August Newsletter (Issue 8-2014)

What Constitutes A Fair Public Hearing?


Union Electric Company (“UE”) owns and operates an electric power generating facility in Franklin County (“County”).  In conjunction with the operation of the power generating facility UE also has a coal-ash landfill. UE announced that it would build a new coal-ash landfill on land it had recently acquired near its current plant in the County.

In order for UE to operate the new coal-ash landfill it was necessary to amend the County Zoning Ordinance.  The amendment required any coal–ash landfill to be located within 1,000 feet of an existing electric utility power generation plant and under common ownership with the adjacent power plant.  There was only one electric generating power plant in the County, which was owned and operated by UE.

The County Planning and Zoning Commission (“Zoning Commission”) held a public hearing as well as the County Commission.  At the start of the public hearing before the Zoning Commission and the County Commission the chair announced that speakers could not discuss the UE proposal for a coal–ash landfill because: “We are not here to discuss any particular project.”   The amendment to the Zoning Ordinance did not specify a specific project since it was an amendment to the permitted uses under the Zoning Ordinance.

As a consequence speakers were denied the right to discuss the amendment to the Zoning Ordinance as it pertained to the UE proposal to construct a new coal–ash landfill although they were allowed to speak generally to the amendment but could not discuss the specifics of the UE proposal particularly as it related to their property and the specifics of the location of the landfill.  The Commission approved the amendment to the Zoning Ordinance and a group opposing the landfill (Neighbors) filed in circuit court a petition for writ of certiorari alleging that the adoption of the amendment was illegal because the Zoning Commission and the County Commission failed to conduct valid public hearings and that the amendment did not promote the health, safety, and general welfare of the citizens of the County.

After the petition was filed the trial court issued a writ of certiorari to the Commission directing it to provide the court with a full transcript and complete record pertaining to the matter and UE intervened in the proceedings.  Upon certifying the record of the proceedings to the trial court, the County Commission and UE filed motions for judgment on the pleadings or in the alternative to dismiss for failure to state a cause of action upon which relief could be granted.  Specifically, the defendants alleged that the allegations in the petition for writ of certiorari showed that the Neighbors were allowed to provide testimony and evidence at both the Zoning Commission and the County Commission hearings in general but not the specifically about the impact of the UE proposal prior to the enactment of the amendment to the Zoning Ordinance and the record demonstrated this occurred.  The trial court sustained the motion to dismiss and the Neighbors appealed to the Eastern District, which reversed on grounds that the Commission did not conduct a valid public hearing for the purpose of adopting a zoning amendment.

The opinion of the Court notes that the Missouri courts have not defined the exact contours of a valid public hearing for purposes of adopting a zoning amendment, therefore the Court was plowing new ground.  It starts with an analysis of the phrase “public hearing” by applying the ordinary dictionary meaning of these words.

State law requires notice of the “public hearing”.  The published notice of the hearing stated that the subject matter would be “utility and non-utility waste landfills in the definitions and locations thereof.”  The Court concluded that: “Proper notice and a proper hearing are mutually dependent.”

Citizens at a public hearing should be able to speak on the subject of a zoning amendment as “… would reflect upon the mind of an ordinary layman.”  The right of the public to speak at a hearing should not be suppressed due to technicalities relating to laws and rules of the governmental bodies.  In this case, the public could not speak regarding the UE coal-ash landfill proposal, which was the real subject of the amendment.  The public was not allowed to discuss the impact of the coal-ash landfill on their property or the fact that the landfill would be located in the 100-year floodplain and earthquake hazard zone and that most of it was within the regulatory floodway delineated by the Federal Emergency Management agency.  In addition, they were not able to discuss the history of the existing coal-ash landfill in the County which was owned and operated by UE, which had been leaking since 1992 with no action by UE or the state.  The court concluded that the hearing was unfair and remanded to the circuit court the case for further action consistent with the opinion.

There was a vigorous dissent arguing that the plaintiffs had been afforded a public hearing and had sufficient opportunity to comment on the zoning amendment.  Based upon the importance of this question, its uniqueness and the vigorous dissent the case was transferred by the court to the Missouri Supreme Court.  Campbell et al., v. County of Franklin, (ED 99622, 07/22/14)

Comment Howard: When reading this case one is reminded of “The Three Blind Mice.” The facts in this case are compelling although the implications for local government hearings with respect to legislation certainly won’t make our job easier because it requires us to caution our clients that public hearings particularly when required by law need to have some sort of reasonableness.  It also seems that the citizens were denied their constitutional right for redress of grievances under the Missouri Constitution.  The ordinance, which was proposed seems to be special legislation falling squarely, at least in my mind, within the Branson case because it is exacting as to its specificity.  The case is also extremely appealing because building a coal-ash landfill in an earthquake zone, in the floodplain, and floodway of the Missouri River is extremely questionable at best. We will be watching this case.


Right Of Free Speech And Association Protect Persons Who Are Not Employees Of The State From Being Required To Pay Fair Share Of Union Dues.



