March Newsletter (Issue 03-2016)

District Court Declares Cape Girardeau Noise Ordinance Is Unconstitutional

megaphone-clip-art-3Clary v. City of Giradeau, (City) started out as a simple traffic stop of a vehicle that made an illegal turn, which quickly escalated into a violation of the City noise ordinance leading to a federal civil rights case against the City and the officer who made the traffic stop.  Initially, everything went pretty well until Clary, the driver of the vehicle, was handed the traffic ticket by officer Peters, at which time Clary engaged in profanity and name-calling of the officer in what would appear to be an attempt to bait the officer.

Clary told the officer that the ticket was “crap” and “bullshit”.  He then called the police officer a “dick” and then told him to “go fuck” himself and to “fuck off.” As a result of the commotion caused by  Clary, a number of citizens, who were in a pool hall across the street, exited the pool hall to watch the encounter from a distance of over 100 feet.  The officer then told Clary “If I can hear your voice over 50 feet I’m going to take you to jail.”  In response, Clary told the officer to either “do it or shut the fuck up” at which time the officer arrested Clary for violating the noise ordinance, not the illegal right turn.  Cleary was found guilty of making an illegal right turn and acquitted of violating the noise ordinance, which reads as follows:

  • (a) In general. No person shall make, continue, or cause to be made or continued, or allow anyone or anything under his control to make or cause, any noise disturbance. Noncommercial public speaking and public assembly activities conducted on any public space or public right-of-way and otherwise complying with this Code of Ordinances shall be exempt from the operation of this section. The following acts, among others not herein listed, and the causing thereof, are declared to be in violation of this article, but said enumeration shall not be deemed to be exclusive, namely:


  • (9) Yelling, shouting, hooting, whistling or singing on any public street, particularly between the hours of 11:00 p.m. and 6:00 a.m., or at any time or place so as to annoy, disturb the quiet, comfort or repose of persons in any office, or in any dwelling, hotel or other type of residence, or of any persons in the vicinity[.]


Cleary then filed a civil rights lawsuit in federal district court alleging that the City and officer Peter’s violated his First Amendment right of freedom of speech.  Clary filed a motion for summary judgment against the City and the officer, which was granted.

Plaintiff’s Claims: Plaintiff claimed that Peters retaliated against him for exercising his First Amendment right of freedom of speech; that the City failed to train Peters regarding the rights protected by the First Amendment and that the City failed to adequately supervise Peters to prevent infringement of those rights; that the noise Ordinance in its entirety is unconstitutional on its face, that it is unconstitutional as applied to Plaintiff and that the court should so declare; and that the Ordinance is void for vagueness.

Void For Vagueness: The District Court reasoned that the Ordinance implicated free speech because the United States Supreme Court has held that “singing . . . whistling, shouting, and yelling” are forms of speech protected under the First Amendment.  The noise restrictions in the Ordinance, constituted a time, place, and manner regulation, that may be justified on the volume of noise produced at a particular place and time because “the nature of a place, the pattern of its normal activities, dictate the kinds of regulations . . . that are reasonable.”

However, prohibiting all forms of speech, from anywhere, at any time, from 50 feet or more criminalized protected speech; therefore, the Ordinance was overbroad and unconstitutional.  In addition, the Ordinance was vague on its face  because it failed “…to put a person of ordinary intelligence on notice of when the regulated forms of speech, at any place and time, actually violated the law and also authorized and encouraged seriously discriminatory enforcement.” The district court noted that the meaning of “annoy” is not so apparent that an ordinary person would be on notice of what constitutes a violation. Certain noise may annoy some people and not others making the term vague.  Precedent forecloses interpreting the undefined phrase “disturb the quiet, comfort or repose” as anything other than a vague prohibition that “authorizes or encourages seriously discriminatory enforcement.” The District Court concluded that the ordinance is unconstitutional on its face and that it was not possible to sever any part thereof. “Thus, no construction of the Ordinance in which the vague terms are excised would pass constitutional muster.”

