author: GANT, Justice.

text:
    EATON AXLE CORPORATION, Movant, v. Bernard E. NALLY, Special Fund and Workers’ Compensation Board, Respondents. Bernard E. NALLY, Movant, v. EATON AXLE CORPORATION; John Calhoun Wells, Secretary of Labor and Custodian of the Special Fund; and Workers’ Compensation Board, Respondents.
    Supreme Court of Kentucky.
    April 11, 1985.

      J. Landon Overfield, West, Ternes, Gibbs & Overfield, Henderson, for Eaton Axle Corp.
    Thomas E. Simpson, Wesley & Simpson, Morganfield, for Bernard E. Nally.
    John E. Stephenson, Labor Cabinet, Louisville, Jackie H. Blankenship, Director, Workers’ Compensation Board, Frankfort, for Special Fund.
   GANT, Justice.

Claimant Nally was allegedly injured in 1978 while in the employ of Eaton Axle Corporation in Henderson County. He had an eighth grade education and was 47 years old at the time of the injury, with a functional IQ of 80 according to one witness and 90 according to another. His duties at the time of the injury required lifting axles which weighed between 60 and 90 pounds, and it is basically uncontested that following the injury he was unable to return to his former position. His previous work experience had involved heavy manual labor, or work in the oil fields, in maintenance and with heavy equipment. The Workers’ Compensation Board found the claimant to be 100% occupationally disabled, assessing the compensation therefor 50% against the employer and 50% against the Special Fund. The Opinion and Award were affirmed by the Henderson Circuit Court, but the Court of Appeals reversed and remanded for a finding of partial disability only and for a finding concerning notice.

Discretionary review was granted on motion of both the claimant and the employer, and numerous issues are presented. The first issue is the finding by the Court of Appeals that “there is not sufficient substantial evidence to support a finding that the claimant was totally disabled.” This holding was based upon two factors, the first being that claimant “testified that he was a welder and capable of performing at least this type of alternate employment.” This finding by the Court of Appeals was inconsistent with the evidence. The claimant did testify that he had taught himself to weld, but also testified that he could not perform this task as “you have to lift to weld.” The medical evidence herein was that the claimant could not lift over 20 pounds, could not be on his feet all day, and must avoid prolonged sitting and frequent bending. The claimant also testified about numerous jobs he had attempted to obtain or perform.

The appellate standard of review in workers’ compensation cases has always been that there be sufficient evidence of probative value to justify the finding of the Board and the appellate court shall not substitute its judgment for that of the Board. In considering the value of the evidence and the testimony of the claimant, this court stated in Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15 (1977):

We conclude that Caudill’s own testimony, education, work experience and physical condition, together with the medical evidence introduced by her, established an evidentiary foundation sufficient to support, but not to compel, a finding by the Board that she was incapable of performing any kind of work of regular employment and, therefore, was totally disabled under the Osborne v. Johnson formula. [Citing Tackett v. Sizemore Mining Co., Ky., 560 S.W.2d 17 (1977)].

We have no doubt that the reverse of Caudill and Tackett may apply, so the testimony of the claimant, when considered with the other factors outlined in those cases, may well establish an evidentiary foundation sufficient to support but not compel a finding of partial disability or no disability by the Board. However, the testimony of the claimant herein did not compel a finding of partial disability but rather, when considered with his education, work experience, physical condition and medical evidence, was sufficient to support a finding of total disability.

The second basis for the finding of partial disability by the Court of Appeals was the “uncontradicted evidence” of the vocational experts in this case. This “evidence,” in summary, was that, based upon their interview with the claimant, their examination of the medical records and their knowledge of the job market in the area, it was their opinion that there might be certain jobs which could be performed by the claimant. Uncontradicted opinions by vocational experts is not such evidence as compels any specific findings by the Workers’ Compensation Board, which body is the fact finder, with the right to “believe part of the evidence and disbelieve other parts of the evidence.” Caudill, supra, p. 16. The opinions of the vocational expert do not supplant medical and other evidence but are merely a part of the total evidence which is before the Board. To hold otherwise would reduce workers’ compensation hearings to a swearing contest between vocational experts.

Claimant argues to us that KRS 342.620(9) [now KRS 342.620(11)] represents an alteration or modification of the standard enunciated by this court in Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), to the extent that the statute requires only proof that the employee was unable to perform the specific work in which he was engaged when injured. We disagree with the claimant and agree with the employer that the statute is a mere codification of Osborne v. Johnson, which speaks of “the kind of work the man can perform,” the cited statute saying “the kind of work the employee is customarily able to do.” See also Couliette v. International Harvester Co., Ky., 545 S.W.2d 936 (1976).

The employer, in its cross-motion, complains of failure of the Workers’ Compensation Board to make Findings of Fact as mandated. First, the employer argues there was no finding of a disabling, work-related injury, independent of the arousal of a pre-existing condition, which would mean that the entire disability should be apportioned to the Special Fund. We concur with the Court of Appeals that the findings of the Board that there was, in fact, such a work-related injury are sufficient. Cf. Brown v. Gregory, Ky., 398 S.W.2d 710 (1966).

However, the second argument is of dissimilar import. The question of notice by the claimant to the employer was energetically contested by the employer at every opportunity before the Board, and yet the Board failed to make any finding of fact relating thereto. In our opinion, KRS 342.185 requires Findings of Fact on all contested issues, and notice is one of the threshold questions which must be addressed in any claim before the Board. Harry M. Stevens Co., Inc. v. Workmen’s Compensation Board, Ky.App., 553 S.W.2d 852 (1977). We affirm the Court of Appeals in its remand of this case, through the Henderson Circuit Court, to the Workers’ Compensation Board for determination of whether there was proper notice to the employer.

It has become increasingly apparent to this court that a multitude of cases annually are remanded by the courts to the Workers’ Compensation Board for Findings of Fact on issues essential to the Opinion and Order of that body. This occurs at the circuit court level, in the Court of Appeals, and in this court, consuming an inordinate amount of time in crowded dockets. Utilization of the court system is an appellate process in workers’ compensation cases, as provided in KRS 342.285 and KRS 342.290. Within our own confines, the courts have provided a method by which the finder of facts shall first be afforded an opportunity to correct omissions or errors before the appellate process begins, by CR 52.04, which provides:

Rule 52.04. Failure to make finding on essential issue of fact—Necessity for request.—A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.

