May Newsletter (Issue 05-2017)

Missouri Supreme Court Limits The Use Of Special Laws

 Facts And Procedural History: In 2015, the General Assembly passed SB 5, which lowered the percentage cap for fines, bond forfeitures, and court costs from minor traffic violations (in the Mack’s Creek law) from 30 to 20 percent of its total budget, that a city could retain with one exception.  This exception applied only to municipalities within St. Louis County by reducing the percentage of court revenues they could retain to 12-½%.

“any county with a charter form of government and with more than nine hundred fifty thousand inhabitants and any city, town, or village with boundaries found within such county shall be reduced from thirty percent to twelve and one-half percent.” Id. (emphasis added Howard).

In addition, Section 479.359.3 required all counties, cities, towns, and villages to submit an addendum with their annual financial report to the state auditor, pursuant to Section 105.145.  This addendum must include an accounting of the political subdivision’s annual general operating revenue, “total revenues from fines, bond forfeitures, and court costs for minor traffic violations occurring within the county, city, town, or village, including amended charges from any minor traffic violations,” and a calculation of the percent of the annual general operating revenue that the fines, bond forfeitures, and court costs for minor traffic violations represent Sec. 479.359.3(1)-(3).  Finally, “a representative with knowledge of the subject matter as to the accuracy of the addendum contents” must certify its accuracy and sign “under the penalty of perjury, and witnessed by a notary public.”

SB 5 also enacted Section 67.287, which lists “minimum standards” for certain municipalities.  The statute defines such a “[m]unicipality” as “any city, town, or village located in any county with a charter form of government and with more than nine hundred fifty thousand inhabitants.” Sec. 67.287.1(2).  Section 67.287, in relevant part, required covered municipalities to have “[a] police department accredited or certified by the Commission on Accreditation for Law Enforcement Agencies or the Missouri Police Chiefs Association or a contract for police service with a police department accredited or certified by such entities” within six years.

After the enactment of SB 5, twelve municipalities in St. Louis County and two taxpayers filed a petition in the Cole County Circuit Court seeking a declaratory judgment and preliminary and permanent injunction.  They alleged that the new statutes created by SB 5 violated the following provisions of the Missouri Constitution: (1) special law prohibition in Article III, Section 40(30); (2) restrictions on unfunded mandates in violation of Article X, Sections 16 and 21; (3) guarantee of separation of powers in Article II, Section 1; (4) prohibition on amending Supreme Court Rules without specifying which rules are being amended or limiting the amendments to a single bill as provided in Article V, Section 5; and (5) limit on the amount of fines a municipality can keep from minor traffic accidents in violation of Article V, Section 27(16).

In the trial court, Plaintiffs offered the testimony of two witnesses.  Plaintiffs also introduced an affidavit from the certified public accountant that prepared the annual financial reports for both Normandy and Pagedale.  The State did not offer any evidence and in particularly evidence to support a substantial justification for the different treatment.

The trial court entered a judgment declaring (1) Section 67.287’s provision of minimum standards for certain municipalities, in its entirety, and Section 479.359.2, insofar as it creates a lower cap of 12 ½ percent applicable to only municipalities in counties with a charter form of government and more than 950,000 inhabitants, was unconstitutional because it was a special law and (2) the requirement in Sections 67.287 and 479.359.3 that annual financial reports include an addendum certified under oath and penalty of perjury was an unconstitutional unfunded mandate.  The trial court also entered a permanent injunction enjoining the State from enforcing the provisions declared unconstitutional including provisions mandating local government actions that required expenditures of local funds.  Finally, the trial court dismissed Plaintiffs’ other constitutional claims for failure to state a claim.

The State appealed the trial court’s judgment declaring that SB 5 contained special laws and unfunded mandates and permanently enjoined the enforcement of those provisions.  Plaintiffs appealed the trial court’s dismissal of their other claims to the Missouri Supreme Court.

