Westboro Baptist Church Redux    

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.

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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

WESTBORO BAPTIST CHURCH CHALLENGE TO MISSOURI FUNERAL PICKETING LAW

Posted on  by .| 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 Loses Challenge to Ordinance Prohibiting Picketing of Funeral Service

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 

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Westboro Baptist Church – Beginning of the End for Picketing of Funerals?

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 

United States Supreme Court Closes Door on Damages in Westboro Baptist Church Case

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 

Westboro Baptist Church Preaches Hell, Fire, and Damnation at Veterans Funerals.

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 

Thirty-five Foot Buffer Zone For Abortion Clinics Unconstitutional.

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 

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Civil Rights And Local Government

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.
  • IMLA has a video for training police on Nieves v. Bartlett

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

Howard Wright© 2019

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Liability of City Officials

Flash Bang Policy – Should Be Reviewed

  • 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.
  • No qualified immunity if officer violates above standard under Thompson v. Monticello.
  • 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

  • In 2017 Judge Benton, wrote an opinion for the Eighth Circuit that held Sho-Me Power Electric Cooperative did not have the right to use fiber-optic cables for a public serving telecommunications purpose because it was not authorized by the easements. Click here to see Barfield v. Sho-Me Power Electric Cooperative; Sho-Me Technologies, LLC.
  • 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.

Howard Wright© 2019

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Missouri Supreme Court Recognizes Sex Discrimination Claim Based On Sex Stereotyping And Failure To Accommodate Transgender Student Who Wanted To Use Boys Bathroom In School

Introduction

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. 
  • Lampley v. Missouri Commission on Human Rights,  held that sex stereotyping can be sex discrimination.
  • 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.

For more extensive review of  Lampley click here.

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

Howard Wright© 2019

 

 

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Ethics and Conflict of Interest

Introduction

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.
  • Also, see the May edition of the MMAA newsletter and the discussion of the complaint filed with the Missouri Supreme Court.

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.
  • The Missouri Supreme Court held that “…absent the existence of an individual conflict, a court need not proceed to determine whether that conflict should be imputed to the entire CAO. State ex rel. Kimberly M. Gardner, Circuit Attorney of The City of St. Louis, v. The Honorable Timothy J. Boyer.
  • 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.

Howard Wright © 2019

 

 

 

 

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Sunshine Law – Knowing or Purposeful Violation

Local government officials, routinely process thousands of Sunshine Law requests without a hint of a problem. Occasionally, a request may lead to a dispute over whether or not the record is open or closed, which, for the most part, can routinely be resolved; however, on rare occasions these disputes literally escalate into high stakes, life and death, political warfare.

This was the year when we saw a lot of these life and death struggles play out,  with most of the activity focused on what constitutes a “knowing or purposeful” violation of the law. The news was good for local government. Fortunately, the courts provided some pretty bright lines to assist local government officials in avoiding civil penalties and attorney fees, as well as the embarrassment of being tagged as a  public official who knowingly and purposefully violated the Sunshine Law.

Abject Failure Of The Cole County Prosecutor,  To Comply With Sunshine Law Results In Penalties Of $12,100 To Prosecutor

  • Malin v. Cole County Prosecuting Attorney, is about the abject failure of the Cole County Prosecutor, to comply with even the basic fundamentals of a request for records under the Sunshine Law. In this case, the Prosecutor committed multiple, distinct violations of the Sunshine Law by outright refusing to search, adequately respond to, or fulfill in any manner of at least three separate Sunshine Law requests. The Prosecutor was fined $12,100 in civil penalties for knowingly and purposefully violating the Sunshine Law and lost his reelection bid. This case is important because the Court provided an insightful analysis of how to answer Sunshine Law requests, when there is a dispute.
  • How to properly respond
  • Within three days from the request for the records, let them know if access to the public record is not granted immediately  the custodian shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection. This period for document production may exceed three days for reasonable cause.
  • Provide a written statement of the grounds for closing the record or a portion thereof by detailing an  objection log for each record or portion thereof for which a claim is made that the record is not open, citing the specific provision of the Sunshine  Law under which the record  is exempt.
  • The person requesting the record would then have an opportunity to obtain a ruling from a trial court compelling production of the record after an in-camera inspection by the court.
  • Court holds that the penalty is up to $5,000 per violation

For a comprehensive analysis of this case click here.

