Tis The Season: December 2014 Newsletter (Issue 12-14)

randy

Officers Are Not Required To “Knock And Talk” At The Front Door If There Are Other Doors That A Visitor Would Normally Use.

Are police officers required to begin their encounter at the front door under the “knock and talk” exception to the requirement of a search warrant?  In Caroll v. Carmen, the Supreme Court of the United States danced around this question only to conclude that the law under the facts in this case was not beyond debate, therefore the police officers had qualified immunity.

In this case, the Third Circuit held that the “knock and talk” exception “requires that police officers begin their encounter at the front door, where they have an implied invitation to go.”  Since the police officers approached the house from the rear of the property where there was a parking lot leading to a back door that opened onto a deck the Third Circuit held that the officer was not entitled to qualified immunity because under clearly established law the officer could only approach the house from the front door under the “knock and talk” exception.  This decision was appealed to the United States Supreme Court, which reversed on the grounds that the one case relied upon by the Third Circuit showed that the law was not clearly established, therefore the police officer could approach the house from another door that was used for entering the house entitling the officer to qualified immunity.

While this decision is extremely narrow there are a number of important points that are very instructive. The court focused on when is a right clearly established for the purpose of official immunity.

“A right is clearly established only if its contours are sufficiently clear that “a reasonable official would understand that what he is doing violates that right.  In other words, existing precedent must have placed the statutory or constitutional question beyond debate.  This doctrine gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law.”

Applying this standard the Supreme Court dissects the Third Circuits Court of Appeals decision noting that the Third Circuit relied solely upon one case to show that the law was clearly established and that case was clearly distinguishable from the facts in this case calling the decision by the Third Circuit “perplexing” considering that other Circuits have held that approaching a house to make a “knock and talk” inquiry at another door was constitutional if the other door is a route that visitors could be expected to use citing decisions from the Second Circuit and the Seventh Circuit.  Caroll v. Carmen, 574 U. S. _____ (U. S. No. 14–212. 11/10/14)

Comment Howard: If you are faced with a claim that the police officer did not use the principal entrance to the house in a “knock and talk” situation this case provides a pretty good roadmap.  Based upon the statements made by the court it clear that the United States Supreme Court is going to strongly support qualified immunity for police officers.  The Court states that you almost have to be “plainly incompetent” of existing laws or knowingly violate the law to lose your right of qualified immunity.

No Requirement To Expressly Invoke Section 1983 In Your Pleadings.

When suing a city (not officers) for damages based on a violation of Section 1983, of the Snowflake 08Civil Rights Act, the Federal Rules of Procedure do not require the plaintiff to invoke section 1983 expressly in the pleadings in order to state a claim.  Plaintiff need only plead facts sufficient to show that the claim has substantive plausibility by stating simply, concisely, and directly events that allege the plaintiff is entitled to damages from the city.  Johnson, et al., v. City of Shelby, Mississippi, 574 U. S. ____ (11/10/14)

Thirty Day Blackout Prohibiting Advertising And Solicitation Of Funds For Campaign Committee Violates Free Speech Clause.

On October 22, 2014 Missourians For Fiscal Accountability (Plaintiff) formed a campaign committee under Missouri law to advocate for Proposition 10, a proposed amendment to the Missouri Constitution that would be voted upon at the November 4, 2014 general election.  Section 130.011 RSMo. creates a 30 day blackout period from the date the campaign committee is formed during which the campaign committee cannot collect or expend funds.  Violations of the statute are subject to criminal prosecution as a class A misdemeanor.  On October 30, 2014, the Plaintiff filed a lawsuit in federal district court alleging that the 30-day blackout violated its right of free speech.

The District Court immediately conducted a hearing on October 31, 2014, and issued a TRO blocking the enforcement of the statute by the Director of the Missouri Ethics Commission based upon the likelihood that a lawsuit would succeed because the law was an absolute prohibition against speech during the 30-day blackout period.  No evidence was offered by the state showing that there was a compelling reason for the prohibition.

In its opinion the District Court stated that the United States Supreme Court has “…identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption” and has ‘consistently rejected attempts to suppress campaign speech based on other legislative objectives . . .’” MISSOURIANS FOR FISCAL ACCOUNTABILITY, Plaintiff, vs. JAMES KLAHR, (14-4287-CV-C-ODS)  http://docs.justia.com/cases/federal/district-courts/missouri/mowdce/2:2014cv04287/118457/9

Fire Department Employees Had No Property Interest In Their Job And Their Liberty Interest Was Not Implicated For Dismissal Based On Hostile And Discriminatory Work Environment.

In 2011, the Missouri Court of Appeals upheld a jury verdict filed by several female firefighters of the candles Monarch Fire Protection District (Monarch) against Monarch describing Monarch as creating an environment “of abusive, hostile discrimination against female employees.” Four days after the Court of Appeals decision was filed, Monarch’s Board (Board) held a closed special meeting and voted to request the resignations of several of Monarch’s high-ranking officers (including the chiefs) with the understanding that absent a resignation, the Board would vote to terminate each chief’s employment.  After being presented with the option to resign the three chiefs refused to submit their resignations.

