Westboro Baptist Church is like a bad penny. You know the punch line. It keeps showing up.
So here’s another Eighth Circuit Court of Appeals decision, in a long line of Eighth Circuit, Westboro Baptist Church cases, upholding an Iowa state law that prohibited protests within 500 feet of a cemetery, mortuary, church, or other place of worship during a funeral within one hour before and two hours after the funeral.
l
First, a review of this case before discussing its implications.
The Eighth Circuit Court of Appeals in August of 2017, upheld a Nebraska law prohibiting protest activities within 500 feet from a cemetery, mortuary, church, or other place of worship during a funeral from one hour prior to and two hours following a funeral. This case increased the buffer zone distance from 300 feet to 500 feet, recognized in an earlier decision of the Eighth Circuit in 2012, upholding an ordinance of the City of Manchester, Missouri, which restricted such protest activities within 300 feet and one hour prior and one hour after the funeral service. The Eighth Circuit concluded that the state statute was a reasonable time, place, and/or manner restriction that did not violate the rights of the protesters. Seemingly going from 300 to 500 feet was no big deal, although a buffer zone distance of 500 feet, makes it one of the longest free speech buffer zone cases to be upheld.
By contrast consider a 35 foot buffer zone in front of an entrance to an abortion clinic was unconstitutional because it was not the least restrictive means. It is hard to square these two opinions, except that innately we somehow know that a funeral is a very special time when mourners, relatives, and friends are entitled to grieve and pay respect to the departed, in their own special way, without outside intrusion. It seems that the Supreme Court is willing to treat protests at funerals differently than protests at abortion clinics, without recognizing the differences except by implication.
I always thought that the right of privacy was a big factor, which seemed to me where the Eighth Circuit was going as I have argued for in earlier Posts. In my mind, it is hard to make a real substantive distinction between the two outcomes. It seems to me that this is just a matter of subjective perspective.
List Of Westboro Church Posts By Howard Wright With Links
Posted onApril 29, 2013bymomunicipallaw.| have described Westboro Baptist Church as the Church that loves to be hated in an earlier Post. I might add, they also love to rile up citizens into egging on state and local government officials to enact laws that … Continue reading →
Westboro Baptist Church is a church that loves to be hated. It is a small group (Shirley and Megan Phelps-Roper and others) that pickets funerals of dead veterans with signs that state that the veterans died because of God’s wrath … Continue reading →
The ongoing saga of the Westboro Baptist Church and their despicable picketing of veterans’ funerals continues unabated despite the efforts of hundreds of local communities and about 40 states that have passed laws prohibiting the picketing of funerals. The Eighth … Continue reading →
In the face of hateful picketing by members of the Westboro Baptist Church, Albert Synder, the father of a soldier who was killed in Iraq in the line of duty filed a claim for damages against members of the Westboro Baptist … Continue reading →
Phelps-Roper (Roper) is a member of the Westboro Baptist Church that believes that God is punishing America by killing American soldiers for what her Church considers the sin of homosexuality. As part of her religious duties Roper believes funerals are … Continue reading →
In McCullen v. Coakley, the United States Supreme Court struck down a Massachusetts law that made it a crime to knowingly stand on a ”public way or sidewalk” within 35 feet of an entrance or driveway of a reproductive health … Continue reading →
In deep red Kansas voters rejected a constitutional amendment that would have removed from the constitution of Kansas a provision that protected woman’s reproductive rights by 59 to 41 percent. Nate Cohen, chief political analyst for the New York Times, wrote that the United States Supreme Courts decision overturning Roe v. Wade “has shifted the political landscape.” Voters in Kansas showed up in record numbers at the August 2022 primary to the tune of over 900,000 voters, setting a new record turnout for a primary election vote by hundreds of thousands of voters.
Cohen than goes on to predict that: “The Kansas vote implies that around 65 percent of voters nationwide would reject a similar initiative to roll back abortion rights, including in more than 40 of the 50 states…” Cohen further predicts that Missouri would reject a similar amendment to the Kansas proposal by fifty seven percent. Remember, the Kansas proposal would have removed from the Kansas constitution protections for reproductive rights. Obviously, Cohen’s conclusions are a very big deal, but only time will tell if his predictions are accurate.
Missouri has one of the strictest abortion laws in the country, which was triggered when the United States Supreme Court overruled Roe v. Wade. Missouri law provides “…no abortion shall be performed or induced upon a woman, except in cases of medical emergency.” There are no exceptions for rape or incest. Violation of the law is a felony, which is punishable by up to 15 years in jail. The defendant has the burden of persuasion to show that a medical emergency is more probably true than not. Missouri does not recognize the right to an abortion in its constitution; therefore, the door to a court interpretation that reproductive rights are protected by the Missouri constitution is closed.
All this is downright scary. If you believe women should have control over their bodies, the question is what to do. With Republicans having a veto proof majority in its legislature the chances of remedial legislation in Missouri are next to zero. Congress, with an evenly split Senate, is also unlikely to act by codifying Roe v. Wade, even though there are bipartisan efforts to codify Roe v. Wade protections, these efforts are doomed by the 60-vote requirement in the Senate. What are the options to protect abortion rights?
