February Newsletter (Issue 02-2017)

Executive Order Relating To Sanctuary Counties and Cities

immigrationOn January 25, 2017, President Trump, issued an Executive Order (Order) intended to block cities and counties from engaging in certain practices that impede the federal government’s execution of the immigration laws of the United States.  This Executive Order requires the Secretary of Homeland Security (Secretary) and all agencies   “…to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.”  States, counties, and cities that do not comply with 8 U.S.C. 1373 or have a statue, policy, or practice that prevents or hinders the enforcement of Federal law (so-called sanctuary states, cities or counties) are threatened with the loss of federal funding.  The Order is intended to prohibit sanctuary states, counties, and cities from engaging in practices that interfere with the federal governments execution of the immigration laws of the United States with respect to undocumented aliens.  For an annotated copy of Trump’s Order showing possible legal issues see Professor David A. Martin’s analysis.

The big stick approach in the Order (loss of federal money) will encourage local government to work with immigration officials and discourage others from providing sanctuary to undocumented aliens.  While the federal government has the big stick it is not walking quietly.  Consider, that the Order authorizes the employment of an additional 10,000 immigration officers for the enforcement of immigration laws and establishes a framework for involvement voluntarily or by coercion of local jurisdictions in the enforcement of immigration laws.  While the Order establishes a framework for agreements with local jurisdictions, it also has coercive provisions that could be used to force local government to house prisoners and execute detention policies that exceed the normal period of detention for the crime that led to the arrest.

Questions abound to whether or not local government will be fully reimbursed for costs associated with the detention of prisoners.  Considering that many jails are already crowded and that law enforcement is inadequately funded, any additional burdens in enforcing the Order could be a major issue.  In addition, if local jurisdictions are not willing to engage in voluntary actions there could be serious state rights questions if the federal government tries to commandeer local and state law enforcement to act as an arm of the federal government in enforcing immigration laws.

How Does The Order Work?: The basic concept is pretty simple.  When local law enforcement arrests someone, 8 U. S. C. 1373 mandates that the arresting agency determine the citizenship or immigrant status of the person who has been arrested by providing certain information to the FBI.  The FBI than sends the inmates information to Immigration Customs Enforcement (ICE) for processing.  If ICE determines that the inmate is undocumented, it submits a detainer request to the local jurisdiction that has detained the person. (For an excellent discussion of this process:  See the Washington Post, updated January 25, 2017)

Since there are no sanctuary counties or cities in Missouri, it may be that the controversy will play out in other parts of the country.  Because the Order authorizes the Secretary to enter into agreements with local jurisdictions to provide immigration services it may be that the impact of the Order in Missouri will primarily be working out the administrative details by agreement, although additional burdens may be placed on local government without the assurance of full reimbursement.

Concerns:  The rollout of this Order has generated a lot controversy, with some jurisdictions stating that they will defy the Order, leading to litigation over its validity. In addition, citizens who are opposed to mass deportation of their neighbors may engage in passive or nonviolent resistance, which could potentially lead to explosive conflicts.  Some of that has already happened.  It is not hard to imagine a pregnant mother with three small children being arrested and led away from her children for deportation in front of a large sympatric crowd of neighbors and friends.  Yes, the first warrant that was executed involved a mother with small children.  What does this portend?

The closest parallel in American history to Trump’s Executive Order is the pre-Civil War Fugitive Slave Act.  Abolitionist and others created the Underground Railroad to fight the injustice created by the Fugitive Slave Act (Americans on the Canadian border have already helped people cross into Canada).  Slavery opponents also engaged in outright resistance to returning slaves by running off bounty hunters as well as other forms of open hostility to the efforts of slave owners to enforce the Fugitive Slave Act.

Local government officials need to be aware of their duties under the Order.  Pursuant 8 U. S. C. 1373, reporting of persons arrested and detained is required.   If an order is issued to detain the prisoner, you should be prepared to respond to the order.  This could put a substantial burden on local government agencies particularly those that run jails.  If you do not have an agreement in place, some thought should be given to working out details in advance, in order to avoid a misunderstanding.

