Forrest McCLUNEY v. JOS. SCHLITZ BREWING CO

Appellant Forrest McCluney brought this action to recover damages under the Missouri "service letter statute," Mo.Rev.Stat. § 290.140 (1978).1 McCluney entered into an employment contract with appellee Jos. Schlitz Brewing Co. in Missouri in 1956. In 1970, Schlitz offered McCluney the position of plant manager at its facility in North Carolina. Appellant accepted the position and moved to North Carolina. In 1975, Schlitz offered McCluney a position as vice president of plant operations at Schlitz' corporate headquarters in Wisconsin. McCluney again accepted. Thereafter, McCluney was fired and sought a "service letter" pursuant to the Missouri service letter statute.

In Horstman v. General Electric Co., 438 S.W.2d 18 (Mo.App.1969), a Missouri state court held, as a matter of state law, that a Missouri resident employed under a Kansas employment contract was not entitled to a service letter under the Missouri service letter statute. The court stated:

"Considering the legislative intent and construction of the statute by the courts of Missouri, it is clear that appellant is not entitled to a service letter under the Missouri service letter statute because appellant was not hired in Missouri, did not work in Missouri, was not discharged in Missouri, did not request a service letter from an office of respondent in Missouri, received no letters from respondent's office in the State of Missouri, and because there were no contacts between appellant and the State of Missouri insofar as his employment or discharge by respondent was concerned. Appellant's employment contract was a Kansas contract, since that is where he was hired and where he worked." Id., at 21.

In the instant case, the Court of Appeals expressly held that the employment contract entered by appellant in Missouri in 1956 was discharged in 1970 when appellant accepted a promotion to a position as a plant manager in North Carolina; the court unequivocally stated that "[t]his suit is not upon a Missouri contract." C.A. 8, 649 F.2d 578, 583. The Court of Appeals recognized that in Bliven v. Brunswick Corp., 575 S.W.2d 788 (Mo.App.1978), the court held that a "service letter" was required in a case in which an employee had been hired in Missouri and then transferred to four different States over a 2-year period. The Court of Appeals specifically distinguished Bliven, however, in concluding that the instant suit was not based upon a Missouri employment contract.2 In light of Horstman, this conclusion of the Court of Appeals strongly suggests that, as a matter of state law, the Missouri service letter statute does not apply in this case. Without expressly deciding that state law question, however, the Court of Appeals appears to have concluded that an application of the statute to this employment relationship would be unconstitutional.3

It is not our business to decide the proper interpretation of Missouri law; indeed, we are precluded from considering state law questions in an appeal from a decision of a federal appellate court. 28 U.S.C. § 1254(2). What is critical, however, is that if the Missouri statute was not applicable as a matter of state law, as the Court of Appeals suggests by distinguishing Bliven and by ruling that this case was not based on a Missouri contract, then the Court of Appeals should not have considered whether an application of the Missouri statute would violate due process. Certainly, this Court should not affirm what may be nothing more than an advisory opinion that an unintended application of state law would violate the Federal Constitution.4 Since the Court of Appeals appears to have expressed an opinion on a federal constitutional question without first ruling on a necessary question of state law, I would remand this case to the Court of Appeals for a determination in the first instance of whether, as a matter of state law, the Missouri statute is applicable on the facts of this case.