November Newsletter (Issue 11-2015)

Turkey Dancing

The Great Thanksgiving Edition







Termination of Employee Based Upon Employees Homosexual Lifestyle Upheld Under MHRA


Pittman, a homosexual male, worked as a controller at Cook Paper.  During the time Pittman was employed by Cook Paper, the president of the company, told Pittman “he was a ‘cocksucker’ and made other comments of a sexual nature, discriminatory to a male homosexual, including asking him if he had AIDS.”  Cook Paper terminated Pittman’s employment and thereafter Pittman filed a lawsuit alleging that Cook Paper discriminated against him based upon “sex.”

Cook Paper filed a motion to dismiss Pittman’s petition alleging that the petition failed to state a claim for which relief could be granted because Missouri law lacks any legal standard or statute prohibiting employment discrimination on the basis of “sexual preference” and that “sexual preference” is not a protected class under the Missouri Human Rights Act (MHRA).  The circuit court dismissed Pittman’s claim finding that Pittman did not allege discrimination on the basis of “sex” but alleged that he was discriminated against because he was a homosexual.

The circuit court concluded that the  MHRA does not include sexual orientation as a class of individuals protected from discrimination finding that based on the current state of Missouri law, it had to dismiss Pittman’s claim.  Pittman appealed to the Western District asserting that his petition stated a claim for sex discrimination because he was harassed and terminated from his employment because of his sexual orientation.  This issue is a matter of first impression in Missouri.

The MHRA makes it an unlawful employment practice for an employer to discharge an employee because of his or her “sex.”  Applying rules of statutory construction the Western District concluded that the legislative intent, as reflected in the plain language of the statute, is unambiguous; therefore the court lacks authority to read into the statute legislative intent contrary to the plain language.  The court concluded that the statute concerns discrimination based upon a person’s gender and has nothing to do with sexual orientation by applying the first definition of “sex” in Webster’s Third New International Dictionary, which defines “sex” as “one of the two divisions of human beings respectively designated male or female;”

The full definition of “sex” in Webster’s is as follows:

“(1) one of the two divisions of human beings respectively designated male or female; (2) the sum of the morphological, physiological, and behavioral peculiarities of living beings that subservesbiparental reproduction; (3) the sphere of interpersonal behavior especially between male and female most directly associated with, leading up to, substituting for, or resulting from genital union; and (4) the phenomena of sexual instincts and their manifestations.”

In addition, the Court reasons that Missouri has not enacted legislation prohibiting discrimination against homosexuals as a protected status in the MHRA.  The Court cites a number of failed legislative efforts to include in the MHRA provisions that would prohibit discrimination against homosexuals.  The Court also distinguished a number of cases that held gender stereotyping was prohibited under federal law.  Pittman v. Cook Paper Recycling Corp., (WD77973, 10/27/15)

 Comment Howard: There was a well-reasoned and vigorous disent in this case.  One judge concurred only in the result but did not join in its reasoning; therefore, only one judge of the three-judge panel agreed with reasoning in the opinion.

The opinion of the Court equates sex with gender.  It starts with a declaration that the word “sex” as defined and used in its ordinary meaning is unambiguous.  However, in order to reach this conclusion the court has to cherry pick the definition of “sex” by selectively choosing the first definition of “sex” provided in Webster’s while ignoring the fourth definition, which reads: “and (4) the phenomena of sexual instincts and their manifestations.”  Cherry picking one part of the definition over other parts is a very dubious practice, when no citations or argument is offered as to why one controls over the other.

In addition, the opinion of the Court interjects extrinsic evidence that the Legislature tried on numerous occasions to amend the MHRA to show proof of the legislative intent thereby violating the very principle that if the definition is unambiguous there is no need to examine legislative intent.  The Court also ignored federal cases, which are ordinarily followed by Missouri courts in interpreting the MHRA.  The MHRA specifically calls for a liberal interpretation of the statute since it is remedial thereby including those cases that are within the “spirit of the law” and all reasonable doubts should be construed in favor of applicability to the case.

Confidentiality Provision’s Prohibiting Release Of Settlement Is a Knowing and Purposeful Violation of the Sunshine Law


Robinwood Community Improvement District (District) is a “public governmental body” as defined by the Sunshine Law.  Strake, who resided in the District, requested a copy of the settlement agreement between the District and a third party under the Sunshine Law.

The District consulted with counsel who advised the District that it may not produce a copy of the agreement without exposing the District to damages for breach of contract for violating a confidentiality clause, which provided: “unless required by law, order of the court, or as necessary to complete probate and settlement of this case.”  The District denied the request based upon advice of counsel because the confidentiality statement in the settlement agreement created mutually conflicting obligations; therefore, “the more prudent course of action would be to deny the request for the records.”