Fortunately, there is a lot of election activity on the abortion rights front in other states, which may give us some clues. There will be a vote to amend state constitutions in four states relating to abortion rights on the primary election date, which November 8, 2022. California, Vermont and Michigan proposes to amend its constitution to protect women’s reproductive rights. In Kentucky a vote is scheduled to amend its constitution to prohibit abortion. Montana has a vote on a referendum of a law that makes infants born alive at any stage of development a legal person requiring medical care to be provided to infants born alive after an induced labor, cesarean section, or attempted abortion.
It is clear that if reproductive rights of women are to be protected in Missouri, it will take a constitutional amendment like California, Vermont or Michigan.
I will be waiting on pins and needles until after November 8th to sort this out, but if Nate Cohn’s predictions are true there will be a lot of interest in a constitutional amendment in Missouri. Still, even after we know the results of the elections in November it will take a sophisticated analysis to determine how this might play out in Missouri, due to so many variables. Each state is different, so translation of results from one state to another will not be easy. Stay tuned.
Having served as Springfield City Attorney for almost 34 years, I have seen many bitter neighborhood battles over zoning, although the intensity of the battle over the zoning of the Galloway Village development, across from Sequiota Park on South Lone Pine, has a special passion of its own. The Galloway Village Neighborhood Association (Neighborhood Association), representing residents in the Galloway area, has opposed the Galloway Village Creek development for over four years, spent over $50,000, and it is not over yet.
Recently, the Galloway Neighborhood Association obtained a ruling from the Missouri Court of Appeals, declaring that the Association was entitled to a referendum on the ordinance adopted by the City Council of Springfield, approving the Galloway Village development. This means that the voters will get to decide if the rezoning will be approved or rejected at an election on November 9, 2022. A referendum is the ultimate forum of participatory democracy, since the voters get to decide if the Galloway Village zoning is approved. The outcome of the vote could be decisive. If the ordinance is approved by a majority of the voters, the property would be rezoned and that would end the battle. If the voters reject the zoning, the ball would be in the developer’s court to determine if he would pursue a less intense use of the property that might be more satisfactory to the Neighborhood Association. The recent adoption of new guidelines for development in Galloway area by the city might offer a compromise.
Since I retired in 2005 as City Attorney, I have not expressed my views on city matters, believing that it was time for others. In this rare case, I have put aside my reservations to speak on this important matter. I hope to bring a different perspective to this issue based on my experience as City Attorney for almost 34 years and familiarity with this area for over 50 years. I know this area like the back of my hand, having belonged to the Southern Hills swimming pool on Southern Hills Boulevard for about 15 years, which is immediately North of the Galloway Greenway trail. I have walked and biked the Galloway Creek Greenway and visited Sequiota Park hundreds of times.
I will be blunt by making my intentions clear at the outset. The rezoning of Galloway Village property is about protecting the unparalleled beauty and natural resources of Sequiota Park, the Galloway Creek Greenway, and pristine water resources that are unique. To put this in perspective, the Galloway Creek Greenway was the first trail in Missouri to be honored as a National Recreation Trail by the National Park Service and American Trails in 2003. No small honor. Sequiota Park is unique with free-flowing springs of pristine waters that come out of the side of the side of the outcrop of the rocks, providing a constant flow to the creek south of Sequiota Park of the highest water quality. Sequiota Park is well named, meaning in Indian “many springs.” In addition, there is a big cave opening that houses thousands of endangered grey bats that is exceptional. You can experience the thrill of boating deep into the cave with bats hanging from its roof.
Part of the confusion over the issue of whether or not to rezone Galloway Village is driven by the idea that economic development is always a net gain, which is not true, particularly in this case. These bogus claims are furthered by statements to the News-Leader by the Missouri State Representative for the Galloway area, Craig Fishel, who strongly believes that the development of the Galloway area was spurred on by the city when it blighted the Galloway area, allowing the use of tax incentives for redevelopment in 2014.
In an interview with the News-Leader, Representative Fishel lauded City Council’s, 2014 decision to blight the Galloway area along Lone Pine.
“This is a perfect example of when it should be used,” he said. “I’ve lived in that southeast corner of Springfield my whole life. There was nothing happening in Galloway before we blighted it.”
Now?
“It’s a shining star in the city of Springfield for what blighting can do,”
While Representative Fishel, may be a life long resident of the area, his analysis is way off because he fails to recognize that the development in the Galloway area is based on the strength of the surrounding neighborhoods as a great place to live. This area was well established before 2014, before the city blighted properties on South Lone Pine. Sequiota Park and the Galloway Creek Greenway shaped the revitalization of this area because people want to live in an area where there are amenities like parks and trails. You can see this impact all over town along the trail-way system, although it is most visible and prominent in the Galloway area.
When I arrived in Springfield in 1972, the Galloway area was run down, with old industrial businesses spotted along the east side of Lone Pine. I know, I was involved in trying to deal with these issues. Dust from the quarry was everywhere discouraging development. Sequiota Park was badly in need of an update.
