July Newsletter (Issue 07-2015)

Administrative Subpoenas in Missouri (Koster v. Charter Commc’ns, Inc)

In the June 2015, MMAA Newsletter, we discussed City of Los Angeles v.  Patel, involving the use of administrative subpoenas, in the context of the Fourth Amendment to the United Constitution making the Western Districts opinion in State ex rel Koster v. Charter Commc’ns, Inc., particularly timely.

Facts: State ex rel Koster v. Charter Commc’ns, Inc. the Attorney General’s (AG) office served Charter with several Civil Investigative Demand’s (collectively referred to as CID).  The CID sought information and documentation regarding one of Charter’s customers who were suspected of having violated Missouri’s no-call and telemarketing laws. The CID stated that an unknown Charter customer was suspected of having violated Missouri’s telemarketing laws and requested information and documentation designed to investigate such Charter customer.  Invoking protections pursuant to the Electronic Communications Privacy Act (ECPA) and Article I, Section 15 of the Missouri Constitution, relating to searches and seizures, Charter refused to produce the information and documentation sought by the CID.

The AG’s office filed a petition seeking declaratory relief stating that the CIDs were “administrative subpoenas” for purposes of the ECPA and that nothing in Article 1, Section 15 precluded the AG from obtaining the information and documentation requested in the CID.  The petition further requested the trial court order Charter to respond to the CID.

The parties agreed that the pertinent facts were not in dispute and filed dueling motions for judgment on the pleadings.  After briefing and argument, the trial court issued its judgment in favor of Charter, refusing to enforce the CID.  An appeal to the Western District followed.

 Analysis: The Administrative Subpoenas: The Western District held that the CID issued by the Attorney General was an administrative subpoena.   Administrative subpoenas are a method whereby an administrative agency may compel an individual or corporation to provide information relative to a civil investigation.  An administrative agency may include a public official performing an administrative function.  An administrative subpoena provides due process because it allows the person who was served with the subpoena an opportunity to contest the validity of the subpoena by moving to quash the subpoena on the grounds that it is invalid.

Missouri Constitution: In 2014 the voters of the State of Missouri amended the search and seizure provisions in the Missouri Constitution (equivalent to the search and seizure provisions in the Fourth Amendment to the United States Constitution) by adding express restrictions on issuance of warrants to “access any electronic data or communication” without probable cause, which language is not in the Fourth Amendment to the United States Constitution.  At the time of the 2014 Constitutional Amendment, the Missouri courts already interpreted the Missouri search and seizure provision of its Constitution to require pre-compliance judicial review of an administrative subpoena; therefore, the 2014 Constitutional Amendment did not change the Missouri Constitution search and seizure requirements.  Missouri has historically interpreted its search and seizure provisions in the Missouri Constitution the same as the United States Constitution.

In addition, “…to the requirement that there must be some mechanism for the recipient of an administrative investigative demand to be able to seek pre-compliance judicial review, the Fourth Amendment’s reasonableness requirement mandates that: (1) the investigative demand comply with the statute authorizing it,

(2) the information sought is relevant to the administrative inquiry; and (3) the investigative demand is not too indefinite or too broad.” State ex rel Koster v. Charter Commc’ns, Inc., (WD 78258, 5/26/2015) 2015 WL 3372155.

Comment Howard: You may want to look at your city code to determine if your code procedures satisfy the requirements for administrative subpoenas and if current code provisions are broad enough to cover situations where you will need an administrative subpoena.  Between the decision in Frech v. City of Columbia, 693 S.W.2d 813 (Mo. 1985), which upheld the power of the City of Columbia to issue administrative investigatory subpoenas to enforce housing code provisions and City of Los Angeles v.  Patel, there is excellent case law supporting administrative subpoenas in the state of Missouri.

Texas Vanity Plates Are Government Speech Not Protected by the Free Speech Clause (Manz v. Prairie Twp. Fire Prot. Bd.) 