The State of Illinois, established a program as part of its Medicare services that may be satisfactorily maintained at home (Program) at a lesser cost and to prevent the unnecessary institutionalization of persons in nursing homes by providing for payment of a “personnel assistant” (PA).  The PA enters into a contract with the home-care patient (Customer) to provide the services that have been approved by the Customers physician.  The Customer controls the contents of the contract between the Customer and the PA.  The Customer is the employer and other than providing compensation the role of the State of Illinois is comparatively small like setting some basic threshold requirements for employment such as a social security number, basic communication skills, and an employment agreement with the customer.  The State suggests that PA’s can assume certain duties like performing household tasks, shopping, providing personal service care, performing incidental health care tasks and monitoring the health and safety of the customer.  The State also establishes the pay for the type of service.

In 2003, the Governor of Illinois issued an executive order calling for state recognition of a PA union as the exclusive representative for the purpose of collective bargaining with the state and the PA’s.  After a vote the SEIU (Union) was designated as the exclusive bargaining representative for purposes of collective bargaining with PA’s.  The Union and the State entered into a collective bargaining agreement that required all PA’s who were not union members to pay a fair share of the union dues, which are deducted directly from the Medicaid payments.

A class action suit was brought by all Rehabilitative Program PA’s seeking an injunction against enforcement of the fair share provision and a declaration that the state violated the First Amendment rights of the PA’s by requiring them to pay a fee to a union they did not support.  The District Court dismissed the claim with prejudice and the Seventh Circuit affirmed concluding that the case was controlled by the United States Supreme Courts decision in Abood v. Detroit Board of Education.  The Seventh Circuit held that the State and the Customers who receive the in home care are “joint employers” of the PA’s and fell within the Abood decision.

The decision was appealed to the United States Supreme Court, which reversed the holding that Abood did apply because the state was not an employer and that the requirement by the State of all persons within the collective bargaining unit pay their fair share violated the First Amendment right of free speech and association.  The Court concluded that the agency–fee provision imposes a significant burden on First Amendment rights and cannot be tolerated unless it passes “exacting First Amendment scrutiny.”  The agency fee provision does not serve a compelling state interest that cannot be achieved through significantly less restrictive means.  Harris V. Quinn, (U. S. No. 11–681, 6/30/14)

Comment Howard: This is a very important labor law decision and one that can be expected to arise in the collective bargaining process since payment of union dues by persons who are in the bargaining unit who are not members of the union may likely challenge any requirement imposed by the public employer that all members of the bargaining unit pay their fair share.  Public employers may be caught in the middle between their interest in bargaining with one union who represents all employees who have been certified as part of the exclusive bargaining unit and employees who do not want to pay union dues.  There was a very vigorous dissent in this case by four of the liberal justices.  Since the decision did not overrule Abood but had lots of discussion why Abood was a bad decision there is some uncertainty as to how this will all play out.  This matter gets complicated further in Missouri because public employees have a constitutionally protected right to engage in collective bargaining.   Does the employee individual constitutional right give the public employee in Missouri the power to control whether or not it is delegated to a third-party for collective bargaining purposes?  How does that play out in the context of the right of free speech?

 Freedom Of Religion Applies To For-Profit Corporations Under The RFRA Exempting Them From Having To Secure Contraception Coverage For Employees.


The owners of three closely held for-profit corporations in separate actions sued (collectively referred to as Hobby Lobby) the Department of Health and Human Services (HHS), other federal officials and agencies (collectively HHS) under the Religious Freedom Restoration Act of 1993 (RFRA) and the Free Exercise Clause, seeking to enjoin application of the contraceptive mandate under the Affordable Care Act (ACA) because it required them to provide health coverage to four objectionable contraceptives. These cases wound their way up to the United States Supreme Court, which held in a 5 to 4 decision that the application of the compelling governmental interest under RFRA was not the least restrictive means of furthering the compelling governmental interest.

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

At issue in the Hobby Lobby case was whether or not the ACA regulations, which, required specified employers’ group health plans to furnish “preventive care and screenings” for women without “any cost sharing requirements” violated the RFRA. Congress did not specify what types of preventive care must be covered since it authorized the HCA Administration to make this decision. Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Administration, including the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.

Religious employers, such as churches, are exempt from this contraceptive mandate.  HHS has also effectively exempted religious nonprofit organizations with religious objections from providing coverage for contraceptive services.  Under this accommodation, the insurance issuer must exclude contraceptive coverage from the employer’s plan and provide plan participants with separate payments for contraceptive services without imposing any cost-sharing requirements on the employer, its insurance plan, or its employee beneficiaries.

Since RFRA applies in these cases, the issue before the Court was whether or not the challenged HHS regulations substantially burdened the exercise of religion.  The Court assumed that a requirement to provide contraceptive services was in furtherance of a compelling governmental interest but it held that it was not the least restrictive means of furthering that interest, thereby violating the RFCA.

“The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price, as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.”

“In order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test.  There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.” Burwell v. Hobby Lobby stores, Inc., et al., (U. S. Nos. 13-354 and 13-356, 6/30/14)

Comment Howard: IMLA has put out a reminder that the Hobby Lobby case could have significant implications with respect to RLUIPA, which applies to local governmental land-use regulations.  Justice Ginsburg wrote a 46 page dissent joined in by three other liberal judges.

