The Great October Newsletter

Passive Monument Of The Ten Commandments Is Valid If There Are Other Symbols That Are Secular As Part Of The Display.

The Fraternal Order of Eagles donated a Ten Commandments monument in Fargo, North Dakota in 1958.  It sits passively on the Civic Plaza alongside other symbols, such as the American flag and an “all seeing eye” within a pyramid.  The Red River Freethinkers opposed the monument and proposed another monument if the City would relocate the Ten Commandments monument, which the city agreed to do even though the monument had sat there undisturbed for over 40 years.

Many citizens opposed the City’s decision and gathered more than 5,000 signatures on an initiative petition asking the Board of City Commissioners to adopt, or submit to the voters, the following ordinance: “A marker or monument on City of Fargo property for 40 or more years may not be removed from its location on City of Fargo property.”  Many of the supporters of the initiative petition invoked Christian principles.  Others made statements such as “the monument has been at its current location for a long time,” and “this is a democracy and the majority have spoken to have [the monument] remain.”

The City adopted the ordinance leaving the monument in place and a month later, the City adopted a policy of not accepting additional monuments on the Civic Plaza.  The Freethinkers sued, claiming that the petition and the City’s reaction had made the monument impermissible under the Establishment Clause.  The district court dismissed for lack of standing, but that decision was reversed and remanded for a decision on the merits.  On remand, the district court granted summary judgment to the City and the Freethinkers appealed to the Eighth Circuit, which affirmed the trial court’s decision.

The Eighth Circuit held that the Lemon v. Kurtzman decision by the United States Supreme Court did not apply to a passive monument that stood alongside another secular monument citing a Texas case where the United States Supreme Court held that a monument of the 10 Commandments could stand on the Texas Capital grounds along other secular symbols.  There was a vigorous dissent opposing the decision to affirm the motion for summary judgment stating that the Freethinkers should of been allowed to introduce evidence that raise questions of material fact.  Red River Freethinkers v. City of Fargo, 764 F.3d 948 (C.A.8 (N.D., 2014)

Comment Howard: Remember if you are faced with one of these cases where the Council wants to have a religious symbol be sure and include some secular symbols as part of the overall display, like Santa Claus with reindeers, and don’t forget to include the pyramid with the all seeing eye.

 Test To Determine If Ballot Language Is Insufficient Or Unfair.

The General Assembly proposed a constitutional amendment that would guarantee limited early voting during the six business days immediately prior to and including the last Wednesday prior to the election day during regular business hours as well as other qualifications for eligibility to vote early.  The Fiscal Note accompanying the bill showed that the cost of implementation would be several million dollars for start up cost and the cost to reimburse local election authorities would be at least $100,000 per election.

The bill makes the availability of advance voting in any particular election contingent on the State’s appropriation and disbursement of funds to cover the costs of such voting. In other words the Legislature has to appropriate the funds for early voting and the Governor has to disburse the funds.  Under the Missouri Constitution the Governor has the authority to withhold funds under certain circumstances.

The official summary statement of the ballot prepared by the General Assembly for the constitutional amendment failed to mention that it was contingent upon the appropriation by the legislature and disbursement of the funds by the Governor.  The ballot language summary was challenged on the grounds that it was insufficient and unfair because it did not advise the voters that early voting would occur only if funds are appropriated and disbursed by the State.  The trial court ruled against the petitioners with respect to the fairness of the ballot and they appealed to the Western District, which reversed and rewrote the ballot language to include a statement that early voting was dependent upon an appropriation by the State and disbursement of funds by the Governor.

The Western District examines the standards that must be applied in order to determine if a ballot summary is insufficient or unfair.

Insufficient means “inadequate; especially lacking adequate power, capacity, or competence.” The word “unfair” means to be “marked by injustice, partiality, or deception.” Thus, the words insufficient and unfair … mean to inadequately and with bias, prejudice, deception and/or favoritism state the [consequences of the proposed amendment.

The language used should fairly and impartially summarize the purpose of the measure so that voters will not be deceived or misled. The summary statement should accurately reflect the legal and probable effects of the proposed initiative.

The summary statement prepared by the Legislature for the constitutional amendment reads as follows:

Shall the Missouri Constitution be amended to permit voting in person or by mail for a period of six business days prior to and including the Wednesday before the election day in all general elections.

The court reasoned that a voter reading the above statement would expect that under the Amendment early voting would be permitted in all general elections, which is clearly not the case because the Legislature must appropriate the funds and the Governor must disburse the funds for early voting to occur.

