields brought suit as an individual taxpayer and as president of the Missouri State Teachers Association.

*800 The plaintiffs’ amended four-count petition sought a declaratory judgment under § 527.010 and Rule 87.10. The counts alleged that the Order: (1) is invalid due to its lack of constitutional authority; (2) is invalid because provisions of the Order conflict with statutory and constitutional provisions; (3) threatens a taking of property in violation of the Civil Rights Act, 42 U.S.C. § 1983; 2 and (4) threatens to deprive the plaintiffs of open access to courts in violation of 42 U.S.C. § 1983.

The Governor filed a motion to dismiss the plaintiffs’ petition for failure to state a claim arguing that plaintiffs lacked standing, that the claims were not ripe for judicial review, and that the claims involve non-justiciable political questions. 3 On December 17, 2001, the trial court granted the Governor’s motion to dismiss, holding that: (1) as to Counts I and II, the plaintiffs lack standing to bring their claims; (2) even if plaintiffs had standing, the court would still dismiss Counts I and II because the executive order is within the Governor’s discretion and authority and, therefore, is not actionable; and (3) as to Counts III and IV (§ 1983 claims), plaintiffs’ claims are not ripe. The order dismissed all the claims with prejudice.

On January 14, 2002, plaintiffs filed a motion to amend the order/judgment and to reinstate their petition and for leave to file a first amended petition. The plaintiffs argued that a number of events had transpired since their original petition had been filed that would bolster their case with regard to standing and ripeness. On February 7, 2002, the trial court denied plaintiffs’ motion; however, the dismissal was changed from “with prejudice” to “without prejudice.”

II. Jurisdiction

A. Initial Jurisdiction

It is incumbent on this court to determine its jurisdiction sua sponte before reaching the merits of this appeal. Article V, section 3, of the Missouri Constitution grants exclusive appellate jurisdiction of all cases involving the validity of a statute or of a provision of the constitution of the state in the Supreme Court of Missouri, while reserving to the Court of Appeals general jurisdiction in all cases not within the supreme court’s exclusive jurisdiction. Since plaintiffs’ first two points raise the issue of the constitutionality in whole or in part of an executive order, it must first be determined if these issues fall within the exclusive jurisdiction of the Supreme Court.

This court finds that jurisdiction initially lies here because the Missouri Constitution has not specifically directed cases regarding the determination of the constitutionality of executive orders to go directly to the Supreme Court of Missouri. In Alumax Foils Inc. v. City of St. Louis, 939 S.W.2d 907 (Mo. banc 1997), the Supreme Court examined jurisdiction in a case involving whether a municipal ordinance calling for licensing fees for utility service constituted a state revenue law and, therefore, fell within the ambit of their exclusive jurisdiction under article V, section 3, of the Missouri Constitution. Apropos to the appeal of the constitutionality of an executive order, the court stated the constitutional pro *801 vision, “is limited to claims the state law directly violates the constitution — either facially or as applied. Claims that municipal ordinances are constitutionally invalid are not within the exclusive jurisdiction of this Court.” Id. at 912. The same rationale was applied in reaching a jurisdictional determination in a case dealing with the election of a county recorder of deeds. In State v. Olvera, 969 S.W.2d 715, 716 (Mo. banc 1998), the court stated that appellate jurisdiction under article V, section 8, mandates Supreme Court jurisdiction in cases where “title to any state office” is at stake, but does not apply to a county recorder’s office. The court in Olvera subsequently transferred the case to this court. See also State ex rel. McCulloch v. Hoskins, 978 S.W.2d 779, 780 (Mo.App.1998) (duties of mayor were not co-extensive with boundaries of state and, therefore, the appeal did not involve title to state office). The next jurisdictional issue that must be addressed is whether the judgment is final and appealable.

B. Judgment is Final and Appealable

Generally, a dismissal of a petition without prejudice is not a final judgment and therefore is not appealable. Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo.App.2000). “An exception to this general rule is that an appeal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast by the plaintiff.” Masonic Temple Ass’n of St. Louis v. Soc’y for Pres. of Masonic Temple, 70 S.W.3d 24, 26 (Mo. App.2002). “If the dismissal was such that re-filing of the petition at that time would have been a futile act, then the order of dismissal is appealable.” Id.

Some cases in which petitions are dismissed without prejudice for failure to state a claim are found to be final and appealable. This is usually because the dismissal had the practical effect of terminating the action. Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 4 (Mo. banc 1997)(re-offering the same rejected claims to support plaintiffs claim that business was transacted in Missouri as support for a new contention that a contract was formed in Missouri in regard to personal jurisdiction would be an exercise in futility); Osuji v. Mo. Dep’t of Soc. Services, Div. of Family Services, 34 S.W.3d 251, 253 (Mo.App.2000)(petitioner seeking removal and destruction of social service records was entitled to appeal dismissal of petition without prejudice, where court’s dismissal signaled end of petitioner’s action and futility of refiling, and dismissal had practical effect of terminating litigation and foreclosing petitioner from immediate relief).