So, what happened? The city with the help of residents in the area took steps in 2003 to buy land from John Q. Hammons, at a considerable cost to the neighbors, along the east side of Southern Hills Boulevard and Lone Pine, in order to provide for open space and for a connector to the Galloway Creek Greenway Trail and Sequiota Park. The city improved Sequiota Park by updating its infrastructure, making it a destination for families and individuals who wanted to enjoy the park and those who wanted to use it to picnic, walk, run, and bike. On top of that, the old industrial outdated businesses disappeared due to higher environmental requirements and the quarry stopped producing prodigious amounts of dust. No doubt, much of this was due to higher environmental standards particularly for air quality by the state, federal and city governments. People wanted to live near Sequiota Park and the Galloway Creek Greenway where you could picnic, bike, walk or run. The Galloway area took off with high quality housing that was established well before 2014. The vitality of the neighborhoods is what makes the Galloway area so strong and vibrant.
Neighborhood opposition is not a NIMBY reaction. According to KY3, Wendy Huscher, a Galloway neighborhood representative, explained citizen opposition: “It is based on the simple fact is we’re here to preserve this area for all of Springfield.” Ron Boles, another Galloway neighborhood representative said, according to KY3 that:
“This is not a bunch of neighbors who don’t want it in their backyard. We already have it in our backyard. But this is the wrong development in the wrong place. Sequiota is where people want to come to get away from the city and not be smack in the middle of it. To build something like that across the street will take away the beautiful ambiance of this area.”
The Galloway Neighborhood Association has expressed concerns about increased traffic, storm water pollution, and tree removal that would ruin the historic park’s charm and ecosystem, which is already suffering from algae build-up in its water features.
Worse yet the environment protecting the endangered grey bats could be tipped, destroying a precious and unique Springfield resource. I worry about the intensity of the development that has already occurred or will occur in this area, effecting Sequiota Park and the Greenway. Quarry Town already plans to add a 100 rental unit housing complex and 18 stilted townhouses plus 20,000 square feet of commercial south of Sequiota Park in the Galloway area. In addition, TLC properties has developed a 133,000 square unit property, south of Sequiota Park with 138 units south of Sequiota Park off of Lone Pine. There is already lots of development in the area and more is not needed when it impacts Sequiota Park and the Galloway Creek Greenway trail. Lone Pine, the primary road serving this area is a two lane inadequate road that meanders south to the park from battlefield Road.Attempts to improve the road seem pretty pathetic like the roundabout built to serve apartment south of the park.
It is not hard to imagine taking your family to Sequiota Park to see a flock of geese gliding into the pond in full V formation for a soft landing; you can look at a free flowing springs coming out of the face of the cliff; you can walk to the small dam where water flows over the crest of a dam into Galloway Creek, making what was an upstream dry creek, during the dry season, into a downstream free flowing stream all year long; you can visit the mouth of a large cave opening where Indians once camped; you can cook or bring your own food to eat as your family whiles away the day and your children play in the park; you can walk or bike on the trail by a free flowing stream of clear and pristine water; and to top everything off you and your family can be thrilled to watch thousands of endangered grey bats come out of the big cave opening in a constant stream at twilight. These are treasures to be protected. If this is not worth protecting, I do not know what is?
November 8, 2022, is your opportunity as a citizen of Springfield to participate in one of the great exercises in participatory democracy. Please exercise your right to vote. When voting consider what is at stake. A few pictures from the Springfield Park Board Web site tell a story about this unique and incredible resource. See web site for more pictures of Sequiota Park.
The voters of Springfield, Missouri will have an opportunity to vote on November 8, 2022 on whether or not to rezone the Galloway Creek Village property, located on South Lone Pine across from Sequiota Park. My purpose in writing this letter is to provide background information on referendums based on my 34 years’ experience as Springfield City Attorney, having retired in 2005.
The right to vote on rezoning is not a new issue, since Don Bush, former City Attorney for Springfield, in 1969 opined that zoning ordinances were subject to a vote of the electorate under the referendum provisions in the 1953 Springfield City Charter, which opinion was reaffirmed when I was City Attorney for Springfield in 1980. In addition, the voters were given an opportunity in 1994 to amend the City Charter by eliminating the right to refer or initiate rezoning proposals in the City Charter, which amendment was overwhelming rejected by seventy five percent of the voters.
Even though the right to refer zoning matters to the voters is not a new it has seldom been used, if at all, during its 69 years as a fixture of the Springfield City Charter. The basic fact is that referral of rezoning of property is about a rare as a hen’s tooth, although we will get to see this the first time with the vote on the Galloway Village Creek zoning. Springfield is still standing and enjoying prosperity and good economic growth, despite having this provision in its Charter for 69 years.
Opponents of the Galloway Creek Village referendum misunderstand the referendum, thinking that almost any ordinance can be referred to the voters. Not true, referrals to the voters are very limited. Referendums are limited to legislative matters. The vast majority the ordinances adopted by the city council are not legislative. For example, ordinances that that are administrative (like budgets or rate increases) or just plans for an area like around the Missouri State University or OTC are not subject to a referendum because these plans are generally not laws. In addition, the suggestion that somehow development of Missouri State or OTC will be hampered because of city zoning laws is a red herring because under Missouri case law the Missouri zoning law does not apply to the development of Missouri State or OTC. Time to put this red herring to bed.
