July Newsletter (Issue 07-2017)

United States Supreme Court Holds Missouri Constitution Does Not Prohibit Religious Institution From Participating In Program that Provided Playground Surfaces From Recycled Tires

The United States Supreme Court in Trinity Lutheran Church held that Missouri could not deny an applicant the opportunity to compete for a grant that provided playground surfaces made from recycled tires because the applicant was a church.  Trinity Lutheran asserted a right to participate in a government benefit program (Missouri’s Scrap Tire Program) without having to disavow its religious character.  Missouri argued that the Missouri Constitution prohibited furnishing taxpayer money directly or indirectly to churches based upon the separation of church and state clause in the Missouri Constitution that provides:

That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.

The Supreme Court held that denying a generally available benefit solely on account of religious identity imposes a penalty, which violated the Free Exercise Clause of the First Amendment to the United States Constitution.“  The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church, solely because it is a church, to compete with secular organizations for a grant.”  Trinity Lutheran Church Of Columbia, Inc. v. Comer, Missouri Department Of Natural Resources, (U.S. 15–577, 06/26/17)

Comment Howard: This case draws a very bright line with respect to how local and state government can use public funds when offering grants or other aid to churches or religious institutions.  Prior to this case, Missouri cases interpreted the Missouri Constitution to prohibit granting or giving public funds to a church or religious group.

Obviously local government will now have to adjust many of its programs involving the granting of financial aid for improvements to sewers, storm water or water lines, streets and other programs so that they do not exclude churches and religious institutions.  Although the opinion seems to establish a bright line where the free exercise clause trumps the establishment clause the line of demarcation is not as clear, as it would seem.  While the decision was by a 7 to 2 margin there was a significant controversy over footnote number 3, in the majority opinion, which states that:

“This case involves express discrimination based on religious identity with respect to playground resurfacing.  We do not address religious uses of funding or other forms of discrimination.” (Emphasis added)

What does this mean? Truth is no one really knows except a significant number of the judges clearly wanted to leave open the door by avoiding an all-expansive interpretation.  Of particular interest was the dissent by Justice Sotomayor joined by Justice Ginsburg, which explored in detail reasons for Missouri’s 1875 constitutional provision that prohibited any financial aid to a religious institution.  Inexplicably, the majority opinion ignored the long history, going back to 1875, in the Missouri Constitution concerning restrictions on financial aid to churches and religious institutions.

The Court also distinguished the facts in Trinity Lutheran from Locke v. Davey, on the grounds that the scholarship program in Locke to assist divinity students in Washington State was a violation of the free exercise clause if the scholarship program used state funds to help students obtain a devotional degree in the ministry, otherwise the program was valid.

Lisa Soronen, Executive Director, of the State & Local Legal Center has an excellent summary of the case, which may be accessed by clicking here. http://static1.1.sqspcdn.com/static/f/624306/27616376/1499278661237/Final+2017+locals.pdf?token=1RNOsTyFKXmAEm3PDsQhHCjOcu0%3D

Law Making It a Felony For a Registered Sex Offender To Access a Commercial Social Networking Web Site Violates Free Speech Clause

Facts And Procedures: North Carolina law made it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.”  The Statute had been applied to about 20,000 people in North Carolina and the state had prosecuted over 1000 sex offenders for violations.

Packingham (Petitioner), a 21-year-old college student, was convicted of having sex with a 13-year-old girl in 2002 requiring him to register as a sex offender under the statute.  In 2010 Petitioner was prosecuted for a minor traffic offense, which was dismissed, however Petitioner posted a statement of gratitude on the Internet, thanking the Lord for his good fortune in not having to pay a fine.  This post attracted the attention of law enforcement officials resulting in a check of the sex offender records leading to an indictment by a grand jury for violating the Statute.  Petitioner then filed a motion to dismiss the indictment on the grounds that the Statute violated the First Amendment.  Petitioner was ultimately convicted.  Petitioner appealed to the North Carolina Supreme Court, which held that the statute was constitutional.  The United States Supreme Court granted certiorari unanimously holding that the Statute was unconstitutional because it violated the First Amendment Free Speech Clause.

