March Newsletter (Issue 03-2015)

4-leaf-cloverMarch Newsletter (Issue 03-2015)


Legislature Can Not Nullify Initiative Petition by Adopting Amendments To An Existing Law, After The Ballot Is Certified, Prior To The Voters Considering The Matter.

On February 4, 2008, the Secretary of State for Missouri (Secretary) approved for circulation a ballot initiative petition (later designated as Proposition C), which proposed a statutory “Renewable Energy Standard” for Missouri utility companies. The official ballot title was officially certified on February 25, 2008, by the Secretary who issued a receipt on May 4, 2008, acknowledging delivery of a number of signatures (later determined to be sufficient to qualify proposition C for the ballot).

Proposition C, generally, proposed a statutory scheme under which electric utilities would be required to provide progressively higher percentages of their electricity sales from renewable energy sources, including wind, crops grown for energy, and hydro power, among things in designated calendar years.  Proposition C also required utilities to generate or purchase electricity from renewable energy sources of at least 2% from solar energy and required the utilities to make available to its retail customers a standard rebate offer for new or expanded solar electric systems sited on the customer’s premises.

In May 2008, after Proposition C was certified for placement on the 2008 general election ballot, but before it could be voted on the legislature amended Section 393.1050 by adding to the existing statute the phrase, “notwithstanding any other provision of law” so that electrical corporations could continue to be exempt from the solar requirement and rebate programs in the event the voters approved Proposition C. (In other words, pre-vote nullification of Proposition C). On November 4, 2008, the voters approved Proposition C, which became effective immediately upon passage.  Empire District Electric Company was the only electric utility that claimed eligibility for the solar carve out or rebate exemption in the statute.

A coalition that supported Proposition C (Renew) filed a complaint with the Public Service Commission (PSC) challenging the authority to grant the exemptions under the amendment by the legislature after the ballot title was certified for Proposition C while waiting for the voters to consider Proposition C.  The PSC determined that the pendency of Proposition C did not prevent the legislature from passing related legislation; that Proposition C did not impliedly repeal Section 393.1050 because the statute amended by the legislature and Proposition C could be harmonized.  Renew filed an appeal to the Missouri Supreme Court challenging the decision of the PSC.

In order to determine if there was a conflict between Proposition C and Section 393.1050 the Court analyzed the meaning of the clause “Notwithstanding any other provision of the law” to determine its meaning.  This clause “…does not create a conflict, but eliminates the conflict that would have occurred in the absence of the clause.” The inclusion of this clause in the statute prior to voters considering Proposition C was intended to repeal any provision in the initiative that was inconsistent and that was later adopted by the people. Therefore, Section 393.1050 could not be harmonized with Proposition C because the legislature may not repeal an initiative in whole or in part in advance of its consideration by the voters after it is certified by the Secretary.  To allow the legislature to modify the initiative would allow the legislature to undercut or undo a law initiated by the people before it could be voted on by merely passing a related statute.  Earth Island Institute vs. Union Electric Company and Public Service Commission of the State of Missouri, (SC93944, 02/10/15)

Comment Howard: This case has a lot of gems to be mined by local government attorneys.  First, while there are many cases discussing the meaning of the clause “notwithstanding any other provision of law” this case is now the definitive analysis of that clause holding that it is intended to override any other provision of law to the contrary, thereby eliminating the possibility of any conflict with another law.  The Court applied the analysis used in referendum cases to the initiative process.  In the referendum cases the courts concluded that once the right of referendum has been invoked, the legislature is divested of all power to amend until the people have had an opportunity to vote based on the principle that amendments were simply end runs around the referendum.  With respect to initiatives the Court reasoned that the legislature cannot render meaningless the people’s right to adopt a law through the initiative process by negating that law through legislative adoption of a statute after the initiative is proposed for circulation to avoid a vote by the people on the initiative.  Of course, the nature of the initiative process allows the council to adopt the ordinance proposed, as an alternative to the vote.  Amendments are prohibited when they eviscerate the initiative, thereby preventing the people from having an opportunity to vote on the initiative that was proposed or the adoption of the proposed initiative by the legislative authority.