In addition, to referendums being limited to ordinances that are legislative, there are significant hurdles like gathering signatures for a referendum. No easy task. Just ask the Galloway Greenway Creek Neighborhood Association about the burden of collecting and submitting sufficient signatures for a referendum.
Some citizens have used the example of a referendum on zoning as an excuse to argue for getting rid of the right of citizens to vote on zoning matters in the Springfield City Charter because it hinders economic growth. This doomsday argument is that this will destroy economic growth. More specifically their argument against the referendum goes like this. In a representative government, like Springfield, informed leaders will tell us whether or not a zoning proposal is good or bad and we ought to listen and follow in step. After all, in this case both the Planning and Zoning Commission and the City Council approved the Galloway Village Creek development and it has been endorsed by the Chamber of commerce as well ensconced community leaders. What more do we need?
This argument is upside down and ignores why the right of citizens to decide on the approval of ordinances is in the City Charter. According to Ballotpedia: “… these devices were adopted principally to curb the rule of political party machines and to correct the abuses and inadequacies of inflexible legislatures by granting the people a means to overrule legislative action and to initiate popular votes on legislation.” The right of initiative and referendum goes back to our founding fathers. Thomas Jefferson, included in Virginia constitution the right of initiative and referendum because he believed that: “citizens were capable of being leaders and that they should agree upon, and approve, changes to laws.” Missouri added the right of initiative and referendum to the Missouri constitution by the legislature referring this to the voters in 1907. Under article I, section 1 of the Missouri constitution, all power is derived from the people. Under the Missouri Constitution the power of referendum has been delegated to the people.
Land disputes over rezoning are not uncommon. So, what happened in the Galloway Village Creek development? Seems like the Springfield City Council and the developer got crossways with the neighborhood. The city leaders see the development differently, from the neighborhood, which happens quite often in zoning matters. I believe all the parties are acting in good faith but they just see if differently. This can happen when a city council approves a development that would change the character of an area and increase congestion and affect the quality of the neighborhood in the eyes of the neighborhood. In these cases, there is another avenue open to the underdog: referendums. This is what happened with the proposal to rezone the Galloway Creek Village property.
The referendum should be viewed as a reasonable way to settle these disputes. Its purpose is well described in a July 14, 2021 article by “Let the Voters Decide“ discussing “Settling land Disputes with Referendums“ – “Referendums allow citizens to take part in the political process beyond electing representatives. They allow the people to meaningfully and directly voice their opinions on particular matter that affect them directly. Through referendums, they can help prevent representative governments from favoring the needs of Special Interest Groups and hold them to making decisions that are truly in the best interest of the public.”
On November 8, 2022 the voters of Springfield will have an opportunity to participate in one of the great exercises of participatory democracy. You, the voters will decide if the Galloway Creek Village property will be rezoned. Be informed.
Please, exercise you right to vote on November 8, 2022.
The United States Supreme Court in National Federation of Independent Business v. Department of Labor, rejected a mandate requiring employers with more than 100 employees to require their employees to vaccinate or test, holding that there was no clear congressional authority under OSHA. The Court made it clear that in order to require such a far sweeping employer mandate it would be necessary for Congress to act. However, the Court upheld in Biden v. Missouri, the requirement that the Administration health care workers at facilities that receive federal funds could continue to enforce a vaccinate mandate for health care workers. National Federation of Independent Business v. Department of Labor and Biden v. Missouri, (SCOTUS 21A240 21A241, 1/13/22)
Comment Howard: Local governing bodies for home rule cities and counties have the power to enact public health mandates unless denied by their charter. Otherwise, legislative authority from the Missouri legislature seems to be required under National Federation of Independent Business v. Department of Labor for statutory cities and counties. For third class cities, Missouri has provided legislative authority to enact public health mandates in Section 77.530. You may want to check to see if section 77.530 is replicated in other statutes.
In a blockbuster case, the United States Supreme Court held in Bostick v. Clayton County, that Title VII of the Civil Rights Act of 1964 prohibited sex discrimination when an employer intentionally fires an employee based in part on sex. The impact of this landmark case is enormous both short and long term.
Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay and R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. All three cases, involving sex discrimination, under Title VII of the Civil Rights Act of 1964, were appealed to the United States Supreme Court, and consolidated into one case, Bostock v. Clayton County.
Justice Gorsuch, delivered the opinion of the Court in a 6 to 3 decision, joined by the four liberal Justices and Chief Justice Roberts, (an unusual alignment). Justice Gorsuch tees up the question before the Court: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.” His opinion is classic textualism.
Justice Gorsuch, first recognized that the legislators who adopted the Civil Rights Act of 1964, might not have anticipated their work would lead to a particular result, nor were they thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. ‘Nevertheless, the limits of the drafters’ imagination supply no reason to ignore what the law demands.”
“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
Espinoza v. Montana Department of Revenue, was clearly one of the most far reaching, controversial and consequential opinions of the 2019-20 United States Supreme Court term. The question before the United States Supreme Court in Espinoza, was whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from its scholarship program, which allowed public aid for private non-religious institutions. Continue reading →
Privacy is Inherent in a Driver’s Statutory Right to Counsel
In Rosing v. Director of Revenue, the Missouri Supreme Court, held that the statutory right to attempt to contact an attorney included the right to speak to an attorney privately.
