December Newsletter (Issue 12-2018)

Job Opening Assistant City Counselor: $62,733 Annually
The City of Columbia is accepting applications for an Assistant City Counselor in the Law Department.  This position will serve as the Assistant City Prosecutor in the City Prosecutor’s Office. Duties will include reviewing, investigating, filing charges and prosecuting municipal ordinance violations.  Duties may also include handling administrative hearings and other city civil matters.  Occasional evening work may be required.  Possession of a Juris Doctorate from an accredited law school and a valid license to practice law in Missouri is required.  Minimum three years of experience is required; experience in public sector law is highly preferred.  For a complete job description and application go to before January 11, 2019.

No Exemption for Unpaid Person Who Engages in Lobbying Activities – Need for Transparency
Introduction: Calzone v. Missouri Ethics Commission, decided an issue of first impression holding that an unpaid person who participates in political activity with respect to legislation in Missouri is required to register as a lobbyist under Missouri Ethics laws.  This case is of great importance to local government employees and officials since they need to know if they have to register as a lobbyist under Missouri law.

Facts and Procedure: Ron Calzone, is the incorporator, president (the sole officer), director, registered agent, and one of three members of the Board of Directors (the “Board”) of Missouri First, Inc. (“Missouri First”).  Missouri First is a non-profit organization, and its charter states that it uses legislative lobbying to influence public policy, mobilize the public, and meet Missouri First’s objectives.  On its website, it also states that “there is strength in numbers” when lobbying and solicits new members to help further advance Missouri First’s legislative agenda.

Calzone regularly meets with legislators, legislative staff, and other legislative groups to discuss Missouri legislation.  These meetings cover both specific legislation or proposed legislation and include Calzone and Missouri First’s opinion as to whether legislation should be passed or blocked.  Calzone admits that when he met with legislators in Jefferson City, he usually disclosed his affiliation with Missouri First, commonly by identifying himself as “Ron Calzone, Director of Missouri First” or “Ron Calzone, a director of Missouri First.” As the Director, sole officer, registered agent, and board member of Missouri First, Calzone is responsible for determining who will appear before the legislature and present Missouri First’s agenda.  There was no evidence that suggested anyone other than Calzone has represented Missouri First before the Missouri legislature.  Calzone does not receive any compensation or make any expenditures when lobbying on behalf of Missouri First.

In 2014 and 2016, the Commission received two complaints against Calzone claiming that he violated the Missouri Statues, which define who qualifies as a lobbyist and require those individuals to register as lobbyists and file regular lobbying reports.  The Commission found probable cause to believe that Calzone violated the lobbying statutes.  Calzone then filed suit in federal court alleging that the Commission violated his First Amendment rights, requesting a temporary restraining order and permanent injunction to prevent the Commission from enforcing the Missouri Statutes.

Calzone moved for a permanent injunction, challenging the constitutionality of the Missouri Statutes both facially and as applied to him.  After a hearing, the district court, applying exacting scrutiny, found that Missouri had a sufficiently important interest in governmental transparency and that requiring unpaid lobbyists to register with the government and file lobbying reports was substantially related to furthering that transparency interest.  Calzone appealed to the Eighth Circuit.

Opinion: On appeal Calzone argued that because he did not receive any pay for the services that he rendered, he was not a lobbyist under the statute and was therefore not required to register.  He claimed that the district court erred by applying the wrong level of scrutiny to his constitutional claims; that Section 150.473 is unconstitutional as applied to him; and that Section 150.470 was facially unconstitutional for vagueness.

Strict Scrutiny Versus Exacting Scrutiny: Calzone argued that the district court inappropriately relied on Citizens United for the level of scrutiny because Citizens United concerned campaign finance whereas this case involved lobbying.  The Eighth Circuit noted that while Citizens United involved campaign finance the Supreme Court referred to disclosure and disclaimer requirements generally, and it made no distinction between disclosure statutes in campaign finance versus lobbying cases. In this case, the statute at issue is a disclosure statute requiring that the “lobbyist” register and disclose certain information to the Missouri Ethics Commission; therefore, the test applied to the registration requirement required only “exacting scrutiny,” not strict scrutiny; therefor, there only needs to be a “substantial relationship between the disclosure requirement and a sufficiently important governmental interest.