Opinion: The Court assumed that the Statute is content neutral making it subject to intermediate scrutiny, which requires that a statute must be “narrowly tailored to serve a significant governmental interest.”  In this case, protecting minors from sexual predators is a significant governmental interest.  Nevertheless, a statute cannot “burden substantially more speech than is necessary to further the government’s legitimate interests.”  Even though the Statute had a number of significant criteria that had to be met in order to be a “commercial social networking Web site,” as well as a number of exclusions it was not “narrowly tailored because it burdened “substantially more speech than is necessary to further the government’s legitimate interests.”  For example, the Statute could bar access to commonplace “Websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com.”  The Court went on to declare that today the Internet was the most important place for exchange of ideas.

While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. The most important forum is cyberspace, the “vast democratic forums of the Internet” in general and social media in particular.

By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.  They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.”

Justice Alito wrote a concurring opinion, joined by the Chief Justice and Judge Thomas, stating that the opinion should have stopped with its traditional First Amendment Free Speech Clause analysis that the statute was unconstitutional because it was not narrowly tailored.  The concurring opinion suggested a much more cautionary use of language arguing that the majority opinion went too far by its declaration that the Internet was the ultimate forum (in a spatial sense) for the exchange of views, potentially misleading some to believe that the Internet was nearly free from regulation.  Packingham v. North Carolina, (U. S.  15– 1194, 6/19/17)

Comment Howard: This Opinion, declaring that the Internet is one of the most important places for the exchange of views as a democratic forum.  It is greater than even the “town crier” because it resonates a voice “farther then it could from any soapbox.” These statements establish this case as the leading case on First Amendment Free Speech rights with respect to the Internet.  It certainly leaves open more questions than it answers.  For example, local government has tried to rein in the freewheeling affect of employees commenting about on frivolous details of the  work environment (water cooler talk) by attempting to prohibit discussion of frivolous details about the work environment.  It may make sense to have HR director and other employees involved in employment decisions look at any policy dealing with employee use of the Internet concerning employment activities.

Comment Ragan:  The perception of the internet by the Supreme Court is absurd.  Anyone not living in an ivory tower knows that the internet is more of a landfill of garbage than a soapbox.  As an attorney you should keep in mind that any ordinance or statue involving speech faces significant hurdles to survive, unless of course you are protesting on the Supreme Court plaza, which is prohibited.

Public Policy Exception Protects Employees Right To Be Free From Interference With Order Of Protection By Employer

Latoya Ballard, (Relator) was employed by Rancho Manor (Nursing Home) in September 2014 as a nurse.  Later that month, the Nursing Home employed Jason Henderson (Henderson) as a floor nurse.  Henderson had been involved in a romantic relationship with Relator from 2008 through June 2014.  Relator and Henderson had two children together.  On October 11, 2014, Anderson assaulted Realtor in her home, causing injuries to her and one of her children.  Law enforcement officer’s arrested Anderson and Relator obtained an ex parte order of protection against Henderson.  Relator immediately provided her direct supervisor, the compliance nurse, at the Nursing Home with a copy of the order of protection.  Relator’s direct supervisor stated she would arrange a schedule so Relator and Henderson did not work together.

On October 23, 2014, a trial court entered a full one-year order of protection, after a court hearing, against Henderson, prohibiting Henderson from entering Relators place of employment while she was present.  Again Relator provided her direct supervisor for the Nursing requesting that the Nursing Home develop an action plan to prevent interaction between Relator and Henderson, which was never provided.

Later that month, the Nursing Home promoted Henderson to assistant Director of Nursing, a supervisory position over all nurses including Relator.  On December 19, 2014, Relator called into the Nursing Home to request a sick day, which call was answered by Henderson who was verbally abusive to Relator, telling her that the request was denied and that if she did not report to work he would file a complaint against her nursing license.  Relator came to work and afterward, on her way home, Relator was called by her direct supervisor and remanded for coming onto the Nursing Home property while Henderson was on duty.  Relator was told by the Nursing Home that she would not be placed on a list for duty unless she withdrew the Order of Protection against Henderson.