In Masonic Temple Ass’n of St. Louis, 70 S.W.3d 24, as here, the dismissal without prejudice was based on a lack of standing. The Masonic Temple Association of St. Louis (“Temple”) was the legal titleholder of a temple building’ The Temple alleged in its petition that the Society for Preservation of Masonic Temple (“Society”) had breached its duty to support and maintain the temple building, committed fraud, and had breached a lease contract. The petition was also filed against the Attorney General because the Temple alleged that a public interest was involved.

After the Temple was allowed to file a second amended petition, the Society and the Attorney General filed motions to dismiss for lack of standing and for failure to state a cause of action based on lack of standing. The trial court granted the motions and dismissed the Temple’s second amended petition. It did not indicate whether the dismissal was with or without prejudice. Under Rule 67.03, unspecified dismissals are treated as without preju *802 dice. The Temple appealed from the trial court’s dismissal of its petition.

The court in Masonic Temple used a two-step analysis to determine whether the judgment was final and appealable. First, it looked at whether the dismissal had the practical effect of prohibiting the plaintiffs from filing another action. Id. at 26. Although the court acknowledged that a dismissal without prejudice based on lack of standing has been held to have the practical effect of prohibiting the plaintiffs from filing another action, it did not find the case to be one of those situations. Second, the court in Masonic Temple determined if the Temple could properly state claims upon which relief may be granted in another petition. Id. at 27.

Here, the petition was dismissed by the trial court because: (1) plaintiffs lacked standing as to Counts I and II; and, even if they had standing, the Executive Order was within the Governor’s discretion and not actionable; and (2) plaintiffs claims as to Counts III and IV were not ripe. The dismissal here had the practical effect of terminating the litigation. Although the plaintiffs sought leave to amend their petition, the amendment would have only “asserted] new violations of law unknown at the time of the original pleading and additional facts supporting the ripeness of plaintiffs’ claims and their standing to assert those claims.” Plaintiffs would not have asserted any new facts on the substantive issue of the Governor’s discretion and authority to issue the Order. As such, the trial court’s finding that “the Executive Order is within the Governor’s discretion and authority” had the effect of terminating the litigation regardless of the outcome of the standing and ripeness issues. Thus, this court finds that the trial court’s judgment is final and appealable.

III. Analysis

A.Standard of Review

When reviewing an appeal from the grant of a motion to dismiss, this court looks to determine if the facts, as pleaded, and the reasonable inferences drawn from the facts, state any grounds for relief. Arnold v. Am. Family Mut. Ins. Co., 987 S.W.2d 537, 539 (Mo.App.1999).

B.Points On Appeal

Plaintiffs assert four points on appeal: (1) the trial court erred in dismissing Counts I and II of plaintiffs’ petition for failure to state a claim because the Order is subject to judicial review in that it was not within the Governor’s discretion and authority to issue; (2) the trial court erred in dismissing Counts I and II of plaintiffs petition because the plaintiffs did not lack standing to pursue these claims in that plaintiffs have a personal interest in this dispute in their capacities as taxpayers, employees, legislators, and representatives; (3) the trial court erred in dismissing Counts III and IV of plaintiffs’ petition because the claims are ripe for judicial review in that the individual plaintiffs have been threatened with the deprivation of their civil rights; and (4) the trial court erred in denying plaintiffs’ request for leave to amend their petition because leave should have been granted freely under Rules 55.33 and 67.06 in that new facts have occurred since plaintiffs filed their petition. Because a party who lacks standing may not seek a declaratory judgment action, the standing issues in this case must be addressed first. State ex rel. Nixon v. American Tobacco Co., 34 S.W.3d 122,132 (Mo. banc 2000).

C.Standing

“Reduced to its essence, standing roughly means that the parties seeking relief must have some personal interest at *803 stake in the dispute, even if that interest is attenuated, slight or remote.” Ste. Genevieve Sch. Dist. R-II v. Bd. of Alderman, 66 S.W.3d 6, 11 (Mo. banc 2002)(citing Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)). Standing is related to the doctrine which prohibits issuance by courts of advisory opinions. State ex rel. Williams v. Marsh, 626 S.W.2d 223, 227 (Mo. banc 1982). Appellate review of whether a litigant has standing is de novo. Home Builders Ass’n of Greater St. Louis, Inc. v. City of Wildwood, 32 S.W.3d 612, 614 (Mo.App.2000). This court determines standing as a matter of law on the basis of the petition, “along with any other non-contested facts accepted as true by the parties at the time the motion to dismiss was argued.” Id.