As-Applied Challenge: Because “exacting scrutiny . . . requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest” the Eighth Circuit, first considered whether Missouri has a “sufficiently important governmental interest” in having unpaid lobbyists register.  The Eighth Circuit noted that fact that Calzone was unpaid is an issue of first impression.  In determining whether or not there was a “sufficiently important governmental interest,” in applying the statute to Calzone, the court did not consider the application of the statute to unpaid lobbyists who made no expenditures relating to their lobbying efforts because the no expenditure argument was not fairly raised before the district court.

Based on existing case law, the Eighth Circuit, held that transparency was a sufficiently important governmental interest in requiring registration of a lobbyist, whether the lobbyist is paid or unpaid, citing an earlier Eighth Circuit case involving an NRA mailing to Minnesota residents urging them to vote a certain way, which held that the director of the NRA must register as a lobbyist.

The Eighth Circuit described the governmental interest as an interest in transparency which includes avoiding the fact or even the appearance of impropriety or public corruption and knowing who is attempting to influence legislators and public policy. Transparency is a sufficiently important government interest to satisfy exacting scrutiny even if the lobbyist is unpaid.  In addition, the registration requirement is minimal requiring only a $10 filing fee and forms that require the lobbyists name and business address and the names and addresses of all persons the lobbyist employees for lobbying purposes as well as expenditures.  The “…burden of these requirements does not outweigh Missouri’s interest in transparency” because they are minimal, imposing a very slight burden on those who are required to register and report.

Facial Challenge: Here Calzone argued that the Missouri statute was facially unconstitutional because the world “designated” in the definition of a “legislative lobbyist” was vague.   In order to succeed on a facial challenge the challenger must show that under no set of circumstances would the statute “…be valid or that the statute lacks any plainly legitimate sweep.” In this case, the Eighth Circuit applied the definition in Black’s Law Dictionary (10th edition) noting that “designated” is clearly defined in the statute and is a word with a plain meaning in the dictionary; therefore, people of ordinary intelligence would have a reasonable opportunity to understand what “designated” means in the context of the statute.  In this case, Calzone actions in assuming   the mantle of a lobbyist was sufficient to constitute designation. Calzone v. Missouri Ethics Commission (8th Cir., 17 – 2654, 11/28/18)

Comment Howard: Ron Calzone, is a well-known figure in the halls of the Missouri Capitol.  His website looked like a site for a lobbyist.  He looked like and acted like a lobbyist; therefore, he was a lobbyist.  There was a very strong dissent in this case, which argued that the purpose of registration was more than minimal and that Missouri’s disclosure law crosses the constitutional line without adequate justification or narrow enough tailoring,  in essence strict scrutiny.  Stayed tuned because this case has the potential for further review.

Also, I was wondering where are the bright lines to tell us how to advise clients if they have to register as a lobbyist?  You may want to review the Missouri Ethics Commission website at

The site defines a lobbyist as:

“A lobbyist is an individual who attempts to influence state executive, state legislative, or state judicial actions; and meets one or more of the following: a) acting in the ordinary course of business; b) engaged in pay as a lobbyist; c) designated to act as a lobbyist by a person, business entity, governmental entity, religious organization, nonprofit corporation, association or other entity; and d) spends $50 or more on behalf of public officials, annually, from January 1 through December 31.”

“An elected local government official’s lobbyist is an individual employed specifically for the purpose of attempting to influence any action by a local government elected official in a county, city, town, or village with an annual operating budget of over $10 million dollars.”

In this case, Calzone got hung up on the designation part, set forth above, with the Court holding in essence that Calzone could not circumvent the law by his inaction in not making a designation.  In effect, Calzone, by his actions designated himself as a lobbyist because he did everything.