Relator quit her job and then filed a petition for damages against the Nursing Home claiming wrongful discharge for violation of the public policy in the Missouri’s Adult Abuse Act (MAAA) based upon the public policy exception for dismissing an employee when the employee is acting in a manner that public policy would encourage.  The Nursing Home moved to dismiss the complaint for failure to state a cause of action because the MAAA does not explicitly prohibit an employer from terminating an employee for obtaining an order of protection, which motion was granted.  Relator appealed to the Eastern District.

Opinion: Relator argued that even though she was an at-will employee she was protected by Missouri’s public policy exceptions to the at-will employee doctrine, which allows employers to dismiss employees for any reason, good or bad, unless the employer’s actions fall within four public policy exceptions to the at-will employment doctrine:

(1) refusing to perform an illegal act or an act contrary to a strong mandate of public policy; (2) reporting the employer or fellow employees to superiors or third parties for their violations of law or public policy; (3) acting in a manner that public policy would encourage; or (4) filing a claim for workers compensation.

Since Relator’s petition was dismissed for failure to state a cause of action allegations in the petition were assumed to be true.  Relator claimed wrongful termination under the public-policy exception # 3 because the Nursing Home acted in a manner that public policy encourages.  Section 455.050 of the MAAA provides that it is intended to protect petitioners from domestic violence, stalking, or sexual assault and the Order may include such terms, as the court reasonably deems necessary to ensure the petitioner’s safety.  The Missouri Supreme Court has recognized the legislative intent of Section 455.050 is to provide additional protections to victims beyond criminal statutes or tort remedies.  This is part of a national awareness of the prevalence of domestic violence and the need to protect victims from violence; therefore public policy exception # 3, applies.

The evidence supported Relator’s claim since she testified before the trial court about Henderson’s assault and obtained a full order of protection against him.  The Nursing Home commanded that Relator withdraw the order of protection, despite the fact that law establishes procedures for modifying or terminating an order.  Employers may not demand that as a condition of continued employment that an employee act contrary to her physical safety by withdrawing or terminating a valid court order protecting her from violence.  The Eastern District, in footnotes 4 and 5, mentioned other potential violations of public policy, not plead by Relator, that were related to other public policy exceptions like the demand by the Nursing Home to withdraw the order of protection or be terminated, suggesting that this could be considered as an attempt to induce Relator to commit perjury.  Ballard v. The Honorable Ellen Levy Siwak, (ED05001, 06/20/17)

Comment Howard: Even though Missouri is a strong at-will employment state, the courts continue to regularly churn out cases showing violations of the public policy exception.  Just last month we had a very important case involving local government bidding laws where a public policy exception was found based upon an employee who reported violations of law to his superiors.  HR will do well to measure employment actions before acting to make sure that the employee does not have a claim to the public policy exception.

The Supreme Court Upholds A Regulation That Merges Two Lots For Development Against A Regulatory Claim

 Sooner or later you will be involved in a regulatory taking claim making it imperative that you understand the this case.  The opinion in the Murr case is powerful, making it the definitive case for understanding regulatory takings law.

Facts And Procedure: The Murr family (Petitioners) owns two adjacent lots along the Lower St. Croix River.  Tourists and residents of the region have long extolled the picturesque grandeur of the river and surrounding area.  Under the Wild and Scenic Rivers Act, the river was designated for federal protection.  The States of Wisconsin and Minnesota developed “a management and development program” for the river area in accordance with the Act.

Petitioners’ parents purchased Lots E and F separately in the 1960’s, and maintained them under separate ownership until transferring Lot F and Lot E to Petitioners.  Both lots, because of their topography, have less than one acre suitable for development.  Lot E has a cabin on it while Lot F is undeveloped.  The transfer of the lots to the children of the Murr’s brought the two lots under one ownership thereby merging them by law under a local regulation preventing Lots E and F from being “sold or developed as separate lots” because neither lot contained a sufficiently large area of buildable land (one acre or more).