No Qualified Immunity for Officer Peters: Peters, the arresting officer, contended that he is entitled to qualified immunity on plaintiff’s First Amendment retaliation claim, which claim stems from his having cited and arrested plaintiff for the Ordinance violation.  A state official “is entitled to summary judgment based on qualified immunity unless (1) the evidence, viewed in the light most favorable to the nonmoving party, establishes a violation of a federal constitutional or statutory right, and (2) the right was clearly established at the time of the violation.” If the right was clearly established, then “a reasonable official would have known that [his] actions were unlawful,” and no immunity attaches.

In this case, Peters did not did not even conduct a cursory investigation of the alleged crime.  Consequently, there was no probable cause because “… probable cause does not exist when a minimal further investigation would have exonerated the suspect.”

“Based on the totality of the circumstances in this case, the Court concludes that Peters’ stated belief that he had probable cause to arrest plaintiff for the Ordinance violation was not objectively reasonable, and he lacked even arguable probable cause for his actions.” Therefore, the district court held that Peters was not entitled to qualified immunity.

The District Court further concluded, that the City is liable under section 1983 based on its unconstitutional ordinance. “Under Monell and its progeny the City is therefore liable for violating plaintiff’s constitutional rights because it promulgated the Ordinance, the Ordinance is unconstitutionally vague, and plaintiff was cited and arrested pursuant to the Ordinance.” In addition, the district court granted plaintiff’s request that a permanent injunction barring enforcement of the Ordinance.  Clary vs. City of Cape Girardeau, (Federal District Court, Eastern District, Southeastern Division,  1:14–CV–125–CEJ, 02/29/16).  doc 49 meom order msj

 Comment Howard: The law is that you cannot disturb the peace of an officer.  In addition, foul language and profanity can be protected speech.  This case was a classic example of bad facts (make bad law) destroying what was under good circumstances a reasonable ordinance.  Obviously you may want to check the noise ordinance of your community and take corrective action, if necessary, by repealing and adopting new provisions or by limiting the enforcement of the ordinance until action can be taken.  Since the district court declared that the ordinance was void on its face any enforcement action under a similar ordinance could subject your community to an unnecessary lawsuit.  The more difficult question will be how to draft a new ordinance in light of recent United States Supreme Court decisions protecting free speech.

Comment Ragan:  As a prosecutor you can’t be afraid to play defense.  If you see a contempt of officer issue you should carefully consider declining the case.  In this case there was no evidence that the officer was ever 50 feet away so he could observe the violation and there was no complaining party.  Those are the classic warning signs.  I have a direct supervisor who is really good at discussing these issues.  It is important you have these discussions before you file the case or proceed with prosecution.

Municipal Court Does Not Have Jurisdiction To Expunge Conviction For DWI

HUNA_18404_34444071AJames Bright (Bright) filed a petition for expungement of criminal records regarding an alcohol-related offense in the Municipal Division of Town and Country.  The Municipal Division denied Bright’s petition to expunge the alcohol related records and Bright appealed the decision to the Eastern District.

The Eastern District reasoned that the jurisdiction of a municipal division is limited to hearing and determining violations of municipal ordinances.  Since the request for expungement of records was not to determine if there was a violation of a municipal ordinance, the Municipal Division is not vested with jurisdiction to hear the petition.

Bright must file his petition for expungement in the circuit court in which the municipal subdivision is located because municipal courts were abolished under the Missouri Constitution and were transferred to new municipal divisions of the circuit court.  The decision of the Municipal Division of Town and Country judgment was void.  Case is remanded for dismissal.  Bright v. Mollenkamp, (ED103249, 2/16/16)

Adverse Employment Decision Can Include A Higher Profile Job, Significantly Greater Supervisory Duties,  More Contact With Command Rank Officers and Regular Daytime Hours and Holidays Off Even Though Pay And Benefits Are The Same

police-cars-2Sergeant Bonenberger, a white male, was a long-time employee of the St. Louis Metropolitan Police Department.  In September 2010, the Department posted a job opening for Assistant Academy Director of the city’s police academy.  Upon learning of the opening, Sergeant Bonenberger contacted Lieutenant Muxo, “to get a feel for” whether he might be eligible for the position, despite not meeting the minimum qualifications of three years of supervisory experience and two years of teaching experience.  Lieutenant Muxo told Sergeant Bonenberger “not to bother applying . . . because the job was going to a black female. . . . It was out of his hands . . . and [his superior Lieutenant] Colonel Harris would make the decision.”