This case is also of great interest because of all the dark money flooding into politics and statements by the Supreme Court that disclosure might help cure some of the problems with dark money.  Hopefully, the Missouri Ethics Commission will work with MML officials in providing guidelines so that city council members and other public officials who make an occasional trip to Jefferson City to visit their legislators or even call a legislator are not caught up in the registration net.

Introduction – Prosecutor and Conflicts of Interest
The next two cases, involve conflicts of interest that are of particular interest because of the Courts important historical analysis of the role of elected prosecutors in our system of government.  The Court noted that elected prosecutors have a wide swath of authority because many times their election reflects an emphasis on a particular policy giving the prosecutor an “independent source of power” allowing him or her to enjoy “discretionary privilege unmatched in the world.”  This is obviously pretty heady stuff, and should be factored in any action trying to disqualify the entire office of the prosecutor from proceeding to fulfill his or her duties.

Potential Conflict Does Not Support Disqualifying Prosecutor’s Office
Facts and Procedure: Wendell Davis, was charged as a prior offender with unlawful use of a weapon, unlawful possession of a weapon, stealing a firearm, resisting arrest, and tampering with a motor vehicle.  While making the arrest of Davis, A. F., the arresting officer, resorted to the use of deadly force making officer A. F. both a witness and a victim to the unlawful use of a weapon charge and the resisting arrest charge.  When a prosecution involves the use of force by a victim (including police officer victims, such as Officer A.F.), it is the policy of the City of St. Louis Circuit Attorney’s Office (“CAO”) to conduct an independent investigation of the victim’s use of force to determine whether the victim was justified in using force and whether criminal charges should be filed against the victim.

Prior to Davis’s preliminary hearing, counsel for Officer A.F. filed a motion to disqualify the CAO.  In his motion to disqualify, Officer A.F. argued that the independent investigation by the CAO created an appearance of impropriety that would prejudice him unfairly.  Officer A.F. claimed that an appearance of impropriety existed because, through Officer A.F.’s contacts with the CAO as a witness, the CAO might become privy to information that could be used against Officer A.F. in the criminal investigation of his conduct.  In short, Officer A.F. asserted, when the CAO elects to independently investigate police shootings, it ought to be disqualified from simultaneously prosecuting the underlying criminal case.  Both Relator and Davis filed a motion to strike Officer A.F.’s motion.

Following a hearing on these motions, the trial judge (Respondent) entered an order disqualifying the CAO from prosecuting the Davis case.  The Judge first noted, that it had the “inherent authority to supervise and regulate the conduct of attorneys who appear before it,” which, Respondent claimed, included “the authority to disqualify counsel.”  On the merits, Respondent reasoned that “a potential conflict of interest may arise when, during the prosecution of a specific criminal defendant, the prosecutor has motives or interests other than according the defendant in a pending case procedural justice.”  Respondent found Officer A.F. (Relator) had not “engaged in any misconduct” and, instead, concluded there was an “appearance of impropriety” because the CAO was “actively prosecuting the defendant while simultaneously reviewing the conduct of the very officer upon whom [it was] relying to effectuate such prosecution.”  Relator sought and obtained a preliminary writ of prohibition from the Missouri Supreme Court.

Opinion: Mootness – After oral argument and submission of the case to the Court the case was rendered moot because Judge Robert, the Respondent, vacated the disqualification order prior to an opinion of the court; nevertheless, the Missouri Supreme Court ruled that it could still proceed with its opinion based on two narrow exceptions to the mootness doctrine: “(1) when a case becomes moot after submission and argument; and (2) when the issue raised is one of general public interest and importance, recurring in nature, and will otherwise evade appellate review.”