The Western District recognized the need to correct the ballot immediately in time for the November 2014 General Election and rewrote the language as follows:

Shall the Missouri Constitution be amended to permit voting in person or by mail for a period of six business days prior to and including the Wednesday before the election day in all general elections, but only if the legislature and the governor appropriate and disburse funds to pay for the increased costs of such voting? (Bolded language in italics added by the court.)

Seay v. Jones, 2014 WL 4495194 (Mo.W.D., 2014)

Comment Howard: As attorneys for local government agencies, we are periodically involved in writing or assisting in writing ballot proposals. The analysis in this case provides a very good blueprint for determining whether or not the summary of the ballot is sufficient and fair. This would be my go to case if I were trying to determine if the summary of the ballot is fair.

Failure Of Officer To Back Off Of High-speed Chase May Be Sufficient To Submit Causation Question To The Jury.

Motorists who were struck by a suspect’s fleeing vehicle during a high speed chase with police brought negligence action against County, claiming County was liable under respondeat superior for the negligence of its sheriff’s deputy who had pursued the suspect in a chase that lasted as long as ten miles at speeds which approached 120 miles per hour.  The trial court granted summary judgment in favor of County and the Motorists appealed to the Eastern District, which reversed holding that there was a genuine issue of material fact that existed as to causation.

The Court distinguishes this case from other high speed chases where summary judgment was granted by concluding that under the circumstances, viewed in the light most favorable to plaintiffs, a reasonable inference could have been made that if the officer had abandoned the pursuit the suspect would have ceased driving in a reckless manner and would have avoided the collision with the Motorist.

The dissent argued that the facts in the summary judgment motion would not support a conclusion that the continuation of the high-speed could have been the cause of the accident because there’s no way to know if the officer had slowed down the Driver would have also slowed down.  The analysis by the majority opinion was pure speculation according to the dissent because there was no possible way to show causation.  Moyer v. St. Francois County Sheriff Dept., 2014 WL 4832260 (Mo. App. E.D., 2014).

Request To Talk With A Citizen Is Not A Terry Stop.

On August 31, 2012, Officer was patrolling a neighborhood in east Kansas City.  It was raining, and there was not much pedestrian traffic on the residential street.  The Officer noticed a young man in a red shirt walking down the street.  This individual was subsequently identified as Carr.  Shortly thereafter, pursuant to an anonymous tip, the Officer determined he should speak with Carr.

The Officer turned his patrol car around and spotted Carr on foot on the sidewalk.  The Officer exited his patrol car and, when he was approximately ten to fifteen yards from Carr, the Officer stated to Carr, “I need to talk to you.”  At this point, Carr dropped or threw down the hat he had been holding in his hands and turned away from the Officer while reaching his hands toward his hip area or waistband.  Believing that Carr was trying to draw a weapon, the Officer drew his own service weapon, closed the distance between himself and Carr, and yelled at him repeatedly to “Show me your hand.”  Carr began to back-pedal and tried to run but the Officer grabbed him, forced him to the ground, secured his hands with flex cuffs, and discovered a .380 semiautomatic handgun under Carr’s shirt.  Carr was arrested and was later charged with one count of the class D felony of unlawful use of a weapon.

Carr filed a motion to suppress all evidence relating to the Officer’s encounter with Carr, and the trial court held a hearing on the motion.  The Officer was the only one to testify at the suppression hearing.  The trial court sustained the motion on the grounds that the Officer was engaged in a Terry investigatory stop explaining, “I don’t have a problem with the Officer’s search once Mr. Carr was stopped; however, I do have a problem with the stop itself, so I’m going to sustain the motion to suppress.”  The State filed an interlocutory appeal to the Western District, which reversed the trial court.

The Court found that the Officer’s request, “I need to talk to you”, did not constitute a Terry stop because there was no seizure since Carr was free to ignore the request and walk away.  When Carr threw down the hat that he was holding in his hands and turned away from the Officer while reaching towards his hip area the Officer had a reasonable suspicion that Carr was armed and engaged in criminal activity.  State v. Carr, 2014 WL 4411614 (Mo. App. W.D.)

Comment Howard: With all of the current focus on police interactions with citizens this is a good case that focuses on the difference between simply talking with citizens and gathering information versus a Terry stop based on an anonymous tip where there would be no probable cause to detain or make a seizure.

 Zero Tolerance For No Shows Based Upon Attendance Policy Not Sustained.