The purpose of this rule is to require that all justiciable issues are disposed of before the appellate process begins.

It is our opinion that KRS 342.281 should be utilized as a statutory counterpart of CR 52.04 and that before beginning the appellate process which utilizes the court system, the claimant, employer or any other party involved in the case before the Workers’ Compensation Board seeks an appeal on errors which are patent upon the face of the award, order or decision, he must first file a Petition for Reconsideration pursuant to KRS 342.281. KRS 342.-285 provides, in appropriate part:

(1) An award or order of the board as provided in KRS 342.275, if petition for reconsideration is not filed as provided for in KRS 342.281, shall be conclusive and binding as to all questions of fact, but either party may within twenty (20) days after the rendition of such final award or order of the board, by petition appeal to the circuit court ...

It is our opinion that this obviously contemplates that the issues shall be clearly decided before the appellate process begins. Disposal of the essential elements of a case is a small enough price to pay for a ticket of admission to the judicial process. KRS 342.281 is obviously designed for such a purpose. It is limited by its language to review of “errors patently appearing upon the face of the award, order or decision.” Failure by the Workers’ Compensation Board to make statutorily mandated Findings of Fact is, indeed, a patent error.

It is the decision of this court that prospectively, from the date of this opinion, no award, order or decision of the Workers’ Compensation Board shall be reversed or remanded on appeal to any court because of failure of said Board to make findings of an essential fact unless said failure is brought to the attention of the Board by Petition for Rehearing pursuant to KRS 342.281.

Accordingly, the opinion of the Court of Appeals is reversed in its mandate to remand to the Workers’ Compensation Board for award of only partial disability, affirmed on its apportionment between the employer and the Special Fund, and affirmed on its remand, through the Henderson Circuit Court, on the question of proper notice by the employee to the employer. Should proper notice be the finding of the Board, the award of total disability to the claimant shall be allowed.

All concur.


source: Caselaw Access Project

author: WHITE, Judge.

license: Public Domain

text:
    Eddie Paul HARRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1984.

      Robert Alan Riley, Asst. Public Advocate, LaGrange, for appellant.
    David L. Armstrong, Atty. Gen., Bruce R. Hamilton, Sp. Asst. Atty. Gen., La-Grange, for appellee.
    Before HOWARD, LESTER and WHITE, JJ.
   WHITE, Judge.

This appeal is from the Order of the Oldham Circuit Court by which appellant’s RCr 11.42 motion was overruled.

In October 1982 Mr. Harris filed, pro se, the 11.42 which cited various contentions of ineffective assistance of counsel. Relief was denied without a hearing; however, this determination was subsequently vacated under a 60.02 motion dated November 1982.

The following October a supplement to the 11.42 was filed. Together with the original charge of ineffective assistance of counsel the Circuit Court was asked to consider whether such ineffectiveness affected appellant’s entry of a voluntary, knowing guilty plea to his 1980 indictment for murder.

An evidentiary hearing was held in January 1984. At that time Wendell Simpson, Mr. Harris’s attorney at the murder proceedings, was called as appellant’s first witness. However, Mr. Simpson’s testimony was interrupted when Mr. Harris attempted to assert the KRS 421.210(4) attorney-client privilege. The lower Court held that if Mr. Simpson testified, waiver was thereupon effected. Further, the Court noted that certain allegations in appellant’s 11.42 complaint in and of themselves constituted waiver.

Choosing not to pursue the examination of his former counsel, Mr. Harris rested upon the pleadings. Reviewing such, the Circuit Court held that effective counsel had been rendered.

On appeal we are first asked to consider the lower Court’s position concerning attorney-client privilege. It is argued that appellant should have been permitted to have attempted to prove his case through testimony on non-privileged matters. As long as privileged information was not revealed, it is urged that the privilege would not be waived.

Mr. Harris further asserts that only the issues raised by him existed and that he alone was to choose what proof to offer in support thereof. This, however, overlooks CR 43.06, made applicable to criminal proceedings under RCr 13.04. In pertinent part it states: “[A]ny witness called by a party and examined as to any matter material to any issue may be examined by the adverse party upon all matters material to every issue of the action.” (Emphasis added.)

Clearly, therefore, under this Rule Pandora’s box was opened when questioning began. Additionally, just as mental health is immediately placed into issue in custody proceedings, thereby resulting in an automatic waiver of the psychiatrist-patient privilege [Atwood v. Atwood, Ky., 550 S.W.2d 465 (1976)], it must be held that when ineffective assistance of counsel is raised via an 11.42, the statutory attorney-client privilege is lost. Only when all aspects of the relationship are explored can it be determined whether counsel was reasonably likely to render effective assistance. Henderson v. Commonwealth, Ky., 636 S.W.2d 648 (1982).

Lastly, it is the position of this Court that all contact between a party and his counsel in his professional capacity must be deemed in anticipation of litigation or in furtherance of the legal services being offered. Consequently, there can be no division of the association into privileged and non-privileged categories. The lower Court did not err in holding that a waiver of the KRS 421.210(4) privilege had occurred.

Appellant next argues that prior to the entry of his guilty plea Wendell Simpson consulted with him an insufficient amount of time and failed to investigate adequately his case. These concerns were matters known to Mr. Harris at the time his plea was entered and accepted. Nevertheless, he responded favorably to the Circuit Court’s inquiry as to whether he was satisfied in all respects with Mr. Simpson’s advice. Also, he signed before the Court a statement which asserted that he believed his “attorney has done all that anyone could do to counsel and assist me, and that there is nothing about the proceedings in this case against me which I do not fully understand.” Each clearly precludes his later arguing otherwise in an 11.42 motion.

As a final point we are asked to hold that the Commonwealth’s failure to have responded to his complaint within the twenty days granted under RCr 11.42(4) and its failure to have responded at all to his supplement denied him due process. It is urged that his arguments must be taken as confessed and that he accordingly be granted a new trial on his murder charge. To this end we are referred to CR 55.01 (again via RCr 13.04): “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these Rules, the party entitled to a judgment by default shall apply to the Court therefor.” (Emphasis added.)