Thereafter, a lawsuit was filed by Strake, which alleged that the District was liable for attorney fees and a civil penalty for knowingly and purposefully withholding documents subject to disclosure under the Sunshine Law.  The District denied the allegations and asserted that the documents were protected from disclosure by the attorney/client and insurer/insured privilege and that the confidentiality clause in the settlement agreement precluded disclosure.  The trial court entered judgment in favor of Strake and ordered the District to disclose the settlement agreement, minutes, and the sums of money expended on the lawsuit, however the trial court denied a request for attorneys fees and a civil penalty because the District did not “knowingly and purposely violate the Sunshine law” because its actions were based upon the advice of legal counsel that there were two mutually conflicting obligations and that the documents need not be disclosed.

The Plaintiff appealed to the Missouri Supreme Court, which held that settlement agreement was a public record and that the District “knowingly” or “purposely” withheld it in violation of the Sunshine Law. Section 610.021(1) expressly provides that a settlement agreement is an open record unless closed by court order.  A knowing violation of the Sunshine Law requires proof that the public governmental body had “actual knowledge that [its] conduct violated a statutory provision.” A purposeful violation of the Sunshine Law occurs when there is “‘a conscious design, intent, or plan’ to violate the law and do so ‘with awareness of the probable consequences.’”

The Supreme Court noted that the District counsel did not advise the District that the requested records were closed.  The letter from the Districts legal counsel stated “we are cognizant” of section 610.021, which expressly provides that “settlement agreements” are open records unless closed by court order.  Therefore, the actions of the District to withhold the requested records to avoid potential contractual liability amounted to “purposely” violating the Sunshine Law as part of a “conscious design, intent or plan to violate the law. Judgment is reversed.  Strake v. Robinwood West Community Improvement District, (SC94842, 11/10/15)

 Comment Howard: It seems like the more prudent course of action would have been for the District to file a declaratory judgment, which is specifically authorized by the Sunshine Law.  Since the Settlement Agreement specifically provided for disclosure “if required by law” the declaratory judgment would have protected the District from potential liability for failure to disclose the record.


Investigative Report Is an Open Record Once the Investigation Is Complete


On October 6, 2015, the Eastern District issued an opinion in Laut v. City of Arnold involving an interpretation of whether or not certain actions of the City of Arnold (City) constituted a knowing or purposeful violation of the Sunshine Law.  The Eastern District transferred the City of Arnold case to the Missouri Supreme Court because of legal issues similar to the issues in Strake v. Robinwood West Community Improvement District.  Four days after the City of Arnold case was transferred, the Missouri Supreme Court handed down Strake v. Robinwood West Community Improvement District.

Appellants believed that the employees of the City improperly accessed the electronic law enforcement database known as REJIS to obtain confidential records of Appellants.  After receiving Appellants’ complaint about these employees, the City’s chief of police ordered an internal affairs investigation.  The investigation was completed promptly and the resulting report closed.

Appellants’ counsel sent a Sunshine Law request asking for copies of the incident reports, investigative reports, and records of any kind relating to any police department employees’ use of REJIS to access information about Appellants.  Appellants also asked for the City’s communications with other law enforcement agencies about them and the reasons for termination and disciplinary action taken against the two accused employees.  The letter stated that Appellants requested the documents for the purpose of investigating civil claims.

The City responded that no criminal investigation had been performed related to the employees.  The City stated that there were no incident reports or arrest records, only an internal affairs report.  The City maintained that the internal affairs report and the other requested documents need not be disclosed under Section 610.021(3) of the Sunshine Law, which exempts from disclosure records relating to the “…hiring, firing, disciplining or promoting” of employees when the records contain personal information, which relates to the performance or merit of an employee.

The City moved for summary judgment based upon an affidavit filed by the Chief of Police for the City who declared that the internal affairs investigation was commenced for the limited purpose to determine the fitness of the employees to perform their respective duties.  The Chief further stated that he understood Appellants’ Sunshine Law request to include both personnel records and the internal affairs report and then went on to declare, he would not disclose the records pursuant to the City ordinance.  The trial court agreed that the records were exempt and granted summary judgment for the City.  Appellants appealed to the Eastern District.

