September Newsletter (Issue 09-2014)

Copyrighted Material Is protected From Copying And Redistribution Under The Sunshine Law

The National Council for Teacher Quality (NCTQ) is a private non-profit “policy and research organization that’s working towards making sure that every child has an effective teacher.”  NCTQ submitted a request to the University of Missouri (University), pursuant to the Sunshine Law, asking the University to produce various records, including “syllabi that students actually receive from their professors.”  In response, the University disclosed some of the requested documents but withheld the requested syllabi on the basis that the syllabi were exempt from disclosure under Section 610.021 (14) of the Sunshine Law, which protects records from “…disclosure by law.”

NCTQ filed a Petition against the University asking the court to compel production of the course syllabi.  After a hearing the court denied access to the requested syllabi on the grounds that the copyrighted material was protected from copying and redistribution and was exempt under Section 610.021 (14) of the Sunshine Law by the Federal Copyright Act, which prohibits copying and reproduction of copyrighted material.  The trial court’s decision was appealed to the Western District.

In a case of first impression, the Western District held that material protected under Federal Copyright Act was protected from “copying and redistribution and” as a closed record under Section 610.021 (14) of the Sunshine Law.  The NCTQ asserted that, if a requester obtains copyrighted works through a Sunshine request and then uses it in a way that does not constitute “fair use,” then the copyright holder can sue the requester.  NCTQ argued that “typically [the] only concern” in Sunshine Law/Copyright Act cases should be whether the government’s disclosure of records under the Sunshine Law constitutes fair use.  The NCTQ contended that the government should be presumed to engage in fair use “whenever” it discloses records “for the limited purpose of complying with the Sunshine Law.”  NCTQ also contended that, even if “the secondary use by the party seeking information” is the proper focus of the fair use doctrine as it applies to Section 610.021(14), the NCTQ’s proposed use of the requested syllabi constitutes fair use.

The Western District concluded that it lacks the authority to determine whether or not copying and distributing the copyrighted materials constituted fair use because the federal courts have exclusive jurisdiction over what constitutes fair use under the Copyright Act.  The court also noted that under the Sunshine Law the person requesting the record is not required to state the purpose for which the record is requested therefore as a practical matter the fair use doctrine does not work in the context of the Sunshine Law.  The very nature of Section 610.021(14) gives the University standing and, in fact, requires the University to assert and establish a disclosure exemption.” National Council for Teachers Quality, Inc. v. Curators of University of Missouri, 2014 WL 4192699 (Mo. App. W.D.) (Mo. App. W.D.,2014)

Comment Howard: This case is very troubling and pretty ominous because it requires the governmental agency producing the record to assert and establish a disclosure exemption with respect to copying and distribution.  The court noted that the person requesting the document has a right under the Sunshine Law to inspect the document since there is a distinction between “reproduction and distribution” and “disclosure” as used in Section 610.021 of the Sunshine Law.  I am very puzzled by this case because in order to reach the conclusion that the copyrighted material was protected under the Sunshine Law it is necessary to conclude that the record is protected from “disclosure by law.”  Since the court concluded that it had no jurisdiction under the Copyright Law I fail to see how you can reach the conclusions that this court reached without considering the Copyright Law.  Seems to me it is necessary to notify city officials who are in charge of records that they need to assert that copyrighted materials are protected and should not be copied and distributed but are available for review.

Ordinance Rezoning Property Is Not Subject To Referendum.

The City of Springfield (City) rezoned property and citizens filed a referendum petition requesting that the City submit the rezoning ordinance to the voters.  The City called an election for the referendum and was immediately sued by the owner of the property that was rezoned.  The circuit court granted a stay of the election and the City and the owners of the property ultimately agreed that the ordinance rezoning the property was not subject to a referendum.

When citizens realized that the City was taking a different position by agreeing with the owner of the property that the ordinance rezoning the property was not subject to a referendum two citizens sought to intervene in the lawsuit against the City brought by the owners of real estate located within the City to enjoin the City from calling a referendum election on the rezoning.  The Intervenor’s claimed a right to intervene as registered voters and signatories to a referendum petition that attempted to force the ballot vote.  The trial court denied the Intervenor’s the right to intervene on the grounds that they lacked standing and denied their motion for permissive intervention on the grounds that it was not timely since it was filed within weeks of the trial date.  The trial court gratuitously found that the city ordinance conflicted with state law and was invalid.

Intervenor’s appealed to the Southern District.  On appeal, Intervenor’s claimed the trial court erred by denying their motion to intervene as a matter of right or in the alternative by failing to grant their request to intervene based on the statute that allows permissive intervention and by granting the injunction and finding that the referendum provisions of the City Charter conflicted with Chapter 89 RSMo.