The outgoing Assistant Academy Director, Sergeant Deborah Boelling, also discussed the position with Lieutenant Muxo.  When they discussed who might be selected for the position, Lieutenant Muxo declared, “there no way [sic] they were going to put a white male in that position.”  Sergeant Boelling suggested Lieutenant Muxo consider Sergeant Bonenberger for the position.  She inquired who Lieutenant Muxo was “interested in” and why, and he replied Sergeant Taylor was being considered because “Harris wanted a black female in that position.”

Sergeant Bonenberger applied for the job anyway, “hoping that maybe something would fall through with the person they had picked out for it.”  Despite Sergeant Bonenberger’s interest and Sergeant Boelling’s recommendation, Lieutenant Muxo recommended Sergeant Taylor to Lieutenant Colonel Harris, who in turn recommended her to Chief Isom.  Sergeant Angela Taylor, an African-American woman, was chosen.

Sergeant Bonenberger then sued a number of officials in the St. Louis Police Department, alleging race discrimination and conspiracy to discriminate.  A jury found in Sergeant Bonenberger’s favor on his claims against three of his superiors: Academy Director Lieutenant Michael Muxo, Lieutenant Colonel Reggie Harris, and then-Police Chief Daniel Isom (Appellants) who appealed the district court’s denial of their motion for judgment as a matter of law to the 8th Circuit.

Adverse Employment Action: The Appellant’s contended they were entitled to a judgment as a matter of law because the evidence was speculative and did not provide sufficient evidence of an “adverse employment decision.”  They argued that the Assistant Academy Directors position was not a promotion because it carried no increase in pay, benefits, or rank making the Plaintiff’s claim for “purely subjective injuries and disappointment,” not rising to the level of an adverse employment action. The Eighth Circuit reasoned that a denial of a transfer might constitute an adverse employment action if there is a change in “material working conditions,” even if there was no change in pay or rank.  The District Court concluded, that the Assistant Academy Directors position was a high profile job involving significant supervisory duties that offered more contact with command rank officers and regular daytime hours and holidays off.  The Eighth Circuit agreed.

Conspiracy Claim: To prove a § 1983 conspiracy claim, the Plaintiff must prove: (1) that the defendants conspired with others to deprive him of constitutional rights; (2) that at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) that the overt act injured the plaintiff.  The plaintiff must provide material facts that the defendants reached an agreement. The plaintiff can satisfy this burden by pointing to at least some facts which would suggest the defendants “reached an understanding” to violate his rights.

Appellants argued that a reasonable jury could not have found evidence of an agreement because Sergeant Bonenberger’s and Sergeant Boelling’s testimonies were that Lieutenant Colonel Harris told Lieutenant Muxo he had decided to hire a black woman, not that the two agreed.  Sergeant Boelling’s testimony could also be interpreted to support an inference that Lieutenant Muxo and Lieutenant Colonel Harris reached an agreement. Sergeant Boelling testified: “Lieutenant Muxo told me that Lieutenant Colonel Harris wanted a black female in the position, and that there no way they were going to put a white male in that position.” A reasonable jury could interpret Sergeant Boelling’s use of “they” to mean Lieutenant Muxo was referring to himself, Lieutenant Colonel Harris, and possibly Chief Isom.  This interpretation properly was left to the jury.

Lieutenant Muxo’s related statement to Sergeant Boelling that he was interested in Sergeant Taylor for the position because Lieutenant Colonel Harris wanted to hire a black woman could also support the inference that Lieutenant Muxo and Lieutenant Colonel Harris reached an understanding to discriminate against Sergeant Bonenberger based on his race.  Bonenberger v. St. Louis Metropolitan Police Department, (8th Circuit, 14–3696, 01/19/16)

Comment Ragan: This is the third or fourth case I have seen in the last few months on this type of racial discrimination.  Given the current political climate you will see more of these issues.  I would strongly suggest developing a yearly training program for employees responsible for hiring decisions.  If you are not using caution you could end up like a hitchhiker on a Texas road in hailstorm.