Opinion: The violation of the mandates provision in the Hancock Amendment, requiring minimum certification for officers in police departments, was determined to be not ripe because the minimum requirements for police officers did not go into effect until 2021, leaving open the possibility that the legislature might, in the future, appropriate funds.  In addition, provisions in SB 5, relating to annual certifications of municipal court fines, forfeitures and court costs were held to not violate the mandates provision of the Hancock Amendment because the cost to comply was de minimus.  Other claims asserted and appealed by the plaintiff’s were found to not state a cause of action.  With these claims resolved the Court focused its attention to whether or not a part of SB 5 was a special law.

Special Laws in Violation of the State Constitution:  Article III, Section 40(30) of the Missouri Constitution provides that “[t]he general assembly shall not pass any local or special law . . . where a general law can be made applicable, and whether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on that subject.”

The test employed to determine if a statute is a special law is whether the statute’s applicability is based on open-ended or closed-ended characteristics. A law based on closed-ended characteristics, e.g., historical facts, geography, or constitutional status is facially special and presumed to be unconstitutional as others cannot come into the group nor can its members leave the group.  A law based on open-ended characteristics: e.g., population, on the other hand, is presumed to be constitutional. “This ‘open-endedness’ allows the legislature to address the unique problems of size with focused legislation; it also permits those political subdivisions whose growth or decline brings them into a new classification the advantage of the legislature’s previous consideration of the issues facing similarly situated governmental entities.”

Some population-based statutory classifications may nonetheless be considered special laws, if the presumption of their constitutional validity is overcome. The rationale for holding that population classifications are open-ended is defeated when the classification is so narrow that “as a practical matter others could not fall into that classification.”  In Jefferson County, a population-based classification  that applied to counties with more than 198,000 but fewer than 199,200 inhabitants was held to be a special law because it applied only to Jefferson County.  In Jefferson County the court outlined a three-prong test to determine when the presumption of the constitutional validity of a population-based classification is overcome:

  1. a statute contains a population classification that includes only one political subdivision, (2) other political subdivisions are similar in size to the targeted political subdivision, yet are not included, and (3) the population range is so narrow that the only apparent reason for the narrow range is to target a particular political subdivision and to exclude all others.

If all three circumstances exist, the law is no longer presumed to be general, but is presumed to be a special law, requiring those defending it to show a “substantial justification” for the classification.

Census data showed that SB 5 applied only to St. Louis County; therefore, the first prong of the test was satisfied.

The second prong, presented more difficulties since on its face the exception, appeared to be open-ended because it applied to any charter county with a population more than 1 million.  The Court noted that SB 5 targeted 90 municipalities in St. Louis County who were required to meet minimum police standards and a lower percentage of fines, bond forfeitures, and court costs.  This left hundreds of municipalities throughout the state with populations falling within the same range not being required to establish minimum standards or be subject to the lower percentage on fines, bond forfeitures and court costs like St. Louis County. “Because those municipalities, which are similar in size to those in St. Louis County, are not subject to the special law provisions in SB 5, the second prong of the Jefferson County test is satisfied.” (Emphasis added by Howard)

The third test of the prong was met because the only apparent reason for the challenged classification was to target municipalities in St. Louis County.

“There need not necessarily be a threshold coupled with a ceiling in a statutory population classification such that it creates a relatively small window into which a political subdivision must fit for a statute to be an unconstitutional special law.  Like the statutes here, it is sufficient that the population classification is sufficiently high or low that it applies to only one political subdivision currently and will only apply to one political subdivision for the foreseeable future.”

The Court’s rationale was based upon the analysis that no other city could possibly come within the criteria set forth in the statute citing and expanding the reasoning in the City of DeSoto, case.  Since the State offered no proof to justify the special law the exception in SB 5 was found to be unconstitutional as a special law.  The Court noted that any justification offered to justify special law must be more than a rational or reasonable basis for the classification.  In order to justify the classification the evidence must demonstrate a “substantial justification. ” City of Normandy, et al., v. Eric Greitens, et al., (SC95624, 05/16/17)

Comment Howard: This is an extremely important opinion because it changes decades of case law that effectively allowed the legislature to write special laws by including in the legislation population provisions or other characteristics that made the legislation apply only to one political subdivision.  This case corrects decades of case law that permitted special legislation by narrowly drawing the legislation so it applies to only one political subdivision.