Conflict of Interest Issue –The Missouri Supreme Court, noted that “… was no finding (or even an allegation) that any particular attorney employed by the CAO had a conflict prohibiting that attorney’s participation in the Davis’s case.  Respondent, found Relator had not “engaged in any misconduct” and acted to disqualify the CAO only because a “potential conflict of interest” existed.”  The Missouri Supreme Court held that “…absent the existence of an individual conflict, a court need not proceed to determine whether that conflict should be imputed to the entire CAO, either under the Rules of Professional Conduct or the appearance of impropriety test set forth in Lemasters as applied in Peters-Baker.”  Under the Lemasters doctrine the trial court should have ceased the analysis when he was unable to identify any individual attorney at the CAO with an actual conflict of interest.  In this case, the key to the appearance of impropriety test is whether “a reasonable person with knowledge of the facts would find an appearance of impropriety and doubt the fairness of the trial to the defendant in the case.”  The test is not whether there is an appearance of impropriety to a third party but to the defendant.

The Missouri Supreme Court, amplifies the importance of its opinion by noting the unique history of elected prosecutors reflect the judgment of the electorate in our system of government.

The unparalleled authority of the American prosecutor has often been attributed to the fact that district attorneys in the United States are elected, county-level officials. Prosecutorial power, in this view, is an outgrowth of the peculiar emphasis the United States places on local, democratic control.  The “locally elected status” of American prosecuting attorneys provides them with an “independent source of power” and is the reason they enjoy “discretionary privilege unmatched in the world.”

Therefore, “…only in rare circumstances should a circuit court interfere with the democratic process and override the voters’ choice as to who is best suited to represent the interests of the people as prosecuting attorney.”  State ex rel. Kimberly M. Gardner, Circuit Attorney of The City of St. Louis, v. The Honorable Timothy J. Boyer, (SC97026, 12/4/18)

Comment Howard: This opinion is particularly noteworthy because of the excellent discussion concerning when a case is moot and the exceptions to the mootness doctrine.  In addition, everything got simplified by requiring the court to first find the actual conflict of interest before getting into whether or not the entire prosecutor’s office was disqualified from this matter.  Also, the court’s comments concerning the power of the prosecutor and the need for a vigorous prosecutor (WOW statements) creates a very strong hurdle to disqualifying the entire prosecutor’s office.

Actual Conflict Not Imputed to Prosecutor’s Office
Facts and Procedure: Jeanette Wolpink of the Missouri Public Defender System (“MPDS”) was appointed to represent Tyrone Skinner.  Wolpink represented Skinner throughout his direct appeal, which affirmed his convictions and sentences.  After Skinner’s appeal was resolved, but before his amended post-conviction motion was filed, Wolpink left the MPDS and was hired by the Jackson County Prosecuting Attorney’s Office (PAO).

When Wolpink joined the PAO, a screening process was implemented to ensure Wolpink did not participate in any cases in which she was involved (or any case related to such cases) while employed by the MPDS.  Specifically, the prosecuting attorney directed all assistant prosecuting attorneys to review their current cases to determine whether Wolpink had been previously involved.  Once the cases in which Wolpink had been previously involved had been identified, the deputy prosecuting attorney sent an office-wide e-mail indicating no one was to have contact with Wolpink regarding those cases.  This list of cases was updated as the office became aware of additional cases in which Wolpink was involved, or as new cases were filed.

Skinner’s new counsel then filed a motion seeking to disqualify the entire PAO, alleging that Wolpink was “privy to attorney/client confidences and matters of trial strategy” because she represented him in his direct appeal.  Notably, however, Skinner’s motion did not claim that the PAO’s screening process was insufficient or that anyone at the PAO failed to comply with the screening process with respect to Skinner’s case. Relator filed a response acknowledging Wolpink had a conflict which prohibited her from participating in Skinner’s case but arguing there was no basis for imputing her conflict to the entire PAO and, therefore, the motion to disqualify should be overruled. After considering the parties’ arguments, Respondent sustained Skinner’s motion, disqualified the entire PAO, and appointed the Missouri Attorney General’s Office (“AGO”) to act in its place.