We are cited to no motion for a default judgment; therefore, reliance upon CR 55.01 is misplaced. Mr. Harris did file a pro se Motion to Strike the Commonwealth’s response as untimely; however, this is not a substitute. Even if it were, the granting of a default judgment is in most cases discretionary with the trial court. Here, however, CR 55.04 clearly precludes against such procedure.

In any event the appellant was granted a hearing whereby he could have developed his allegations of error, if any.

The Judgment is affirmed,

All concur.


author: COMBS, Judge.

text:
    HAMLIN CONSTRUCTION COMPANY, INC., Appellant, v. Delmar Ray WILSON, Appellee.
    Court of Appeals of Kentucky.
    April 19, 1985.

      Stephen D. Milner, Landrum, Shouse & Patterson, Lexington, for appellant.
    James F. Clay, Jr., Danville, for appellee.
    Before COMBS, McDONALD and WIL-HOIT, JJ.
   COMBS, Judge.

This is an appeal from an order of the Boyle Circuit Court directing appellant and appellee to equally divide the proceeds of their construction project.

Appellant argues that CR 63 mandates a new trial because the trial judge died after hearing the case, but before making findings of fact and conclusions of law. In the alternative, appellant demands a money judgment and accounting from appellee, claiming the parties had agreed to share the losses of the project as well as the profits.

Appellant, Hamlin Construction Company, Inc., subcontracted to build a 0.41 mile of road for a total price of $13,500.00. At the same time, Hamlin Construction and appellee, Delmar Wilson, orally agreed to perform the work and divide the contract proceeds. The project was completed at a purported loss of $34,000.00, and Hamlin Construction brought this action for an accounting after Wilson declined to contribute some $17,000.00 towards the losses. The sole issue before the trial court was whether the parties’ understanding embraced an agreement to share losses as well as profits.

The lower court held a bench trial, but the judge died before making findings of fact and conclusions of law. His successor reviewed the trial transcript, rendered his own findings, and decided the case. Thirty days after the judgment, appellant filed a CR 60.02 motion for a new trial, alleging that the successor judge should have ordered a new trial under CR 63.

We note at the outset that appellant’s motion for a new trial was not properly raised in the lower court. CR 59, rather than CR 60, is the appropriate vehicle for alerting the lower court to procedural defects which may be corrected by a new trial, such as appellant’s CR 63 complaint. CR 59.01 provides that a new trial may be granted for “[ijrregularity in the proceedings of the court, ... or an order of the court, or abuse of discretion, by which the party was prevented from having a fair trial” on a motion served within ten days of entry of judgment. Having failed to file a timely CR 59.01 motion, appellant cannot bootstrap his complaint to this court by way of CR 60.02.

Even if appellant’s CR 60.02 motion was proper, we do not believe CR 63 mandates a new trial in this particular case. This is a suit for an accounting, and CR 43.04(1) provides that accounting actions shall be tried by deposition unless otherwise ordered. If we remand this case for a new trial, the trial judge is not obliged to rehear the case personally but can order it tried by deposition. Under these circumstances, a successor judge may render a decision based on the trial record or he may, in his discretion, rehear the case personally or by deposition. There is essentially no difference in deciding a case by reviewing the trial record and deciding a case by deposition, so we "cannot say the successor judge abused his discretion in choosing the former over the latter.

Appellant’s demand for a money judgment and accounting constitutes an attack on the trial court’s findings of fact, but those findings will not be set aside on appeal unless clearly erroneous. CR 52.01.

The record clearly supports the lower court’s findings, so we will not disturb its decision.

The judgment of the Boyle Circuit Court is affirmed.

All concur.


author: WELLIVER, Judge. DONNELLY, Judge, BLACKMAR, Judge,

text:
    Linda WIMBERLY, Respondent, v. The LABOR AND INDUSTRIAL RELATIONS COMMISSION OF MISSOURI, and The Division of Employment Security of the State of Missouri, and J.C. Penney Co., Inc., Appellants.
    No. 66083.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.
    Opinion Concurring in Result Modified April 30, 1985.
    Rehearing Denied April 30, 1985.

      Sharon A. Willis, Kansas City, Rick V. Morris, Catherine J. Barrie, Jefferson City, for appellants.
    Julie Levin, Legal Aid of Western Missouri, Kansas City, for respondent.
   WELLIVER, Judge.

Respondent initiated this proceeding in the Circuit Court of Jackson County after the Missouri Labor and Industrial Relations Commission denied her claim for unemployment compensation. The circuit court reversed and the Missouri Court of Appeals, Western District, affirmed the circuit court’s judgment. We ordered the cause transferred to determine whether 26 U.S.C. § 3304(a)(12) (1982) of the Federal Unemployment Tax Act requires states, as a predicate to receipt of federal assistance, to provide unemployment benefits to otherwise eligible claimants who left their employment due to pregnancy. We reverse.

The parties accept the Commission’s findings of fact. Respondent had been employed by the J.C. Penney Company, Inc., as a cashier and sales clerk for approximately three years. In late August 1980, respondent, then approximately seven months pregnant, requested a leave of absence, citing her pregnancy as the reason. In accordance with its established policy, the employer granted respondent a “leave” without a guarantee of reinstatement, i.e., respondent would be rehired only if a position was available. Respondent’s child was born on November 5, 1980. When, on December 1,1980, respondent notified the employer of her desire to return to work, she was informed that there were no positions open.

Respondent filed a claim for unemployment compensation benefits on December 7, 1980. A deputy for the Division of Employment Security denied the claim on the ground that respondent was disqualified under § 288.050.1(1), RSMo 1978. The deputy determined that respondent “quit because of pregnancy” and, therefore, had left work voluntarily without good cause attributable to her work or her employer. Respondent appealed the decision to the Division’s Appeals Tribunal. After a full evidentiary hearing at which respondent appeared with counsel, the Appeals Tribunal issued findings of fact and conclusions of law and affirmed the deputy’s decision. The Tribunal concluded:

Although the claimant did have a good reason for leaving her employment, it is found that that reason was in no way attributable to her work or to her employer. Accordingly, it is found that the claimant quit her job voluntarily on August 23, 1980, without good cause attributable to her work or to her employer.