The Courts Opinion notes that prior to the 1875 Missouri Constitution about 85% of all legislation was special legislation leading to the incorporation in the 1875 Constitution provisions that prohibited special legislation.  Nevertheless, the legislature found, with approval by the courts, a way around the prohibition against special legislation by drafting laws so they were generic with narrowly defined provisions making the law apply only to one political subdivision.  I have always thought that case law allowing this to occur was one of the greatest mistakes that the courts made.  I have never understood how the courts could ignore Article 6, Section 15, of the Missouri Constitution, which requires “…all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions.”

This opinion will make it more difficult to write local government ordinances that are specific to a particular person since local ordinances or subject to examination as to whether or not there are special laws.

“Puppy Mill” Statements Were Not Actionable Because They Were Opinions Not Facts

Facts and Procedures: Mary Ann Smith (Smith) filed a petition against the Humane Society of the United States (“HSUS”) and Missourians for the Protection of Dogs, alleging various statements made in documents related to the ballot initiative, the “Puppy Mill Cruelty Prevention Act,” were defamatory and placed her in a false light.  Smith alleged that the certain statements falsely stated or implied her kennel was one of the worst “puppy mills” in Missouri, according to the research done by HSUS, the kennel had “atrocious” and “unconscionable” state and federal animal welfare violations, and had a variety of other specific animal welfare violations.  Smith alleged that these statements placed her in a false light by misrepresenting the activities and conduct of both her and her kennel and by associating her kennel with those that had more severe animal welfare violations.

HSUS moved to dismiss, contending Ms. Smith could not maintain her defamation claims because the statements in the documents were “absolutely privileged opinions,” because “ratings, rankings and grades are inherently subjective,” and because Ms. Smith failed to plead any facts cognizable under a false light cause of action. Missourians for the Protection of Dogs joined the motion to dismiss filed by HSUS and further contended the claims against it should be dismissed because none of the statements in the various documents were attributable to them.  The circuit court sustained the motion to dismiss and Smith appealed to the Missouri Supreme Court, arguing that there is no absolute privilege for opinions and that she pleaded facts that, taken as true, entitled her to relief on her defamation and false light claims.

Opinion:  No Defamation Claim Was Pleaded: In order to prevail on a defamation claim the plaintiff must prove a publication of a defamatory statement that identifies the plaintiff that is false, which is published with the requisite degree of fault that damages the plaintiff’s reputation.

A defamatory statement must be considered in context and given its plain and ordinary understood meaning.  There is a need to balance the protection of an individual’s reputation with freedom of expression in order to maintain an “uninhibited, robust, and wide open debate on public issues.”  The United States Supreme Court has held “there can be no liability under state defamation law for statements of opinion.”  Furthermore, there is no such thing as a “false idea.”  Under defamation law, opinion statements about matters of public concern must be false.

Smith does not allege that the state or federal violations attributed to her are false or could reasonably be interpreted as implying objective facts provable as false.  Neither Smith’s name nor the name of her business is included in the news release.  As used in the report, political advocates imprecisely use the term “puppy mill” as rhetorical hyperbole during a hotly contested political campaign that cannot be “reasonably interpreted” as stating actual facts.  The term “puppy mill” is too imprecise to be actionable as a matter of law.

No False Light Claim Was Pleaded: The Missouri Supreme Court has not recognized the false light invasion of privacy as a cause of action even though it has been recognized by a Missouri Court of Appeals decision and in other states.

The courts have refused to recognize false light invasion of a privacy claim when the repackaged claim “is nothing more than the classic defamation action where one party alleges that the other published a false accusation concerning a statement of fact.”