An earlier decision in this same matter by the Eastern District held records pertaining to the investigation of the employees for the purpose of discipline were specifically exempt from disclosure under the Sunshine Law.  However, the remand order by the Eastern District asked the trial court to determine if all or parts of the internal affairs report were an investigative report subject to disclosure under the Sunshine Law.  It stated that disclosure of an inactive investigative report is specifically required by Section 610.100.5, and that would trump any closure permitted under Section 610.021.  In addition, the court noted that Section 610.024.1 applies and requires any non-exempt material to be separated from any exempt material so that nonexempt material could be disclosed.

On remand the trial court conducted an in camera examination of the internal affairs report and concluded that the internal affairs report was an investigative report because it was ordered as a result of a complaint alleging criminal violations.  The trial court also found that the City’s contention that this was a personnel record was “wholly inaccurate.” Because the investigation was inactive, the court ordered the internal affairs report disclosed, except as to employee time sheets, which were to be redacted.  The trial court also found that the other documents presented were personnel records of the employee and “clearly exempt” from disclosure under Section 610.021(3) and (13).

Based upon the above statements the Appellant filed a motion to assess attorneys fee and penalties against the City.  Despite the trial court’s finding that the City’s position was “wholly inaccurate” the trial court refused to award attorneys fees and penalties leading to this appeal to determine whether or not the trial court erred in not granting attorneys fees and fines against the City because the City either knowingly or purposefully violated the law.

The Court concluded that Appellants’ did not establish that the City had “actual knowledge that the conduct violated a statutory provision” nor did they prove that the City intended to engage in the conduct resulting in the violation.  Rather, there must be evidence that the governmental body had “a conscious design, intent, or plan to violate the law” and did so “with awareness of the probable consequence.” The Court noted that the City engaged in conduct reasonably believed to be authorized by statute, which does not amount to a purposeful violation.  “Courts look to both the governmental body’s conduct at the time of its response to a Sunshine request and to its conduct throughout the course of the litigation to determine whether the violation was knowing or purposeful.”  Therefore the Eastern District upheld the trial court’s decision not to award attorney’s fees and penalties relying on the discretion of the trial court to determine whether or not the city knowingly or purposely violated the Sunshine Law.  Laut v. City of Arnold, (ED101801, 10/6/15)

 Comment Howard: Chief Judge Amburg concurred in the decision to transfer the case to the Missouri Supreme Court but wrote a vigorous dissent.  Chief Judge Amburg would have found that at least there was a knowing violation of the Sunshine Law based upon the “…fact that the central justification for the City’s obstruction was revealed to be untrue.” In addition, she notes ignorance of the law based upon this construction of the sunshine Act is no excuse for a city to not perform its statutory duty. At the remand hearing, the trial court commented that the city “knowingly and purposely refused to grant the documents.”  I would not be surprised to see this case reversed based upon the earlier decision in Strake v. Robinwood West Community Improvement District.  Also it seems very clear that the complaint filed by the Appellants’ was an allegation of criminal activity, therefore, the investigative report is clearly an open record.

United States Supreme Court Discusses Qualified Immunity Defense for Police Officers



Isreal Leija led police officers on an 18-minute chase, at speeds between 85 and 110 mph, after officers tried to arrest him at a drive-in restaurant based on a warrant for his arrest.  Leija called police twice saying he had a gun and would shoot police officers if they did not abandon their pursuit. The police officers set up spike strips under an overpass.  Officer Mullinax (Officer) was going to set up a spike strips on the exit from the highway but decided instead to consider another tactic by trying to disable the vehicle by shooting out the engine block or radiator from an overpass.  As the cars were speeding towards the overpass the Officer asked for permission to proceed with the engine block/radiator tactic, which was not granted.  The Officer proceeded to shoot at the engine block of the escaping vehicle and instead killed Leija.

Plaintiff’s estate brought a civil rights action against the Officer under the fourth amendment for violation of Isreal Leija rights by the use of excessive force.  The Officer moved for summary judgment, which was denied by the trial court because there were genuine issues of fact as to whether or not a reasonable, trained peace officer would have acted in the same or similar circumstances.  The Officer appealed and the 5th Circuit affirmed holding that the Officer was not entitled to qualified immunity. The United States Supreme Court granted certiorari, reversing the Fifth Circuit by holding that the Officer was entitled to qualified immunity.

The Officer had never performed this tactic, was not trained nor had he ever seen anyone attempt to shoot out the block/radiator of a car.  In addition, the Officer was specifically not authorized to proceed with the tactic and was directed to wait until a determination was made as to whether or not the spike strips would work.  In addition, the Officer did not make a split second decision as to whether or not to use this tactic. Notwithstanding, serious questions concerning whether or not the Officer acted reasonably under all of the circumstances, the United States Supreme Court determined that the Officer was entitled to qualified immunity.