Petitioners became interested in selling Lot E and moving the cabin on Lot E to Lot F as part of an improvement plan for the lots.  They sought variances from the St. Croix County Board of Adjustment, which denied the request.  The State Court of Appeals affirmed the Board’s finding that the local ordinance effectively merged the lots, preventing Petitioners from selling or building, except on the single combined lot, noting that the Petitioners had other options to enjoy and use their property, including eliminating the cabin and building a new residence on either lot or across both. The United States Supreme Court granted Petitioner’s petition for writ of certiorari to determine if the County regulations constituted a regulatory taking.  Petitioner’s argued that the regulations deprived them of all, or practically all, of the use of Lot F.

Opinion: General Principles Of Regulatory Takings: The Court first established context by reviewing the history of Regulatory Takings Law.  This is very useful since it gets you out of the underbrush focusing on the big trees.  The Takings Clause of the Fifth Amendment provides that private property shall not be taken for public use without just compensation.  Guidelines established by the courts require that when a regulation is so onerous that it denies the owner of the property all economically reasonable beneficial productive use it constitutes a taking; except even when there is complete deprivation of use compensation is not required if the background principles of the State’s law of property and nuisance already place restrictions on the land.  In Lucas the court recognized the relevance of state law and land use customs.

Regulatory takings are characterized by “ad hoc, factual inquiries, designed to allow careful examination and weighing of all the relevant circumstances.”  “A central dynamic of the Court’s regulatory takings jurisprudence, then, is its flexibility,” allowing it to reconcile competing objectives (the individual’s right to retain the interests and exercise the freedoms at the core of private property ownership versus the government’s well- established power to “adjus[t] rights for the public good.”

What Is the Proper Unit of Property To Measure Damages; In this case, the critical question was a determination as to what was the proper unit of property against which to assess the effect of the challenge governmental action.  The majority opinion determined that the proper property unit was the value of the two lots as combined instead of each separate lot.  After all when the property was transferred to the current owners the county and state law provided that lots E and F were merged for development purposes.  The majority opinion concluded that the treatment of the land under state law would lead a landowner to anticipate that his holdings would be treated as one parcel, not, as separate tracts. “The inquiry is objective, and the reasonable expectations at issue derive from background, customs and the whole of our legal tradition.”  Murr v. Wisconsin, (U.S. 15–214, 06/23/17)

Comment Howard: Not only is the majority opinion well written and powerful the dissent authored by Chief Justice Roberts, joined by Justices Alito and Thomas is also significant because it offers insights into the majority opinion and no doubt in my mind will be the basis for challenging a regulation as a taking.  I would expect that we will see these competing opinions play out in challenges to regulatory takings, particularly if there are changes in the court’s liberal/conservative composition.  One way to get a good sense of the impact of the merger regulation is to look at the value of the lots with and without the merger regulation:

Respondents’ appraisal included values of $698,300 for the lots together as regulated; $771,000 for the lots as two distinct buildable properties; and $373,000 for Lot F as a single lot with improvements.  Petitioners’ appraisal included an unrebutted, estimated value of $40,000 for Lot E as an undevelopable lot, based on the counterfactual assumption that it could be sold as a separate property.

The regulation looks like a taking if you define “the property” as the metes and bounds description for each lot based on the principle that state law defines the “property” interest without consideration to the merger provision in the law. 

Qualified Immunity Is Determined Based Upon What The Officer Knows At The Time Of The Incident

In Hernandes v. Mesa, the United States Supreme Court in a per curiam opinion held that the Fifth Circuit reliance that Hernandes was “an alien who had no significant voluntary connection to… the United States” had no bearing on granting  border patrol agent Mesa qualified immunity  because the qualified immunity inquiry depends on facts that were available at the time of the incident in question.

The “dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”  The qualified immunity analysis thus is limited to “the facts that were knowable to the defendant officers” at the time they engaged in the conduct in question.  Facts an officer learns after the incident ends, whether those facts would support granting immunity or denying it, are not relevant.  Hernandes v. Mesa (U.S. 15-118, 06/26/17).