” To conclude otherwise, would create absurd results.”
For full review of this case in the MMAA newsletter click here
Roesing v. Director of Revenue, did not go into whether or not there was a constitutional right to talk in private with an attorney, raising in my mind, the status of the right of privacy in Missouri.
Missouri has a very robust interpretation of the right of privacy, but seems like the Roesing is pretty much a stand-alone case interpretation of a statute. Click here for discussion of Missouri law re right of privacy.
For an excellent thumbnail discussion of the right of privacy under federal law click here.
No Search Warrant Required for Forced Blood Draw
The United States Supreme Court, held in Mitchell v. Wisconsin, that as a general rule, in civil and criminal cases, when a driver is unconscious, a search warrant is not needed because being unconscious constitutes exigent circumstances.
This opinion overrules State of Missouri v. Osborn, that a search warrant was required for a forced blood draw in a criminal case and answers this question in civil cases.
For more extensive review of Mitchell v. Wisconsin, click here.
Retaliation Claim Survives Even Though Underlying Age Discrimination Claim Failed
“A retaliation claim may survive even if the underlying discrimination or harassment claim is unsuccessful.” The statue protects the rights to file; therefore no motive required for violation. “The only issue is whether the person making the complaint has a reasonable good faith belief that there were grounds for the claim of discrimination or harassment.” See White v. Kansas City Public School District.
For more extensive review of the Kansas City Public school District case click here.
Logically, it follows, that a retaliation claim does not require employee to have a good faith reasonable belief under the MHRA that employer engaged in prohibited conduct. See Gentry v. Orkin LLC and Danny Birion
Hypocrisy of Orkin is rewarded with $120,000 verdict, $10 million in punitive damages, and $488,000 in attorney’s fees.
For more extensive review of the Orkin case click here.
Search Warrant Required To Track Suspect Using Cell Phone/Tower Technology
The United States Supreme Court, held in Carpenter v. United States, that the Fourth Amendment required a search warrant to obtain historical cell phone records from cell towers.
The time stamped data provides an intimate window into a person’s life, revealing not only his or her particular movements, but like “familial, political, professional, religious, and sexual associations.”
For more extensive review of this case click here.
Probable Cause to Arrest Generally Defeats First Amendment Free Speech Retaliation Claim
In Nieves v. Bartlett, the United States Supreme Court, held that if a police officer has probable cause to make an arrest, that the officer is generally shielded from any retaliation claim in free speech claims, except in those situations where the officer was treating the defendant differently than other persons similarly situated.
If there is no probable cause, you apply the Mt. Healthy test. Test: Was the retaliation a substantial or motivating factor behind the arrest, and, if that showing is made, the officer can only prevail only by showing that the arrest would have been initiated without respect to retaliation.
For more extensive review of this case click here.
Lemon Test, No Longer Has Juice – Supreme Court Upholds Christian Cross On Public Property Where Public Funds Were Used
A 32-foot tall Latin cross displays the American Legion’s emblem at its center and sits on a large pedestal bearing, a bronze plaque that lists the names of all 49 county soldiers who had fallen in WWI.
The Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land where it sits, but the American Legion reserved the right to continue using the site for ceremonies. The Commission has used public funds to maintain the monument ever since.
The American Humanist Association (AHA) and others filed suit in District Court, alleging that the Cross’s presence on public land and the Commission’s maintenance of the memorial violated the First Amendment’s Establishment Clause.
The United State Supreme Court granted certiorari and held that the cross did not violate the separation of church clause in the Constitution, by a 7 to 2 majority. The majority utilized a history and tradition analysis, instead of the Lemon test or the test fashioned by Justice Breyer in the Ten-Commandment case.
The history and tradition analysis includes at least four considerations, showing that retaining established, religiously expressive monuments, symbols, and practices are quite different from erecting or adopting new ones. First, these cases often concern monuments, symbols, or practices that were first established long ago, Second, as time goes by, the purpose associated with long established monuments, symbols, or practices often multiply. Third, the message of a monument, symbol, or practice may evolve with time. Fourth, time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance. Therefore, with the passage of time there is a strong presumption of constitutionality.
Lemon Test, No Longer Has Juice – Supreme Court Upholds Christian Cross On Public Property Where Public Funds Were Used
A 32-foot tall Latin cross displays the American Legion’s emblem at its center and sits on a large pedestal bearing, a bronze plaque that lists the names of all 49 county soldiers who had fallen in WWI.
The Maryland-National Capital Park and Planning Commission (Commission) acquired the Cross and the land where it sits, but the American Legion reserved the right to continue using the site for ceremonies. The Commission has used public funds to maintain the monument ever since.
The American Humanist Association (AHA) and others filed suit in District Court, alleging that the Cross’s presence on public land and the Commission’s maintenance of the memorial violated the First Amendment’s Establishment Clause.
The United State Supreme Court granted certiorari and held in American Legion v. American Humanist Association, that the cross did not violate the separation of church clause in the Constitution, by a 7 to 2 majority. The majority utilized a “history and tradition” analysis, instead of the Lemon test or the test fashioned by Justice Breyer in the Ten-Commandment case.