“In the context of an action for declaratory judgment, Missouri courts require that the plaintiff have a legally pro-tectable interest at stake in the outcome of the litigation.” Ste. Genevieve Sch. Dist., 66 S.W.3d at 10 (citing Battlefield Fire Prot. Dist. v. City of Springfield, 941 S.W.2d 491, 492 (Mo. banc 1997)). “A legally protectable interest exists if the plaintiff is directly and adversely affected by the action in question or if the plaintiffs interest is conferred by statute.” Id.

1. Taxpayer Standing

“[I]n order to have standing, a taxpayer must demonstrate either: (1) a direct expenditure of funds generated through taxation, (2) an increased levy in taxes, or (3) a pecuniary loss attributable to the challenged transaction of a municipality.” American Tobacco Co., 34 S.W.3d at 132 (citing E. Mo. Laborer’s Dist. Council v. St. Louis County, 781 S.W.2d 43, 47 (Mo. banc 1989)). A taxpayer “need only show ‘that [his] taxes went or will go to public funds that have or will be expended due to the challenged action.’ ” Nat’l Solid Waste Mgmt. Ass’n. v. Dir. of Dep’t of Natural Res., 964 S.W.2d 818, 819 (Mo. banc 1998) (emphasis added). As stated in Eastern Missouri Laborer’s, 781 S.W.2d at 46-47:

The primary basis for taxpayer suits arises from the need to ensure that government officials conform to the law. It rests upon the indispensable need to keep public corporations, their officers, agents and servants strictly within the limits of their obligations and faithful to the service of the citizens and taxpayers.... Public policy demand a system of checks and balances whereby taxpayers can hold public officials accountable for their acts.

The private injury that invests standing to a taxpayer is not a purely personal grievance in which other taxpayers have no interest, rather it is an injury shared by the public. Querry v. State Highway & Transp. Comm’n, 60 S.W.3d 630, 635 (Mo.App.2001).

In order for plaintiffs to have taxpayer standing in this case they must show that a direct expenditure of funds generated through taxation “went or will go to public funds that have or will be expended due to the challenged action.” 4

The plaintiffs allege in their petition that the Governor and the State are presently expending state funds to implement the Executive Order. The plaintiffs claim that state funds have already been used to retain a law firm to advise the Governor on the implementation of the order, to create a state web page, and to *804 finance preparation of numerous press releases and informational packets concerning the executive order. Plaintiffs also claim that the Executive Order will require government agencies to “spend and to commit to spend monies collected through the taxation process in manners which are improper, unauthorized and contrary to law.” Paragraph 2(b) of the Order states that the cost of arbitration will be “borne equally by the two parties.” Thus, the plaintiffs allege in their petition that a direct expenditure of state funds has been made to implement the Executive Order and will be made in the future, at least with regard to arbitration costs.

When reviewing the dismissal of a petition for failure to state a claim, this court treats the facts contained in the petition as true and construes them liberally in favor of the plaintiffs. Ste. Genevieve Sch. Dist. 22-77, 66 S.W.3d at 11. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Johnson ex rel. Wilken v. Jones, 67 S.W.3d 702, 705 (Mo.App.2002). “Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Id.

The allegations in the petition concerning the direct expenditure of state funds are sufficient to confer taxpayer standing to plaintiffs. Since all of the plaintiffs have alleged taxpayer status, it is unnecessary to address the other types of standing alleged by them. 5 Nat’l Solid Waste Mgmt. Ass’n., 964 S.W.2d at 819 (citing Mo. Coalition for the Env’t v. Joint Comm. on Admin. Rules, 948 S.W.2d 125, 132 (Mo. banc 1997)). With the plaintiffs’ standing established, it must be determined whether plaintiffs can maintain their declaratory judgment action.

D. Declaratory Judgments

The plaintiffs’ requested declaratory relief under section 527.010 et seq. (the “Declaratory Judgment Act”), which authorizes a party to seek a declaratory judgment to establish the rights, status, and duties of parties so as to avoid loss and encourage settlement of disputes before litigation. Wheeler v. Sweezer, 65 S.W.3d 565, 568 (Mo.App.2002). The trial court is afforded wide discretion in administering the Declaratory Judgment Act. George v. Brewer, 62 S.W.3d 106, 109 (Mo. App.2001). “Declaratory judgment actions should not be resorted to for the purpose of giving advisory opinions.” Farm Bureau Town & Country Ins. Co. of Mo. v. Angoff 909 S.W.2d 348, 353 (Mo. banc 1995).