Thereafter, the PAO filed a motion to set aside the disqualification order, and a hearing was held.  Sauls, the lead counsel for the state on Skinner’s case testified the screening process in place at the PAO prevented Wolpink from having contact with any individual working on a case in which she was previously involved (or any case related to such cases), including Skinner’s post-conviction proceeding.  Sauls stated he had not had contact with Wolpink regarding Skinner’s case, nor did he have knowledge of any confidential information Wolpink may have learned in her capacity as Skinner’s direct appeal counsel.  Sauls also confirmed that, going forward under the screening process, he would have no contact with Wolpink regarding Skinner’s case.  Nevertheless, Respondent issued an order overruling Relator’s motion to set aside and the PAO filed a writ of prohibition seeking to prohibit the Respondent, the trial court judge, from enforcing the order of disqualification.  The Missouri Supreme Court granted the preliminary writ.

Opinion:The Court first discusses the framework to be applied when the disqualification of an entire prosecutor’s office is sought.  Initially, the court must determine whether a particular attorney in the office has a conflict prohibiting that attorney’s participation in the underlying case.  If such a conflict exists, as it did in this case, the court then must determine whether that individual attorney’s conflict can be imputed to the entire office.  A conflict can be imputed (1) by the Rules of Professional Conduct, or (2) by the appearance of impropriety test – i.e., whether “a reasonable person with knowledge of the facts would find an appearance of impropriety and doubt the fairness of the trial” to the defendant.

Under the Rules, Wolpink, a former and a current public officer or employee of the PAO, was prohibited from participating in the state’s representation in Skinner’s post- conviction case under Rule 4-1.11(a); however, her disqualification was not imputed to the entire office because, as this Court explained in Lemasters, the PAO is not a “firm” under Rule 4-1.11(b).

The Court explained that the reasoning of Respondent did, however, address whether Wolpink’s conflict should be imputed during the hearing on Relator’s motion to set aside.  During that hearing, Respondent, the trial judge, explained the decision to disqualify the entire PAO “was simply [out of] an abundance of caution” and as he further explained he did not “see that there [was] a risk worth taking” because “…it’s impossible to say that there can’t be some way in which there isn’t an[] inadvertent disclosure, innocent as it may be, that could [a]ffect the case.”  This explanation by the trial judge was insufficient to support disqualification of the entire PAO under Lemasters.

In addition, the Missouri Supreme Court noted in making the writ permanent that Respondent’s order disqualifying the entire PAO will cause Relator to suffer “absolute irreparable harm” because it prevented Relator from exercising her statutorily authorized duties as the elected prosecuting attorney of Jackson County, which was no small matter considering the history of the unique relationship elected prosecuting attorneys enjoy in our system of government, which was described by the Court as a “discretionary privilege unmatched in the world.”

Jackson County citizens were also affected by “…virtue of her position as an elected prosecuting attorney, most, if not all, of Relator’s duties “involve a good faith exercise of the sound discretion.” By disqualifying “…Relator and appointing the AGO, Respondent’s order unjustifiably circumvents the voters’ choice to have their interests represented by Relator in Skinner’s case as in any other.”   State ex rel. Jean Peters-Baker, v. The Honorable Bryan E. Round, (SC96931, 12/04/18)

Comment Howard: This case, like the first case discussed above, emphasizes the important and distinct role that an elected prosecutor plays in our system of government.  The Court recognized that the voters may very well elect a prosecutor based upon the prosecutor’s views concerning important policy issues such as criminal justice reform or harsher penalties for criminals.  The election of a prosecutor based upon his or her views should be allowed to play out in our system without interference by the court.

$24 million Settlement for Improper Use of Electric Line Easements for Internet Services
Periodically, the question will come up on our MMAA list serve concerning use of easements by local government or other agencies, as to whether or not the easement holder has exceeded the scope of the original easement.  Recently Sho-Me Power Electric Cooperative settled with landowners a $24 million lawsuit bringing to an end years of litigation involving the illegal use of electric line easements for providing telecommunication services to the public.  This case was discussed in the April 2017 MMAA Newsletter in which Judge Benton wrote an 8th Circuit opinion on the scope of easements and remedies if easement holders exceed their rights.

If you are looking for guidance on this topic Judge Benton’s, opinion is a masterpiece, with respect to the rights of property owners, when the holder of the easement exceeds the original grant.  A link to Judge Benton’s opinion is provided here.