Several days later, the full Board met again in an open public meeting where it voted to ratify the Chiefs’ termination held in a closed session.  During the public meeting, Swyers and Evans, defended their decision by relying on the appellate courts earlier description of Monarch as creating an environment “of abusive, hostile discrimination against female employees.”  Monarch posted the minutes of its meeting on its official website.  The Chiefs also identify several online news articles attributing statements to Swyers and Evans that indicate the chiefs were discharged for promoting an environment of unacceptable discrimination.  The Chiefs never requested a hearing to respond to these statements.

The Chiefs then brought a 42 U.S.C. § 1983 action, alleging Evans and Swyers, individually, and Monarch violated the Fourteenth Amendment’s Due Process Clause by discharging the chiefs and disparaging their reputations.

The Defendants moved for summary judgment, and the district court granted the motion, concluding that: (1) the Chiefs, as at-will employees, held no property interest in their continued employment; (2) the Chiefs forfeited their loss-of-liberty interest claim by failing to request a name clearing hearing; and (3) any constitutional violations were not “clearly established,” precluding individual liability for Evans and Swyers.  The Chiefs timely appealed to the Eighth Circuit Court of Appeals, which affirmed the trial court’s decision.

The 8th Circuit concluded that the Chiefs were at-will employees and had no property interest in their positions.  The 8th Circuit rejected the argument that the at-will status was modified because the internal rules and regulations of the fire department referred to the Chiefs as permanent employees, provided for progressive discipline, and an expected minimum level of disciplinary review indicating that termination would only be for cause based upon an “implicit promise.”  There was no evidence that the Chiefs negotiated during the hiring process the provisions in the rules, which according to the Court were nothing more than a set of unilateral, “self-imposed policies” insufficient to modify the employment at will status of the Chiefs.  The Court also examined recent trends in employment law concluding that these trends do not support a change in the at-will status of employees based upon the facts in this case.

The statements made at the Monarch Board meeting by the members of the Board parroted the statements in the earlier Missouri Court of Appeals decision and were not defamatory nor did they result in a stigma even though they were posted online as part of the minutes of the meeting; therefore, the Chiefs were not entitled to a name clearing hearing.  In addition, even if they were entitled to a hearing they made no request for name clearing hearing.  The justification given by the Monarch Board members for the dismissal that Monarch had “created an atmosphere, as stated in the Appellate Court, of abusive, hostile discrimination against female employees” did not implicit the liberty interest.  Crews v. Monarch Fire Protection District, (Eighth CCA, 13–3070, 11/18/14)

Comment Howard: If you are looking for a case involving at-will employment, impact of regulations, policy statements or employee handbooks on the at-will status of employees this is a case for you. It also thoroughly covers when the liberty interest is implicated requiring a hearing. This opinion is extremely well written covering critical points in Missouri’s public sector employment law.

May Have To Repeal Ordinance In Order For Case To Be Moot.

hannukkaIn a case involving St. Louis County the Missouri Supreme Court went out of its away to strike down a county ordinance that required mediation prior to foreclosure even though the Court of Appeals had decided that recent legislation adopted by the General Assembly made the issues moot and the County agreed.  Obviously the Missouri Supreme Court wanted to weigh in on this issue to make it clear that St. Louis County did not have power under its home rule charter to adopt any law that changed, delayed, or otherwise dealt with the enforcement or interfered with a security agreement, mortgage, or deed of trust.

In order to overcome the question of mootness the Court found that since the County had not repealed the ordinance and the County contended that the ordinance was susceptible to an interpretation that the County might be able to enforce the ordinance the issue was not resolved. The Court held that the ordinance was not of local concern but statewide concern and was void as being beyond the powers of the County under the Constitution.  Missouri Bankers Association, Inc. v. St. Louis County, (SC93848, 11/12/14)

Comment Howard: If you want a case to be moot you should consider repealing the ordinance if there’s any question concerning whether or not the ordinance might later be enforced.  There was a vigorous dissent in the case, which I thought was the better argument because while there was a national housing crisis the impact was local.  Since St. Louis County operates under constitutional provisions different than other home rule cities the case is of limited importance except as to the issue of mootness.

Trial Courts Assessment Of Equally Valid Assumptions In DWI Case.

snowmanDefendant was driving on I-70 at an excessive speed and was stopped by the officer who checked the Defendants insurance card.  The Officer learned from the dispatcher that Defendant had outstanding warrants and was driving with a suspended license.  He was taken into custody and placed in a secure area.  Some 73 minutes after the initial stop the Defendant was finally asked to take the Breathalyzer and participate in the standard field sobriety test.  After talking to his lawyer the Defendant refused to participate in the field sobriety test but did submit to the Breathalyzer test, which registered .084.

Defended was charged with a Class D misdemeanor as a persistent offender for the BAC and a Class A misdemeanor for the DWR.  At trial, the Defendant was convicted of both charges and he appealed to the Western District.