Gym Wall Is Not A Dangerous Condition

743E508ELackey was playing a “long base” game in the Iberia School District (District) gym.  Long base is similar to kickball.  A pitcher in the center circle rolls a ball.  A kicker kicks it and runs toward either of two “bases” at opposite ends of the basketball court between the baseline and padded gym wall.  No physical bases were placed on the gym floor; painted lines on the floor marked the “base” areas. The only game equipment was the ball.  Lackey was injured as he ran to a base, then into the padded wall, which he struck with his left hand, resulting in a wrist fracture.

After injuring his wrist in school gym class, Dakota Lackey sued teacher Jason Morris and the District.  The trial court granted summary judgment to District based on sovereign immunity, and to Morris under the Paul D. Coverdell Teacher Protection Act of 2001, 20 U.S.C. §§ 6731 et seq (2006).  Lackey appealed to the Southern District.

Dangerous Condition: A dangerous condition of public property must exhibit a defect that is physical in nature, which includes physical defects in the property or its condition and physical deficiencies created by the placement of objects on the public property.  Lackey argued that Morris, the gym teacher, created a dangerous condition by organizing the long ball game by locating the base and its proximity to the wall where it was impossible or improbable that the kicker could come to a complete stop after crossing the baseline before striking the wall.  The Southern District concluded that the gym floor and walls were not altered or changed; therefore they were not dangerous conditions under current case law.  The statutory waiver of sovereign immunity is strictly construed because the waiver of sovereign immunity is an exception to the general rule barring such claims against governmental entities.

School Teachers Motion For Summary Judgment: The Coverdell Act generally protects teachers from liability for harm caused by an act or omission of the teacher under specified provisions of the Act.  Morse, the schoolteacher, filed a motion for summary judgment under the Act, arguing that as a matter of law his actions was protected.  The motion for summary judgment did not comply with Rule 74.14 by providing numbered paragraphs and responses with specificity regarding the contentions raised in the motion for summary judgment. “All facts must come into the summary judgment record in the manner required by Rule 74.04(c)(1) and (2), that is, in the form of a pleading containing separately numbered paragraphs and a response addressed to those numbered paragraphs.”  The motion for summary judgment filed by Defendant Morris failed to comply with the Rule; therefore, the trial court was correct in overruling Morris’s motion for summary judgment.  Lackey v. Iberia R–V School District, (SD33918, 3/2/16).

Comment Howard: The opinion provides an excellent analysis of what constitutes a dangerous condition, when the allegation is that the governmental agency created the dangerous condition by the placement of objects on the public property.  Even though it would appear that the Coverdell Act protected the schoolteacher, the failure to follow the Rule for summary judgment was fatal to the motion for summary judgment.  The Court made it clear that it was not going to sift through the motion to find specific facts supporting the allegation.

No Right To Judicial Review of CID Sales Tax Election

A recent Boone County decision in a lawsuit challenging a tax levied by the Business Loop CID held that there is no right of a voter to challenge an election imposing a CID sales tax because the provisions of the CID Act do not include any statutory provision allowing a challenge to contest the CID sales tax election.  If this decision is appealed we may learn if there is a remedy protecting the rights of voters when there is no statutory provision to challenge an election.  For Columbia Tribune new story click here.

Supplier Is Qualified To Provide Ethanol Gas Standard Mixtures For DWI Breathalyzer Test

police-cars-2Driver whose BAC was 0.164 appealed a Circuit Court decision upholding the suspension of his drivers license to the Western District.  The Driver claimed the trial court erred in finding Intoximeters was an approved supplier when it did not manufacture the Mixture.