Most governmental agencies have an attendance policy, which is enforced with the varying degrees of strictness depending on the needs of the agency.  In Faenger v. Bach, 2014 WL 4549031 (Mo. App. W.D.), the attendance policy (Policy) of the Missouri Veterans Home (Veterans Home) was challenged after several employees were dismissed for not following the Policy.  The substantive part of the Policy reads as follows:

All employees are expected to demonstrate regular attendance and use their leave responsibly.  Employees who demonstrate patterns of tardiness in reporting for duty, patterns of absences, or absences from duty without authorization may be subject to disciplinary action, up to and including dismissal as outlined below.

The Policy provided that it was the employee’s responsibility to notify and discuss with their supervisor at the earliest possible moment any problems with their availability for work.  The Policy required employees to give notice of unavailability at least two hours before their scheduled shifts and that the failure to do so “may result in disciplinary action, up to and including dismissal.”  As to unauthorized absences, the Policy stated that: “Unauthorized absence may result in disciplinary action, up to and including dismissal.”  When employees requested time off, however, they were generally granted their requests unless there was insufficient staff for the day requested.

The Veterans Home claimed that they strictly enforced the Policy dismissing hundreds of employees over the years for not following the Policy because the operation of Veteran Home facilities required proper and sufficient manning in order to meet federal guidelines and provide adequate services.  The Veterans Home showed that the failure to follow the Policy resulted in substantial overtime pay and other consequences adverse to the operations of their facilities.

Bach was employed as a certified nursing assistant with the Veterans Home.  After several years on the job Bach received a memo from the director of nursing stating that she had failed to report to work without notifying her supervisor and that based on her work history they were excusing her failure to report to work in this instance but she was warned that in the future failure to report to work may be grounds for dismissal noting that she was required to notify her supervisor two hours prior to the start of the assigned shift when she was unable to report to work.

In 2008, the performance evaluation for Bach noted that her performance needed improvement, which improvement was achieved as noted in the 2009 performance evaluation.  In September 2010, Bach was again involved in an incident in which she did not report to work or provide proper notification and was dismissed.  Similar dismissals were taken against several other employees who appealed to the Hearing Officer who conducted a consolidated hearing on the dismissals.

The facility administrator testified that the facility had essentially a zero-tolerance policy for no call, no show employees absent extenuating circumstances such as a car accident when an employee was incapable of getting to work or calling in.  The employee’s disputed the strict application of the zero-tolerance policy for no-shows.  The Hearing Officer found that these dismissals did not meet the statutory standard requiring that the action was for “the “good of the service” and reinstated the employees.  The Veterans Home appealed to the Western District, which affirmed decision of the Hearing Officer.

The Western District determined that the standard “for the good of the service” required a decision by the appointing authority that the “employees conduct is of such serious nature that dismissal is required rather than some other form of discipline.” Based upon the Hearing Officer’s findings the Western District affirmed the decision on the grounds that the dismissals were not for the good of the service and that the Policies was not strictly enforced as a zero tolerance policy for no shows thereby reinstating the employees finding that the facility administrator’s testimony on this issue was not credible.

Comment Howard: This decision is very disheartening for those who labor in the public sector employment law area.  The interpretation by the court that the standard “for the good of the service” requires conduct that is of such serious nature that some other form than dismissal is required fails to recognize the importance of attendance in order to properly provide services at a care facility.  If your merit system rules contain a similar standard for dismissal you need to look very carefully at this case if you are dismissing an employee for violating a no show policy.

How Long Can You Detain A Person Before The Dog Gets To Sniff?

In a very short and concise opinion the Eight Circuit articulates the rules that apply with respect to use of a dog to assist in a search when a vehicle has been stopped for traffic violation holding that a delay of 7 to 8 minutes was constitutional.

 “[A] dog sniff conducted during a traffic stop that is ‘lawful at its inception and otherwise executed in a reasonable manner’ does not infringe upon a constitutionally protected interest in privacy.”  We have held that once an “officer decides to let a routine traffic offender depart with a ticket, a warning, or an all clear[,] … the Fourth Amendment applies to limit any subsequent detention or search.”  Accordingly, a dog sniff may be the product of an unconstitutional seizure, “if the traffic stop is unreasonably prolonged before the dog is employed.”  A brief delay to employ a dog does not unreasonably prolong the stop, however, and we have repeatedly upheld dog sniffs that were conducted minutes after the traffic stop concluded (four-minute delay upheld as a de minimis intrusion on personal liberty); Martin, 411 F.3d at 1002 (two-minute delay upheld); (delay of “well under ten minutes” upheld); (two-minute delay upheld).

In this case the dog was already at the scene when the stop was made.  The officer however decided to delay deploying the dog until he had backup from another officer because there was more than one person in the vehicle.  U.S. v. Rodriguez, 741 F.3d 905 (C.A.8 (Neb.)