Rule 52.12 (a) (2) provides that intervention is permitted as a matter of right: “when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

The Intervenor’s claimed that as registered voters and as signatories of the referendum petition they had an immediate and direct interest in the result of the proceeding. Therefore, intervention should have been granted as a matter of right by the trial court.  The Southern District examines the interest of the Intervenor’s in the litigation concluding that Intervenor’s must have a “”… direct and immediate interest in the result of the proceeding” emphasizing that “direct” is the operative word. “The interest must be so immediate and direct that the would-be intervenor will either gain or lose by the direct operation of the judgment that may be rendered therein.” “It does not include a consequential, remote or conjectural possibility of being affected as a result of the action.”

Evidence produced at trial by the Intervenor’s was insufficient according to the court to show an immediate and direct interest in the outcome of the litigation. Since the Intervenor’s waited to intervene until weeks before the date of trial to file a motion to intervene the denial of the motion for permissive intervention was not an abuse of its discretion.  Even though the court concluded that the Intervenor’s had no standing it affirmed the trial court’s judgment that a granting of the injunction was proper because there was a conflict between the city charter and state law.  Judgment affirmed.  Myers v. City of Springfield, 2014 WL 3973109 (Mo. App. S. D.)

Comment Howard: It seems pretty clear that the citizens who circulated and filed the referendum petition clearly had standing to bring a lawsuit for a writ of mandamus and should have done so when it became clear that the election might be delayed by the action of the trial court in response to the property owner’s lawsuit.  I would have added the circulators of the petition as a party to any lawsuit involving a referendum for initiative brought by the circulators.  The citizens seeking the referendum sought to rely upon the city representing their interest, which did not occur and is not necessarily the role of the city.  Clearly the person circulating the petition and the signatory’s had standing under the law to seek a writ of mandamus directing that the election be called and a right to intervene in the lawsuit brought by the property owners since the delay of the election by the court affected their interest.  It is very difficult for me to understand why the Intervenor’s did not have standing as a matter of right because the lawsuit determined the validity of their referendum petitions binding the city to the results of the decision by the court.

Standard To Show “Hostile Work” Environment Is So Low As To Be Almost Nonexistent.

Fuchs has been continuously employed by the Missouri Department of Revenue (Employer) since 1981. While Fuchs served the Employer in multiple capacities, she began working as a telephone operator at the Employer’s call center in 1998 and currently holds that position.  Fuchs suffers from cerebral palsy.  Over the term of her employment, Fuchs suffered several injuries.  The combination of her cerebral palsy and injuries does not allow her to stand independently.  Fuchs is confined to a wheelchair and requires assistance to use the restroom.  At work assistance to use the restroom was provided by co-workers.

In December 2010, Fuchs filed a charge of disability discrimination with the Missouri Commission on Human Rights (“Commission”) against the Employer.  Fuchs filed a second charge of discrimination with the Commission in April 2011, alleging retaliation by the Employer for Fuchs’s filing of the previous charge of discrimination.

After a right to sue notice was given on both charges Fuchs filed a petition against the Employer alleging that Fuchs’s disability contributed, in whole or in part, to the Employer’s adverse employment actions and harassment of Fuchs.  During discovery, Fuchs testified that she had never been suspended, had her pay docked, salary changed, benefits reduced, job duties or titles changed, or had been required to use extra leave time by the Employer due to her disability.  The Employer filed a motion for summary judgment asserting that as a matter of law, Fuchs could not establish either a prima facie case of disability discrimination based on an adverse employment action, or a prima facie case of discriminatory retaliation, because the uncontroverted facts established that the Employer took no adverse employment action against her.  The Motion also asserted that to the extent that Ms. Fuchs is attempting to allege harassment, the statements made by the Employer do not rise to an actionable claim of harassment because they were not sufficiently severe or pervasive to affect a term, condition, or privilege of her employment.

The trial court granted the Motion and entered summary judgment in favor of the Employer and Fuchs appealed to the Western District.  Fuchs’s petition asserted disability discrimination based on an adverse employment action, discriminatory harassment, and discriminatory retaliation.  The Western District held that the trial court did not err in granting the motion for summary judgment with respect to discrimination based upon an adverse employment action and retaliation because she admitted the Employer had never taken an adverse employment action against her.