“[I]n order to maintain a declaratory judgment action a petitioner must satisfy four requirements.” Northgate Apartments, L.P. v. City of North Kansas City, 45 S.W.3d 475, 479 (Mo.App.2001). First, there must be a justiciable controversy. Id. “A justiciable controversy” “presents a real, substantial, presently-existing controversy as to which specific relief is sought, as distinguished from an advisory decree offered upon a purely hypothetical situation.” Id. “Second, the petitioner must demonstrate a legally protected interest consisting of a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief.” Id. Third, the issue presented must be ripe for judicial determination. Id. “A mere difference of opinion *805 or disagreement on a legal question is insufficient, but parties must show that their rights and liabilities are affected.” Akin v. Dir. of Revenue, 934 S.W.2d 295, 298 (Mo. banc 1996)(citing Tietjens v. City of St Louis, 359 Mo. 439, 222 S.W.2d 70, 71-72 (1949)). Finally, “[a] petitioner who satisfies all three of these elements must also demonstrate that he or she does not have an adequate remedy at law.” Nor-thgate, 45 S.W.3d at 479.

E. Executive Order 01-09 is not Legally Actionable

This now brings the court to a discussion of the issues at the heart of the case: (1) do the plaintiffs present a justiciable controversy for this court’s consideration; and (2) does the Order have sufficient constitutional or statutory underpinnings to be enforced by a court of law?

Plaintiffs argue that the trial court erred in dismissing Counts I and II of their petition for failure to state a claim because the Order is subject to judicial review in that it was not within the Governor’s discretion and authority to issue.

The trial court found that the plaintiffs lacked standing; but even if plaintiffs did have standing, the court would still dismiss Counts I and II because the Order was within the Governor’s discretion and authority and, therefore, not actionable. It must be noted that this court must affirm the dismissal “ ‘if it can be sustained on any ground which is supported by the motion to dismiss, regardless of whether the circuit court relied on that ground.’ ” State ex rel. Div. of Child Support Enforcement v. Hill, 53 S.W.3d 137, 143 (Mo.App.2001)(quoting Keys v. Nigro, 913 S.W.2d 947, 951 (Mo.App. 1996)). In fact, “ ‘[i]f the court correctly dismissed the [motion], the ground upon which the dismissal was based is immaterial.’ ” J.M. Morris Constr. Co. v. Mid-West Precote Co., 613 S.W.2d 180, 181 (Mo.App.1981).

Although the trial court dismissed the cause for lack of plaintiff standing, its alternative finding was that even if there were standing, the Order was within the Governor’s discretion and authority and, therefore, not actionable. The trial court based its decision on this court’s opinion in Stein v. James, 651 S.W.2d 624 (Mo.App.1983). Since this court has found the trial court’s ruling on standing was error, an examination of whether the Order was legally actionable and presented a justiciable controversy must be reviewed.

In Stein, the plaintiff brought suit to enjoin the Missouri Director of Revenue from terminating her as a fee agent. Stein’s petition alleged that her constitutional rights had been violated because her termination had been based solely on the fact that she was affiliated with the Democratic party. Stein’s petition also alleged that her termination was contrary to Governor Bond’s Executive Order, which adopted standards of conduct for appointed officials and employees of the executive branch. One of these standards was that unless provided for by constitution or by statute, membership in a political organization, payment of dues to a political organization, and attendance at political events would not be a condition for appointment or employment. Stein claimed the order prohibited the Director of Revenue from terminating her as a fee agent solely for political reasons.

The trial court indicated that although it believed her termination was a violation of Stein’s constitutional rights it was not necessary to make the decision on that ground. Instead, the trial court entered an injunction restraining her from being terminated as a fee agent, finding that her *806 termination violated the executive order. The director of revenue appealed. Because the judgment did not award attorney’s fees, Stein cross-appealed.

This court held in the first portion of Stein that fee agents were not state employees; therefore, there was no prohibition against Stein being terminated for political reasons. Id. at 627. This court then went on in Stein to analyze the executive order issue which is pertinent to the case at bar.

After commenting that executive orders are rarely the subject of judicial opinions, 6 this court applied the analysis of a Pennsylvania case, Shapp v. Butera, 22 Pa.Cmwlth. 229, 348 A.2d 910 (1975). The Stein opinion acknowledged that there are three categories of executive orders. 7 The first category consists of formal, ceremonial, and political orders. Stein, 651 S.W.2d at 628. These type of orders are usually issued as proclamations to declare some special day or week in honor of or in commemoration of some special thing or event and have no legal effect. Shapp, 348 A.2d at 913. The second category includes communications to subordinate executive branch officials regarding the execution of their executive branch duties. Stein, 651 S.W.2d at 628. This second category is also not legally enforceable, and the Governor could not seek a court order to enforce that aspect of the executive order. Shapp, 348 A.2d at 913. Rather, the executive order would only carry the implication of a penalty for noncompliance. Id. The third category consists of orders which implement or supplement the state’s constitution or statutes. Stein, 651 S.W.2d at 628. The third category of executive orders have the force of law. Shapp,