Court Upholds Pension Reform for the City of St. Louis.

This case is the result of the City of St. Louis’s efforts to decrease its pension costs for its firefighters’ pension plan, which were exceeding 50 percent of the actual payroll of active duty firefighters annually.

Board Bill 11 amended the Revised Code of the City of St. Louis (“RCC”), which had created the Firemen’s Retirement System (FRS) in 1960, to prohibit the Firemen’s Pension Board from contesting actions taken by the City with respect to the “establishment, design, amendment or termination of the FRS, or any other action taken by the City in its capacity as settlor of the FRS or employer of plan members; and prohibited the expenditure of any assets of the FRS to fund any such contests or challenge.”  The trial court found that Board Bill 11 was invalid.

Board Bill 109, amended Board Bill 12, which created the Firefighters’ Retirement Plan (“FRP”) (and adopted a comprehensive substitute pension plan for City firefighters. Board Bill 109 allowed Chapter 4.18 and the FRS to continue in existence, but froze FRS benefits as of February 1, 2013, paying from the FRS the benefits accrued based on service and salary to the effective date, and accruing under the FRP all benefits due to future service and salary increases.  The trial court found that Board Bill 109 was valid.

The EasternDistrict affirmed stating in its opinion that it saw no jurisprudential purpose to be served by a written opinion although the parties were furnished with a memorandum setting forth the facts and the reasons for the order.  Fireman’s Retirement System of St. Louis v. City of St. Louis, 2014 WL 4589901 (Mem), (Mo. App. E.D., 2014)

Comment Howard: Other than the holdings in this case (cannot limit the authority of the city to spend funds from the RFS to contest or challenge actions and the City can establish a dual retirement system based upon benefits due to future service and salary increases as of a date certain) the opinion, which is two paragraphs provides no insight into how the court analyzed the legal issues briefed and argued by the parties.

No Right To Refile MHRA Case Within One Year If You Suffer A Non-Suit.

On July 8, 2009, Davison, an employee of DFA, filed a charge with the Missouri Commission on Human Rights (“Commission”) claiming age discrimination and retaliation.  Davison claimed her age was a contributing factor to hostile treatment she received from DFA management in the months leading up to her charge.  She also claimed the harassment was in retaliation for a complaint she made with the DFA Compliance Hotline in March 2009.

On July 17, 2009, Davison’s employment with DFA was terminated.  Davison thereafter filed a second charge with the Commission, claiming she was discharged in retaliation for filing the first charge.  The Commission issued a notice of right to sue letter in April 2010.

In July 2010, Davison filed a lawsuit against DFA under the Missouri Human Rights Act (“MHRA”).  In August 2012, Davison voluntarily dismissed her lawsuit.  She re-filed her lawsuit in July 2013.  DFA filed a motion to dismiss alleging that Davison’s claims were barred by the statute of limitations for MHRA claims set forth in section 213.111, and that the savings statute in section 516.230, does not apply to MHRA claims.  The trial court granted the motion to dismiss and entered a judgment dismissing Davison’s action with prejudice and that decision was appealed to the Western District.

Section 516. 230 RSMo., provides that if any action is commenced within the time limits prescribed in Sections 516.010 to 516.370 and the plaintiff suffers a nonsuit such plaintiff may commence a new action provided the new action is commenced with in one year after such nonsuit.  Davison argues that causes of action created by the MHRA fall within the above statutory provisions.  Applying rules of statutory construction the Court concluded that the above statutes do not apply to causes of action created by the MHRA, therefore, the action is time barred.  Davison v. Dairy Farmers of America, Inc., 2014 WL 4815657 (Mo. App. W.D.)

What Constitutes Writing For The Purpose Of Establishing A Record Under The Telecommunications Act?

The Eighth Circuit in NE Colorado Cellular, Inc. v. City of North Platte, Neb., 764 F.3d 929 (C.A.8 (Neb.), 2014) held that a City Council vote to deny an application for a tower along with the minutes of the Council meeting summarizing the motion and the resolution was sufficient to constitute the “in writing” of the Telecommunications Act.

Comment Howard: While the court’s discussion of what constitutes “in writing” under the Telecommunications Act is important this case has little meaning since the General Assembly required political subdivisions to grant the use of the public thoroughfares and rights-of-way to public utility right-of-way users so that they could construct, maintain and operate all equipment, facilities, devices, materials, apparatus or media including amongst other things polls and towers.  Whether or not this analysis might be applicable in other situations remains to be seen.