With respect to the hostile work environment claim the allegations that comments and conduct by her Employer were sufficient to survive a motion for summary judgment because a hostile work claim may be demonstrated by proof of day-to-day harassment and its cumulative effect.  In a hostile work environment harassment claim it is not necessary to identify specific, discrete, adverse employment action since the hostile work environment creates an intimidating, hostile, or offensive work environment or has the purpose or effect of unreasonably interfering with an individual’s work performance.  The “…creation of an abusive working environment impacts a condition or privilege of employment, and is thus an actionable ‘adverse employment action,’ if the conduct creating the environment is sufficiently severe or pervasive.”  Fuchs v. Department of Revenue, 2014 WL 4192757 (Mo. App. W.D.,2014)

Comment Howard: Unfortunately the opinion does not give us even a hint of the factual basis for the claims concerning the hostile work environment and whether or not she complained and the employer tolerated these conditions.  It seems based on this case that a hostile work environment claim that has even the most meager factual basis will go to the jury.  When just about any claim concerning a hostile work environment can go to a jury the employers need to embrace a work environment that emphasizes politeness, civility, and a requirement that employees report what they considered to be hostile work actions.

Eighth Circuit Upholds Forfeiture Of Vehicle For DWI.

On May 30, 2011, a St. Paul (City) police officer (Officer) arrested Gerald Booker for driving under the influence.  Booker’s car was towed to the St. Paul impound lot.  The arrest was Booker’s fourth driving offense while impaired within ten years, qualifying as a violation of Minnesota first-degree driving while impaired and subjected his vehicle to forfeiture.  The state forfeiture statute provides that “…all right, title, and interest in a vehicle subject to forfeiture under this section vests in the appropriate agency upon commission of the conduct resulting in the designated offense.”  Booker pleaded guilty to driving while impaired.  At the time of the arrest, the Officer gave Booker a Notice of Seizure and Intent to Forfeit.

The back of the notice contains the applicable Minnesota statute and the procedures a person is required to follow in the event their vehicle is seized.  Booker did not file a complaint within thirty days as required by the statute.  Seven months after the seizure, Booker had an attorney contact the City to request the return of his vehicle.  When the City refused to return the car, Booker brought suit in federal court, alleging that the Minnesota violated his due process rights under the Fifth and Fourteenth Amendments and that the vehicle forfeiture was an unreasonable seizure under the Fourth Amendment.  The City argued that the availability of a judicial determination alone satisfies due process, that the “judicial determination” proceeding provided in the statute was an adequate post-deprivation hearing and that the statute was constitutional.  Both sides moved for summary judgment, and the district court granted the City’s motion, which was appealed by Booker to the Eighth Circuit.

Booker argues that the Minnesota statute is unconstitutional because it does not provide an automatic pre-seizure hearing and that the government must provide an automatic and prompt post-deprivation hearing after seizing a vehicle.  The statute allows a person to request a “judicial determination” by filing a civil complaint with the court administrator in the county where the seizure occurred.  Booker argued that this provision is not enough to provide due process and that the $320 filing fee and wait time prior to the hearing are constitutionally unreasonable.

The Eighth Circuit held that the Minnesota Statute comports with due process because allowing those affected by vehicle forfeiture to request a judicial determination if they believe the forfeiture was erroneous is sufficient to satisfy due process and the statute provides for a post-seizure hearing.  In addition, Booker’s argument that there should not be a filing fee is without merit because the fee can be waived for those who cannot afford it, and if the party is successful, the filing fee is returned.  Booker v. City of Saint Paul, 2014 WL 3896174 (C.A.8 (Minn., 2014)

Comment Howard: A number of years ago the City of Springfield utilized a state statute in conjunction with an enabling ordinance the Missouri statute was found to be unconstitutional.  For those that believe forfeiture of vehicles by repeat offenders who drive motor vehicles while intoxicated can be a deterrent it may be worth reviewing this case.  The Minnesota statute avoids the numerous burdens and complexity of the Missouri law and Springfield’s enabling legislation that was found to be invalid.

Low Bidder For Contract Has No Standing To Sue

It is almost impossible to successfully challenge the award of the contract for work by a local government agency as long it permits all bidders to compete on equal terms and does not “fraudulently, corruptly, capriciously or without reason” award a contract to someone other than the low bidder.  In fact, the low bidder does not even have standing to challenge the award of a contract except in the circumstances described above.  Brannum v. City of Poplar Bluff, 2014 WL 4242110 (Mo. App. S.D.,2014). 

Non-Emergency Services Provided By A Fire Department Are Protected Under The Doctrine Of Sovereign Immunity.

Like most fire departments the Kansas City Fire Department (KCFD) responds to numerous calls each year, which are not emergency calls but simply help to citizens.  One of the services provided by KCFD is a “lift assist.” In response to a call the KCFD sent four firemen to the Crouch residence.  When they arrived, they were greeted at the door and led to the stairwell where Dorothea was seated in a wheelchair at the bottom of the stairs.  The firemen discussed how best to move Dorothea and ultimately decided to put her in a wooden dining room chair and have two firemen carry her up the stairs, with one holding the back of the chair and the other holding the front two legs of the chair.