Purchase Of Liability Insurance By A Governmental Agency Waives The Defense Of Sovereign Immunity Unless It Is Preserved By An Endorsement To The Insurance Policy.

The alarm panels for a private security company (Q Securities) were located at the public 911-call center operated by Audrain Joint County Communications (ACJC), a governmental agency.  ACJC employees monitored the private alarm panels of the security firm.  As soon as the audible alarm sounded, a light bulb corresponding to a particular customer was supposed to illuminate.  When two ACJC employees tested the alarm panels they discovered that six of the lights – including the one for Hickman’s IGA were not working.  The employees reported this to their supervisor, however the security firm was never informed of the inoperable light blubs, consequently the problem was never rectified.

Approximately 3 months after learning that the lights in the security panel did not work burglars entered the Hickman’s IGA grocery store and triggered the alarm system, which sounded at the ACJC call center, however the dispatcher was unable to tell which particular customers alarm had been triggered because no corresponding light bulb illuminated.  The burglars set fire to the grocery store before fleeing the scene, which likely was a source of a second alarm.  No action was taken by the 911 system until approximately a full hour after the first all alarm had sounded when a passenger in a car saw smoke coming out of the grocery store and called 911 to report the fire. vBy the time the fire department suppressed the fire, there was more than $2 million in damages.

The insurance carrier settled its claim with the grocery store and took an assignment of rights against anyone responsible for the damage.  The insurance carrier sued ACJC, which filed a motion to dismiss based upon the defense of sovereign immunity that was denied by the trial court and ACJC appealed to the Eighth Circuit.

The Court, after wrestling with jurisdictional issues, determined that it had jurisdiction to decide whether or not ACJC had waived its defense of sovereign immunity under Section 537.600 by purchasing insurance without an endorsement to protect the right to assert the sovereign immunity defense.  ACJC and the insurance carrier tried to retroactively amend the insurance policy to include an endorsement to preserve the sovereign immunity defense.  The Court held that ACJC and the insurance carrier failed to show there was a preexisting agreement between the parties; that a mistake was made in that the insurance policy was prepared other than as agreed; and that the mistake was mutual; therefore, the Court held that the attempt to reform the policy was void.

After holding that the policy could not be retroactively amended the Eighth Circuit held that ACJC had waived its sovereign immunity defense under Section 536.600 through the purchase of insurance.  Argonaut Great Central Insurance Company v. Audrain County Joint Communications, (13–3252, 02/11/15)

Comment Howard: This case is a cruel reminder to local governmental agencies they need to check their insurance policies for an endorsement that allows the governmental agency to assert the defense of sovereign immunity.  In addition, it is hard to imagine why a governmental agency would allow the placement of monitoring devices owned by a private security firm in its 911 communications system, monitor and maintain the system, and dispatch calls to the police on behalf of the security firm. With no sovereign immunity defense the governmental agency has unlimited liability and very few defenses based on its operation and maintenance of the security firms monitoring system.

US. Supreme Court Breaks Down Application Of RLUIPA To Institutionalized Persons.

Against the backdrop of a Prisoner who wanted to grow a 1/2 inch beard in accordance with his religious beliefs as a devout jail_photoMuslim the United States Supreme Court breaks down the application of section 3 of the Religious Land Use and Institutionalized Persons of 2000 (RLUIPA) as applied to the policy of the Arkansas Department of Corrections (Department) that prohibited the growing of beards. Section 3 of the statute provides that no government shall impose a sub­stantial burden on the religious exercise of an institutionalized per­son unless the government demonstrates that the burden “is the least restrictive means of furthering [a] compelling governmental interest.”