Texas offers automobile owners a choice between general issue and specialty license plates.  Those who want the State to issue a particular license plate (so-called vanity plates) may propose a plate design, comprising a slogan, a graphic or both.  If the Texas Department of Motor Vehicles Board  (Board) approves the design, the State will make it available for display on vehicles registered in Texas.

In this case, the Texas Division of the Sons of Confederate Veterans and its officers (collectively SCV) submitted an application for a vanity plate, which was denied.  As a result of the denial the SCV filed suit against the Board arguing that the Boards rejection of SCV’s rejection of the vanity plate featuring a Confederate battle flag violated the Free Speech Clause of the United States Constitution.  The Federal District Court entered judgment for the Board, but the Fifth Circuit reversed, holding that the vanity plate designs were private speech and that the Board engaged in constitutionally forbidden viewpoint discrimination when it refused to approve SCV’s design.  The United States Supreme Court granted certiorari to determine whether or not the rejection by the Board of the vanity plate request by SVC violated the Constitution’s free speech guarantees.  Texas had previously approved a number of other vanity plates for different organizations.

The Supreme Court held that the Texas license plates were government speech; therefore, the Free Speech was not implicated, since government speech is not subject to the Free-Speech Clause.  The history of license plates in Texas shows that license plates have conveyed more than state names and vehicle identification.  They have for a long time communicated messages from the State.  License plates are also identified with the state.  Each plate is a government article serving the purpose of vehicle registration and identification. The state places the name “TEXAS” in large letters at the top of every plate.  Moreover, the State requires Texas vehicle drivers to display plates and every Texas license plate is issued by the state.  Texas license plates are, essentially government IDs.  In addition, Texas maintains direct control over the design, typeface, color and numeric pattern for all license plates and presents these designs on government mandated, government controlled and government issued IDs.

Based upon an earlier 2009 decision in Pleasant Road City, Utah v. Summum, involving the placement of monuments in a state park, the Court concluded that the Texas vanity plates were government speech, not subject to the Free Speech Clause.  Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, (2015)

Comment Howard: The United States Supreme Court decision in Pleasant Road City, Utah v. Summum, is the definitive case discussing government speech.  If faced with a question of what constitutes government speech you would be well advised to study this case since government speech is a recently minted concept making it difficult to define its limits.  In addition, the recent controversy over the Confederate flag may spill over into monuments that are in city parks and on government property.

Pre-election Review of Ballot Title Permitted (Manz v. Prairie Twp. Fire Prot. Bd.)

In February of 2015, referendum petitions were submitted by Petitioners to the Jackson County Election Board (Board), which contained the following ballot language:

Shall the Prairie Township Fire District exclude from its boundaries all of the property located within the City of Blue Springs?

The Board determined that the number of signatures on the referendum petitions were sufficient but refused to call the election on the grounds that it was not authorized by the state statute to hold the referendum election.  Petitioner’s filed a writ of mandamus alleging that the Board had a ministerial duty to call the election under Section 321.500.  Based upon the pleadings and a stipulation of facts, the trial court conducted a hearing on the motion for writ of mandamus and thereafter quashed the preliminary writ and denied the petition for writ of mandamus.  Petitioners appealed to the Western District.

Petitioners argue that the Board had the power under Section 321.220(14) to  “…exercise all rights and powers necessary or incidental to or implied from the specific powers granted” and further states that “such specific powers shall not be considered as a limitation upon any power necessary or appropriate to carry out the purposes and intent of Chapter 321.”

The Western District held that pre-election review, while normally not allowed, was justified in this case because a court may consider a procedural or ballot issue that has a bearing on the integrity of the election itself prior to presentation of the issue to the voters. “Our single function is to ask whether the constitutional requirements and limits of power, as expressed in the provisions relating to the procedure and form of initiative petitions, have been regarded.”

Sections 321.310 and 321.320 specifically provide for the procedures to exclude property from the fire protection District on petition of the property owners.  Because state law expressly prescribed the manner in which the boundaries of a fire protection district may be altered to exclude property from the fire protection district the power to exclude property in any other manner including referendum or action by the board is specifically precluded.  Manz v. Prairie Twp. Fire Prot. Bd., (WD 78662, 6/16/2015) 2015 WL 3751499.