The Driver argued that the regulations provided that the “compressed ethanol-gas standard mixtures used to verify and calibrate evidential breath analyzers shall be mixtures provided from approved suppliers.”  There are four approved suppliers listed in the regulation, including Intoximeters.  The regulations referred only to the suppliers who provide the gas mixture and makes no mention of manufacturers.  Airgas the manufacturer of the product was not an approved supplier.  The Driver argued that the regulations required the Mixture to not only be provided to law enforcement from one of those four approved suppliers, but to also be manufactured by one of those four approved suppliers.

The choice of “manufacturer” is important because suppliers and manufacturers are distinct entities.  A “supplier” is one “engaged, directly or indirectly, in making a product available to consumers”; it “may be the seller, the manufacturer, or anyone else in the chain who makes the product available to the consumer.” A manufacturer is one “engaged in producing or assembling new products.” Therefore Intoximeters need not have produced the product it provided in order to be considered a supplier under the regulations.  The evidence showed that the Mixture was manufactured by Airgas, which then sold it to Intoximeters who then supplied the gas mixture to law enforcement, the ultimate consumer of this product.  Judgment affirmed.  Heister vs. Director of Revenue, (ED 102985, 02/23/16)

Driver Abandons Right to Contact Attorney Prior To Breathalyzer Test

jail_photoOn May 13, 2014, a Missouri Highway Patrol trooper arrested Driver for being intoxicated and transported her to the Stone County Jail.  At 11:39 p.m., the trooper read the Driver the Missouri’s Implied Consent Law and asked her to submit to a chemical analysis of her breath.  Driver asked for a lawyer and at 11:41 p.m..  Driver began using the jail’s telephone to make calls.   After a few attempts, Driver reached her lawyer and spoke with him for at least 15 minutes.  At the “tail end” of what would be a 20-minute period from when the Driver first picked up the jail phone, the trooper told her “that her time was about up.” Driver “talked on the phone for a few seconds more, then hung up the phone.” At that point, the trooper read Driver the implied consent law again, and right at midnight the Driver refused to take the breath test.  The Director suspended her driver’s license and  she appealed to the circuit court, which affirmed the Director’s decision.

The Driver then appealed, to the Southern District claiming  the trial court erred in finding that she abandoned her attempt to contact an attorney.  The Driver argued that the Director was required to show that Driver ceased attempting to contact an attorney and that she intended to make no additional attempts to contact an attorney within the twenty-minute period and that the Driver neither took any action nor made any statement to indicate that she did not intend to make additional attempts to contact an attorney.

  • Section 577.041.1 provides: If a person when requested to submit to any test allowed pursuant to section 577.020 requests to speak to an attorney, the person shall be granted twenty minutes in which to attempt to contact an attorney.  If upon the completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal.

The Southern District noted that statute has been interpreted to provide that when: “…a driver is given an opportunity to contact an attorney after requesting to speak with one, § 577.041.1 is satisfied if “the twenty minute statutory period expires or the driver abandons the attempt.”  Abandonment is established when “the driver ceases attempting to contact a lawyer and indicates that he intends to make no additional attempts to contact an attorney within the twenty minute period.”

Whether or not a driver has abandoned or concluded his or her efforts to contact an attorney is a factual issue for the trial court.  In this case, the Driver contacted a lawyer, and she completed that by speaking with her lawyer for over fifteen minutes, before terminating the call.  Under these circumstances, the trooper had no obligation to wait any longer before asking Driver to take the test.  The decision of the trial court is affirmed.  Rials v. Director of Revenue, (SD33830, 03/03/16)

Unsuccessful Bidder Can Not Assert Civil Rights Claim For Class Of One

Maspeth-firehouse1.jpgMissouri construction law is extremely favorable to local government, giving it broad discretionary authority to determine who is not the lowest and best bidder.  In order to break this  virtually ironclad rule of law, governing the selection of a successful bidder for a construction project, a disappointed bidder tried a different tact.