Lisa Soronen, the Executive Director of the State and Local Legal Center has written an interesting article discussing possible legal theories that a city may what to consider, if the federal government sues them.  Lisa’s article may be viewed by clicking here.


Jennings Settles Debtors Prison Lawsuit For 4.7 Million Dollars

The St. Louis American, recently reported that a lawsuit brought by ArchCity Defenders against the City of Jennings for running a debtor’s prison was settled for $4.7 million dollars, which was one of the highest per capita settlements for a class-action lawsuit.  The Jennings case was one of at least five federal suits filed against cities in St. Louis County for running debtors prisons.  A recent audit by the State Auditor of the City of Shelbina highlights the need for local government to pay attention to its municipal court.  For too long, municipal courts has been the stepchild of local government.  The Missouri Supreme Court, the State legislature, courts, and the Justice Department as well as other have made it clear that municipal courts will be brought into compliance with the law.  It is far better to initiate these actions yourself.  Click here or above for the story.

Challenge to Kansas City Minimum Wage Ballot Initiative Was

1d99da61-f4bd-4449-8c86-9bbc58dbc20eThe City of Kansas City (City) filed an action against the Kansas City Board of Election Commissioners to remove from the November 3, 2015, election a ballot initiative for a proposed ordinance establishing a minimum wage (Ordinance) for Kansas City.  The City claimed that the Ordinance if enacted would contradict a state statute, which prohibited local government from adopting minimum wage laws.  Proponents of the Ordinance (Committee) intervened arguing that the proposed Ordinance met all of the provisions of the City Charter; therefore, review of the Ordinance as to whether or not it violated state law, which prohibited local government from enacting a minimum-wage law was premature.

The trial court granted the relief requested by the City and directed the Election Board to remove the ballot issue from the November 3, 2015 election.  The Committee appealed to the Missouri Supreme Court, which held that “…preelection challenges of initiatives are limited to claims that the procedures for submitting a proposal to the voters were not followed.”  Therefore, any preelection challenge with respect to whether or not the Ordinance would be invalid under Missouri law is hypothetical, until the voters have adopted the measure.  City of Kansas City v. Kansas City Board of Election Commissioners, (SC95368, 01/17/17)

Comment Howard: The exercise of judicial restraint in this case seems to be misapplied because valuable resources (money and time) will be wasted by submitting this to the voters if the court can look at the state statute and the proposed initiative ordinance and on its face determine its validity.  I see no downside for the opponents and proponents of the initiative ordinance.  There is however, a big downside if the court has to determine the legal question after the fact.  The question for the court is why did you let us engage in this act of futility?

Who And When Can You Bring A Quo Warranto Action?

columbia-moBackground: The TIF Act authorizes a city to undertake a redevelopment project under certain conditions laid out in Section 99.810.  The TIF Act calls for a city implementing a project to create a TIF Commission to formulate the plan and oversee its implementation.  Under § 99.865, municipalities engaging in TIF projects have certain reporting obligations regarding the status of each redevelopment plan and project.  In 2009, § 99.865.7 was enacted, which provided: “Any municipality which fails to comply with the reporting requirements provided in this section shall be prohibited from implementing any new tax increment finance project for a period of no less than five years from such municipality’s failure to comply.”

Beginning in 2009, under the authority of the TIF Act, the City of Columbia (City) created three separate TIF projects, one of which was never implemented.  In December 2013, the City began an evaluation to determine whether to establish an additional TIF district in central Columbia.  On January 24, 2014, the Boone County Commission (Commission) sent a letter to the City requesting that the City abandon any efforts to create a downtown TIF district.  The Commission’s letter closed by stating that the City did not have the ability to implement any new tax increment financing projects due to its failures to provide required, annual reporting on its existing TIF efforts, requesting that it “terminate the TIF effort currently underway” and confirm it’s intent to do so no later than January 31, 2014.