Paper Terrorism Wreaks Havoc With Local Government Officials Personal Lives

Unfortunately, some antigovernment individuals (sovereign citizens) and groups are crazy and divorced from reality and they want to create chaos and conflict without regard to the rule of law by putting massive liens on the property of public employees and officials who they encounter and stand in their way, while the public official is simply carrying out his or her duty.  A recent article in the December 3, 2018, edition of Missouri Lawyers Weekly, highlights the importance of public officials being aware of “paper terrorism,” which can be encountered by public officials who are simply performing their duties.  Missouri Lawyers Weekly suggested in the article that local governmental officials need to be on the alert for this type of activity since it seems like this activity is on the rise.

Frankly, I was puzzled as how to prevent this from happening.  Based upon my reading on this subject there appears to be no simple answer; however, I did encounter a recent 2018, paper that covers this topic comprehensively (some 115 pages).  SeeWEAPONS OF MASS DISTRACTION: STRATEGIES FOR COUNTERING THE PAPER TERRORISM OF SOVEREIGN CITIZENS” by
 Terri A. March-Safbom March 2018 for the Naval Postgraduate School.

The abstract for the paper provides a sense of the scope of the paper and the problems it addresses:

“Sovereign citizens and other anti-government groups affect the judicial system through a tactic known as “paper terrorism,” clogging the courts with nonsensical, voluminous filings, phony lawsuits, and false liens against public officials as a form of harassment and intimidation.  This behavior is sometimes a precursor to violence.  As such, this thesis examines legislative measures in various jurisdictions to thwart paper terrorism, particularly directed against the courts and judicial officials.  An exploration of the origins of the movement’s history, tactics, violent tendencies, and ideology provides an understanding of the mindset behind this behavior, which, in turn, informs recommendations for prevention and deterrence.  Comparative analysis of available policy solutions endeavors to validate this hypothesis.  The analysis targets five states for further study.  A survey of court professionals provides insight into the depth of the problem and effectiveness of solutions.  The findings of this project suggest that no single solution is completely effective; still, this research concludes with recommendations for multiple levels of legislation and administrative procedures.”

Update – Missouri Supreme Court Is Considering DWI Law That Requires License To Be Revoked Immediately
Last month, in the November 2018, newsletter we discussed a case by the Eastern District holding that Missouri’s implied consent law was unconstitutional because the warning given to drivers stated that the license would be revoked “immediately.”  This warning was blatantly false, according to the recent decision by the Eastern District, which referred the case to the Missouri Supreme Court.  Apparently, we may get a decision on this important issue, sooner rather than later, because the Missouri Supreme Court already had a case on this very issue that was argued at the end of November 2018.  Stay tuned.

Good Cause for Driving Test Shown
Occasionally, as a prosecutor, you may encounter individuals  who have a medical condition requiring some sort of state intervention to determine if they are medically fit to drive.  If the state determines a person is not medically fit to drive it may revoke that person’s driver’s license.  My sole experience with the Missouri statute involved a person who was diabetic and went into a diabetic coma while driving his vehicle in a careless and reckless manner entering a four-lane highway from the wrong entrance and driving against oncoming traffic.  A recent case, highlights this, which allows the Director of Revenue to revoke a driver’s license based upon good cause that the person is not fit to drive.  As a prosecutor, my dilemma was whether or not to refer this person to the state because of the danger he imposed other drivers.  The following case may give you a sense of how the statute works.
Donald E. Basing vs. Missouri Director of Revenue, (WD80919, 12/4/2018)

 Police Officer Entitled to Qualified Immunity When Engaged in a Precision Immobilization Technique
Facts and Procedure: Moore-Jones was driving on a service road next to the interstate.  She passed police officer Quick’s marked police car parked on the right shoulder.  He checked the car’s registration, found it was expired, and began a traffic stop around 8:22:28 p.m., which was recorded on his dash-cam.