 

 State Auditor Did Not Knowingly And Purposefully Violate  Sunshine Law

  • Missouri Alliance for Freedom v. State Auditor, Nicole Galloway,  involved Nicole Galloway, the State Auditor,  the only Democrat holding a statewide office. A bad outcome in  this case could have consequences for her future electability or something even worse, if a court held that there was a knowing and purposeful violation of the Sunshine Law.  She wins in circuit court.  Key takeaways were:
  • No requirement in the Sunshine Law to create new record from a “native file” (complete metadata), which did not exist.
  • No violation because of lack of specificity in the request.
  • No damages, hence no remedy for lost records.
  • Technology to the forefront 

For a more extensive review of this case click here.

No Summary Judgment For “Knowing Or Purposeful” Violation Of Sunshine Law Because It Involves State Of Mind – A Question Of Fact

  • In Petruska vs. City of Kinloch, a request was made to provide individual salaries of employees and the salary range for that employee.Plaintiff filed a motion for summary judgment, which was granted in part by the trial court holding that the City violated the Sunshine Law by not providing the records but that the violation was not “knowing or purposeful.”
  • The question of whether or not there was a knowing or purposeful violation of the law is a question of fact that involves a party’s state of mind, which cannot generally be determined on a motion for summary judgment.
  • A knowing violationrequires proof that the public governmental body had “actual knowledge that [its] conduct violated a statutory provision.”
  • A purposeful violationis a conscious design, intent, or plan to violate the law and do so with awareness of the probable consequences.
  • Remedies – State law provides a public governmental body, when in doubt about the legality of closing a particular meeting, record or vote may bring suit at the expense of that public governmental body in the circuit court to ascertain the propriety of any such action, or seek a formal opinion of the attorney general or an attorney for the governmental body. Seems like these actions  should be in  good faith.

For a more extensive review of this case click here.

Negligence Is Not Sufficient to Prove a “Knowing or Purposeful” Violation of the Sunshine Law.

  • In Malin vs. Metro Multi-Jurisdictional Undercover Drug Program, a request was made to obtain records from the Louis Metro Drug Task Force budgetary documents, documents showing the quantity of weapons and narcotics found by the Drug Test Force, and documents reflecting assets the Drug Task Force seized via civil and criminal asset forfeiture.  The   attorney for the Board, directly responded to Plaintiff’s records, stating that the City did not have a “St. Louis Drug Task Force.  After several other requests, Malin, finally got the records that he was seeking, some four months after the initial request. Malin filed a lawsuit alleging that the attorney for the Board “knowingly or purposefully” withheld documents for the task force that he knew existed, no matter what it was called, requesting a $5,000 penalty against the Board’s attorney and payment of attorney’s fees for three years of litigation. Ouch! The trial court found that there was not a purposeful violation, therefore there no civil penalties were assessed and no attorney fees were awarded. Case was appealed, which upheld the trial court. Lessons learned:
  • Custodian of records should respond, not attorney.
  • Custodian of records should be designated in your Sunshine Law policy.
  • The handling of the request was negligent, but not purposeful.

For a more extensive review of this case click here.

No Violation of the Sunshine Law For Making A Record Open That Can Otherwise Be Closed

  • A 911 recording of a complaint about the Livingston County Sheriff, was played for the Livingston County prosecutor and two county commissioners. The Sheriff filed a lawsuit contending that the disclosure of the 911 recording violated the Sunshine Law because it was part of an investigative report and that under the state law it was not accessible to the general public.
  • Cox  v.  City of Chillicothe, (WD81748, 02/13/19), held that the Sunshine law was a permissive statute allowing disclosure of records but not necessarily requiring that they be kept confidential. Furthermore, the Sunshine Law does not permit civil damages for the improper disclosure of a closed record, except for purposeful and willful violations, for which there is a specific remedy.