The Supreme Court held that the Officer did “…not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  The proper analysis for excessive force cases requires a degree of specificity with respect to the facts making it extremely difficult to apply general principles (like the 5th Circuit did) to find that the officer should have known that in these particular circumstances the law was clear that excessive force should not of been used. The doctrine of qualified immunity shields officials from civil liability so long as their conduct “‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” A clearly established right is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”

The Court concluded that: “In any event, none of our precedents “squarely governs” the facts here.  Given Leija’s conduct, we cannot say that only someone “plainly incompetent” or who “knowingly violate[s] the law” would have perceived a sufficient threat and acted as Mullenix did.” Mullenix v. Luna, (U. S. 14-1143, 11/9/15)

 Comment Howard: While this case might initially appear to be another ho-hum qualified immunity case in a long string of cases where the courts have developed an impregnable defense based upon qualified immunity for police officers.  What is interesting about this case is that it is hard to imagine the facts being worse for the officer.  He had no training in the execution of shooting out an engine block/radiator of a vehicle that traveling towards him at 85 mph from an overpass.  In addition, the officer violated orders not to execute the tactic but instead on his own initiative took the matter into his own hands delivering fatal shots to the driver of the vehicle.  The opinion of the Court is useful because it shows how to defend a police officer that was asserting qualified immunity in a high-speed chase where deadly force is used or other qualified immunity cases. The Court’s emphasis on specificity with respect to the actions of the officer is particularly important since the standard for losing qualified immunity is whether or not the actions of the officer violated clearly established precedent.  Specificity gives lots of room to distinguish cases thereby working in the favor of the defense of the officer.  Justice Scalia wrote a concurring opinion arguing that this was not a deadly force case because the officer did not intend to kill the driver since his objective was simply to disable the vehicle.  It seems that Justice Scalia is correct in his comment but not sure where that takes you other than to the same conclusion.

Two Pool Tables In a Bar do not make the facility a Billiard Parlor


Dewayne Leer, owned with his wife Uncle D’s Sports Bar and Grill.  Dewayne Leer (Bar Owner) was charged in Municipal Court with allowing smoking inside Uncle D’s.  Bar Owner contended that a provision of the city code enacted in 1993 (1993 Article) exempted “billiard parlors,” by defining them as not a “public place” as a result the 2014 Article (2014 Article) prohibiting smoking in public places did not apply.  He also contended that the 2014 Article was an unconstitutional special interest law which improperly exempted casinos and improperly delegated legislative power to other governmental entities in the region by providing that if other governmental agencies in the region banned smoking at casinos the provisions in the 2014 Article allowing smoking at casinos would expire which would prohibit smoking in facilities that allowed casino game.

Bar Owner was convicted of two charges in Municipal Court of violating the 2014 Article and thereafter appealed to the circuit court for a trial de novo.  Bar Owner filed a motion to dismiss, which was overruled and was found guilty.  Thereafter, Bar Owner appealed to the Western District.

Bar Owner claimed that Uncle D’s was a “billiard parlor” and, therefore, not a “public place” for the purpose of the smoking ordinances.  He based his argument on language contained in the “1993 Article,” that “billiard parlors” were not public places; therefore, they were exempt from the prohibition against smoking in a public place, provided they posted signs stating that “nonsmoking areas are available.”  When the City adopted the “2014 Article” pertaining to smoking in public places it did not change the “1993 Article.”  This created a question concerning whether or not the “2014 Article” controlled over the “1993 Article.”

The City presented overwhelming evidence that Uncle D’s was a   “public place” under the definitions in the 2014 Article.  The Western District reasoned that when a term or phrase is defined in a statutory chapter, that definition controls and should be followed in the interpretation of the statute to which it relates, thereby making its subject to the “2014 Article.” In addition, the Bar Owner’s interpretation of the “1993Article” was completely erroneous because having two billiard tables inside of what was otherwise was a bar clearly made Uncle D’s also a public place subject to the “1993 Article. ”

The Bar Owner also contended that the “2014 Article” was unconstitutional because an ordinance provision provides that the casino gaming area exemption would end if smoking was banned at all other non-Native American casinos in the region, improperly delegating to other governmental entities, in the region, the legislative power to ban smoking in St. Joseph casino gaming areas.  Based upon the language of the 2014 Article, which specifically provided for severability and Missouri cases that sever provisions from other valid portions of a law the Western District held there was no invalid delegation of the legislative authority to other governmental bodies because even if the Bar Owner was correct in his interpretation he did not have standing because the invalid provision would be severed from other valid provisions in the “2014 Article.” City of St. Joseph v. Leer, (WD78450, 11/3/15)