The history and tradition analysis includes at least four considerations, showing that retaining established, religiously expressive monuments, symbols, and practices are quite different from erecting or adopting new ones. First, these cases often concern monuments, symbols, or practices that were first established long ago, Second, as time goes by, the purpose associated with long established monuments, symbols, or practices often multiply. Third, the message of a monument, symbol, or practice may evolve with time. Fourth, time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance. Therefore, with the passage of time there is a strong presumption of constitutionality.
For more extensive review of this case click here.
Sheriff Is Entitled to Qualified Immunity For Dismissing Deputy Officer Who Ran Against The Sheriff As A Candidate
Employee of the Sheriff’s Department who ran against the sheriff can be dismissed without violating employee’s First Amendment Free Speech rights.Morgan v. Robinson,
Opinion by Judge Benton, was a masterpiece, succinctly summarizing the law in this area. Nevertheless, I would be very careful since this involved First Amendment rights.
For a more extensive review of this case click here.
No Cause Of Action For Being Placed On A City Hall “Watch List” Requiring Enhanced Security
Actions of the City in “identifying persons who may pose a security risk, and subjecting those persons to heightened screening and surveillance, are part of the security function at City Hall, “a governmental function. State of Missouri, ex rel. City of Kansas, Missouri, v. Harrell.
For a comprehensive review of this case click here
Flash bangs are explosive devices, which can kill a person, especially a child, if it lands directly on them.
“Police call them diversionary devices we call them bombs.” Law enforcement policy
Should check to see if innocent individuals are around before deploying the device; that the police have visually inspected the area where the device will be used; and they should carry a fire extinguisher. See discussion re policy.
Tasing Policy – Should be Updated
Intentionally tasering, without warning, of an individual who has been stopped for a nonviolent misdemeanor offense, who is not resisting or fleeing arrest while his hands are visible violates that individual’s Fourth Amendment right to be free from excessive force.
Relevant considerations in determining how much force can be used include: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” The court may also consider whether “the situation is ‘tense, uncertain, and rapidly evolving,’ which would force an officer to make ‘split-second judgments’ about how much force is necessary.” “[F]orce is least justified against nonviolent misdemeanants who do not flee or actively resist arrest and pose little or no threat to the security of the officers or the public.” For a more extensive review of this case click here.
Eighth Circuit Remands Case To Determine Whether Clerk Of The Court Was Employee Of The State Or The City
The City of Helena-West Helena, Arkansas (City), thought that Romona Evans had a warrant for unpaid court fines. After Evans was arrested, her car was towed, and was held at the police station for unpaid court fines, it was discovered that she had paid the fines. Evans then filed suit in federal district court against the City, alleging that the Clerk’s failure to document payments was “a practice, custom and habit,” and the City’s“ unconstitutional policies” caused a deprivation of her liberty and property, in violation of the Due Process Clause of the Fourteenth Amendment.
Plaintiff is trying to tap into the coffers of the city to recover her losses based on an argument that the Municipal Court judge and employees are city employees, not employees of the court, making the City liable under the Civil Rights Act. Evans v. City of Helena-WestHelena,
Remanded to determine whether or not the employees were employees of the state or the city. Facts, in this case, are similar to the way some of our municipal courts are operated with the city making the appointment of the judge and collecting the revenues from the defendants. Obviously, the implications of this case for local government in Missouri deserve watching because there are lots of persons who are looking to recover municipal court fines that were paid improperly.
Things just got a little more dangerous because the City of Helena–West Helena recently disbanded its District Court and reorganized it after a state audit showed major discrepancies with respect to the accounting of funds. Whether or not this relates to the ongoing federal court case is not known, but surely it will have an impact because the city just disbanded the court, fired all employees and is in the process of rehiring some of the former employees in order to reconstitute a municipal court. It sounds to me like the City now owns it and its potential liabilities. For a discussion of the action just taken by the City click here.
For more extensive review of this case click here.
Statutory Provision Requiring Remittitur for Damages in Excess of Statutory Limit Does Not Apply to Employee
Brancati, a bicycle rider, was injured by Allen, a bus driver for Bi-State Development Agency (Metro). Brancati sued Metro and the bus driver Allen resulting in a jury award in the amount of $625,000 against Metro and Allen, finding that they were jointly and severally liable.
Metro and Allen filed a Motion for Remittitur arguing that they were entitled to a reduction of the verdict because the sovereign immunity cap in the state statute limited both of their liability to $414,418. Brancati vs. Bi-State Development Agency,held that the cap on damages in Section 536.610.2 does not apply to public employees. The statutory cap applies only to a “public entity.”
For more extensive review of this case click here.
Negligence In Failing To Require Developer To Comply With Building Code Is Protected By Sovereign Immunity
Plaintiff suffered serious injuries when he fell from an unguarded retaining wall situated on private property, which was not in conformity with the Building Code of the City because it did not include a guard, fence, or barrier. The Plaintiff claimed that the City’s negligent inspection, or lack of inspection under the City Code, contributed to these injuries.
In State of Missouri ex rel City of Lee’s Summit v. Hon. Kenneth R. Garrett, the Court held that the promulgation of the building code by the municipality was the exercise of police power conferred on it by the legislature for health and safety; therefor, the action was barred by sovereign immunity. For a more extensive review of this case click here.