Howard Wright© 2019

 

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Important Zoning Cases In 2018-2019

Introduction This last year  was a good year for zoning cases, providing insights into how communities might deal with certain problems such as the difficult problem of allowing flexibility in your zoning ordinance, while at the same time retaining some level of  protection for citizens who are concerned about certain uses that can easily get out of control, like a homeless shelter. Consider,  New Life Evangelistic Center vs. City of St. Louis, the second case discussed below, which prohibited homeless shelters, while at the same time allowing citizens within 500 feet to give their consent. This approach was upheld. In addition, when statutes  require a public hearing they mean exactly that; Consequently, a county failed to hold a public hearing before its planning and zoning commission it did not provide due process, invalidating the action of the County.  The one sign and one flag ordinance  of Bel-Nor,  failed to pass strict scrutiny under the First Amendment making the ordinance  invalid. Furthermore, courts clarified what constitutes a nonuse variance that should be particularly helpful to  local government.  Below   is  a short discussion of these cases with links to additional material providing further insight.

County Zoning Commission Required To Allow Citizens To Speak At Public Hearing To Rezone Property

St. Louis Ordinance That Allowed a Majority of Persons Living Within A 500 Foot Radius Of A Homeless Shelter To Approve A Shelter, Otherwise Prohibited, Was Not An Unlawful Delegation Of Legislative Power

  • New Life Evangelistic Center vs. City of St. Louis, held that allowing a majority of persons living within 500 feet of a homeless shelter to give their consent to the use of property for a homeless shelter was not an unlawful delegation of legislative power. New Life Evangelistic Center vs. City of St. Louis, (ED105737, 09/25/18)
  • The distinction between “imposing” restrictions versus “waiving” restrictions is determinative of whether the ordinance unconstitutionally delegated legislative authority.
  • The City ordinance did not unconstitutionally delegate legislative authority because the legislature had he already determined that the specified use of property was unlawful due to the use being potentially hazardous or burdensome to the surrounding area, even though citizens could give their approval.

For a more extensive review of this case click here. https://www.courts.mo.gov/file/ED/Opinion_ED105737.pdf

Missouri Supreme Court Clarifies Law on Nonuse Variance

In Community Church v. Board Of Zoning Adjustment Of The City Of Kansas City, the Missouri Supreme Court, clarified the factors that can be considered in determining if a person may be granted a non-use variance by the board of adjustment (BAZ).Antioch Community Church v. Board Of Zoning Adjustment Of The City Of Kansas City, (SC96215, 04/03/18)

  • The Court provided, a nonexclusive list, of specific criteria that can be used to evaluate a request for a nonuse variance: “(1) How substantial the variation is in relation to the requirement, (2) the effect, if the variance is allowed, of the increased population density thus produced on available governmental facilities (fire, water, garbage and the like), (3) whether a substantial change will be produced in the character of the neighborhood or a substantial detriment to adjoining properties created, (4) whether the difficulty can be obviated by some method, feasible for the applicant to pursue, other than a variance, and (5) whether in view of the manner in which the difficulty arose and considering all of the above factors the interests of justice will be served by allowing the variance.”

For a more detailed review of this case click here https://mmaanewsletter.org/2018-2/april-newsletter-issue-04-2018/

One Sign and One Flag Ordinance Of Bel-Nor Was Unconstitutional Because It Regulated Content And Did Not Meet The Strict Scrutiny Test

  • Bel-Nor (City) passed Ordinance 983, which permits “each improved parcel” of private property “to post one stake-mounted and self-supporting freestanding sign” and “Not more than one (1) flag.” Willson displayed “Clinton Kaine” and “Jason Kander U.S. Senate” signs since 2016, and a “Black Lives Matter” sign since 2014.  In December 2017, he received an information and summons charging him with violating City Ordinance 983.
  • Willson sued in federal district court, which ruled against him and he appealed to the Eighth Circuit, which held that the Ordinance violated the free speech clause of the First Amendment because it regulated content and failed to pass strict scrutiny.
  • Examination of the definition of sign and flag demonstrated that the Ordinance regulated content.
  • The Ordinance was overly broad because it covered a  substantial amount of expressive activity and had a strict limit of only one sign and one flag to the exclusion of everything else.
  • The City failed to demonstrate that there was a compelling governmental interest because the ordinance was not narrowly tailored.