The Industrial and Labor and Industrial Relations Commission denied respondent’s petition for review, and thereby adopted the Tribunal’s findings and conclusions. § 288.200.1, RSMo 1978. Respondent then filed a petition for review in the circuit court and that court reversed the Commission’s decision. The court accepted the agency’s findings of fact and acknowledged that Missouri courts had construed § 288.050.1(1) to disallow unemployment compensation benefits when the claimant left work on a maternity leave without a guarantee of reemployment at the end of the leave period. It concluded, however, that the existing law in Missouri was contrary to 26 U.S.C. § 3304(a)(12) (1982), as construed in Brown v. Porcker, 660 F.2d 1001 (4th Cir.1981), cert, denied, 459 U.S. 1150, 103 S.Ct. 796, 74 L.Ed.2d 1000 (1983). Section 3304(a)(12), one of the federal minimum standards with which states must comply if their unemployment insurance scheme is to qualify for federal assistance, provides that “no person shall be denied compensation under [a state unemployment compensation] law solely on the basis of pregnancy or termination of pregnancy.” Relying on Brown v. Porcher, the circuit court held that § 3304(a)(12) “banned the use of pregnancy or its termination as an excuse for denying benefits to otherwise eligible women,” and accordingly, the court reversed the Commission’s decision and remanded for entry of an award.

The Western District affirmed the court’s judgment. Though the court expressed “reservations concerning the soundness of the ruling in Brown,” slip op. at 14, it felt constrained to follow the Fourth Circuit’s interpretation of § 3304(a)(12), stating:

In cases dealing with the construction of federal statutes, this court is bound by and must follow decisions of federal courts. [Buffalow] v. Bull, 619 S.W.2d 913, 919 (Mo.App.1981), citing Haley v. Metropolitan Life Insurance Company, 434 S.W.2d 7, 11 (Mo.App.1968). From this rule, it follows that this court must affirm, due to the ruling in Brown v. Porcher, the judgment of the circuit court herein.

Slip op. at 13.

I

The legislature enacted the Missouri Employment Security Law to provide a partial wage replacement for workers left unemployed through no fault of their own. O’Dell v. Division of Employment Security, 376 S.W.2d 137 (Mo.1964). A claimant must satisfy two general requirements to qualify for unemployment benefits. First, he or she must be “able to work and available for work.” § 288.040.-1(2), RSMo Supp.1984. Second, the claimant must be free from disqualification. Section 288.050.1(1) disqualifies a claimant if he “left his work voluntarily without good cause attributable to his work or to his employer.” Missouri courts have interpreted this provision to disqualify claimants who quit their job on account of pregnancy or personal illness unrelated to the employment. See Fifer v. Missouri Division of Employment Security, 665 S.W.2d 81 (Mo.App.1984); Duffy v. Labor and Industrial Relations Commission, 556 S.W.2d 195 (Mo.App.1977); Bussmann Manufacturing Co. v. Industrial Commission, 335 S.W.2d 456 (Mo.App.1960); Bussmann Manufacturing Co. v. Industrial Commission, 327 S.W.2d 487 (Mo.App.1959). See also Division of Employment Security v. Labor and Industrial Relations Commission, 617 S.W.2d 620 (Mo.App.1981); Neeley v. Industrial Commission, 379 S.W.2d 201 (Mo.App.1964); LaPlante v. Industrial Commission, 367 S.W.2d 24 (Mo.App.1963). These decisions persuasively demonstrate that the wording of § 288.050.1(1) evidences a manifest legislative desire to disqualify claimants who, like respondent, left work for reasons that, while perhaps legitimate and necessary from a personal standpoint, were not causally connected to the claimant’s work or employer.

The question before us in this proceeding is whether the state can deny unemployment benefits to otherwise eligible claimants who left their employment due to pregnancy and still qualify for certain forms of federal assistance. Understanding this question requires a brief description of this nation’s system of unemployment compensation. The system operates as a cooperative venture between the federal government and the various states. The Federal Unemployment Tax Act, 26 U.S.C. §§ 3301 et seq. (1982), imposes a federal payroll tax on wages paid by covered employers. The Act, however, authorizes a credit against a substantial part of the federal tax liability to employers who contribute to a state unemployment compensation fund approved by the Secretary of Labor. Federally-approved state programs also are entitled to federal grants to cover the cost of administering the program.

Section 3304(a) directs the Secretary to approve a state’s program if he finds that it complies with the “fundamental standards” enumerated therein. Compliance with the standards is voluntary, but all of the states have found the lure of tax credits and grants in return for conforming legislation “an offer that could not be refused.” State of New Hampshire Department of Employment Security v. Marshall, 616 F.2d 240, 241 (1st Cir.), appeal dismissed and cert. denied, 499 U.S. 806, 101 S.Ct. 53, 66 L.Ed.2d 10 (1980). Indeed, it is the expressly stated policy of the Missouri Employment Security Law to comply with the federal minimum standards:

If the Federal Unemployment Tax Act, the Federal Social Security Act or other related federal laws are amended to provide minimum standards for the payment of unemployment benefits, such standards shall become a part of this law to the extent necessary to entitle employers subject to this law to claim the maximum allowable credit against the federal unemployment tax. The provisions of this section shall be implemented by regulation by the division.

§ 288.390, RSMo 1978. Respondent contends such an amendment occurred in 1976 when Congress added a new federal minimum standard providing that “no person shall be* denied compensation under such State law solely on the basis of pregnancy or termination of pregnancy.” § 3304(a)(12). The issue to be decided is whether § 3304(a)(12) alters the previously existing law to such a degree that, under § 288.390, we must reject the case law construing § 288.050.1(1) which mandates denying unemployment benefits to claimants in respondent’s situation.