The Magistrate Judge, the District Court, and the Eighth Circuit found that Department had satisfied its burden of showing that the grooming policy was the least restrictive means of furthering its compelling security interest.  In addition, the Eighth Circuit in upholding Department policy stated that the courts should defer in security matters to the “expert judgment” of prison officials.  The Department argued that the policy prohibiting facial hair served security purposes because it prevented the hiding of contraband or weapons and helped security by allowing better identification of prisoners.

The Supreme Court reasoned that the Prisoner met his initial burden under RLUIPA by showing that the policy implicated his religious exercise because the growing of a 1/2-inch long beard was central to a system of religious beliefs and was not based upon some other motivation.  The Department did not dispute the sincerity of the prisoner’s religious convictions.  The Department policy of requiring the Prisoner to shave his beard required the Prisoner to engage in conduct that seriously violated his religious beliefs.

The Department argued that the availability of alternative means of practicing religion by providing a prayer rug and a list of distributors of Islamic materials as well as correspondence with religious advisors and permitting the prisoner to maintain the required religious diet and observe religious holidays was a sufficient accommodation of the Prisoners religious beliefs.  The Supreme Court held that providing alternative means to exercise your religious beliefs was not relevant to determining if the policy of the Department implicated core religious beliefs of the Prisoner.

Once the Prisoner met his initial burden of showing that the Department’s grooming policy substantially burdened his exercise of religion the burden shifted to the Department under RLUIPA to show that its refusal to allow the Prisoner to grow a 1/2 inch beard was in furtherance of a compelling government interest and was the least restrictive means of furthering that compelling government interest. The Court made short work of the Department’s arguments that the policy furthered a compelling interest in prisoner safety and security by noting the ridiculousness of the Department’s position because it was highly unlikely that a half-inch beard would allow a prisoner to hide contraband or to conceal prohibited items such as razors, needles, drugs and other items.  The Court concluded that it was preposterous to believe that you could really hide these items in a short beard when the Department did not require prisoners to shave their heads or have short crew cuts.

The Department also argued that if the prisoner’s faces were shaved it would be easier to identify the prisoners and prevent the prisoners from disguising their identities.  The Department noted that a prisoner who wore a beard could easily shave the beard making it difficult to recognize the cleanly shaved prisoner thereby allowing the prisoner to enter restricted areas within the prison, to escape, and to evade apprehension after escaping.  The Court recognized that prisons had a compelling interest in quick and reliable authentication of prisoners and that the alteration of prisoners’ appearance by shaving a beard could in the absence of effective countermeasures have an effect on the ability of guards or others to make a quick identification.

Despite the fact that the policy furthered a compelling interest the Court concluded that it was not the least restrictive means of achieving that objective.  The Department could have instituted a dual photograph system showing the prisoner with a beard and without a beard.  In addition, many other penal institutions allow beards and apparently have not had a problem with this practice.  Inconsistencies in the policy existed because some prisoners were allowed to wear a beard for medical purposes and the Department did not require prisoners to shave their heads creating inconsistency which made the policy under inclusive.  Holt v. Hobbs, (Supreme Court of the United States, 13–6827, 01/20/15)

Comment Howard: This is a very useful case, which provides a history of RLUIPA, and breaks down the statute with respect to the elements that must be met in order to prove a case and the burden on the government to show that it applied the least restrictive means to achieve the objective.  The Court’s analysis of what constitutes the “least restrictive means” shows the difficulty of overcoming this burden, which has application in the First Amendment cases.

$5.8 Million Verdict For Failure Of The County To Give Notice Of Commencement Of Trash Services.

St. Louis County got hit with a $5.8 million verdict for failure to give haulers a two-year notice of commencement of County trash collection services as required by Sections 260.24 7.1 and 2.  An earlier decision found that the County was required to give this notice thereby allowing the damages phase of the case to proceed.  The opinion in this case involved how to compute damages, which hopefully you will not need but it is an extensive discussion giving the plaintiffs lots of leeway in their computation of damages.  The case is a stark reminder that notice is required to persons in the trash hauling business so that they can adjust to the loss of customers over a two-year period.  American Eagle Waste Industries vs. St. Louis County, (ED101373, 02/24/15)

Failure To Give Notice Under Section 82.210 Is An Affirmative Defense.

