December Newsletter (Issue 12-2015)








Eighth Circuit Upholds Linn States Drug Testing For Entire Student Body


Before preceding with the analysis of this case it is important understand the procedural history. Linn State, a two-year technical college in Linn, Missouri, adopted a drug testing policy for its entire student body of approximately 1200 students.  A preliminary injunction was granted by the District Court on a facial challenge to the policy that was appealed to the Eighth Circuit, which reversed because the Court was unable to hold that the drug-testing policy is unconstitutional on its face in every conceivable circumstance and remanded to the District Court for further proceedings.
On remand the Plaintiffs clarified their challenge by asserting that they were challenging the policy based upon its application (as applied) to different segments of the student body.  The district court, after hearing evidence, permanently enjoined Linn State from conducting any further collection, testing, or reporting the results of any testing of urine specimens in approximately 39 of its programs, while allowing drug testing in five program areas, and that decision was appealed to the Eighth Circuit.
Facts: Linn State, is unique in that its purpose by statute is to: “…make available to students from all areas of the state exceptional educational opportunities through highly specialized and advanced technical education and training at the certificate and associate degree level in both emerging and traditional technologies with particular emphasis on technical and vocational programs not commonly offered by community colleges or area vocational technical schools.”
The programs offered by Linn State are also unique because they involve manual exercises for a significant portion of the program, (over 62%) including hands on exercises.  The students are also required to taxi airplanes.  Students seeking accreditation in the Heavy Equipment Operations program spend between 51% and 72% of their time engaged in hands-on training, involving operation of Caterpillar D6R bulldozers and other heavy equipment weighing up to twenty-five tons.  Students in the Industrial Electricity program spend about half their time engaged in hands-on functions, receiving training with live electricity and, at times, performing electrical services for members of the community.

Analysis:  Based upon the uniqueness of the mission and the program the Court concluded that there is “…a special need, significant enough to conduct a balancing test of competing constitutional interests.”  The students are primarily engaged in safety-sensitive and potentially dangerous curriculum due to its unique nature.  Therefore, the Court concluded that testing the entire student population is reasonable and hence constitutional and an effective means of addressing Linn State’s interest in providing “a safe, healthy, and productive environment for everyone who learns and works at LSTC by detecting, preventing, and deterring drug use and abuse among students.”

“These purposes–safety concerns juxtaposed with educational concerns–are not analytically distinct and establish a special need sufficient to support the balancing of interests necessary in these circumstances.” “The very nature of these programs and the unique vocational focus of the college itself involves dangerous aspects and creates safety risks for students under the influence of drugs or alcohol, as well as others.” Kittle-Aikeley v. Claycomb, (8th Cir. 14–1145, 13-3265, 12/7/15)

Comment Howard: This case may get a lot of attention by citizens wanting more drug testing in situations when it is questionable, based upon current United States Supreme Court decisions it is important to proceed with caution.  The Court confined its decision by stressing the uniqueness of the mission and details of the programs offered by Linn State; therefore, this opinion may be of limited value.  The Court did not defer to the trial court’s fact-finding or analysis despite the earlier decision from the Eighth Circuit, which seemed to outline the basis for further proceedings on remand.  This decision was surprising and I would be reluctant to follow the reasoning in this case until it becomes final.  There was a vigorous dissent.

Driving Under The Influence Of Drugs Is Not A Crime Of Moral Turpitude
HUNA_18404_34444071AJeanie Owens holds a nursing license from the Missouri State Board of Nursing (Board).  Owens pled guilty to the class B misdemeanor of driving while intoxicated under the influence of drugs.  Thereafter, the Board’s legal counsel filed a complaint asking the Board to hold a hearing pursuant to determine whether cause existed to discipline Owens’s nursing license under Section 335.066.2(2), because of the driving under the influence of drugs.  The Board alleged that Owens’s driving while intoxicated was an offense that involved moral turpitude reasonably related to the qualifications, functions, or duties of a nurse.

On December 5, 2013, the Board held a hearing and thereafter, it revoked the license of Owens because she had been convicted of driving under the influence of drugs, a misdemeanor that involved moral turpitude.  Owens appealed the Board’s decision to the circuit court, which reversed.  The Board then appealed to the Western District contending that driving under the influence of drugs was a crime of moral turpitude involving the qualifications, functions, and duties of a nurse.

The Western District held that driving while driving under the influence of drugs was not a crime of moral turpitude. “Moral turpitude” is defined as “‘an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowman or to society in general, contrary to the accepted and customary rule of right and duty between man and man; everything “done contrary to justice, honesty, modesty, and good morals.” The crime that Owens committed was not similar to a crime that necessarily involved moral turpitude, such as fraud nor did it involve a crime that “may be saturated with moral turpitude,” or a willful failure to pay income tax or refusal to answer questions before a congressional committee.  There is nothing about the crime that Owens committed that suggested that it was an act of “baseness, vileness, or depravity.”  Owens v. Missouri State Board Of Nursing, (WD78486, 11/17/15)

Comment Howard: This case would be a good starting point if you get a question concerning what constitutes moral turpitude.