In the spring of 2014, the O’Fallon Fire Protection District (District),  a subdivision of the state of Missouri, invited contractors to submit bids for the construction of a new firehouse.  The District instructed prospective bidders that the American Institute of Architects, (AIA guide) would “guide all bidding.”  According to the AIA guide, “the contract should be awarded to the lowest responsible bidder,” yet the “owner, by provisions in the instructions to bidders . . ., typically retains the right to reject any and all bids” so long as the rejection is not “used as a subterfuge.”  The District’s invitation specified that the District “reserved the right to reject any and all proposals when such rejection was in the interest of the District” and clarified that while “it was the intent of the District to award a contract to the lowest responsible bidder,” the District “reserved the right to select a Bidder other than the lowest.” The District also attached two documents authorizing the District to enter into a union-only project labor agreement (PLA).

On May 27, 2014, the District awarded the electrical work to another contractor that employed members of the Laborers’ International Union of North America (laborers).  Higgins and the union, on behalf of its members employed by Higgins, (collectively, Appellants) brought an action under 42 U.S.C. § 1983, alleging the District violated the Appellants’ rights under the Equal Protection and the Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution, as well as their First Amendment right to freedom of association.

Higgins alleged that it “submitted the lowest responsible bid for the electrical” work and that it had a collective bargaining agreement with a union.  Higgins alleged that on May 15, 2014, “an agent of the District informed Higgins “it would not be awarded the work” for a new firehouse “because its employees were represented by the union and the union was not affiliated with the American Federation of Labor and Congress of Industrial Organizations (AFL- CIO).”  According to Higgins, the District’s agent also asserted the District “was signatory to a [PLA] and that the terms of the PLA barred Higgins from participating in the construction of the Fire House.”

Standing: The district court concluded the Appellants did not have standing applying Missouri law.  The 8th Circuit concluded that the district court’s analysis of standing was flawed because the Appellants’ invoked federal jurisdiction based on existence of a federal question; therefore, standing must be decided based upon Article III of the United States Constitution.  Reviewing Article III requirements for standing the 8th Circuit concluded that Higgins, the disappointed bidder, had standing.

Federal law provides that in order for the Union to have standing, neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.  In this case, the Union’s claim for compensatory damages “is peculiar to the individual member concerned, and both the fact and extent of injury would require individualized proof.”  The Claim of the Union,  that it has standing on its own behalf, is contradicted by  the allegations in its pleadings in which they state the union “bring[s] this action on behalf of the class of its members who are employed by Higgins.” The 8th Circuit concluded that the union does not have standing to pursue its claims on behalf of its members.

Class Of One Claim Under The Equal Protection Clause: “A class-of-one claim is stated when a plaintiff alleges that a defendant intentionally treated it differently from others who are similarly situated and that no rational basis existed for the difference in treatment.”  To state a class-of-one claim, the “plaintiff must . . . provide a specific and detailed account of the nature of the preferred treatment of the favored class, especially when the state actors exercise broad discretion to balance a number of legitimate considerations.”

Higgins did not allege that another contractor, whose employees were members of a different union, was “identical or directly comparable” to Higgins in all material aspects. A class-of-one claim does not extend to cases where the rules are uniformly applicable and a state official exercises his discretionary authority based on subjective, individualized determinations.  Therefore, based upon the pleadings the 8th Circuit concluded that  Higgins failed to state a class of one claim.

Due Process and Freedom to Associate: In order for Higgins to prevail under his due process claim, Higgins must have a property interest.  In Missouri, an unsuccessful bidder has no property right in the award of a construction contract; therefore, Higgins due process claim fails.

Higgins also argued that the District targeted and interfered with Higgins’s First Amendment right to freedom of association because Higgins was “not signatory to a collective bargaining agreement with Local 1 of the International Brotherhood of Electrical Workers.”  The 8th  Circuit noted that Higgins did not provide any plausible account of how the District interfered with Higgins’s ability to associate with the union or with its employees who are members of a union; therefore, there was no violation of the right to associate under the First Amendment.  Higgins Electric v. O’Fallon Fire District, (8th Cir. 15-1222, 2/22/16).