Constitutional Amendment With Respect to the Right to Bear Arms Does Not Change Missouri Law

Dotson I

SJR 36 was passed by the General Assembly on May 7, 2014. The secretary of state certified the official ballot title on June 13, and it was placed on the August 5, 2014, state primary election date.  Dotson and Morgan filed suit on the date that the ballot was certified  and challenged the sufficiency and fairness of the summary statement pursuant to Section 116.190.

Section 115.125.2 provides that, “…no court shall have the authority to order an individual or issue be placed on the ballot less than six weeks before the date of the election.”  The trial court issued its judgment on July 1, (less than six weeks before the election) holding that the case was moot because

Section 115.125.2 prohibits changes to a ballot title within six weeks of the election.  In the alternative, the trial court found the ballot summary was fair and sufficient.  Appellants appealed to the Missouri Supreme Court.

Since the trial court entered its judgment on July 1, which was less than six weeks before the election, the Missouri Supreme Court upheld the trial court’s decision that the case was moot because no changes could be made to the ballot title.  Dotson v. Kander, 435 S.W.3d 643 (Mo. 2014)

Dotson II

After the voters approved SJR 36 in August 2014, the Plaintiff’s filed an election contest challenging the summary statement as an election irregularity pursuant to Section 115.555.  The trial court dismissed Plaintiffs petition.  Plaintiff’s appealed to the Missouri Supreme Court arguing that a court could review the ballot title after the approval by the voters on the grounds that it was an “irregularity” under Section 115.555.  Dotson II raised the question of whether a challenge to the proposed measure may be brought after voters adopt the measure on the grounds that the ballot title was so deficient as to constitute an irregularity.

New Post Election Remedy to Review Ballot Title

The Missouri Supreme Court held, in a case of first impression, that the ballot title could be reviewed postelection as an irregularity under Chapter 116; nevertheless, after reviewing the ballot title the Court concluded it was fair and sufficient; therefore there was no irregularity.

Reasons for Judicial Review

The Court noted that judicial review of ballot titles is especially important in a legislature-proposed ballot initiative because the General Assembly writes the ballot title as well as the proposed amendment without any review by the executive department.  In addition, pre-election review by the courts can be elusive because a ballot title cannot be changed within six weeks of the election (changed in 2015 to 8 weeks) making it impossible, in certain situations to get timely judicial review of a ballot title.

Ballot Was Fair and Impartial

SJR 36 proposed the following changes to Mo. Const. Art. I, Section 23 (new language in bold italics, deleted language struck through):

“That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.  The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity.”

The summary statement of the ballot title asked voters: ”Shall the Missouri Constitution be amended to include a declaration that the right to keep and bear arms is a unalienable right and that the state government is obligated to uphold that right?”

The majority opinion concluded that the above changes to the Missouri Constitution were not substantive because these rights were already in the Missouri Constitution.  Missouri has historically interpreted the right to bear arms the same as the interpretation given by the United States Supreme Court.  Prior to the adoption of the above Amendment in August 2014, the courts had already determined that strict scrutiny applied and that the right to bear arms was not unlimited and subject to reasonable restrictions by the legislature.  In particular, the Missouri Supreme Court noted that the United States Supreme Court while applying strict scrutiny with respect to right to bear arms had not determined what level of strict scrutiny would apply.  Dotson v. Kander, (SC 94482, 6/30/2016) 2015 WL 4036160.

Comment Howard: Surprise! The voters approved a constitutional amendment with respect to the right to bear arms that did not change the Constitution.  It is just codified existing law.  This case has a lot of contradictions since it would appear that the court was trying to avoid invalidating the ballot title by creating a new remedy to review ballot titles after the election and by an incredulous but welcome interpretation that the Amendment did not change anything.  In addition, the arguments that there are different levels of strict scrutiny are very questionable.