Five years after suit was filed against the City of Kansas City (City) for damages caused by a broken sewer line that had frozen in the roadway and six days before trial the City filed a motion for leave to amend so it could assert an additional affirmative defense that the Plaintiff failed to give notice to the City as required by Section 82. 210.  This section requires that notice be given to the mayor within 90 days of an occurrence for which damages are claimed stating the place and the time when the injury occurred, the character and circumstances of the injury, and that the person injured will claim damages against the city.

Since the motion for leave to amend was filed six days before trial it was denied.  After a mistrial was declared the City renewed its motion to amend its pleadings to assert the affirmative defense that the Plaintiff failed to comply with Section 82.210 by failing to provide notice in conjunction with a motion for summary judgment.  Since the new trial was now five months away the trial court granted the City’s motion for leave to amend and immediately thereafter granted the City’s motion for summary judgment.  The Plaintiff appealed to the Western District.

On appeal the Plaintiff argued that the trial court did not give the Plaintiff 10 days to respond after granting the City’s leave to amend the pleadings as required by the Rules.  The City asserted that compliance with Section 82.210 is not an affirmative defense but was an element of the Plaintiff’s cause of action that must be pleaded by the Plaintiff as a condition precedent to maintaining the action.

The Western District held that noncompliance with the notice provisions in Section 82.210 is an affirmative defense that must be pleaded by the City.  Since the trial court granted City’s motion for leave to amend and then immediately granted the City’s motion for summary judgment on the same day the Plaintiff was denied the right to respond to the affirmative defense within 10 days as allowed under the rules.  The Western District agreed that the City should be allowed to amend its pleadings because at the time the motion was filed there was over five months before the new trial date.  The case was remanded to the trial court with instructions to allow the Plaintiff an opportunity to respond to the affirmative defense in its pleadings and thereafter sort out the issues concerning this defense.  Robinson v. City of Kansas City, (WD77600, 12/23/14)

Ordinance Prohibiting Distribution Of Leaflets On Public Streets Is Upheld.

The Traditionalist American Knights of the Ku Klux Klan (Klan) periodically distributed leaflets on public streets and city roads in the City of Desloge (City). On April 8, 2013, the City enacted a new ordinance pertaining to distribution of leaflets to occupants of vehicles.

On April 26, 2013, Klan members returned to the City to distribute leaflets to persons in motor vehicles. They stationed themselves along the sidewalk at a four-way stop were they held up their leaflets and invited the occupant of a vehicle to signal for a leaflet from a Klan member who stepped out into the street to supply a pamphlet to the person in the vehicle.

Soon after the Klan commenced this activity a police officer told them there was a new city traffic ordinance which prohibited standing on a roadway or entering upon a roadway for the purpose of soliciting rides, employment, business or charitable contributions from, or from distributing anything to the occupant of the vehicle. The Imperial Wizard of the Klan was handed a copy of the ordinance and after he reviewed it the Imperial Wizard instructed the Klan members to leave.

Subsequently, after visiting with a representative of the American Civil Liberties Union a complaint was filed in federal district court by the Klan seeking an injunction against the enforcement of the City ordinance. After the litigation was commenced the City on August 12, 2013, repealed the existing ordinance and adopted a new ordinance that added a preamble to explain the purpose of the ordinance and defined key terms.

Plaintiffs filed a motion for a preliminary injunction to enjoin the City from enforcing the Ordinance granting the Plaintiffs request for a preliminary injunction on the grounds that the distribution provisions of the Ordinance violated the First Amendment because it was not narrowly tailored. The District Court granted the motion to enforce the preliminary injunction and the City appealed the decision to the Eighth Circuit.