Quick pulled right behind Moore-Jones, turned on his emergency lights at 8:23:27 p.m., sirens at 8:23:35 p.m., and spotlight at 8:23:38 p.m.  She decelerated to about 14 miles per hour and pulled onto the right shoulder, past a car that had yielded.  The shoulder was narrow, the area unlit and dark.  She then pulled back on the road, accelerating to 35-38 miles per hour, her speed for the rest of the pursuit.  The posted speed limit was 55 miles per hour.  At 8:24:16 p.m., she continued past the last exit before the nearest city a mile-and-a-half away.  At 8:24:18 p.m., in the paved area after the exit, Quick began a Precision Immobilization Technique (PIT) maneuver.  Quick struck her right-rear fender with his left-front bumper, causing her car to spin into a ditch, hitting a cement culvert.  Moore-Jones and her daughter visited the hospital that night and were treated and released.  She was cited for expired tags and failure to yield to an emergency vehicle, both misdemeanors.

Moore-Jones and her minor daughter sued Quick for excessive force and assault and battery.  Quick sought summary judgment, invoking qualified and statutory immunity. The district court denied his motion and Quick appealed to the Eighth Circuit.

 Opinion: Moore-Jones claimed that Quick’s PIT maneuver violated her Fourth Amendment right to be free from excessive force.  In order for her to succeed on this claim the right must be clearly established, and its contours must be “sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.”  The Eighth Circuit noted that failure to “identify a case where an officer acting under similar circumstances . . . was held to have violated the Fourth Amendment” is often fatal to a claim outside of obvious cases.  However, a case need not be “directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”

Officer Quick, out of caution, in order to avoid the dangers to her and other drivers from her car spinning out of control into the parallel interstate waited until after the last exit before the nearest city, which had space on the right shoulder for the maneuver.  In this case, Quick was in a marked police car, and had engaged his emergency lights, sirens, and spotlight.  Other cases show that PIT maneuvers can reasonably be used.  No case could be found that was on point showing that the actions taken by the officer constituted the use of unreasonable force.  The actions taken by officer Quick did not show that he had a conscience- shocking intent to harm the driver and passenger’s necessary for a Due Process Clause violation.  Therefore, the district court erred in concluding that officer Quick was not entitled to qualified immunity.  Jerica Moore-Jones, Individually and as Parent and Next Friend of Dela Moore v. Quick, (8th Cir., 18–1045)

Comment Howard: I seriously question the reasonableness of the PIT maneuver because there appeared to be no emergency to justify the maneuver, which put persons in the vehicle in a very dangerous situation, as shown by their injuries.

No Qualified Immunity When One of the Officers Testimony Who Witnessed the Event Conflicted with All of Other Officers
Facts and Procedure: In this case, Mark Henderson was taken captive while attending a party at the Red Roof Inn, when one of the partygoers pulled a gun on those who were attending the party and robbed them of their valuables.  One of the attendees was able to make a 911 phone call but was unable to talk to the 911 operator, although she did leave her phone open allowing the 911 operator to listen to the events of the robbery.

Police were dispatched to the Red Roof Inn and the officers, after initially being unable to locate where the incident was taking place, began a room by room search of the premises.  Eventually, the officers came to a room where they were able to observe the robbery, through a partially open curtain.  The robber appeared at the window and displayed a gun causing the police to take cover.  Henderson, who was being held captive, saw an opportunity to escape and ran down the outside entryway at which time the robber shot Henderson.  Eventually Henderson was stopped and ordered by the police to get on the ground, face down.  While on his stomach Henderson, arched his back and appeared to grab something from underneath his body, which the police believed to be a gun causing the officers to discharge their weapons killing Henderson.  Next of kin brought a 1983 lawsuit claiming that the officers used unreasonable force.