Supplemental Examination: Lisa Soronen, Executive Director, State & Local Legal Center has provided an excellent summary of the case, which is shown below:

It is rare for the Supreme Court to rule that a lower court improperly granted a police officer qualified immunity.  It is perhaps even rarer for the Supreme Court to clarify its tried and true qualified immunity standard.

In Hernandez v. Mesa the Supreme Court ruled that the lower court erred in granting qualified immunity to a police officer based on facts unknown at the time of the shooting, but favorable to the officer.  More generally, it clarified that the facts learned after an incident are not relevant to granting or denying qualified immunity.

State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights.  Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”

United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, who was standing on the Mexico side of the U.S./Mexico border.  At the time of the shooting Agent Mesa didn’t know that Hernandez was a Mexican citizen.  Hernandez’s family argued, among other things, that Agent Mesa violated their son’s Fifth Amendment due process rights.

The Fifth Circuit granted Agent Mesa qualified immunity relying on the fact that Hernandez was “an alien who had no significant voluntary connection to . . . the United States.”  But Agent Mesa didn’t know Hernandez’s nationality and the extent of his ties to the United States at the time of the shooting.

In a per curiam (unauthored) opinion the Court noted that “[f]acts an officer learns after the incident ends, whether those facts would support granting immunity or denying it, are not relevant” to the qualified immunity analysis.

This conclusion is unsurprising and a mixed bag for states and local governments.

Given the rapid pace of police work, it is not unusual for officers to learn a variety of information after they have used force, which supports their qualified immunity claim (e.g. the person they shot had a gun, had threatened another officer or citizen, etc.). Considering this kind of after-the-fact information in the qualified immunity analysis would be favorable to officers.

But in some cases officers may learn after-the-fact information that undermines their claim for qualified immunity (e.g. the person they shot stated he had a weapon but did not, had been mistakenly perceived to have threatened another officer or citizen, etc.). Considering this kind of after-the-fact information in the qualified immunity analysis would be unfavorable to officers.

The Fifth Circuit may still ultimately grant Agent Mesa qualified immunity.  On remand the Fifth Circuit can consider whether Agent Mesa is entitled to qualified immunity because the law isn’t clearly established that he violated Hernandez’s Fifth Amendment rights when he was uncertain of Hernandez’s nationality and ties to the United States at the time of the shooting.”  Hernandes v. Mesa (U.S. 15-118, 06/26/17).

Motor Scooter Was Not A Motor Vehicle

Facts And Procedure: Bryce McMillan, (Driver) was operating a motor scooter on a public road while intoxicated, was arrested, charged and convicted.  The Director of Revenue (Director) revoked the drivers license of Driver who appealed to the circuit court, which reversed holding that a motor scooter was not a motor vehicle for purposes of driving while intoxicated on a public road.  The Director appealed to the Western District arguing that the intent of the statute was to protect public safety; therefore, the statute should be given a broad interpretation by including motor scooters within the intent of the legislature.

The Western District held that the definition Section 302.010 (10) was not ambiguous and by its terms a motor scooter was not a motor vehicle.

Section 302.505.1 requires Director to suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was eight-hundredths of one percent or more by weight, based on the definition of alcohol concentration in Section 302.500.

For the purpose of Chapter 302, a “motor vehicle” is “any self-propelled vehicle not operated exclusively upon tracks except motorized bicycles, as defined in Section 307.180.” § 302.010(10).

Section 307.180.2 defines a motorized bicycle as:

(2) The term motorized bicycle shall mean any two or three-wheeled device having an automatic transmission and a motor with a cylinder capacity of not more than fifty cubic centimeters, which produces less than three gross brake horsepower, and is capable of propelling the device at a maximum speed of not more than thirty miles per hour on level ground.

McMillin v. Director Both Revenue, (WD79818, 06/13/17)

Ballot Summary May Be Broader Than Amendment

Facts and Procedure: Hill v. Ashcroft is a 46-page opinion by the Western District that examines the summary statements of ten ballot initiatives, which seek to amend the Missouri Constitution to modify the collective bargaining rights between employees and employers.