Even though this case involved a statewide ballot issue it has significant implications with respect to local government.  First, there is the question of whether or not the courts will allow post election review of ballot titles for local government issues.  The Court in Dotson II relied upon Chapter 115, which applies only to statewide elections.  As a result it will be necessary to rely upon a different argument for postelection review.  See the concurring opinion by Judge Stith that Dotson I was decided improperly and that the better course of action would have been to determine there was insufficient time for judicial review of the ballot title although the remedy to correct the ballot title prior to the election was moot.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     Supreme Court Narrowly Interprets Right to Farm Constitutional Amendment

Shoemyer v. Missouri Sec’y of State, was a postelection challenge to the ballot title of the constitutional Amendment to protect the right to farm.  As in Dotson II (discussed above) the question was whether or not a challenge may be made to the ballot title after the voters have adopted the Amendment.  The Missouri Supreme Court held that a postelection challenge to the ballot title was permitted, under the reasoning set forth in Dotson II, even though there was no pre-election challenge in Shoemyer, which the dissent considered to be fatal to a post election challenge.

The ballot title read:

“Shall the Missouri Constitution be amended to ensure that the right of Missouri citizens to engage in agricultural production and ranching practices shall not be infringed?”

The Amendment added the following language to the constitution:

“That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri’s economy.  To protect this vital sector of Missouri’s economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by Article VI of the Constitution of Missouri.”

The Plaintiffs argued that the ballot title was defective because it should have included a statement that the right to engage in agricultural production and ranching practices was “…subject to duly authorized powers, if any, conferred by Article VI of the Constitution of Missouri.”  The Court concluded that the omission of this language did not make the ballot title unfair because all constitutional amendments are “subject to all the limitations, express or implied, contained in the Constitution.”

In addition, the phrase “shall not be infringed” “…does not imply that the right would be unlimited or completely free from regulation, as no constitutional right is so broad as to prohibit all regulation.” (Citing Dotson II)

Despite the omission in the ballot title that the right to farm was subject to the limitations in Article VI the Missouri Constitution the opinion held that the ballot title was fair and sufficient.  Shoemyer v. Missouri Sec’y of State, (SC 94516, 6/30/2015) 2015 WL 3978756.

Comment Howard: This case is extremely important because the Court preserves the right of local government to regulate farming and ranching practices.  Essentially, this makes the question of whether or not government can legislate with respect to farming and ranching a political question.  The take away from this case is that “no constitutional right is so broad as to prohibit all regulation.”

Proposed Charter Amendment That Limited Eligibility To Programs Established By State Law Was Invalid

An initiative petition (Petition) was submitted by Petitioners to the City of St. Louis (City) to prohibit the City from providing “public financial incentives” to “unsustainable energy producers,” and require the City to create a “sustainable energy plan” that mandated the City provide financial incentives to “renewable energy producers.”

The Petition was certified as sufficient and the ballot measure was submitted to the Board of Alderman of the City, which did not Pass the ballot measure within 60 days.  As a result of not passing the measure the Petition being placed on the April 2014, election date.  Citizens and taxpayers of the City of St. Louis (Plaintiffs) brought a lawsuit contending that the Petition conflicted with state law and to enjoin the City from holding the election.  The trial court sustained the Plaintiff’s position and the matter was appealed to the Eastern District.

The language of the Petition would have prohibited any “Unsustainable Energy Producer” from participating or benefitting from any TIF or special business district programs; however, the Real Property Tax Increment Allocation Redevelopment Act and the special business districts statute do not place any restrictions on what type of person or entity may participate in the programs. Therefore, the proposed amendment to the City Charter prohibited what the state law permits making the charter provision invalid.  Noel v. Bd. of Election, (ED 101630, 6/30/2015) 2015 WL 3961254.

Comment Howard: This is an extremely broad opinion.  It has the potential to nullify local legislation based upon the principal that if a state statute has no limitations, a local governmental agency cannot pass a law that limits eligibility to a local government program that is optional.