COOPERATIVE HOME CARE, INC.,
et, al.,
Respondents/Cross-Appellants,
v.
CITY OF ST. LOUIS, MISSOURI,
et al.,
Appellants/Cross-Respondents

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No. SC95401

RESPONDENTS’/CROSS-APPELLANTS’ MOTION FOR REHEARING
On February 28, 2017, the Missouri Supreme Court issued its En Banc Opinion with
Judge Zel M. Fischer concurring. Based thereon, Respondents/Cross-Appellants, by and through
their undersigned counsel, come now and for their Motion for Rehearing, pursuant to Rule
84.17(a)(1), state as follows:
1.

In this case, this Court overlooked and misinterpreted material matters of fact in

reversing the decision of the trial court. Inter alia, this Court misinterpreted facts concerning the
legislature’s intent of its adoption of HB 722.
2.

Specifically, the Court’s Opinion suggests the legislature, through HB 722,

recognized and implicitly approved the existence of local minimum wage ordinances that
supplement the state minimum wage law.
3.

When considering the meaning of HB 722, the primary rule is “to ascertain the

intent of the legislature from the language used, to give effect to that intent if possible, and to
consider the words used in their plain and ordinary meaning.” Van Cleave Printing Co. v.
Director of Revenue, 784 S.W.2d 794, 796 (Mo. banc 1990). There is no need to construe
legislative provisions when the language used is clear and unambiguous. Id. “In determining

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IN THE SUPREME COURT OF MISSOURI

 plain and clear to one of ordinary intelligence.” Id.
4.

Here, the legislature’s intent can be derived from the plain language of HB 722.

HB 722 states “No political subdivision shall establish, mandate, or otherwise require an
employer to provide to an employee …. A minimum or living wage rate …..that exceed the
requirements of federal or state laws, rules, or regulations. The provisions of this subsection shall
not preempt any state law or local minimum wage ordinance requirements in effect on August
28, 2015.”
5.

The above-cited language clearly demonstrates the legislature's intent to prohibit

unauthorized local minimum wage ordinances enacted after the presumptive effective date of HB
722, or August 28, 2015, not authorize new local minimum wage ordinances. Not only is that
clear from the plain language, but it is clear that the legislature was relying on the existing
express pre-emption language contained in section 67.1571 RSMo, which was still in full force
and effect (not being declared unconstitutional until this Court's February 28, 2017 decision)
when HB 722 was enacted. It is an unreasonable strain on logic to assume that the legislature
somehow anticipated that section 67.1571 RSMo -- which was enacted nearly two decades ago
and survived a legal challenge all the way up to this Court -- would be struck down on
procedural passage grounds nearly two years after HB 722's passage and that such clairvoyance
prompted passage of a new express preemption provision.
WHEREFORE, in light of the legislature’s true intention with respect to HB 722, which
now known could change the outcome of the Majority’s Opinion, Respondents/Cross-Appellants
respectfully request this Court grant their Motion for Rehearing.

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whether the language is clear and unambiguous, the standard is whether the statute's terms are

 McMAHON BERGER, P.C.
/s/ Brian C. Hey
James N. Foster, Jr. MBE #28231MO
Brian C. Hey MBE #53930MO
2730 N. Ballas Rd., Suite 200
St. Louis, MO 63131
(314) 567-7350
(314) 567-5968 (facsimile)
foster@mcmahonberger.com
hey@mcmahonberger.com
CERTIFICATE OF SERVICE
I hereby certify that I have this 15th of March, 2017, served a true and correct
copy of the foregoing via the Court’s electronic filing system upon the following:
Jane E. Dueker
Thomas W. Hayde
Arthur D. Gregg
Spencer Fane LLP
1 N. Brentwood Blvd, Suite 1000
St. Louis, Missouri 63105
jdueker@spencerfane.com
thayde@spencerfane.com
agregg@spencerfane.com

James G. Martin
Robert F. Epperson, Jr.
John J. Rehmann, II
Dowd Bennett LLP
7733 Forsyth Blvd, Suite 1900
St. Louis, Missouri 63105
jmartin@dowdbennett.com
repperson@dowdbennett.com
jrehmann@dowdbennett.com

Michael A. Garvin
Mark Lawson
Erin McGowan
Michael A. Garvin, City Counselor
1200 Market Street
City Hall, Room 314
St. Louis, Missouri 63103
Garvinm@stlouis-mo.gov
lawsonm@stlouis-mo.gov
mcgown@stlouis-mo.gov

/s/ Brian C. Hey

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Respectfully submitted,