Local Government Agencies Face Substantial Liabilities For Improper Access To Personal Information Under DPPA

desktop-computer-with-mouseIn order to obtain a driver’s license or motor vehicle registration from a state motor vehicle department (DMV), individuals must disclose personal information, such as names, addresses, telephone numbers, social security numbers, medical information, vehicle descriptions, and photographs.  Concerned over the dissemination and misuse of this personal information, Congress enacted the Driver Protection Privacy Act (DPPA) in 1994 to regulate the sale and disclosure of information that state DMVs collect in the process of registering and licensing drivers of motor vehicles.

Facts: The DPPA prohibits state DMVs from disclosing personal information in a motor vehicle record except for uses explicitly enumerated in the statute.  “Personal information” is defined as “information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information.”  Personal information in a motor vehicle record may be disclosed by a state DMV for “use by any government agency, including any court or law enforcement agency, in carrying out its functions,” or for use by a private person acting on behalf of a government agency in carrying out its functions.  Personal information may also be disclosed by a state DMV “[f]or use in connection with any civil, criminal, administrative, or arbitral proceeding” or for “investigation in anticipation of litigation.”  A person who “knowingly obtains, motor vehicle record, for a purpose not permitted” is liable to the individual, and the court may award “actual damages, but not less than liquidated damages in the amount of $2500,” attorney’s fees, and “punitive damages upon proof of willful or reckless disregard of the law.”

A legislative audit by the Minnesota Legislative Audit Subcommittee in February 2013, showed that at least 50% of law enforcement officers were misusing the database by obtaining, disclosing or using personal information for an impermissible purpose.  Bass, McDonough, Mitchell, and Potocnik (collectively, Drivers) sued individuals, local government agencies, public officials and the Minnesota Department of Public Safety (collectively referred to as Defendants) for alleged violations of the DPPA by accessing or disclosing Drivers’ personal information from motor vehicle records without a permissible purpose.  The Defendants filed a motion to dismiss, which was sustained by the trial court because Drivers’ allegations were too speculative to show, as to each Defendant that the personal information of the Driver was impermissible accessed.  Drivers appealed to the Eighth Circuit.

The Meaning of “Obtain”: Section 2724 of the DPPA prohibits a person from knowingly obtaining, disclosing or using personal information from a motor vehicle record for an impermissible use under DPPA.  The Defendants contended that to “obtain ” means “to hold onto or process.”  The Eighth Circuit held that: “Because the personal information… is intangible in nature, access is gained or acquired when it is accessed or observed.”  Some Defendants also contended that even if the information was “obtained” the information was never used.  The “…fact that personal information is never put to use does not retroactively alter the purpose for which it was obtained.”  Defendant’s suggestion that use is required would also render meaningless the word “obtain” in section 2724 of DPPA.

Adequacy of the Pleadings: The Eighth Circuit examined the pleadings of the four plaintiffs in this case with respect to their specificity to determine if they stated a cause of action.
Defendant Bass served as a negotiator and attorney for Law Enforcement Labor Services, the states largest law enforcement union had her personal information viewed by name search more than 750 times by approximately 340 government personnel.  She alleged she did not have a criminal record and has not committed any crimes to justify the access. She claimed that the timing of the accesses were generally late at night and appeared to be around the time when she was preparing for hearings or court proceedings.  There were 69 agencies involved with alleged violations during the applicable time.  Of these, 38 agencies did not have a history of frequent suspicious accesses nor did they engage in multiple late-night accesses or participate in any suspicious patterns; therefore the Eighth Circuit concluded that it would be sheer conjecture that those agencies engaged in impermissible purposes.  Of the 31 remaining agencies the allegations show plausible claims for relief under the DPPA.

Two of the other Plaintiffs, who were news reporters, showed similar patterns and actual statements in one case indicating that the police were “watching” the reporter.  Both of these Plaintiffs stated claims against some of the Defendant’s.

The fourth plaintiff did not allege sufficient individualized facts; consequently the trial court’s decision to dismiss the claim was affirmed.  McDonough v. Anoka County, (8th Cir., 14–1754, 8/20/15)

Comment Howard: This lawsuit is massive (there are four pages of named defendants and hundreds of John and Jane Does).  This seems like a very fertile area for litigation as well as a road map, provided information can be obtained to backup the allegations with some specificity.  In light of this lawsuit, extra care should be taken to make sure that records covered by the DPPA are accessed only in accordance with the statute.  Considering the number of searches for the plaintiffs in this lawsuit, when there was no basis for checking the records, it seemed like some of the Defendants were using the searches like a Google search to obtain background information.