The Eighth Circuit described the central issue as whether or not the City was responding to a “real, not a speculative, danger” when it enacted the August 2013 Ordinance. Prior to the adoption of the Ordinance, the City hired a traffic engineer to study its roads and safety conditions.  The traffic safety expert for the City concluded based upon his expertise and research that there was a significant safety risk to pedestrians caused by the distribution of pamphlets or other literature or activities by pedestrians to persons in vehicles using the City roadways.

The Eighth Circuit concluded that “…there is record evidence that such safety concerns for pedestrians and vehicles in the city’s roadways were identified before passage of the Desloge August 2013 ordinance.”

The Klan argued that even if the City could demonstrate safety concerns for its action prior to adopting the Ordinance the City could not show that the ordinance was narrowly tailored to meet these needs nor had the city shown that a more targeted regulation at specific dangerous intersections or times would have been inadequate.

The Eighth Circuit responded by noting that there were many other alternative forms that permitted distribution of materials on City sidewalks and on trails in City parks and in front of the City Hall and library.  The Ordinance was not under inclusive in failing to regulate texting of drivers and allowing pedestrians to be in the roadways for other purposes such as walking when there is no sidewalk, skateboarding, or rollerblading.  There was no evidence that the Ordinance was directed to a particular message or group. The Eighth Circuit reversed the trial court’s judgment.  Traditionalist American Nights of the Ku Klux Klan v. City of Desloge, (Eighth Circuit, 13 – 3368, 12/24/14)

Comment Howard: Common sense tells us that the distribution of leaflets by person standing in the roadway to passengers in a vehicle is dangerous and that the government has an interest in prohibiting this activity.  Nevertheless, common sense must be backed by facts that support the ordinance prohibiting this activity.  By conducting an engineering study to support the ordinance, redrafting the ordinance to define key terms, and providing for a statement of purpose the City was able to overcome the stringent standards of the First Amendment.

No Right To Review Any Review Under The Administrative Procedure Act Unless “Legal Rights, Duties Or Privileges” Are Affected.

Whispering Oaks had an operating permit from DNR for a drinking water system that it owned.  In January 2010, Whispering Oaks, which operated a residential care facility, ceased operations as a business after DNR and the Department of Health and Senior Services complained about the quality of the water and removed all residents from the facility.

Shortly thereafter, the permit was deemed “deactivated”, which is an undefined term that does not appear in the Regulations and statutes regulating safe drinking water but according to DNR this is simply an administrative label that DNR no longer sends out test tubes for monthly water samples.

Whispering Oaks appealed to the state Administrative Hearing Commission (AHC), which denied review because there was no authority under state law to hold a hearing on the matter requested.  Action taken by DNR to “deactivate” (by no longer sending out test tubes for monthly water samples) was not the type of action entitling Whispering Oaks to an administrative hearing before the AHC under state law.  After the AHC denied review of the matter Whispering Oaks appealed to the Circuit Court contending that it was entitled to an administrative hearing before the AHC or review under section 536.150 of the Administrative Procedures Act as a non-contested case.  The Circuit Court dismissed Whispering Oaks complaint denying its request for relief under Section 536.150 and a hearing before the AHC.  Whispering Oaks appealed the circuit court’s decision to the Western District.

Section 536.150 dealing with review of non-contested cases applies only if the agency determines the “legal rights, duties or privileges of any person.”  In this case Whispering Oaks did not plead any facts that, if true would show that it had been denied some legal right or entitlement to a privilege by an agency decision that was unconstitutional, unlawful, unreasonable, arbitrary, or capricious or abuse of discretion.” Whispering Oaks did not point to any rule, statute, or other legal authority creating a legal right or entitlement to a deactivation letter.  In addition, Whispering Oaks did not point to any provision in state law or anywhere else creating a property interest or privilege in the deactivation letter.  In addition, state law did not provide for review of a decision to deactivate the permit by the AHC.  Whispering Oaks Residential Facility v. Missouri Department of Natural Resources, (WD77639, 03/10/15).