$24 million Settlement for improper Use of Electric Line Easements for Internet Services
Sho-Me Power Electric Cooperative, in 2019, settled with landowners a $24 million lawsuit bringing to an end years of litigation involving the illegal use of electric line easements for providing telecommunication services to the public.
The opinion in this case matters because it provides the reader with a great discussion of easements, a question that frequently comes up in municipal practice. For a more detailed discussion of the case click here.
This last year was a breakout year, with respect to the Missouri sex discrimination laws. First, the Missouri Supreme Court, held under the Missouri Human Rights Act (MHRA), a plaintiff could state a sex discrimination claim based on sex stereotyping. Second, a plaintiff could state a claim against a school district for failure to provide an accommodation for a transgender student who wanted to use the men’s bathroom. Both of these cases, which are groundbreaking, were decided on whether or not a plaintiff could state a cause of action (simply allege sufficient facts to fall within the four-part test). These cases were remanded for further action. Stay tuned, the final outcome remains to be seen.
On another front, making things even more interesting, the United States Supreme Court recently referred, the sequel to the Masterpiece Cake Shop case, back to the Court of Appeals, for further consideration, in light of the Supreme Courts opinion in the Masterpiece Cake Shop case. The Masterpiece Cake Shop case, involved a bakery that refused on religious grounds to bake a wedding cake for a same-sex couple. Masterpiece Cake, held that the board deciding the case was prejudiced and plainly unfit to decide the case. Statements by the Supreme Court, that the opinion in the Masterpiece Cake Shop case was narrow and confined to the issue of a board that prejudged the matter based upon their prejudice indicated that the case was limited but there are obviously remaining questions as to whether or not the opinion of the Court is broader than the explanation offered by the Court. The point is that these issues are much alive creating tension between religious preferences and discrimination laws.
The following is a short summary of these cases, with links to other material so you can explore in more detail. These cases will have a big impact on Missouri law and public policy, when there is finally closure on these issues.
A Biological Female Whose Legal Sex Is Male Can State A Claim Of Sex Discrimination Against A School District For Failure To Provide A Public Accommodation Under The Missouri Human Right Act
The Missouri Supreme Court, in Appleberry v. Blue Springs R-IV School District, held that a cause of action for public accommodation discrimination was stated against the School District, under the Missouri Human Right Act (MHRA), because the School District barred the student from the boys’ restrooms and locker room since he “is transgender and is alleged to have female genitalia.”
The MHRA does not provide for types of sex discrimination claims or subcategories thereof; therefore, a claim is either a claim for sex discrimination or it is not.
School district and Board are “persons” under the MHRA.
For more extensive review of this case click here.
Missouri Supreme Court Held That Sex Stereotyping Can Be Brought As A Sex Discrimination Case
In order to state a claim under the MHRA, the employee must demonstrate that: “Employee was a member of a protected class; qualified to perform the job; suffered an adverse employment action; and was treated differently from other similarly situated employees of the opposite sex.” The Lampley opinion relies heavily on Price Waterhouse v. Hopkins, decided in 1989 by the United States Supreme Court, which held sex sterotyping can be sex discrimination. Lampley was remanded for further action.
In Lampley, the Court noted that an employee may demonstrate sex discrimination through evidence of sexual stereotyping, which is described in Price Waterhouse v. Hopkins, as: She was “macho,” needing “a course of charm school” and “failing to walk, talk and dress more femininely while needing to wear makeup and jewelry.”
Two of the four judges, joined in a concurring opinion, stating that while the allegations stated a cause of action, the principal opinion went too far by opining on whether “sex stereotyping,” as discussed in the Title VII context in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) is sex discrimination under the MHRA. This could complicate matters because Price Waterhouse is one of the central issue in Zarda v. Altitude Express, Inc, which is currently pending before the United States Supreme Court. Zarda v. Altitude Express, Inc, is discussed below.
Zarda v. Altitude Express, Inc., Held That Title VII Prohibits Discrimination Based On A Persons Sexual Orientation
The Second Circuit, in Zarda v. Altitude Express, Inc., reasoned that logically, sexual orientation is a function of sex and sex is a protected characteristic under Title VII; therefore, it follows that sexual orientation is also protected. (“[D]iscriminating against [an] employee because they are homosexual constitutes discriminating against an employee because of (A) the employee’s sex, and (B) their sexual attraction to individuals of the same sex.”)
Zarda v. Altitude Express, Inc., relies heavily on Price Waterhouse, a 1989, U. S. Supreme Court decision, which held that adverse employment actions based on the belief that a female accountant should walk, talk, and dress femininely constituted impermissible sex discrimination.
Zardia, is now pending before the United States Supreme Court on the question of: Whether the prohibition in Title VII of the Civil Rights Act of 1964, against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.”
For more extensive review of this case click here.
Masterpiece Cake Shop Case and Bias
In the Masterpiece Cake Shop case, the United States Supreme Court held that the Colorado Civil Rights Commission (Commission) showed a “clear and impermissible hostility towards the sincere religious beliefs of Phillips the owner of the Masterpiece Cake Shop.”