 Comment Howard: While the results in this case conform to existing law it seems to me that the actions of the District was extremely bad governance.  Rigging the process, so that a particular union is employed on a job by the successful bidder violates the public interest in obtaining the best possible price for the work since it involves the expenditure of governmental funds.  It seems to me that both unions were “identical or directly comparable”  since they had to perform the work according to the specifications.  The reason for selecting one union over the other seems on its face to be arbitrary and capricious.

Report Of The Municipal Division Work Group To The Supreme Court Of Missouri

The Municipal Division Work Group recently submitted its report to the Missouri Supreme Court.  The Work Group looked at issues relating to conflict of interest regarding judges and attorneys, consolidation of municipal courts, warrants, incarceration, enforceability of municipal court judgments, remedies for nonpayment of fines.  Follow the link below to review the report.

Top Priority

Comment Ragan: Senate Bill #572 recently had a hearing.  It is my understanding there will be an additional hearing on the bill.  It is important that pressure is kept on the legislature so it understands that SB #572 is a bad bill and nothing in the bill improves the quality of services which municipal governments are expected to provide.  A strong community needs a healthy and functional government, which has the strength and flexibility to provide quality services to the community.  Diminishing  municipalities does nothing to improve the quality of services rendered to the community.  Essential to providing services is the ability to enforce laws and judgments.  Limiting the power to enforce laws and judgments with inflexible legislation is not a solution but rather a mistake that will haunt this state for a generation.

In my community a program that will be directly impacted by Senate Bill #572 is CASP (Community Alternative Sentencing Program), which is a restorative justice program that allows offenders to do community service for the community as part of an alternative sentence.  The program is a self-sufficient program which requires no tax payer support because it relies on a user fee.  One of the biggest reasons a user fee is charged for community service is that community service providers require background checks and background checks cost money.  In addition, the user fee has the additional benefit of ensuring the participant is vested in completing community service.

Senate Bill #572 would prohibit municipal courts from using community service programs that charge a fee.  CASP has operated since 1985 relying on a user fee.  From 1985 to 2009 the participants in the program have provided over 2,407,225 hours of community service to communities.   CASP through the City of Springfield Municipal Court generated 40,419 hours of community service for local organizations in 2015.  The result of Senate Bill #572 would seriously damage CASP and the benefits that it generates in the community.  It defies common sense to damage a program which has worked successfully for thirty years.  What programs in your community will be damaged?  How much will your community have to spend to provide community service under SB #572?  When does the cost become unreasonable?  Is it equitable to spend tax payers dollars of law abiding citizens to pay for background checks and monitor community service of non-law abiding citizens?

IMLA Breaking News

On Friday the U.S. Civil Rights Commission held a briefing on the issue of how municipal fines and fees affect the impoverished creating a potential disparate impact on minorities.  The Civil Rights Division in a follow up to the Ferguson issue similarly reported on the abuse of fines and fees discussing it as the “criminalization of poverty” and the Department of Justice wrote to the Chief Justices of each state offering assistance in resolving the issue.  Earlier last week, the City of Biloxi settled with the ACLU an action against it for creating “debtors’ prisons”; in other words imprisoning the indigent for failing to pay fines or fees.  IMLA wrote to the Chief of the Civil Rights Division expressing our concern that local government attorneys had not been involved in the development of the policy proposals or in helping the DOJ to understand the issue and we hope to be included in the future.  As many communities faced tax protests they moved to fund services through user fees that were once tax based, building permit fees have long existed to support the effort to provide safe structures and whether a person is indigent or wealthy, people should not be able to pick and choose which law to obey.  So, this is a complex issue and one that we hope our members can help to shape.  We think it fair to say that federal lawyers often do not appreciate that in most states local governments cannot impose fees if the fees go to general revenue as in those cases they constitute taxes and must be imposed under strict guidelines.  By the same token, communities that do not have in place a system to determine if a person is indigent before jailing that person for non-payment violate decades old law for which there is no excuse.  So, this must serve as a reminder to look at your system and policies to ensure constitutional compliance.  Members interested in participating in developing a response to the DOJ position, should let us know and we will try to develop a representative committee from the volunteers. Links to the DOJ position and to the article about Biloxi’s settlement follow.

DOJ: Click here

Biloxi: Click here





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