After the Ballot Summary was prepared and certified by the Secretary of State, SB19 was adopted by the legislature.  SB19, generally bars any requirement that employees as a condition of employment become, remain, or refrain from becoming a member of a labor union or pay dues or other charges to a labor union (so-called right to work law). Plaintiff’s brought 11 lawsuits in Cole County Circuit Court challenging the ten initiatives, which lawsuits were consolidated.  The Plaintiff’s alleged that each of the ten Summary Statements were unfair and insufficient under Section 116.190.  In addition, a challenge was raised claiming that while the Summary Statements may have been sufficient at the time they were drafted the subsequent passage of SB19 subsequently rendered them unfair and insufficient.  Furthermore, the Plaintiff’s challenged procedures followed by the Secretary of State with respect to the opportunity for public comments.

The trial court agreed with the Plaintiff’s with respect to the Ballot Summaries and redrafted the summary statements and certified the language; however, the trial court found that procedures followed by the Secretary of State did not invalidate the proposed initiatives.  These decisions were then appealed to the Western District.

Opinion: The Court characterized the principle question as to whether or not “… a broad summary statement is insufficient or unfair when the actual measure is more limited in its breath than the summary statement and could have been summarized using more narrowly tailored language.”

General Principles Applicable To Summary Statements: The party challenging the language of the summary statement has the burden to show that the language is insufficient or unfair.  The “…words insufficient and unfair . . . means to inadequately and with bias, prejudice, deception and/or favoritism state the [consequence of the initiative].”

The summary materials provided in the ballot title are intended to provide voters with enough information to make them aware of the subject and the purpose of the initiative to allow the voter to make an informed decision as to whether to investigate the initiative further.  The Secretary’s role “…in the initiative process is to promote an informed decision of the probable effect of the proposed amendment.” A summary statement is not intended to, nor often can it, give voters detailed information about the proposed measure.  All “…that is required is that the language fairly summarizes the proposal in a way that is impartial and does not deceive or mislead voters.”

Over-inclusive: Initiative Petitions 2018-092 and 2018-096 proposed that the Missouri Constitution be amended so that Article I, Section 29 reads (new language is bold and underlined):

That employees shall have the right to organize and to bargain collectively through representatives of their own choosing.  No existing or future law or ordinance of the state or its political subdivision shall impair, restrict or limit the ability of employees to negotiate, enter into and enforce any collectively bargained agreement with an employer that provides financial support for the representational services their collective bargaining representative preforms.

The Secretary of State’s Summary Statement reads:

Shall the Missouri Constitution be amended to prohibit impairing, restricting or limiting the ability of employees to negotiate, enter into and enforce certain collectively bargained agreements with an employer?

Plaintiff’s argued that the Summary Statement is over-inclusive because it failed to identify the “collectively bargained agreements” to which the Initiative Petitions are directed.  Plaintiffs contend that the Amendments specifically prohibit laws that restrict agreements requiring “financial support for representational services” and the failure to specifically identify specific types of laws in the Summary Statement made them insufficient.

The Court noted that case law does not require a summary statement to set out the details of the proposal in order to be fair and sufficient nor is the test whether or not increased specificity and accuracy would be preferable.  The test “…is whether the language fairly and impartially summarizes the purpose of the initiative,” which it did; therefore, the Summary Statement for Initiative Petitions 2018-092 and 2018-096 were sufficient.

Similarly the Plaintiff’s attacked the Summary Statements in initiative petitions 2018–101 and 2018–102, which were found to be valid based upon the above reasoning.

Impact Of Amendment On SB 19: The Plaintiff’s also challenged the Summary Statements because they did not provide any information about the effect that the initiatives would have on SB19.  The Court reasoned that a constitutional amendment would supersede statutes that are in contravention with the amended constitutional provision.  In addition, Missouri courts have never held that a summary statement must explain the potential affect on existing or future statutes in order to be fair and sufficient.  Therefore, the Western District reversed the trial court’s decision that the constitutional amendments were required to explain the impact on existing legislation and in particular SB19.