Justice Kennedy, who joined the majority opinion, wrote a concurring opinion indicating that the HHS exemption for not for-profit religious organizations with respect to contraception coverage showed that there were other less restrictive ways to accommodate the deeply held religious held convictions of the plaintiffs.  Under the exemption for not for profit religious organizations the opt out provision for contraception provided that the insurer was required to offer at no cost contraception benefits to the employees or employer.  As a consequence Justice Kennedy reasoned that the government had shown by its actions that it could make an exemption for the not for profits proving that it could just as easily accommodate the deeply held religious beliefs of closely held for-profit corporations with respect to contraception benefits.  He also made it clear in his concurring opinion that there was a compelling governmental interest in providing contraception benefits for female employees.  If you have a case involving the above issues, I suggest you read Justice Kennedy’s concurring opinion first since the 4 liberal and the 4 conservative judges are well entrenched.

Under State TIF Statute After Five Years From The Date Of The Proposed Acquisition Authority To Acquire Land Is Lost.

On July 12, 2006, the City of Richmond Heights (City) adopted a tax increment financing ordinance (Ordinance) pursuant to the state TIF law (TIF Act), and the ordinance became effective on August 12, 2006.  The TIF Act authorizes municipalities to use eminent domain to take private property to facilitate the redevelopment of a blighted area.   The Ordinance designated 63 acres as a redevelopment area, finding that the area was blighted and approved a redevelopment plan and project.

Thereafter, the City filed a condemnation petition and obtained an order of condemnation for the Watson property (Property).  The Commissioners were appointed and they returned damages in the amount of $322,344 for the Property on May 18, 2008.  The City did not pay the Commissioners award for damages until December 2, 2013, at which time the trial court sent the Watson’s notice of the deposit of the funds in the courts registry including interest from the date of the Commissioners award.  Later on December 30, 2013, the City filed its motion for Writ of Possession against the property owners requesting possession of the property on March 5, 2014, asking the court to set a hearing on the request. On March 5, 2014, at the hearing on the writ of possession the Property owners appeared on the motion for writ of possession arguing that the court lacked jurisdiction to hear the motion based on a motion that they filed on March 4, 2014, before the Missouri Court of Appeals requesting a writ of prohibition against the trial court taking any further action other than dismissing the petition in condemnation because the City exceeded its authority by proceeding with the condemnation of the property based on the grounds that state law prohibits the City from acquiring any property more than five years from the date it adopted the ordinance authorizing acquisition.  The Court of Appeals issued a preliminary writ of prohibition on March 4, 2014, and made its writ absolute on July 8, 2014, with this decision.

The Eastern District held that the February 26, 2014, order by the trial court granting the writ of possession for the Property was a judgment that caused an immediate change in the possession of the Property rather than the payment for the Property.  Once the property owners give up possession of the Property demolition was to begin immediately causing irreparable harm to the Property Owners, therefore a writ of prohibition was appropriate.

The Eastern District held that the trial court had constitutionally vested subject matter jurisdiction although due to the limitation in state law requiring that the Property be required within five years from the date of the Ordinance establishing the TIF and authorizing the acquisition the trial court lacked authority on any matter to acquire because state law required that the property for the project must be acquired no later than five years from the date that its acquisition was authorized.

The property owners were not entitled to interest from the day of the Commission’s award because the property owners never lost the right to use and enjoy their Property and conversely the city lost its ability to take the Property under the TIF Act by failing to acquire the Property within the five years.  State of Missouri, ex rel., v. The Honorable Thea Sherry, (ED101151, 7/8/14)


Working Together To Be More Efficient.

Worried about turnaround time with the Missouri state Highway Patrol Crime Laboratory? Here are some time saving suggestions from the Missouri Highway Patrol.  You can also find updates about testing procedures.

Tough Luck! You Will Not Have Time To Challenge The Ballot Language

On May 7, 2014, the Senate Committee Substitute for Senate Joint Resolution 36 (SJR 36) was passed by the General Assembly.  The Secretary of State certified the ballot language on June 13, 2014, for the August 5, 2014, primary election.  The ballot title was immediately challenged in court. On July 1, 2014, the trial court issued its judgment stating that the cases challenging the ballot language right to bear arms was mooted because Section 115.12 5.2 prohibits any changes to a ballot within six weeks of an election.  The Missouri Supreme Court affirmed the trial court’s decision by holding that a challenge to an election ballot is prohibited by state law because the statute provides specifically that there is no authority in the court to make changes six weeks before an election.  Dotson v. Kandor, (SC94293, 7/18/14)

Comment Howard: I am sure that this case will not be lost by the General Assembly since it is nearly impossible for a court to review the ballot title from the time the Secretary of State certifies the official ballot title to the August primary election date and get a final judgment.  You can expect more of the same with some outrageous ballot titles being proposed, which cannot be challenged in court.


A Great Article On DWI Case Law And Changes

Here is a link to an article by Judgef Thornhill on changes to DWI law.


One thought on “August Newsletter (Issue 8-2014)

  1. Pingback: August Newsletter | MMAA Newsletter

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