On February 6, 2014, Dykhouse, purportedly acting ex officio as the Boone County Counselor, filed a petition in quo warranto, naming City as Respondent, seeking a judgment of quo warranto finding that the City, via the operation of § 99.865.7 lacked the authority it is usurping to itself by attempting to engage in a new TIF project and ordering that such lack of authority will persist through at least December 31, 2017.  Dykhouse alleged that his authority to file the petition derived from § 56.640.3. RSMo.

On February 17, 2014, City abandoned its effort to create the central Columbia TIF district, and as of April 2014, the City was no longer pursuing the formation of any TIF district within its borders.

In response to Dykhouse’s petition, the City argued that Dykhouse, as County Counselor, lacked standing to bring a quo warranto action; that quo warranto did not lie under the facts alleged; and that the issue was not ripe, in light of the fact that City had abandoned its only effort to create a new TIF district.  The trial court rejected City’s arguments and entered findings of fact and conclusions of law, determining that City had repeatedly violated its reporting obligations under § 99.865 and was, therefore, “prohibited from implementing any new tax increment finance project for a period of no less than five (5) years from the last violation of the reporting requirements of RSMo §99.865, or through December 31, 2019.” The City appealed to the Western District.


Dykhouse lacked authority to bring a quo warranto action: The Western District reasoned that Rule 98.02, at the time the petition was filed in 2014, provided that, “[a]ny of the following may be relators [in a proceeding for quo warranto]: . . . [t]he attorney general of this state . . . or . . . [t]he prosecuting attorney.” Dykhouse was neither the Attorney General nor the prosecuting attorney; nevertheless, he argued that he had authority to bring the action based upon an agreement that he had with the Boone County Prosecutor under Section 56.640.3 RSMo., which provides:

“Notwithstanding any law to the contrary, the county counselor in any county of the first classification and the prosecuting attorney of such county may by mutual cooperation agreement prosecute or defend any civil action which the prosecuting attorney or county counselor of the county is authorized or required by law to prosecute or defend.”

The Agreement with the Boone County Prosecutor and the County Counselor provided that the Prosecutor would cooperate with Dykhouse the Boone County Counselor in civil matters and civil actions.  On its face, Section 56.640.3 conflicts with Rule 98.02 because it allows someone other than the Attorney General or the county prosecutor to bring quo warranto actions, namely the County Counselor.  The Western District concluded that the Rule controls over of the state statute because under Missouri case law a Rule controls over a statute with respect to procedural matters, unless the state statute specifically states the intention of the legislature to overrule the Rule.  The statute did not state specifically that it was intended to overrule the Rule; therefore, the Rule controlled and Dykhouse did not have standing to bring the lawsuit.

In addition, Section 56.640.3 applies only to actions to defend or prosecute a civil action.  The Western District concluded that an action in quo warranto is not a civil action because it does not seek to remedy a “personal interest, but instead its purpose is to “serve the public interest.”

Quo warranto does not lie to prevent an improper exercise of power lawfully possessed: Because this issue may arise again, the Court felt it was necessary to address the City’s contention that quo warranto does not lie under the facts of this case.

Section 531.010 and Rule 98 govern quo warranto proceedings.  The statute and rule provide for the remedy of ouster “[i]n case any person shall usurp, intrude into or unlawfully hold or execute any office or franchise.”  Dykhouse alleged that City, by taking steps to create a TIF, was “usurping to itself a power it [did] not possess,” on the theory that City’s existing “power to implement new TIF programs [was] removed by operation of state law, pursuant to RSMo § 99.865.”

“Accepting, without deciding, the validity of the alleged reporting violations, there are still two flaws with Dykhouse’s theory: first, the penalty provision of § 99.865.7 is not self-executing; and second, quo warranto lies to correct only a usurpation of authority where none is granted, it does not lie to correct the unlawful exercise of existing authority.”