II

The decision in Brown v. Porcher, the only reported case construing § 3304(a)(12), quite properly figured prominently in the opinions rendered by the circuit court and the Western District. Certain views expressed by the latter court warrant clarification, however. The Western District stated that the courts of this state, when confronted with the task of interpreting a federal statute, are bound to follow the decisions of lower federal courts construing the statute in question. While several decisions of the court of appeals contain similar statements, see e.g., Buffalow v. Bull, 619 S.W.2d 913, 919 (Mo.App.1981); Haley v. Metropolitan Life Insurance Co., 434 S.W.2d 7, 11 (Mo.App.1968); State ex rel. Atkins v. Missouri State Board of Accountancy, 351 S.W.2d 483, 485 (Mo.App.1961); McElvain v. St. Louis & San Francisco Railroad, 151 Mo.App. 126, 131 S.W. 736, 743 (1910), this Court has never subscribed to such a notion. On the contrary, we have adhered to the view that the courts of this state are bound to follow only our Supreme Court’s decisions interpreting the federal Constitution and federal statutes. See, e.g., S.S. & W., Inc. v. Kansas City, 515 S.W.2d 487 (Mo.1974); State v. Moreland, 351 S.W.2d 33 (Mo.1961); Wehrli v. Wabash Railroad Co., 315 S.W.2d 765 (Mo.1958) (interpreting the Federal Employers’ Liability Act); Meek v. New York, Chicago & St. Louis Railroad Co., 88 S.W.2d 333 (Mo. banc 1935) (interpreting the Federal Safety Appliance Act); Hardin v. Illinois Central Railroad Co., 334 Mo. 1169, 70 S.W.2d 1075 (Mo.1934) (interpreting the Federal Boiler Inspection Act). Although loose language in some opinions indicates that state courts are “bound” by a “federal court’s” interpretation of a federal statute, we have discovered no instance in which this Court declined to interpret a federal statute in a particular fashion out of a concern that to do so would run afoul of a lower federal court interpretation of the statute.

We do not mean to suggest that a lower federal court’s construction of a federal statute is wholly irrelevant. The courts of this state should “look respectfully to such opinions for such aid and guidance as may be found therein.” Hanch v. K.F.C. National Management Co., 615 S.W. 28, 33 (Mo. banc 1981). In some circumstances it may be appropriate for a state court to defer to long established and widely accepted federal court interpretations of federal statutes. But a state court should not hesitate to undertake its own independent assessment of the propriety of a single lower federal court’s attempt to construe a statute when the court perceives well-founded deficiencies in that court’s analysis.

Ill

The decisions below presume that § 3304(a)(12) has the effect of proscribing this state’s long-established practice of disqualifying claimants who leave their employment for reasons attributable to pregnancy. In reaching this conclusion, each court relied heavily on the interpretation of § 3304(a)(12) rendered in Brown v. Porcher. The question now facing this Court is whether the text of the statute and its legislative history supports Brown’s interpretation of § 3304(a)(12).

In Brown, a group of claimants who had been denied unemployment compensation in South Carolina brought suit in federal court claiming that South Carolina’s policy of denying compensation to women who left their prior employment on account of pregnancy violated § 3304(a)(12). The district court agreed, holding that the statute “imposed a sweeping ban on the use of pregnancy or its termination as an excuse for denying benefits to otherwise eligible women.” 502 F.Supp. 946, 955 (D.S.C.1980). Both the district court and the U.S. Court of Appeals for the Fourth Circuit, which affirmed the decision on appeal, found the statute “unambiguous” and purported to interpret the plain meaning of the statutory language. Neither court was moved by the argument that the Department of Labor interpreted the statute only to prohibit laws that created a special category for pregnancy-related claims and which denied the claims on the basis of pregnancy alone. The district court noted:

If Congress intended a more limited prohibition or carved out exceptions, it would not have ... use[d] such broad and sweeping language. It would have relied upon more specific language and used appropriately restrictive expressions ... [Section 3304(a)(12) ] does not permit denial of benefits ... solely because (1) a woman, for pregnancy-related, medical reasons, voluntarily left work to have a child rather than wait for her employer to fire her, (2) a woman was refused a maternity leave or her leave had no fixed terminal date, or (3) a woman attempted to return to her job either before or after her maternity leave was scheduled to expire. The plain and unambiguous words of the enactment do not contemplate consideration of such irrelevant factors.

Id. at 955 (citation and footnotes omitted).

The United States Supreme Court denied certiorari, but Justice White, joined by two other justices, dissented. Justice White expressed misgivings about the lower court’s interpretation of § 3304(a)(12):

It is by no means clear, however, that § 3304(a)(12) does not simply provide that pregnancy must be treated like all other disabilities — that pregnancy simply cannot be singled out for unfavorable treatment. The Department of Labor adheres to such an interpretation and thus disagrees with the Fourth Circuit’s interpretation of § 3304(a)(12).

459 U.S. at 1151; 103 S.Ct. at 797 (1983).

We share Justice White’s doubts regarding the efficacy of Brown’s interpretation of § 3304(a)(12). First, the court in Brown ignored Congress’ use of the qualifying phrase “... solely on the basis of pregnancy ...” (emphasis added). Use of the word “solely” indicates that Congress intended to proscribe state laws that denied compensation on the basis of the pregnancy alone. Neither the Missouri statute nor the South Carolina statute challenged in Brown make an express reference to pregnancy: in each case compensation was denied because the claimants had left work for reasons that were not attributable to the employer or connected with the work. If Congress had intended to bar disqualification on any ground in cases involving pregnancy, as Brown holds, it could have unambiguously expressed its intent without using the word “solely.” We are inclined to give greater weight to the Department of Labor’s interpretation because it gives effect to every word in the statute.

Second, our examination of the legislative history reveals that Congress deleted language from an earlier draft of § 3304(a)(12) which would expressly have authorized the result reached in Brown. As originally proposed by a bill introduced in 1975, § 3304(a)(12) provided:

No person shall be denied compensation solely on the basis of pregnancy and determinations under any provision of such State law relating to voluntary termination of employment, availability for work, active search for work, or refusal to accept work shall not be made in a manner which discriminates on the basis of pregnancy.

S. 2079, 94th Cong., 1st Sess. § 8(a) (1975); H.R. 8366, 94th Cong., 1st Sess. § 8(a) (1975) (emphasis added), quoted in Note, “Denial of Unemployment Benefits to Otherwise Eligible Women on the Basis of Pregnancy: Section 3304(a)(12) of the Federal Unemployment Tax Act,” 82 Mich.L. Rev.1925,1942 (1984). The broad language in the second clause clearly would have required states like Missouri and South Carolina to terminate their practice of disqualifying claimants who left work on account of pregnancy. For reasons that are not revealed in the recorded history, this language was dropped during the pendency of the bill. We believe this act provides persuasive evidence that Congress consciously chose not to create the “sweeping ban” attributed to § 3304(a)(12) by Brown. “Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 392-93, 100 S.Ct. 1723, 1742, 64 L.Ed.2d 354 (1980) (Stewart, J., dissenting).