Failure to Reference Strict Scrutiny: Initiative Petitions 2018-101 and 2018-102 proposed that the Missouri Constitution be amended so that Article I, Section 29 reads (new language is underlined and bold):

That employees shall have the right to organize and to bargain collectively through representatives of their own choosing.  No law or ordinance shall restrict or impair an agreement which requires employees to support their chosen collective bargaining representative.  The rights guaranteed by this section shall be unalienable.  Any restriction on these rights shall be subject to strict scrutiny and the State of Missouri shall be obligated to uphold these rights and under no circumstances decline to protect against their infringement.

The Secretary of State’s Summary Statement reads:

Shall the Missouri Constitution be amended to prohibit restricting or impairing an agreement that requires employees to support their chosen collective bargaining representative?

The Western District, reasoned that question of whether or not strict scrutiny applied to collective bargaining agreements is not settled law in Missouri and differs from the earlier Dotson gun rights case where the law was settled that strict scrutiny applied to limitations with respect to  firearms; therefore, the language drafted by the Secretary of State was not broad enough to properly inform the voters about a substantive part of the law that certain collective-bargaining agreements would be subject to strict scrutiny.  The Court undertook a revision to the Summary Statement to read as follows (new language underlined and bold):

Shall the Missouri Constitution be amended to prohibit restricting or impairing an agreement that requires employees to support their chosen collective bargaining representative and apply a strict scrutiny review to any such restrictions or impairments?

Procedural Claim: Section 116.334 provides that the Secretary of State shall provide a public comment period for 15 days after they petition is approved as to form.  The statute provides that the Secretary of State shall accept public comments regarding the proposed measure and provide copies of such comments upon request. Furthermore, this section requires the Secretary of State to prepare summary statements and send it to the Atty. Gen. within 23 day after approval of the form of the petition.  Prior to the end of the 15-day public comment period the Secretary of State forwarded the Summary Statements to the Attorney General. The Western District held that the Secretary of State complied with the statute and that the court would not read into a statute any other requirements.

Other Issues: The Summary Statements were also challenged on the grounds of fairness and sufficiency because the Statements obscured the purpose of the Initiative Partitions, failed to identify those affected, that they were misleading and grammatically incorrect.  The Western District rejected these arguments.  Hill v. Ashcroft, (WD80613, 06/27/17)

Comment Howard: Even though the opinion of the Western District appears to be well grounded considering the import and intensity of the litigation it would not be surprising if the Missouri Supreme Court took this case.  This opinion is extremely useful because of the numerous challenges thrown at the proposed constitutional amendments, giving local government attorneys a vast array of different factual situations by which to evaluate ballot titles and other issues relating to initiative petitions.

Latest Information From  State and Local Legal Center:

Here is a link to a great source of information about important cases.  Below are some cases highlighted by this fantastic resource.   http://www.statelocallc.org

County of Los Angeles v. Mendez 

Police officers can’t be liable for the use of reasonable force under the “provocation rule” (Summary)

Bank of America v. City of Miami Local governments have standing to sue banks under the Fair Housing Act for economic harm caused to them by discriminatory lending practices; to prove causation local governments must show “some direct relation between the injury asserted and the injurious conduct alleged” (Summary)

Coventry Health Care of Missouri v. Nevils  The Federal Employees Health Benefits Act (FEHBA) preemption clause overrides state laws prohibiting subrogation and reimbursement and that the preemption clause is consistent with the Supremacy Clause (Summary)

Expressions Hair Design v. Schneiderman A state statute prohibiting vendors from advertising a single price and a statement that credit card customers must pay more regulates speech under the First Amendment (Summary)

Manuel v. City of Joliet  Even after “legal process” has occurred a person may bring a Fourth Amendment claim challenging pretrial detention (Summary)

Direct Marketing Association v. Brohl (cert denied) Supreme Court refused to hear a case arguing that a Colorado law requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue discriminates against interstate commerce (Summary)

Ivy v. Morath (dismissed as moot) When are state and local governments responsible for ensuring that a private actor complies with the Americans with Disabilities Act? (Summary)