In this case, Smith alleged the report placed her in a false light because it falsely implied her dogs “developed interdigital cysts from being forced to stand continually on wire flooring,” falsely implied her kennel “continued to have violations similar to those in the original [report],” and falsely implied her dogs “received little to no medical care, lived in squalid conditions with no exercise, socialization or human interaction, and are confined inside cramped wire cages for life[,] . . . [and] exposed to extremes of heat and cold.”  These allegations concern statements of fact or allegations of erroneous assessments of statements of fact.  Accordingly, the Missouri Supreme Court reasoned that Smith should have, but did not, seek recovery for these allegedly untrue statements of fact in her defamation claims.

In addition, Smith’s petition further alleged that the quotations from the state and federal animal welfare violation reports and the photograph of an allegedly “sick dog” were either “taken out of context” or “edited.”  Under a defamation claim, statements “imply a false assertion of fact” or are “either incorrect or incomplete, or the “assessment of them is erroneous.”  Mary Ann Smith, d/b/a Smith’s Kennel v. The Humane Society Of The United States and Missourians For The Protection Of Dogs, (SC95175, 04/25/17)

Comment Howard: If you have a defamation claim, this case merits your close attention, as it would seem it is now the leading case on defamation.  The case also has an excellent discussion about the relationship between defamation and false light privacy claims.

Lack Of Procedural Requirements For Contested Case Could Be Reviewed Under Provisions For Non-Contested Case

Winter Brothers’ owns 900 acres of land on the west side of the Meramec River.  The tract of land contains commercially valuable sand and gravel; a majority of the property (575 of 900 acres) is located in unincorporated St. Louis County, which is the subject of this dispute.

Under the applicable St. Louis County zoning ordinance, sand-and-gravel extraction is allowed only as a conditional use.  Winter Brothers’ applied for a conditional-use permit with the County to allow the extraction of gravel and sand.  The St. Louis Planning and Zoning Commission (“Planning Commission”) considered Winter Brothers’ application.  Following a public hearing, the Planning Commission recommended denial of the conditional-use permit.  Winter Brothers’ appealed the denial to the County Council, which referred the matter back to the Planning Commission for reconsideration.

The Planning Commission reiterated its recommendation to deny the conditional-use permit.  The County Council then referred the appeal to its Public Improvements Committee (the “PIC Committee”).  The PIC Committee held a public hearing in which it heard from staff of the County Planning Department, Winter Brothers’ and the public.  As had occurred before the Planning Commission, persons speaking at the PIC committee meeting spoke on the record, but no witnesses were examined or cross-examined under oath.  The PIC Committee recommended that the County Council uphold the Planning Commission’s denial of the permit.

Following receipt of the PIC Committee report and recommendation, the County Council, adopted Resolution 6034 denying Winter Brothers’ request for a conditional-use permit, which contained findings of fact and stated the reasons for the County Council’s decision to deny the conditional-use permit.

Having exhausted all avenues with St. Louis County, Winter Brothers’ filed a two-count petition in the circuit court.  Count I of its petition sought review of the County Council’s decision to deny the conditional-use permit under Section 536.100 as a contested case.  If Count I failed, Count II asserted a claim for inverse condemnation, alleging that the County took Winter Brothers’ property for public use without just compensation.  The circuit court ordered Count II held in abeyance pending a ruling on Count I.

The circuit court entered judgment against Winter Brothers’ on Count I, based upon its review of the record and entered its written findings and conclusions upholding the County Council’s denial of the conditional-use permit.  Following the process for contested-case review, the circuit court acted as an appellate court by reviewing the record compiled in the administrative proceedings and concluding that substantial evidence supported the County Council’s decision to deny the conditional-use permit. The circuit court did not hear evidence or conduct a de novo review of Winter Brothers’ application for the conditional-use permit.  Winter Brothers’ appealed the circuit court’s judgment on Count I to the Eastern District.

Opinion: The Eastern District concluded that since the County ordinances did not provide for a hearing on the record; that witnesses be under oath with the right to examine and cross examine, examined and cross-examined; that formal rules of evidence be followed; or that the agency render its findings of fact and conclusions of law it was not a contested case.  The Eastern District further concluded that the nature of the proceedings made this matter a non-contested under Section 536.150 with direct review by the circuit court based upon a de nova record made in the circuit court.