For a more detailed examination of this Ordinance click here. Willson v. City of Bel-Nor, (8th Cir.,  18-1753, 05/20/19) 

Howard Wright© 2019

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How Does Missouri Law Compare To Minnesota Ban On Apparel Containing Messages Inside Voting Area that Was Declared Unconstitutional

In 2010, Advocates in Minnesota, planned to have supporters wear buttons to the polls printed with the words “Please I. D. Me,” a picture of an eye, and a telephone number and web address for Advocates. (Minnesota law does not require individuals to show identification to vote.)  One of the Advocates also planned to wear a “Tea Party Patriots” shirt.

all seeing eye

Minnesota law prohibited individuals, including voters, from wearing a “political badge, political button, or other political insignia” inside a polling place on Election Day.  This “political apparel ban” covers articles of clothing and accessories with political insignia upon them only within the polling place.  State election judges have the authority to decide whether a particular item falls within the ban.  If a voter showed up wearing a prohibited item, the election judge was to ask the individual to conceal or remove it.

Immediately prior to the 2010 election, the Advocates challenged the state law and its regulations requesting that a federal district court issue a temporary restraining order, which was denied leaving the state law in effect during the 2010 election. On Election Day, some voters ran into trouble with the ban, including petitioner Andrew Cilek, who allegedly was turned away from the polls for wearing a “Please I. D. Me” button and a T-shirt bearing the words “Don’t Tread on Me” and a Tea Party Patriots logo.

Advocates again asked the district court to declare that the ban was unconstitutional on its face, which was denied a second time. An appeal was taken, ultimately reaching the United States Supreme Court to determine if the “political apparel ban” on its face violated the free speech rights of the Advocates under the First Amendment

The United States Supreme Court determined that the polling place was a non-public forum that is not by tradition or designation a forum for public communications.  In such a forum, the government has flexibility to craft reasonable rules and may reserve the forum for its intended purposes as long as the regulation is not an effort to suppress expression because public officials oppose the speaker’s views.

The Court recognized that some forms of advocacy could be excluded from polling places in order to set aside an “island of calm in which voters can peacefully contemplate their choices.”

“Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning.”

Even though the Supreme Court recognized that it was possible to craft a ban, in a limited forum, the Minnesota law was not sufficiently specific because the term “political” was undefined making the law ambiguous subject to individual interpretation by electioneering judges; therefore, the law was unconstitutional on its face.

us sup court

U. S. Supreme Court

With the Missouri August 2018 primary election coming up within days and the general election in November a question arises how Missouri law would fare in the event there are problems or challenges.

Missouri law on electioneering prohibits the following activities near or in polling places.

“(18) Exit polling, surveying, sampling, electioneering, distributing election literature, posting signs or placing vehicles bearing signs with respect to any candidate or question to be voted on at an election on election day inside the building in which a polling place is located or within twenty-five feet of the building’s outer door closest to the polling place, or, on the part of any person, refusing to remove or permit removal from property owned or controlled by him, any such election sign or literature located within such  distance on such day after request for removal by any person;”

Missouri law on electioneering would seem to fare much better then the Minnesota law because the terms in the Missouri law are well written and  not ambiguous.

The United States Supreme Court indicated that other state laws that would seem to pass constitutional muster. The Court also stated in it’s opinion that laws limiting electioneering activities in polling areas would appear to be reasonable, if properly drafted. On its face, Missouri law seems to be limited to “electioneering” related to the election activities taking place within the polling area or within 25 feet of the building’s outer door to the polling area. Missouri’s law on electioneering seems to do that without creating ambiguity like the Minnesota law.

Howard Wright © 2018

Other Blogs Of Interest

Free Speech and City Ordinances

https://momunicipallaw.com/2016/11/27/free-speech-and-city-ordinances-the/

 

 

 

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