Finally, we think this is an appropriate instance in which to defer to the interpretation rendered by the agency Congress entrusted with administration of the statute. The Department of Labor’s construction of § 3304(a)(12) comes closer to the plain meaning of the statutory language and is consistent with the legislative history. It is also worthy of note that the Secretary of Labor has continued to certify Missouri’s unemployment program during the three and a half years since Brown was decided. We believe that it would be incongruous for this Court to inform the Secretary that he had erroneously certified Missouri’s eligibility for federal assistance. The Supreme Court’s recent decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., — U.S. —104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), speaks well to the dispute presented to us in this case:

When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: ‘Our Constitution vests such responsibilities in the political branches.’ TVA v Hill, 437 US 153, 195, 57 LEd2d 117, 98 S Ct 2279 (1978).

Id. — U.S. at-, 104 S.Ct. at 2793, 81 L.Ed.2d at 717. This is no less applicable to state courts.

We are not inclined to disavow the substantial body of case law construing § 288.-050.1(1) to disqualify claimants like respondent on the basis of a single court’s questionable construction of a federal statute. It is for the General Assembly or Congress — and not the courts — to decide whether there are, or are not, sound public policy reasons for granting unemployment compensation to women who leave work on account of pregnancy. In the absence of an unequivocal expression of intent by either of those bodies, we shall abide by the existing law.

The judgment is reversed.

HIGGINS, J., concurs.

RENDLEN, C.J., concurs in result.

DONNELLY, J., concurs in result in separate opinion filed.

BLACKMAR, J., dissents in separate opinion filed.

BILLINGS and GUNN, JJ., dissent and concur in separate dissenting opinion of BLACKMAR, J.

DONNELLY, Judge,

concurring in result.

Although we may be bound to follow the United States Supreme Court’s decisions concerning federal statutes as involving uniquely federal questions, see Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1026, 93 L.Ed. 1282 (1949), in my view we are not so bound as to its pronouncements regarding the United States Constitution.

This is contrary to the views I expressed in 1972 and 1973. See Rodgers v. Danforth, 486 S.W.2d 258, 259 (Mo. banc 1972), and Kraus v. Board of Education of City of Jennings, 492 S.W.2d 783, 784 (Mo.1973). There I mistakenly accepted the assertion in Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958), that the United States Supreme Court’s interpretations of the written Constitution constitute the “supreme law of the land” under Article VI of the Constitution and are of binding effect on the states. I have since concluded that the Cooper assertion is no more than a postulate. See A. Bickel, The Morality of Consent 101-102 (1975); L. Tribe, American Constitutional Law 22 (1978); Caine, Judicial Review — Democracy Versus Constitutionality, 56 Temple L.Q. 297 (1983); Donnelly, The State of the Judiciary in Missouri-1982, 3 St. Louis U.Pub.L. Forum 101 (1983). Decisions by the United State Supreme Court in all cases arising under the Constitution should be “binding, in any case, [only] upon the parties to a suit as to the object of that suit * * A. Lincoln, First Inaugural Address, March 4, 1861.

I concur only in the result.

BLACKMAR, Judge,

dissenting.

The principal opinion correctly expounds the purpose of the federal and state unemployment compensation programs in providing a partial wage replacement for workers left unemployed through no fault of their own. The statute denies eligibility to those who voluntarily quit and those who are discharged for misconduct. I believe that Congress, in the 1976 amendments to the Federal Unemployment Tax Act, had the purpose of extending benefits to a woman who becomes pregnant, leaves work as the anticipated delivery date appears, and then offers herself for work as soon after giving birth as she is able.

I.

26 U.S.C. § 3304(a)(12), as enacted in 1976, provides as follows:

No person shall be denied compensation ... solely on the basis of pregnancy or termination of pregnancy.

It is of course assumed that Congress had some purpose in mind in enacting or amending a statute. I cannot see what Congress could have intended in enacting the provision just quoted if it did not intend to guarantee compensation to persons in the position of this claimant. The statute seems as clear to me as it did to the federal court in South Carolina and the United States Court of Appeals for the Fourth Circuit in Brown v. Porcher, 502 F.Supp. 946 (D.C.S.C.1980), affirmed 660 F.2d 1001 (4th Cir.1981), cert. denied 459 U.S. 1150, 103 S.Ct. 796, 74 L.Ed.2d 1000 (1983), the only reported case on the point.

It is sometimes suggested that the statutory amendment had no purpose beyond that of eliminating state statutory requirements such as the Utah provisions dealt with in Turner v. Department of Employment Security, 423 U.S. 44, 96 S.Ct. 249, 46 L.Ed.2d 181 (1975), which established a conclusive presumption that a woman was unavailable for work for a certain time before and after childbirth. This argument is unconvincing. Turner ruled in favor of the claimant on the basis of the federal statute, and so there was no imperative need for legislation. The statutory language furthermore, is very broad.

I agree that we are not bound by the decision of a United States Court of Appeals, whether our own Eighth Circuit or another, on a federal question. Those courts, just as ours, are immediately subordinate to the Supreme Court of the United States. We have the authority and the duty to read the law for ourselves, and decisions of coordinate courts do not control us. Decisions of other jurisdictions, however, are helpful and, in this instance, highly persuasive.

The Supreme Court denied certiorari in Brown v. Porcher, supra. I am fully mindful of the frequent cautions against reading too much into a denial of certiorari. In this instance, however, the denial is highly persuasive. The case, however, involved a recent statute of national application and a fact situation which constantly recurs. I believe that the Supreme Court would have accepted review if a majority of the justices were of the view that Brown v. Porcher was unsound. The presence of the dissenting opinion, rare in denials of certiorari, actually lends force to the denial. Justice White’s views, perhaps tentatively stated, simply did not commend themselves to a majority of the Court.

The principal opinion cites the position of the Department of Labor, and the failure to take any action to “disqualify” Missouri’s program, in support of its conclusion. I disagree emphatically. Courts, not bureaucrats, give authoritative interpretation of statutes. The statute before us is essentially simple, straightforward, and designed to enunciate a national policy. There may be occasion for deferring to an administrative interpretation if a statute is complicated or if technical knowledge is required, but this is not an appropriate case for deferral. Nor is bureaucratic inertia a proper circumstance in support of a holding. It may be assumed that the administrators would wait until a question in a pending case is resolved judicially.