The majority Opinion rejected a broad exemption for religiously motivated merchants, noting that gay persons and gay couples should not be treated as social outcast or as inferior in “dignity or worth.” The courts with respect to the exercise of freedom by gays should give great weight on terms equal to others.
For more extensive review of this case click here.
The United States Supreme Court, recently declined to take up the sequel to the Masterpiece Cake Shopcase, by remanding the sequel, Klein v. Or. Bureau of Labor & Indus., back to the Oregon Court of Appeals, to reconsider, in light of the Masterpiece Cake Shop case. In Klein, the Oregon Court held that refusal to bake a wedding cake for a homosexual couple was discriminatory and fined the bakery/owners $135,000. Lots of speculation about the referral. See: bloomberglaw.com/us-law-week/lgbt-cake-controversy-wont-go-to-high-court
The Missouri Supreme Court, reminded opposing counsel that it is unethical for an attorney to contact our clients when they are in an adversarial role. Having a club in hand, to remind attorneys who are in an adversarial position that ex parte contacts can violate the rules of ethics will be helpful in stopping this practice. In addition, we will need to keep our eyes on Calzone v. Missouri Ethics Commission, which hopefully, will give us more guidance as whether or not being paid is required in order to be a lobbyist. Also, I thought the comments by the Missouri Supreme Court, that prosecuting attorneys enjoy a “discretionary privilege unmatched in the world,” was a wake-up call that prosecuting attorneys may be elected for a purpose. Like clean up the mess. The Court ruled that disqualifying the whole Prosecuting Attorney’s office will be allowed only in extreme cases.
Ex Parte Communications With Adversary Client
The June 10, 2019 edition of Missouri Lawyers Weekly, reported that the Missouri Supreme Court issued a reprimand to Jerome Dobson for violating Rule 4–2.2 of the Rules of Professional Conduct for his ex parte communications with officials from Washington University. See In Re: Dobson, SC97683.
No Exemption For Unpaid Person Who Engages In Lobbying Activities
The 8th Circuit held in Calzone v. Missouri Ethics Commission, that there was no exemption from registration as a lobbyist for persons who are unpaid, if there are other factors, which show that the person is otherwise engaged in lobbying. Calzone v. Missouri Ethics Commission.
The 8th Circuit vacated the opinion of the panel. This case has now been argued before the full 8th Circuit. Stay tuned.
Potential Conflict Does Not Support Disqualifying Prosecutor’s Office
Whenever a prosecution involves the use of force by a victim (including police officer victims, such as Officer A.F.) it is the policy of the City of St. Louis Circuit Attorney’s Office (“CAO”) to conduct an independent investigation of the victim’s use of force to determine whether the victim was justified in using force and whether criminal charges should be filed against the victim.
Prior to a preliminary hearing for the victim, counsel for Officer A.F., filed a motion to disqualify the CAO. In his motion to disqualify, Officer A.F. argued that the independent investigation by the CAO created an appearance of impropriety that would prejudice him unfairly because the CAO might become privy to information that could be used against Officer A.F. in the criminal investigation of his conduct.
Furthermore, “…only in rare circumstances should a circuit court interfere with the democratic process and override the voters’ choice as to who is best suited to represent the interests of the people as prosecuting attorney is a “discretionary privilege unmatched in the world.” Clearly, at times we elect prosecuting attorneys to clean up a mess.
For a more detailed analysis of this case click here.
Actual Conflict Not Imputed to Prosecutor’s Office
Jeanette Wolpink, of the Missouri Public Defender System (“MPDS”), was appointed to represent Tyrone Skinner. Wolpink represented Skinner throughout his direct appeal, which affirmed his convictions and sentences. After Skinner’s appeal was resolved, but before his amended post-conviction motion was filed, Wolpink left the MPDS and was hired by the Jackson County Prosecuting Attorney’s Office (PAO).
Skinner’s new counsel then filed a motion seeking to disqualify the entire PAO, alleging that Wolpink was “privy to attorney/client confidences and matters of trial strategy” because she represented him in his direct appeal. Skinner’s motion did not claim that the PAO’s screening process was insufficient or that anyone at the PAO failed to comply with the screening process with respect to Skinner’s case. The trial court sustained Skinner’s motion, disqualified the entire PAO, and appointed the Missouri Attorney General’s Office (“AGO”) to act in its place.
The Missouri Supreme Court stated that under the Rules, Wolpink, a former and a current public officer or employee of the PAO, was prohibited from participating in the state’s representation in Skinner’s post-conviction case under Rule 4-1.11(a); however, her disqualification was not imputed to the entire office because, the PAO is not a “firm” under Rule 4-1.11(b).
The Missouri Supreme Court stated that disqualifying the entire PAO will cause Relator to suffer “absolute irreparable harm” because it prevented Relator from exercising her statutorily authorized duties as the elected prosecuting attorney of Jackson County, which was no small matter, considering the history of the unique relationship elected prosecuting attorneys enjoy in our system of government, which was described by the Court as a “discretionary privilege unmatched in the world.” State ex rel. Jean Peters-Baker, v. The Honorable Bryan E. Round.
For a more detailed analysis of this case click here.
Missouri Public Policy and Law 