The Eastern District remanded and instructed the circuit court to allow Winter Brothers’ to amend its petition to request review under Section 536.150 by the circuit court or in the alternative if Winter Brothers’ did not amend its petition to proceed to the inverse condemnation claim in Count II.  Winter Brothers Material Company, vs. County of St. Louis, (ED104692, 04/04/17)

Comment Howard: As this case illustrates, there is a lot of confusion over what constitutes a contested and non-contested case under chapter 536.  I prefer if possible to have a matter reviewed as a contested case.  It may be within the power of local governmental entity to establish procedures to make a matter a contested case by adopting formal procedures necessary to make the matter a contested case.  If the matter is not a contested case the applicant is entitled to direct review by the circuit court as a de nova matter under Section 536.150, which in my mind is more uncertain and unfavorable for local government.

No Requirement To Exhaust Administrative Remedies In Non-Contested Case

Facts and Procedural History: Prior to October 1, 2013, Nowden was employed as a special agent with the Division of Liquor Control (Division).  The Division conducted an investigation regarding Nowden’s possible interest in a liquor establishment and possible violations of Division employee policies.  After the investigation, the Division notified Nowden that he was terminated from his position as special agent subject to his right to appeal as set forth in Missouri Department of Public Safety’s Policy G-2.”  Nowden was advised that his application for appeal must be submitted by October 8, 2013, seven calendar days from receipt of the Notification.  Nowden did not submit his Application for Appeal until October 10, 2013.  On November 4, 2013, the Division notified Nowden that his appeal was untimely and would not be considered.

Nowden filed a complaint with the Administrative Hearing Commission (“AHC”) on November 1, 2013.  The AHC dismissed Nowden’s appeal for lack of jurisdiction because Nowden was not a merit employee and the Department had appropriate internal appeal procedures for Division employees.

On February 21, 2014, Nowden filed a petition for review under Chapter 536.  The parties filed cross-motions for summary judgment.  The circuit court denied Nowden’s motion for summary judgment, granted the Division’s motion for summary judgment, and dismissed Nowden’s petition with prejudice because he failed to exhaust his administrative remedies.  Nowden appealed to the Western District.

Opinion: The Western District first addressed the question of whether or not Nowden was required to exhaust his administrative remedies, which turned on whether or not the appeal before the Board was a contested or non-contested case under Chapter 536.  An examination of the procedures established by the Department showed that: “At the Director’s discretion, a Board may be convened for a hearing, substantially following the requirements outlined in Chapter 536; technical rules of evidence will not apply; after the hearing, the Board will deliberate and present to the Director its written findings and recommendations; the Director will review the record and make the final decision.” (Emphasis Added)

The Western District concluded that the procedures did not make the hearing a contested case because they did not provide: for a hearing on the record; that witnesses be under oath with the right to examine and cross examine, examined and cross-examined; that formal rules of evidence be followed; or that the agency render its findings of fact and conclusions of law; therefore exhaustion of the grievance procedure was not a prerequisite to judicial review.  Under the procedures established by the Department, the Board hearing the matter was only authorized to make a recommendation to the Director.  “Absent a hearing that, in some real sense, confines the final decision maker, the evidentiary hearing is nothing more than window dressing, and any claimed due process afforded by such a hearing is fictional.” Nowden v. Division Of Alcohol, and Tobacco Control, file, (WD79897, 04/25/17)

Comment Howard: If the agency only makes a recommendation the hearing does not establish the rights duties and responsibilities of individual parties; therefore, the matter is a non-contested case.

No Waiver Of Sovereign Immunity Cap For Dangerous Condition Even Though Insurance Coverage Exceeded The Statutory Amount

Facts: Joshua Holesapple (Holesapple) and Preston Ary (Ary) were in an automobile accident that occurred near a construction zone on Route 63 in West Plains, Missouri.  Holesapple died in the accident.  The Missouri Highways and Transportation Commission (MHTC) was overseeing the construction project and hired H.R. Quadri Contractors, L.L.C. (Quadri) to perform much of the work.