Failure to Follow Check List When Taking A Blood Sample Did Not Affect Its Admissibility Under The Circumstances
Car_crash_1Officer Hanes of the Joplin Police Department attempted to stop Defendant after he turned left against a red light.  Defendant initially pulled over into a parking lot, but he then fled in his vehicle.  After driving approximately ten blocks, Defendant’s vehicle collided with a concrete structure.  Defendant refused to perform a field sobriety test.  Because Officer Hanes suspected that the Defendant was intoxicated he transported the Defendant to a DWI checkpoint where a search warrant was issued to take a blood sample.
Officer Shelby Howard witnessed Defendant’s blood being drawn by a paramedic with a blood kit supplied by the Missouri State Highway Patrol (MSHP).  The blood kit contained a “checklist” entitled “Procedure for Collection of Blood Sample.” This checklist had 15 instructions. Instruction 6 stated: “Retrieve blood sample and gently invert blood tube 20 times.” Instruction 7 stated: “Write subject’s name on blood tube label.” Watts did not recall if he inverted the tube before handing it to Officer Howard but if he had, he would have inverted it “[m]aybe a dozen” times.  Watts was unaware of any standard medical practice dictating the number of times that a tube must be inverted.  Officer Howard inverted the tube of blood five to seven times to make sure the anticoagulant and preservative mixed with the blood.  Officer Howard did not label the actual tube.  Instead, he marked the box with the case information and immediately placed the tube inside the box.

Officer Howard described the checklist as a set of general guidelines to help draw blood.  Watts testified that the accepted medical practice for drawing blood was to “look at the arm and try to find a suitable site [,]” “place a tourniquet on the patient, check it again to make sure that site is still suitable [,]” and then “go ahead with the blood draw.”  The test performed on Defendant’s sample showed a blood alcohol level of .171 percent blood.  A jury found the Defended guilty, and he was sentenced to 15 years as a chronic offender.

Defendant appealed to the Southern District contending that the person administering the blood test failed to follow the checklist.  More precisely, compliance with the MSHP checklist is the only way to draw blood in strict accordance with medical practices.  The court notes, that only a few cases have considered the proper administration of a blood test.  The checklist stated that the test tube was to be inverted 20 times, however, testimony showed that the tube was not inverted 20 times.  In addition, after drawing the blood sample the person administering the test was required to label the sample, which did not occur, however the sample was put in a box with the proper labeling.  The Southern District held that under the circumstances in this case based upon testimony from qualified persons who have administered these test that the failure to label the tube and invert it the number of times stated on the checklist did not affect the admissibility of the test results.  State of Missouri v. Howell, (SD33618, 10/23/15)


Agreed To Facts Subject To Contradictory Inferences Are Insufficient For Summary Judgment
schoolPlaintiff slipped on a puddle in a school cafeteria, fell, was injured, and sued the Webb City School District (School), alleging a “dangerous condition” waiver of sovereign immunity.  The Schools motion for summary judgment was granted on the grounds the Plaintiff could not show that the School had constructive notice of the puddle.  Plaintiff appealed to the Southern District.

Facts: The puddle, about the size of a sheet of paper, formed on the cafeteria floor due to a “slow” roof leak (also described as “a little drip” or “seep”).  Several staff members were eating 5-10 feet away when Plaintiff fell.  Nearly 320 students also were seated for lunch.  Plaintiff fell in the path these students and employees had just taken.

Analysis: “From the above facts, each party draws a decisive inference favorable to itself and contrary to that drawn by its opponent.” “The ceiling leak was slow, and the size of the puddle was the size of a sheet of notebook paper or a little larger, we know that the teachers were within five to six feet of the puddle and leak, and the principals and administrators were within the range of sight, while the ceiling was leaking and while the puddle of water was on the floor.” The Western District noted that: “A reasonable jury could infer that Webb City employees could have and should have seen the puddle and leak.”

The Western District noted that it is also possible that the factfinder could infer “…that the puddle was not seen by a ‘multitude’ of people because the puddle was not there…” which is an inference that can also be drawn from these facts.  The evidence is susceptible to more than one inference precluding summary judgment; therefore the School was not entitled to summary judgment.  Degonia vs. Web City R-III School District, (SD33805, 11/17/15)

Kansas City Not Bound By Applicants Use Of Electronic Signatures To Obtain Consent To Abstain

JC_Nichols_Fountain_by_Henri-Léon_Gréber_Kansas_CityCashew is a restaurant and bar operating in Kansas City (City).  Cashew, which has a liquor license for the first and second floor of its four-story building wanted to expand its license to allow alcohol on the third and fourth floors, as well as its rooftop patio.  Cashew applied to the City for a permit to expand its liquor license.  The City’s liquor licensing process provided that, once the request was initiated, Cashew had ninety days  to obtain consent for the expansion from a majority of the landowners and tenants within a 250–foot radius of the building (“eligible consenters”).  The City determined the number and identity of the eligible consenters.  The City generated a consent form specific to each eligible consenter, provided the consent forms, and instructions for obtaining consents and abstentions to Cashew.