What Constitutes a Terrorist Threat Under State Law?

With the threat of terrorism high and social media enabling virtually anyone to voice their opinion, no matter how insane, officials are faced with sifting through remarks that may be trash talk or edgy from remarks that are truly a terrorist threat.

The Eastern District in State of Missouri vs. Metzinger, (ED 101165, 02/24/15) considered, as a matter of first impression in bomb8Missouri, whether or not the Missouri courts can conduct a pretrial analysis to determine if communications that the State seeks to criminalize are “terrorist threats” or if the prosecution encroaches on constitutionally protected speech.  Following the lead established by federal courts the Eastern District decided that it has the authority to proceed with a pretrial analysis of the threats to make a determination as a matter of law if the communications constitute a terrorist threat.

At issue in this case was whether or not the Defendant, made a terrorist threat during the 2013 St. Louis Cardinals World Series games in violation of Section 574.115.1(4) when he published on Twitter the following four “tweets”:

  • October 21, 2013: Going to be tailgating with a #PressureCooker during games 3-4-5 in #STL during #WorldSeries. #STLStrong #GoCards #postseason from Springfield, MO.
  • October 22, 2013: Putting my loft up for ridiculous “Boston-only” rate on @airbnb for the #WorldSeries. Pressure cooker sold separately.
  • October 22, 2013: The #WorldSeries will be another finish line not crossed by #Boston.
  • October 25, 2013: Listening to the Offspring’s “Bad Habit” and the lyrics just ring true 
of what will go down very soon.”4

“4 The State later explained, in its response to Defendant’s motion to dismiss, that: “The Song referenced in the last message contains lyrics about violence, with repeated mentions of ‘blowin’ away.’” The State also discussed the song and its lyrics at the hearing on Defendant’s motion to dismiss.”

State law provides: “A person commits the class A misdemeanor crime of making a terrorist threat if such person: communicates a threat to cause an incident or condition involving danger to life, communicates a knowingly false report of an incident or condition involving danger to life, or knowingly causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life: . . . (4) With criminal negligence with regard to the risk of causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation.”

State law also provides that: “threat includes an express or implied threat.” The Supreme Court of the United States has held that: “The speaker need not actually intend to carry out the threat.”

There is no statutory definition as to what constitutes a “threat” as used in Section 574.115 nor has the Missouri Supreme Court defined the term.

The Eastern District affirmed the trial court decision, which found that the tweets, in there totality, even if you throw the music lyrics on top of it, do not rise or even remotely rise to the level of a true threat or an implied threat.

In reaching its decision, the Eastern District notes that there is very little authority with respect to the analysis of what constitutes a “true threat” and that the case law provides A “…statement is not a true threat when a listener could not reasonably consider the statement to be a serious expression of an intent to cause injury to another.” “In contrast, the Western District has held that a statement constitutes a “true threat” when, on its face and in light of the circumstances in which it was made, it communicates a serious, present intent to inflict physical harm on another.”

The Eastern District distinguishes this case from other Missouri cases “…because the State established without dispute at the hearing that they were made in the context of a sports rivalry and in the spirit of “trash talking.”  Nothing in Defendant’s tweets credibly suggested, either directly or indirectly, that Defendant was threatening violent acts that were likely to occur.”  State of Missouri vs. Metzinger, (ED101165, 02/24/15)

Comment Howard: This is an extremely important case because it will define how Missouri will deal with so-called terrorist threats.  I think the court in this case got it wrong when it concluded that speech in the context of a sports event was entitled to more protection because of the nature (trash talking, edgy comments, fierce rivalries) of sports events.  It seems that sports events are the very type of activities were terrorist are drawn so they can make their statement.  It would be useful if world-class experts would testify concerning how to analyze what constitutes a true terrorist threat.


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