Challenge to Court Cost Assessed When City Files Lawsuit to Collect Property Taxes Must be made in accordance with Statute


The Collector of Revenue for the City of St. Louis (Collector) brought suit against Mittelstadt and Wiley seeking recovery of their respective delinquent property taxes along with interest, penalties, attorney fees, and court costs.  Neither Mittelstadt nor Wiley entered an appearance nor did they contest the suit.  Some months later and before judgment was entered, when renewing their vehicle registrations at the Collector’s office, Mittelstadt and Wiley were required to pay their delinquent taxes, plus the court costs, in order to receive the “paid” tax receipt necessary for license plate renewal.  Mittelstadt and Wiley tendered the amount demanded, including court costs, directly to Collector’s office.  Wiley submitted his payment of court costs under protest.  Mittelstadt paid without protest.  The Collector issued a “paid” receipt.  Collector then forwarded the portion denominated as court costs to Circuit Clerk, who taxed them against each Appellant.  The underlying collection suits were subsequently dismissed with prejudice.

Wiley then filed suit against the Collector and the Circuit Clerk (collectively referred to as Respondents) alleging that Respondents assessed court costs against him unlawfully in that several if not all line items comprising the total $177 bill (applied as standard practice in every case of this kind) are not authorized by Missouri statutes, and that Collector wrongfully withheld his tax receipt to coerce payment of costs. Wiley’s petition also sought certification of a class of similarly situated taxpayers whose tax receipts were withheld pending payment of the challenged court costs.  The trial court denied class certification but allowed Mittelstadt to join as an additional party, after which Appellants filed an amended petition.

Respondents moved for dismissal or, alternatively, summary judgment on all three counts.  Respondents argued that declaratory relief is unavailable because an adequate and exclusive remedy exists in §514.270, which directs taxpayers to seek a refund of unlawfully taxed court costs in the same court that assessed such costs.  Respondents further argued that Appellants’ claims are precluded by the voluntary payment doctrine and that the challenged costs do not constitute a tax within the meaning of the Hancock Amendment.

The trial court held a hearing and ultimately entered judgment in favor of Respondents reasoning that all of Mittelstadt’s claims were barred by the voluntary payment doctrine because she failed to tender payment under protest.  The court also dismissed count III for failure to state a claim, concluding that the challenged costs are not a tax within the meaning of the Hancock Amendment.  The trial court held that the costs were lawful and that Wiley had an opportunity to challenge the court costs within the underlying delinquency case pursuant to §514.270 RSMo.  The trial court granted summary judgment in favor of Respondents and Appellants appealed to the Western District.

 Voluntary Payment Doctrine – Appellant’s argue that the trial court erred in dismissing Mittelstadt’s claims as barred by the voluntary payment doctrine because that doctrine is “patently incompatible” with §514.270, which provides an unequivocal right to seek a refund of unlawfully taxed costs.  The Western District agreed. “The clear intent of the General Assembly expressed in §514.270 is to enable citizens to challenge unauthorized court costs and obtain a refund, absent any requirement to pay under protest.  Accepting the voluntary payment doctrine as an affirmative defense would undermine the protections afforded by the statute, ignore legislative intent, and contravene public policy.”

 Hancock Claim – Appellants argue that Respondents’ imposition and collection of court cost violates the Hancock Amendment.  Appellants’ equate the cost to a tax because they were included and paid with the local property tax bill and collected by a City official charged with collecting local taxes.  The Court notes that the costs are imposed by state statute and Supreme Court operating rules and, once remitted to Circuit Clerk, are redistributed to various state and local funds as directed by those authorities.  The Supreme Court sets the amount of court costs authorized by statute, at levels to produce revenue, which shall not substantially exceed the total of the proportion of the costs associated with administration of the judicial system defrayed by fees, miscellaneous charges and surcharges.  The Western District denied the Hancock claim

 Declaratory Judgment Action – The Western District found that the Appellants’ had an adequate remedy at law under the state statute, which provides that assessment of court costs may be challenged through a motion to reassess the court cost.  Consequently, “…court costs must be litigated before the court in the underlying delinquency case and not in a separate declaratory judgment action.”  Where a liability did not exist at common law or under prior statutes, and there is also a specific remedy for the enforcement thereof the general rule is that the statutory remedy is exclusive.  The Western District reasoned that the court costs are imposed by state statute and Supreme Court operating rules and, once remitted to Circuit Clerk, are redistributed to various state and local funds as directed by those authorities.  Wiley v. Daly, (ED 102019,10/20/15)