After the accident, Holesapple’s wife, three children and parents (hereinafter referred to collectively as Appellant’s) filed a wrongful death suit against Ary, Quadri and MHTC.  Appellants settled with everyone except MHTC, and the case proceeded to trial based on an alleged dangerous condition of MHTC’s property.  The jury returned a verdict against MHTC in the amount of $6,700,000.  The trial court reduced the judgment against MHTC to the statutory sovereign immunity cap of $409,123 pursuant to §537.610.

Thereafter, Appellant’s filed a motion for apportionment, which asserted that each of the six individual plaintiffs was entitled to $409,123, which was the full amount of the statutory cap.  The apportionment motion to allow each Appellant $409,123 was denied.  The trial court entered an amended judgment against MHTC in the amount $409,123 and apportioned that sum equally among the individual plaintiffs so that each was awarded $68,187.  Plaintiffs appealed to the Southern District.

Opinion:  Appellant’s contended that the trial court erred by reducing the judgment to $409,123 pursuant to § 537.610 because MHTC waived sovereign immunity by procuring liability insurance with larger limits, which covered the wrongful death claim involving Holesapple.  Appellant’s also contended that the trial court erred by reducing the judgment to $409,123 pursuant to § 537.610 because, rather than sharing one capped amount, each plaintiff was individually entitled to recover $409,123 from MHTC.

MHTC liability was based upon a dangerous condition.  The Southern District reasoned that the fundamental problem with Appellant’s argument that the purchase of insurance in excess of the statutory amount waived sovereign was the failure to recognize the waiver for dangerous conditions was an absolute waiver of sovereign immunity whether or not the public entity is covered by liability insurance for torts. Consequently, liability of MHTC cannot exceed the statutory amount of “three hundred thousand dollars (as adjusted by statute) for any one person in a single accident or occurrence.”  This amount (as adjusted by the statute to $409,123) is required by statute to be apportioned between each of the Plaintiffs reducing their recovery to $68,187.  Holesapple, et al., v. Missouri Highways And Transportation Commission, (SD34122, 04/06/17)

Once A Criminal Defendant Is Found Not Guilty Defendant Is Entitled To A Refund Of Fees, Court Cost And Restitution Without Proof Of Innocence

Lisa Soronen, Executive Director for the State & Local Legal Center reported that the United States Supreme Court in Nelson v. Colorado struck down a Colorado law that required persons whose criminal convictions were invalidated to prove their innocence by “clear and convincing evidence” in order to receive a refund of fees, court cost and restitution.  The Court applied the three-part balancing test from Matthew v. Eldridge.

Missouri appears to be aligned with the Supreme Court rationale having previously rejected arguments to shift the burden of proof in a criminal matter to the defendant by a presumption in the automated red light camera cases.

Lisa’s short version of this case is as follow:

Supreme Court Rules Invalidated Conviction Means Automatic Refund of Court Fees: In Nelson v. Colorado the Supreme Court struck down a Colorado law requiring defendants whose criminal convictions have been invalidated to prove their innocence by clear and convincing evidence in order to receive a refund of fees, court costs, and restitution.  According to the Court in a 7-1 opinion, this scheme violates the Fourteenth Amendment’s guarantee of due process.  Shannon Nelson was convicted on a number of charges from the alleged sexual and physical abuse of her children.  Her conviction was reversed due to a trial court error; a new jury acquitted her of all charges.  Louis Alanzo Madden was convicted of two sex crimes.  The Colorado Supreme Court reversed his conviction; the state did not appeal or retry the case.  The only way Nelson or Madden could recover fees, court costs, and restitution was filing a civil claim under Colorado’s Exoneration Act, which requires them to show by clear and convincing evidence their actual innocence.  The Court concluded that Colorado’s scheme doesn’t comport with due process, applying a three-part balancing test from Mathews v. Eldridge (1976).  Nelson and Madden have an “obvious interest” in regaining the money they paid to Colorado.  There is a risk they will be erroneously deprived of their funds because they must proof their innocence by clear and convincing evidence. “But to get their money back, defendants should not be saddled with any proof burden. Instead . . . they are entitled to be presumed innocent.”  Finally, “Colorado has no interest in withholding from Nelson and Madden money to which the State currently has zero claim of right.”