On the way up the stairs, the chair broke and Dorothea fell, hitting her head on the broken chair and the floor.  Diana contacted Dorothea’s doctor, who advised Diana to ice the injury, monitor Dorothea for signs of a concussion, and wake Dorothea every hour during the night to check her for signs of concussion.  Dorothea appeared fine that evening and overnight, but complained of a severe headache when she awoke the next morning.  Diana called 911, and an ambulance took Dorothea to the hospital, where she was diagnosed with intracranial hemorrhaging, which led to her death two days later.

Relatives sued the City for wrongful death, alleging that the KCFD firemen acted negligently in the manner in which they chose to move Dorothea up the stairs.  In their petition, the Crouch children alleged that the firemen were acting as agents, servants, or employees of the City and that they were not performing a governmental function, but a proprietary one, in that their act of assisting Dorothea to the second floor was for the convenience of but one of the City’s citizens and not for the common good of all.

The City filed a motion for summary judgment, which was sustained by the trial court that was appealed to the Western District.  The Western District responded to the claim that the lift services for nonemergency were proprietary instead of governmental holding that the absence of an emergency does not establish that a function performed by a municipal entity is proprietary.  The opinion contains a detailed discussion of many non-emergency services that are governmental, which are protected under the doctrine of sovereign immunity.  Crouch v. City of Kansas City, 2014 WL 3819452 (Mo. App. W.D., 2014)

Great DWI Story But Not Credible

On the evening of December 1, 2006, in freezing temperatures and snowy conditions, a Missouri State Highway Patrol trooper was patrolling when he observed a black pick-up truck partially off the roadway in a ditch in a five-foot-deep snow bank.  Tracks on the road showed that the truck had been traveling south on a gravel road, turned west onto Highway 18, and then slid across the road into the ditch.  As the trooper passed the vehicle, he noticed that the interior lights were on and there was vapor coming from the exhaust.  The trooper returned to the vehicle, exited his patrol car and could hear the engine running as he approached the vehicle on foot.  The trooper contacted occupant, Besendorfer, who admitted that he may have been the one to start the engine and turned the interior lights on and he knew that he was the one that had “turned the heat up” in the truck.  The truck’s radio was also on.  The trooper observed that there were no tracks showing footprints originating from the vehicle or the roadside.  When the trooper looked inside, he saw Besendorfer lying on his right side on the bench seat, asleep, with his feet near the brake and gas pedals. The trooper made contact with Besendorfer and ultimately asked him to step out of the vehicle and to accompany the trooper back to the trooper’s patrol car. Besendorfer turned off the ignition to the car and exited his vehicle.

Besendorfer was clearly intoxicated.  He admitted to drinking at least a twelve-pack of beer at a friend’s house; his speech was slurred; he swayed as he walked to the patrol car; the smell of alcohol was on his breath; his eyes were glassy and bloodshot; and he failed numerous field sobriety tests.  In fact, Besendorfer admitted at trial that he was intoxicated at all relevant times involving the operation of his vehicle.

Besendorfer, along with his girlfriend, testified that Besendorfer had not driven the truck that evening.  Besendorfer’s girlfriend testified that she was the one who dropped Besendorfer off at his friend’s house to consume large amounts of alcohol between 6:00 p.m. and 9:30 p.m., then picked Besendorfer up in the truck after Besendorfer’s evening of binge drinking, and then drove the truck in such a way to cause it to leave the roadway.  After doing so, Besendorfer claims that because he had “a bad leg,” he sent his girlfriend out in the snow and freezing temperatures to walk three to five miles to their house to retrieve another vehicle and to come back and pick him up.  This was the reason he did not call anyone else to come pick up him and his girlfriend because after the wreck he did not want anyone out on the dangerous roads.  The trial court found Besendorfer guilty of DWI and found that his testimony and his girlfriend’s testimony was not credible.  Besendorfer appealed to the Western District arguing that he was not driving the vehicle.

Besendorfer admitted that the engine was running and he may have started the engine and manipulated the heater but claims that the evidence did not show that he caused the truck to function as a vehicle by placing it in motion.  “However, operation of a motor vehicle does not require motion.”  A person commits the crime of driving while intoxicated if he operates a motor vehicle while in an intoxicated or drugged condition.  “The offense requires proof that: (1) the defendant operated a motor vehicle, and (2) was intoxicated while doing so.  The first element is defined as ‘physically driving or operating a motor vehicle.”  The Missouri Supreme Court has adopted the dictionary definition of “operate”, which is to cause the motor vehicle to function usually by direct personal effort.  Section 577.001 permits “operating a motor vehicle” to be established by circumstantial evidence.  Judgment affirmed.  State v. Besendorfer, 2014 WL 4287469 (Mo. App. W.D., 2014)





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