Besides, I do not find the Department of Labor’s interpretation dispositive of the point at issue. When Justice White’s position is adduced, it must be noted that his views are those of a minority. He simply argued in favor of granting review, and pointed to other important issues not involved in this case.

The principal opinion cites legislative history in an attempt to shore up its position. If the statute is clear on its face there is no occasion to refer to legislative history. The language quoted in the principal opinion is from a 1975 bill. A responsible legislature might have felt that the quoted language was prolix and unnecessary, and that, if too many details were covered, omissions might be construed adversely to claimants. The initial bill was modified in the House of Representatives, in which it originated, and so the Senate was not privy to the initial language. There is nothing whatsoever to indicate that Congress intended to deny compensation in the situation presented by this record. It is best to start with the clear language of the statute.

The word “solely” means to the exclusion of all else. As used in the statute, it means that pregnancy cannot be used as a factor in the determination of an award. The Commission automatically classifies a pregnant woman as having voluntarily quit her job when she leaves for confinement and delivery. Pregnancy is, thus, the primary determinant in the denial of benefits. This conflicts with the purpose of the federal statute, regardless of whether state statute law specifically discriminates because of pregnancy. The application of the state statute, not its constitutionality, is being challenged.

II.

The opinion of the St. Louis Court of Appeals in Bussmann Manufacturing Co. v. Industrial Commission, 335 S.W.2d 456 (Mo.App.1960) holding that a woman who leaves work to give birth leaves her work “voluntarily without good cause attributable to [her] work or to [her] employer,” and cases following it should be disapproved. It is a perversion of language to say that pregnancy is “voluntary.” It is, rather, something which sometimes happens to susceptible women who engage in the necessary preliminaries.

In contrast to the Court of Appeals in Bussmann, I believe that disqualification ensues only if the termination of employment is (1) voluntary, and (2) not related to employment. An employee who tenders a permanent resignation of course leaves work voluntarily, but may still receive unemployment compensation if conditions of employment make continued working impossible. It follows that an employee who does not leave voluntarily is not disqualified, even though the circumstances making the termination necessary are not attributable to the employer.

A woman who becomes pregnant has to be absent from work for a time. She has no choice. The necessary period of absence can be computed within reasonably accurate perimeters. It is not necessary to rule against persons in the position of this claimant to protect the unemployment fund against claimants who could continue at their jobs, but choose to leave for their own purposes.

Our Court has never held that people in the claimant’s position are ineligible for compensation. The policy of the statute would be best served by departing from the appeals cases cited to support the denial of benefits.

I would affirm the judgment of the circuit court.

      . Under § 288.050.1, a claimant found to be disqualified is not entitled to benefits “until after he has earned wages equal to ten times his weekly benefit amount.”

      . A leave of absence without a guarantee of reinstatement has been treated as a "quit” when the employer refuses to rehire the employee at the termination of the leave. See Fifer v. Missouri Division of Employment Security, 665 S.W.2d 81 (Mo.App.1984); Division of Employment Security v. Labor and Industrial Relations Commission, 617 S.W.2d 620 (Mo.App.1981). Compare Trial v. Industrial Commission, 540 S.W.2d 179 (Mo.App.1976).

      . A South Carolina statute disqualified a worker if he had “left voluntarily without good cause his most recent work," S.C.Code Ann. § 41-35-120(1) (1976), and the South Carolina Employment Security Commission, like its Missouri counterpart, interpreted the statute to disqualify eligible claimants who left their most recent work for pregnancy-related reasons.

      . The Department of Labor's interpretation of § 3304(a)(12) was clearly set forth in a publication distributed to the states following enactment of § 3304(a)(12):
      The new provision requires that the entitlement to benefits of pregnant claimants be determined on the same basis and under the same provisions applicable to all other claimants. It does not mean that pregnant claimants are entitled to benefits without meeting the requirements of the law for the receipt of benefits. It requires only that a pregnant claimant not be treated differently under the law from any other unemployed individual and that benefits be paid or denied not on the basis of pregnancy but on the basis of whether she meets the statute’s conditions for receipt of benefits.
      U.S. Department of Labor, Employment and Training Administration, Unemployment Insurance Service, "Draft Language and Commentary to Implement the Unemployment Compensation Amendments of 1976 — Public Law 94-566" at 62 (undated). Using this interpretation, the Department of Labor had certified the South Carolina unemployment program as complying with the federal minimum requirements.

      . FTC v. Colgate-Palmolive, 380 U.S. 374, 85 S.Ct. 1035, 13 L.Ed.2d 904 (1965); Staley v. Missouri Director of Revenue, 623 S.W.2d 246 (Mo. banc 1981).

      . The Labor Department has not always been of the same view. In 1976 a Labor Department official wrote as follows:
      ... In our view, a determination disqualifying an individual from benefits when it is found that "her total or partial unemployment is due to pregnancy” ... is as discriminatory as the Utah provision ... which the Court specifically struck down. Such a provision may mean only that the individual’s work separation, whether a quit or a discharge, was because she was pregnant. A disqualification on the basis of such a provision would not be based on an individualized determination as to whether or not the individual was able to work, but only on the fact that her unemployment was due to pregnancy. CCH Unemploy. Ins. Rep. ¶ 21,842 (1976), U.S. Department of Labor, Unemployment Insurance Program Letter No. 1-76. (Emphasis added).

      . Other pregnancy cases are Neely v. Industrial Comm. of Missouri, 379 S.W.2d 201 (Mo.App.1964), Davis v. Labor & Industrial Relations Committee, 554 S.W.2d 541 (Mo.App.1977).

      . See City of Florissant v. Labor & Industrial Relations Committee, 613 S.W.2d 713 (Mo.App.1981).


author: GUNN, Judge.

text:
    Freeman R. BOSLEY, Jr., Respondent, v. Hon. Paul M. BERRA, Appellant. CITY OF ST. LOUIS, et al., Petitioners, v. 22ND JUDICIAL CIRCUIT, et al., Respondents.
    Nos. 65957, 66586.
    Supreme Court of Missouri, En Banc.
    April 2, 1985.
    Rehearing Denied April 30, 1985.