Federal District Court For The Eastern District Takes Unprecedented Action Against University City For Removing Citizen From City Council Meeting

An incident at a 2016 council meeting of University City (City) resulted in the federal district court for the eastern district of Missouri taking unprecedented action against the City.  The incident occurred at a city council meeting where the mayor directed a police officer to remove Robert’s, a citizen who was making comments during the public comment period, about a city council bill to censor a councilmember for leaking a confidential legal memorandum to a third-party from the City Attorney.

The mayor directed that Roberts’s be removed from the meeting after Robert’s commented that the mayor was being petty and vindictive.  This occurred during the public comment period, on a bill to censor another city councilmember who had leaked a confidential memorandum from the city attorney.  In addition, the mayor after removing Robert’s from the meeting banned Robert’s from future meetings, which ban was later rescinded.

The 2016 incident, at the council meeting, events leading up to the 2016 meeting and court action are described in the St. Louis Post-Dispatch articles dated April 26, 2017

and July 25, 2016.

The federal district court ordered the City: to refrain from barring Roberts from future city council meetings; prohibited the City from making statements at city council meetings that personal attacks on councilmembers will be ruled out of order; and statements by the City that prohibited the questioning of city council members motives.  The City was also required to develop a written policy prohibiting content-based restrictions on speech.  In addition, the City was required to apologize to Mr. Robert’s and pay all of his attorneys’ fees and costs.

Comment Howard: There is absolutely no question that the action taken by the mayor to remove Robert’s from the meeting based on his comments and banning him from future meetings was completely unjustified.  It is not uncommon for rules and procedures controlling decorum at city council meetings (or other local governmental meetings) to prohibit “personal” attacks.  We also know that history (including recent history – think of the Kirkwood tragedy) shows us that there is a strong justification to tamp down heated rhetoric to keep the meeting from getting out of control.

Seems like there are some kinds of “personal” comments that ought to be prohibited. Defining and repackaging what is protected and non-protected will be the difficulty.  It would seem that profanity should be prohibited.  When does a personal comment cross the line?  I am looking forward to seeing what University City will propose with respect to court’s order that it formulate a written policy with respect to content-based restrictions based on speech.  This won’t be easy.

Some thought needs to be given to educating city council members and other public officials concerning controlling the decorum of meetings.

Can Not Remove Citizen From Public Meeting For Criticizing The Opinion Of Parish Legal Counsel

 A recent decision by the Fifth Circuit Court of Appeals in Haney v. Roberts,, involved a somewhat similar situation to the University City case.  In the Haney case, Haney argued as a public speaker that the opinion by the Parish Attorney was not valid and after the following dialog between citizen Haney and Robert’s who was the presiding officer at the Parish meeting Haney was removed.

Roberts: Let me, we’ve had this conversation before, ok?

Heaney: Are you trying to stop me from speaking?

Roberts: Well you yielded and I do have the floor . . . so . . . I’m not going to turn this into a circus, ok?  If you don’t believe what Ms. Foshee’s comments were—

Heaney: I—

Roberts: Let me finish.  Last I checked, Ms. Foshee had a law degree hanging on the wall in her office.  If you’re challenging whether or not what she’s saying to be accurate or not, you can go right to the elevator downstairs.  The Clerk of Court’s office is there, and you’re welcome to file suit.  This is not the forum for you to challenge the opinion of the parish attorney, ok?

Heaney: Now if I can be able to speak—

Roberts: No, let me finish.  Let me finish.  Once again, I’m going to ask you, are you an attorney?

Heaney: I don’t have to be an attorney to read and comprehend a decision—

Roberts: But I’m not going to sit here and have you berate the parish attorney.

Heaney: I have a decision.  I have a decision by HUD that contradicts what Ms. Foshee says—

Roberts: Sir, ok. Your time’s up and I’m going to ask that you be removed because you’re being hostile so if you would please exit.