“Here, it is beyond question that City had the power to consider and implement TIF projects by virtue of the TIF Act.” “The heart of Dykhouse’s petition is that City exercised that power improperly by failing to comply with various reporting requirements laid out in § 99.865.” The “…wrongful exercise of an existing power is simply not an appropriate matter for quo warranto proceedings.” State of Missouri ex inf. Charles Dykhouse v. City of Columbia, (WD79352, 01/17/17)

Comment Howard: While it is hard to imagine being involved in a case quite like this, there are some very important legal lessons.  First, quo warranto is not a civil action; therefore, the statute that authorizes the County prosecutor to appoint the County counselor does not apply.  Second, the case has a very good discussion of when a law is self-enforcing, which periodically comes up our local government law practice.  Third this case has a very good discussion of when a rule of court controls over a statute or vice versa, making this case a good place to start your research.  Fourth, quo warranto is not a remedy to enforce the misapplication of the law since it deals solely with whether or not the power exists.

St Charles County Can Adopt By Initiative A Law Prohibiting Municipalities From Adopting A Red Light Camera Ordinance

Signal LightFacts: The St. Charles County Council adopted an Ordinance, submitting to voters a proposed amendment to the county charter that would prohibit the use of “red-light cameras” throughout the county, including within the county’s municipalities.  In November 2014, the county’s voters approved the following ballot measure:


Shall the St. Charles County Charter be amended to add a Section 10.130 reading:

“10.130. Automated Traffic Enforcement Systems. Notwithstanding any other provision of this St. Charles County Charter, red light cameras or similar photograph devices or automated traffic enforcement systems may not be used in enforcing traffic regulations adopted by St. Charles County or by any municipality within St. Charles County that prohibit drivers from entering intersections when controlled by red traffic lights, and no such municipality may exercise the legislative power to use such cameras or devices or systems.  This prohibition is the only limit imposed by this Charter upon the County or any municipality within it in performing their functions of regulating traffic and imposes no additional costs that need to be financed.?”

The plaintiffs, taxpayers Jim Pepper and Pamela Fogarty, the fourth-class cities of St. Peters and Lake St. Louis, Missouri, and the constitutional charter city of O’Fallon, Missouri (collectively “the Cities”), filed suit against the defendants, St. Charles County and the Director of Elections of St. Charles County. (All defendants are collectively referred to as “the County”).

The Cities sought a declaratory judgment alleging amongst other things, that the Amendment violated the Missouri Constitution and the St. Charles County Charter.  The parties filed motions for summary judgment and the trial court upheld the Amendment to the Charter prohibiting the use of “red light cameras or similar photograph devices or automated traffic enforcement systems” to enforce traffic regulations, and prohibiting municipalities from “exercising the legislative power to use such cameras or devices or systems.”

The trial court concluded that the “Charter Amendment does not violate Article VI, Sections 18(a), 18(b), and 18(c) of the Missouri constitution and is, therefore, valid and enforceable.” The court also determined that the proposition submitted to the voters complied with the requirement in Article VI, Section 18(c) that the ballot “contain a clear definition of the power, function or service to be performed,” and that the proposition language submitted to the voters adequately informed them of the specific activities prohibited.  The Cities appealed to the Eastern District, which affirmed.

Opinion: The Eastern District concluded that:

“The charter amendment constitutes a valid exercise of the County’s broad power to regulate municipal services and functions under Missouri Constitution Article VI, Section 18(c), and the amendment does not contravene any statewide policy concerning red-light cameras.  Nor does the amendment violate the county charter itself.  The amendment does not invade the province of the judiciary, as it does not restrict the evidence that courts can consider.  Finally, the proposition appearing on the ballot contained no irregularities of sufficient magnitude to cast doubt on the validity of the election.”  Pepper vs. St. Charles County, (ED104394, 01/24/17)

Requiring Pre-Trial Detainees To Sleep Naked With Sheet and Blanket Two Or Three Nights A Week Was Unconstitutional Punishment

jail_photoFacts: The laundry policy at the Cole County Detention Center leaves pretrial detainees naked, with only a bed sheet and a blanket for cover, every four nights for women and every two-to-three nights for men.  During this time, guards and cellmates may see the detainees naked.  Cole County jail policy prohibits detainees from wearing their own clothes.  Instead, the jail gives each detainee one set of clothes which includes underwear, undershirt, pants, outershirt, socks, and shoes.  Female detainees also get a bra.