On appeal Defendant contended that it was essential to prove that he was driving at the time with excessive BAC and that due to the delay the state could not make the connection to show he was driving while intoxicated making the evidence by the state speculative depending on when he ingested alcohol.  Under section 577.012 “proof of a numerical measure of blood alcohol content is essential” to proving the offense of driving with excessive BAC; however such proof is not essential to a DWI case.  In a DWI case the state must establish through direct or circumstantial evidence, the “temporal connection” between the defendant’s last operation of a motor vehicle and the observed intoxication.

Since it takes 30 to 90 minutes for alcohol to be absorbed into the blood system and Defendant was tested some 73 minutes after being arrested it was possible that the alcohol was still being absorbed at the time defendants BAC was assessed implying that his BAC was under 0.80 or it was equally possible that the alcohol was being eliminated from his bloodstream implying that his BAC was above .080 at the time he was driving.  After a discussion of equally valid inferences the Western District deferred to the trial court judgment.

Defendant also argued that the state failed to prove he knowingly drove his vehicle with a suspended license because the state failed to introduce competent admissible evidence of his actual status of his Missouri deriving privilege.  Section 302.321 RSMo requires that a person charged with driving while their license is suspended must have “knowledge of that fact” or failure to be aware.  In this case the sole evidence that his license was revoked was the hearsay statement of the dispatcher and as a result the Western District reversed the trial court’s decision on the DWR.  State v. Shoemaker, (WD76971, 11/18/14)

Comment Howard: If you are looking for a good case discussing the analysis of inferences that apply to the delay between the time of the operation of the car and the time of testing this case has the best discussion of this issue that I have seen.

Secretary Of State Has No Authority To Investigate Qualifications Of Candidates.

Natalie Vowell (Appellant) filed with The Secretary of State (Respondent) her declaration of candidacy to serve as the representative in the Missouri General Assembly for the 78th Representative District, seeking to be listed as a candidate in the Democratic primary election.  Respondent’s office accepted, signed, and filed the declaration of candidacy.

Respondent’s office sent a letter to Appellant questioning her qualifications to serve as a representative for the 78th District because an examination of voter registration records indicated that she had not been a qualified voter for at least two years prior to the November 4, 2014, election as required by the Missouri Constitution.  Respondent then stated Respondent would not certify Appellant’s name for the ballot.

Appellant then filed her Petition for Declaratory Judgment and Injunctive Relief seeking a declaration that Missouri law does not grant Respondent the authority to evaluate a candidate’s qualifications and to exclude a candidate’s name from the list of candidates certified to appear on a primary election ballot based on such an evaluation.  The trial court conducted a hearing on Appellant’s motion for a temporary restraining order based on an agreement between the parties to “argue the motion on the concept of judgment on the pleadings.”

The trial court dismissed Appellant’s petition, concluding that Appellant lacked standing to pursue a declaration regarding Respondent’s authority to determine whether Appellant was a qualified candidate because Appellant was not, in fact, a qualified candidate.  The trial court stated, “Because Petitioner is not a qualified candidate, she cannot claim a justiciable controversy exists between her and the Secretary of State and is not entitled to declaratory relief…”

Appellant appealed to the Western District contending that the trial court erred in ruling that she lacked standing and that the Secretary of State under the statues had no authority to investigate the qualifications of a candidate and that the Respondent simply had a ministerial duty to certify her name.

The Court held that State law provides the exclusive mechanism by which a candidate’s qualifications can be challenged is by another candidate prior to a primary, noting that the Missouri Supreme Court has indicated that the language of § 115.526 does not reflect a clear intent on the part of the legislature that this is the exclusive method for contesting a candidate’s qualifications which leaves open the possibility of a quo warranto action by a prosecuting attorney or the attorney general after the election.  Natalie Vowell v. Jason Kander (WD77591, 6/19/2014)

Comment Howard: The analysis followed by the court in this case makes it clear that unless you can find statutory authority a clerk is limited with respect to whether or not candidates are eligible because the duties of the clerk are ministerial.

MMAA List Serve:

The MMAA List Serve has proven to be an extremely valuable resource for the sharing of information.  In order to encourage more sharing I thought it would be useful to recognize some of the more recent outstanding responses.  If I have overlooked your response please let me know so I can share with our members your disappointment.

The Winners For The Month Of December 2014: (Ragan I need a drum roll and trumpets) (Drum roll as requested)

Cary Hanson from Rolla, Missouri thank you for your response to a question from Terry McVey concerning whether or not average usage and/or average utility charges for specific locations when utilities are provided by a public utility are open public records.  The response by Cary on November 21, 2014, provides specific citations and analysis to the question suggesting that parts of the record may be closed such as Social Security number or if the customer has an expectation of privacy that has previously been communicated to the utility company.  I think Cary has hit the nail on the head.  Thank you Cary.

Kevin O’Keefe from Clayton Missouri thank you for sharing your December 3, 2014, memorandum to city clerks concerning changes in the election laws for April 2015.  Sharing this memorandum with other officials should eliminate some questions.  Thank you Kevin.

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