      Robert H. Dierker, Jr., James J. Wilson, Edward J. Hanlon, Julian L. Bush, St. Louis, for appellant and petitioners.
    Douglas A. Forsyth, Sr., St. Louis, for respondents in both cases.
   PETITION FOR REVIEW FROM THE JUDICIAL FINANCE COMMISSION

GUNN, Judge.

This opinion consolidates for disposition two cases arising out of a budget dispute between the City of St. Louis and the Clerk of the Twenty-second Judicial Circuit.

The first matter is a proceeding in mandamus brought by the circuit clerk against the comptroller of the city to compel the approval and payment of certain contracts entered into by the circuit clerk. The trial court ordered the requested relief, and the city appeals this judgment. The second case is a proceeding before the Judicial Finance Commission brought by the city to challenge these expenditures. The commission determined that portions of the disputed expenditures were reasonable and that the remainder were unreasonable. The city also appeals this decision, pursuant to § 477.600, RSMo Cum.Supp.1984.

We affirm the decision of the Judicial Finance Commission. The judgment in mandamus is affirmed with respect to compelling payment of the expenditures found to be reasonable by the Judicial Finance Commission and reversed in all other regards.

In reviewing the decision of the Judicial Finance Commission, § 477.600 provides that this Court shall consider the petition for review de novo. However, in view of the Commission’s statutory function as arbiter of circuit court budget disputes, In Re 1983 Budget for the Circuit Court of St. Louis County, 665 S.W.2d 943, 944 (Mo. banc 1984), this Court does not engage in any close reconsideration of the Commission’s conclusions with respect to reasonableness of circuit court expenditures where the basis for such conclusions is apparent from the record. This holding follows clear legislative intent respecting review of the Commission’s statutory functions.

The expenditures involved in these cases fall into two categories. The first consists of two contracts for consultation and systems support for a proposed computerization of the circuit court’s financial accounting system, to be coupled with in-house computerized docket control. The second consists of contracts for and first-year amortization of mainframe computers capable of performing these joint functions.

The original budget for the circuit clerk’s office, allocated within the budget of the circuit court, contained a line item denominated “office services.” An attached commentary designated $276,775 for a “proposed accounting system,” which the commentary noted was to be computerized. The need for such a system was evidently recognized by all parties, and a budget including this item was approved by both the circuit court and the city. The board of aldermen of the city enacted the budget into law. The circuit clerk subsequently obtained consulting services relative to the implementation of this system which resulted in a plan to computerize both financial accounting and docketing. The cost of consultation and systems support for this plan totalled approximately $49,000. The first-year outlay for computerization amounted to $90,000, with a total cost of $1,500,000 for the entire project. The Commission determined the consultation and system support costs were reasonable and that the implementation costs were not. We agree, giving deference to the findings and conclusions of the Judicial Finance Commission in this regard.

The city’s challenge to the approved costs centers on its contention that the particular expenditures were neither approved by the circuit court nor contemplated by the line-item description. This two-part point is without merit.

The record clearly refutes the allegation that the expenditures were not approved by the circuit court en banc; they were.

Second, the Judicial Finance Commission’s statutory function is to determine the reasonableness of budget estimates submitted by the individual circuit court and its clerk. Sections 50.640, 477.600, RSMo Cum.Supp.1984. To the extent this function was implicated by the city’s petition, the Commission was called upon to determine the reasonableness of the circuit clerk’s “office services” budget item in light of the two substantive constituents proposed for that item by the clerk: consultation and systems, and mainframe computer and construction. We can conceive of no other, and certainly no better, method for determining the reasonableness of given budget items than to evaluate the reasonableness of the discrete and concrete elements proposed for it through which the item is given meaning. The Commission found the item to be reasonable to the extent it reflected the first component and unreasonable to the extent of the second. With our assent, those determinations now become final. See § 477.600.

The trial court in the mandamus proceeding took the position that the city comptroller could not refuse to approve the circuit clerk’s proposed expenditures under a budget estimate which had been made the subject of an appropriation by the city, absent illegality or a manifest and clear abuse of discretion by the circuit clerk. Kirby v. Nolte, 349 Mo. 1015, 164 S.W.2d 1, 5 (banc 1942). The trial court concluded that neither the consultation expenses nor the mainframe costs were either unlawful or manifested a clear abuse of discretion.

Certainly the budget estimate in question had been made the subject of an appropriation, as the city was compelled to do so under § 50.640. However, the estimate was not so “final” as to authorize the requested relief, since it was still subject to the Judicial Finance Commission’s review for reasonableness. Once the Commission’s authority to review the estimate was invoked, it became the function of that body and this Court sitting in review to determine the reasonable and permissible constituents of that estimate. That process having been completed, it is now apparent that the appropriation upon which the mandamus was based has been invested with both the affirmative and negative characteristics indicated by the Commission and this Court. Mandamus is therefore available to the circuit court with respect to the approved costs for which no Commission review is sought or which have been found to be reasonable by review. However, that remedy is unavailable with respect to those costs excluded from the appropriation, or while pending Commission review.

With respect to the Judicial Finance Commission’s jurisdiction to review the reasonableness of the various items under dispute, it matters not that the budget has already been approved and signed into law by the City. It is manifest that the legislative intent behind §§ 50.640 and 477.600 is to create in the Commission a vehicle for handling all budget disputes preferably before the start of the budget year in question: “The Commission, to the maximum extent practicable, shall resolve the dispute prior to the beginning of the fiscal year in question.” § 50.640.2, RSMo Cum.Supp.1984. But that does not necessarily mean that the Commission’s jurisdiction is limited only to financial disputes occurring before the start of the budget year or before the approval of the budget, providing, of course, that review procedures before the Commission are promptly instituted by the moving party.

The decision of the Judicial Finance Commission is therefore affirmed. The judgment of the trial court is affirmed in part and reversed in part and is hereby remanded to the trial court for entry of judgment in accordance with this opinion.

All concur.

      . Rule 9.05 of the Judicial Finance Commission Rules of Practice and Procedure (Administrative Rule 12) provides for the following time restrictions applicable in a petition for review to the Commission: "Except for good cause shown, a Petition shall be filed at least thirty (30) days before the beginning of the county’s fiscal year in question.”

      . A purported "settlement agreement” concerning the dispute between the parties has been filed by the City subsequent to arguments before this Court. However, the undated document is not signed by any of the parties to the litigation and is ineffective insofar as our treatment of the issues is concerned.