Female detainees’ clothes are washed every four days; male detainees’ clothes are washed every two or three days.  While this set of clothes is being washed, detainees are not provided substitute garments.  They are, however, given a bed sheet and a blanket.  Jail staff usually does the laundry at night and returns the clothes the following morning.  This takes about seven hours.  The cells have windows that, per jail policy, may not be covered.  So during this time, jail guards and cellmates may see the detainees unclothed if not concealed by their bedding.  Sometimes male guards return clothes to female detainees and female guards return clothes to male detainees.

The plaintiffs sued in July 2015 as two putative classes: current detainees and former ones.  They alleged that the laundry policy violated the Eighth and Fourteenth Amendments to the United States Constitution and corresponding provisions of the Missouri Constitution.  They sought damages against Sheriff White and Chief Wheeler.  The defendants moved to dismiss, which motion was granted.

The trial court held that the plaintiffs alleged “no more than minimal deprivation.” Because the laundry was being done at night, the court observed, “[d]etainees are sleeping in the nude, not going about their activities during the waking part of the day in the nude.  Furthermore, detainees are issued a sheet and a blanket and may cover themselves with the sheet and blanket if they wish.”  The trial court also noted that the plaintiffs have no general right not to be seen by guards of the opposite sex.  It therefore concluded, that “[t]he laundry policy at issue here creates no combination of factors that establish a constitutional violation.” The court also identified cleanliness and hygiene as a legitimate purpose for the laundry policy.  “And even if the policy had no valid penological purpose, the court noted, that alone would not make it unconstitutional—the focus is on the totality of the circumstances.”  The court then granted qualified immunity to the individual defendants because the plaintiffs had not alleged an underlying constitutional violation.  Plaintiff’s appealed to the Eighth Circuit.

Opinion: In evaluating the constitutionality of pretrial-detention conditions, “the proper inquiry is whether those conditions amount to punishment of the detainee.” The Due Process Clause prohibits any punishment before someone is adjudicated guilty unless the punishment is de minimis. If the punishment is not minimus its imposition is of constitutional concern. If a pretrial-detention condition or restriction “is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’ ” If it “is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.”

The Eighth Circuit held that the laundry practice was not de minimus and that it was not reasonably related to a legitimate governmental purpose.  The defendant’s assertion and the trial court’s conclusion that that the policy promoted cleanliness and hygiene was rejected; therefore, the Eighth Circuit reversed the district court’s dismissal of the plaintiffs’ complaint.  A concurring opinion noted, that the Eighth Circuit’s opinion analyzed the claims only under the due process clause as punishment.  Since some of the Plaintiff’s were prisoners, not detainees, the court should have analyzed the rights of prisoners under the Eighth Amendment.  The concurring opinion noted that the prisoners have a cause of action under the Eighth Amendment.  Ingram v. Cole County, (8th Cir., 16–1046, 01/17/17)

Missouri Laws Regulating Certain Commercial Advertising Violated The Free Speech Clause

327456Facts: Missouri enacted a statute and two regulations (Laws) prohibiting alcohol manufacturers, wholesalers, distributers, and retailers from advertising certain information under specific circumstances.  Plaintiffs, a non-profit corporation promoting the interests and welfare of the broadcasting industry, a corporation operating radio stations, a winery, and a commercial food and drink establishment licensed to sell alcohol, filed suit against Missouri’s state supervisor of liquor control and state attorney general.  Plaintiff’s alleged that the Laws violated their freedom of speech under the First Amendment of the United States Constitution.