Heaney: I’m not being hostile.

Roberts: If you’ve got a problem with that, you can go downstairs . . . . This is the third time that you’ve tried to take issue with something. . . .

Heaney: You’re trying to stop me from presenting facts that contradict Ms. Foshee. You’re taking my time, and you’re violating parish ordinance.

Roberts: If you’d please remove the gentleman.

The action of the presiding officer in removing Haney was determined to violate the speakers right of free speech by the Fifth Circuit although the police officer, acting as a sergeant at arms, was protected by qualified immunity since.  This case is discussed by Bryan Betterton in an article published in 2017 “Legal and Liability Risk Management Institute.”

Attorney General Memo Undoes Sanctuary Jurisdictions Executive Order: By Lisa Soronen

Hi league directors: This memo doesn’t make the sanctuary jurisdictions EO disappear or the litigation go away but basically says that the EO means as Prince said, “something next to nothing but different than the day before.”  It is really good news but not entirely surprising because this is the position DOJ has taken in the litigation.

For the most part and for now, Attorney General Jeff Session’s memo defining ”sanctuary jurisdictions” per President Trump’s sanctuary jurisdictions executive order (EO) returns the law to what it was before the EO.

Per the EO, so-called sanctuary jurisdictions were afraid the federal government was going to take away all federal grant funding if, among other things, they did not comply with warrantless, voluntary Immigration and Customs Enforcement (ICE) detainers, which instruct jails to detain undocumented persons after they may be otherwise free to go so that ICE may pick them up and deport them.

Many cities and counties, even those that don’t label themselves sanctuary jurisdictions, don’t respond to warrantless ICE detainers because numerous courts have held that doing so violates the Fourth Amendment.

In the memo General Sessions determines that the term “sanctuary jurisdiction” only refers to jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373.”

Section 1373 is very narrow; it only prohibits local governments from restricting employee communication of immigration status information to ICE.  Many local governments comply with Section 1373 by simply instructing their employees not to ask people about their immigration status so they have no such information to pass along to ICE.

In a motion asking the district court that granted a preliminary injunction blocking the EO to reconsider its decision, the Department of Justice (DOJ) explicitly confirmed that it is not interpreting Section 1373 to require compliance with ICE detainer requests.

The Sessions memo says that the executive order only applies to DOJ or Department of Homeland Security grants.

Jurisdictions applying for certain DOJ grants must certify their compliance with Section 1373. This certification requirement “will apply to any existing grant administered by the Office of Justice Programs and the Office of Community Oriented Policing Services that expressly contains this certification condition and to future grants for which the Department is statutorily authorized to impose such a condition.”

Before the EO, DOJ conditioned receipt of Edward Byrne Memorial Justice Assistance Grant (JAG) ($84 million FY16 directly to local governments) and Community Oriented Policing Services (COPS) ($187 million FY16) grants on complying with Section 1373. COPS and JAG provide funding to employ local law enforcement.

Conditioning JAG and COPS dollars on complying with Section 1373 may be legally problematic.  Supreme Court precedent allows Congress (not federal agencies or the President) to place conditions on federal grants but only if Congress does so unambiguously.

While the JAG statute requires compliance with “all other applicable Federal laws,” this phrase is not defined to include (or exclude) Section 1373.  The COPS statute contains no such language.

The Sessions memo doesn’t entirely back off of the EO.  It highlights that per the EO DOJ may still “point out ways that state and local jurisdictions are undermining our lawful system of immigration or to take enforcement action where state or local practices violate federal laws, regulations, or grant conditions.”

The President’s proposed budget indicates he has not given up on making local governments comply with ICE detainers or conditioning the receipt of other federal grants on complying with ICE detainers.  Specifically, the proposed budget would expand Section 1373 to prohibit local governments from restricting local law enforcement compliance with ICE detainers. (Even if passed this provision could have Fourth Amendment and Tenth Amendment problems.)  It would also expand Section 1373 to allow the Secretary of Homeland Security or the Attorney General to condition immigration, national security, and law enforcement grant funding on compliance with ICE detainers.