In this case, there were twenty eligible consenters, meaning that, if there were no abstentions, Cashew would have to obtain eleven consents. Eligible consenters express their consent by filling out and signing the consent form.  If the eligible consenter is an entity, the individual signing the form must acknowledge that he or she is authorized to sign on behalf of the entity.  Eligible consenters may also abstain from the process, by filling out a consent form and checking a box indicating that the property owner wishes to abstain.  If the eligible consenter abstains, the eligible consenter is eliminated from the pool of eligible consenters from which the applicant must obtain consents, potentially lowering the number of consents required.

On the last day to obtain consents, Cashew turned in twelve consent forms, two of which were abstentions.  The consent forms for the abstentions were from Assurant Employee Benefits; however, they did not contain a signature.  They were accompanied by a purported email exchange between Cashew and John Hall from Assurant.  The email from Cashew to Hall stated, “I know you didn’t want to sign [the consent forms] because they are ‘consent’ forms[.  But I need to clarify that you did fill them out, and Assurant does indeed want to be removed from voting on [abstain from] Cashew’s liquor license expansion.”  A reply from Hall states, “That is correct, Assurant wants to be removed from voting.  Assurant is abstaining from voting.” The City denied Cashew’s application explaining that the form for the property owner had not signed the two abstentions as required by the ordinance; therefore, Cashew “did not submit consent forms that had been signed by a majority of eligible consenters.”

Cashew appealed to the Liquor Control Review Board (Board) and after a hearing, the Board upheld the denial, determining that Cashew failed to furnish timely signed consent forms to abstain from the consent process. Cashew appealed to the Circuit Court of Jackson County, which reversed the Board’s decision, holding that the email from Hall constituted an electronic signature and that the consent form was unconstitutionally vague.  City appealed from that ruling to the Western District.

Issues: Cashew contends on appeal that the decision of the Board was erroneous because:  (1) the abstentions from Assurant constituted a sufficient digital signature;  and (2) the form based on the ordinance was impermissibly vague in not making it clear that a signature was required.

Analysis: Cashew asserts that the email from John Hall, which included a signature line for Mr. Hall, made it a valid digital signature under the Uniform Electronic Transactions Act (UETA).  This argument failed to recognize that the UETA applies only to transactions where the parties agree to conduct business under the UTEA.  In determining whether or not the parties have agreed to conduct business under the UTEA the courts examine context and surrounding circumstances, including the parties’ conduct.  The Western District determined that there was sufficient evidence for the Board to conclude that City had not agreed to communicate by electronic means based upon testimony that the City never conducted its business by electronic means.  Cashew offered no evidence that City had ever expressed a willingness to conduct the consents and abstentions under the UTEA or that City had previously accepted electronic signatures.  The evidence supported the Board’s finding that the City accepts only physically “signed consent forms.” In addition, there was nothing vague about the ordinance, which required that the applicant must furnish a signed consent form from the eligible consenter indicating that it has chosen to abstain from the consent process.  WCT & D, LLC, v. City of Kansas City, Missouri, (WD 78207, 12/8/15)

Educational Material

  • Stinson Leonard Street has an excellent article providing a roadmap of “Best Practices for Accommodating Pregnant and Postpartum Employees,” which may be useful to you and your local governmental HR representative.  Follow this link  Best Practices.


  • Amicus Brief Bank: The State and Local Legal Center has provided a list of amicus briefs filed in the last term on the half of local and state government.  The Legal Center has been cited a number of times by the United States Supreme Court in its decisions relating to state and local government.  Even though the court may have decided the issue, the amicus brief filed by the State and Local legal Center may provide a useful framework in the event this issue comes up in your practice.   Select this link to find the briefs.


  • IMLA Drone Registration Alert: The new FAA rule requires that effective December 21, 2015, anyone who owns a small unmanned aircraft weighing more than 250 grams (about 9 ounces) must register with the Federal Aviation Administration’s Unmanned Aircraft System (UAS) registry before they fly outdoors. (People who owned and operated their drone before December 21, 2015 have a 60-day window to register, until February 19, 2016). The on-line registry costs $5, but that fee is waived through January 20, 2016.
  • The new registration requirement does not apply to government agencies or commercial users who must follow previous paper registration requirements.  IMLA has some very useful material on this issue which you may obtain by following this IMLA LINK.


  • How To Fix Your Sign Ordinance: An article Lisa Soronen offers advice on how to fix your sign ordinance in light of Reed v. Town of Gilbert, Arizona.  Looking for advice please follow the link.  Your City Has to Fix Sign Codes