Plaintiffs alleged that: These Laws prohibit alcohol retailers from advertising discounted prices outside their establishment; that the Discount Advertising Prohibition prohibits retailers from advertising information such as “a two-for-one special on beer at the local grocery store, a going-out-of-business sale at a specialty wine shop, or a coupon for one free drink with the purchase of an entree at a neighborhood bar and grill.”  In addition, according to the interpretation put forth by defendants, the Discount Advertising Prohibition does permit advertising sales using generic descriptions (e.g., “Happy Hour” and “Ladies Night”) and advertising all sales, promotions, and discounts within the retail establishment itself.  Also the Below Cost Advertising Prohibition prohibits alcohol retailers from advertising prices below the retailers’ actual cost.

Missouri also enacted a statute specifying how distillers and wholesalers may advertise retailers selling their products.  This law required producers and wholesalers, if they choose to list any retailer in an advertisement, to exclude the retail price of the product from the advertisements, list multiple retail businesses not affiliated with one another, and make the listing inconspicuous.

Plaintiffs alleged that the challenged provisions are facially unconstitutional under the First Amendment.  Plaintiffs assert that the challenged provisions prohibit truthful, non-misleading commercial speech and restrict the free flow of truthful information to potential customers.  Plaintiffs also claimed Missouri inconsistently enforces the provisions, allowing some prohibited advertisements to go unpunished, and the Single Retailer Advertising Prohibition Statute unconstitutionally compels speech.  Under plaintiffs’ theory, “[d]efendants cannot show that the [challenged provisions] directly advance a substantial governmental interest, nor that they regulate no more extensively than necessary to serve that substantial interest.”

Defendants filed a motion to dismiss for failure to state a claim, which was granted by the District Court without any discussion of how the complaint failed to state a claim. Plaintiffs appealed the dismissal of the complaint to the Eighth Circuit, which reversed.

Opinion: In order to survive a motion to dismiss for failure to state a claim the complaint must contain sufficient factual matters, accepted as true to state a claim to relief that is plausible on its face and must plead factual content that allows the court to draw reasonable inferences that the defendant is liable for the misconduct alleged.  In this case, the Laws regulated commercial speech, which is accorded less protection than other constitutionally, guaranteed expression.

The United States Supreme Court has identified four considerations to determine the constitutionality of laws burdening commercial speech:

“(1) whether the commercial speech at issue concerns unlawful activity or is misleading; (2) whether the governmental interest is substantial; (3) whether the challenged regulation directly advances the government’s asserted interest; and (4) whether the regulation is no more extensive than necessary to further the government’s interest.”

In this case, the defendants accepted the fact that the provisions of the Laws prohibited truthful and not misleading speech while plaintiffs conceded that the asserted state interest of responsible drinking is substantial.  Therefore, the court focused on whether or not the harm is real and if the restrictions will alleviate them to a material degree.  The Eighth Circuit noted that the allegations in the petition made it clear that the challenged provisions do not do anything to advance the asserted state interest.  There are glaring inconsistencies in the laws based upon the text of the regulations that show the laws do not promote responsible drinking.  In addition, the complaint alleges more than sufficient information to show that the restrictions are more expensive than necessary.  The Eighth Circuit held that there were other less restrictive alternatives to the challenged restrictions that could have been enacted, which would have been less intrusive to plaintiffs First Amendment rights.  Missouri Broadcasters Association v. Lacey, (8th Cir., 16–2006, 01/19/70)

Comment Howard: If you are on either side of a motion to dismiss for failure to state a cause of action in federal court, this case does an excellent job of examining the legal framework to guide your analysis.

Don’t Get Lost In The Woods: Municipal Principles

sunshine-smileyThe Sunshine Law is fundamental so where do we begin when we have a question.  One great resource for looking for answers is provided by the Missouri Attorney Generals Office.  While the Missouri Attorney Generals Office provides a great guide it is best to carefully read through Chapter 610.  Here are links to the Missouri Attorney Generals information and Chapter 610.