The officers filed a motion for summary judgment based upon the officers’ deposition testimony and much of their BCA testimony.  They stated that Henderson had not fully complied with their commands.  They asserted that while he was on the ground, his hands were not visible to them.  They believed that their obscured vision of one his hands supported an objectively reasonable belief that he posed a significant threat of death or serious bodily harm.  However, the testimony of Officer Krech’s supported a contrary finding: that Mark fully and unequivocally surrendered to police, lay still, and was shot and killed anyway.  Nevertheless, the trial court granted the officer’s motion for summary judgment finding that the officers were entitled to qualified immunity.  Next of kin appealed to the Eighth Circuit

Opinion:  The Eighth Circuit held that the resolution of the conflicting testimony between one officer’s more or less contemporaneous description and all the other officers’ subsequent unified deposition testimony is best left to a jury.  Making credibility determinations or weighing evidence is improper at the summary judgment stage when there are conflicting stories.  It is not the function of the court to remove the credibility assessment from the jury; therefore, the judgment is reversed. Henderson v. City of Woodberry, (8th Cir., No. 17-1385, 11/28/18)

Kentucky Supreme Court Unanimously Strikes Down Pension Law Enacted In The Middle Of The Night Without Giving The Bill The Required Readings
In a desperate attempt to avoid public scrutiny, the Kentucky legislature rammed through a controversial pension bill in the last 3 days of its 2017 legislative session.

At the beginning of the legislative session, a bill was introduced dealing with pension reform.  After the bill was reported out of committee it was referred back, where it languished, with no further action being taken until the last three days of the legislative session.  On the fifty-seventh day of the sixty-day legislative session, the Committee met to address pension-reform alternatives.  Consensus on a plan for reform was reached.

With time waning for legislative action, the Committee was confronted with Section 46’s requirement for the bill to be read at length on three different days.  Section 46 of the Kentucky Constititution states that:

No bill shall be considered for final passage unless the same has been reported by a committee and printed for the use of the members.  Every bill shall be read at length on three different days in each House, but the second and third readings may be dispensed with by a majority of all the members elected to the House in which the bill is pending.

To pass the newly agreed-upon reform, the Committee invoked a following previously-used legislative maneuver: a different bill which had already been given one or more readings in each chamber would be “amended” by inserting the newly agreed-upon pension-reform text, with the expectation that the previous readings of the bill would count toward the three-reading requirement.  To this end, SB 151 was selected, which had originated in the Senate with the title, “AN ACT relating to the local provision of wastewater services.” In its original form, SB 151 consisted of eleven pages of text concerning contracts for the acquisition of local wastewater facilities.  When SB 151 was called in the House, it was amended by a Committee Substitute containing the pension reform language.  The Committee Substitute removed every word of the 11 pages of the original wastewater bill and replaced it with 291 pages of text addressing pension reform.

With newly-inserted language transforming the act from a wastewater bill to a pension reform bill, SB 151 was voted out of Committee and reported favorably to the House floor, where it was immediately called up for final passage.  Bearing only the title “AN ACT relating to the local provision of wastewater services,” SB 151 was read in the full House “by title only” and then voted on as a pension reform bill.  To summarize, SB 151 with its original wastewater services title and text was “read” twice in the House before the introduction of the Committee Substitute that removed and replaced all its text but left the title intact.  Thereafter, the House again “read” SB 151 by its title as a wastewater services bill but with the substantive text of a pension reform bill.  After the voting was completed, the title of SB 151 was then amended to identify it as a measure relating to retirement and public pensions, thus, attempting to comply with the subject-title match requirement of the Kentucky Constitution.

After the bill was adopted and signed by the Governor it was challenged in court and eventually made its way to the Kentucky Supreme Court, which held that the procedures used to adopt the bill failed to comply with the Section 46 of the Kentucky Constitution.  In declaring the law unconstitutional the Court concluded:

In sum, we are convinced that the purpose of § 46 was not simply to ensure that legislators knew what they were voting on.  Rather, the purpose was to ensure that every legislator had a fair opportunity to fully consider each piece of legislation that would be brought to a vote.  That purpose cannot be achieved by reading a bill only by its title which has no rational relationship to the subject of the law being enacted.  The “reading” of SB 151 failed to comply even with this minimal requirement of § 46 of the Kentucky Constitution.

Bevin V. Commonwealth of Kentucky, (Ky. Sup. Ct., 18-CI-00379 AND 18-CI-00414, 12/134/18)

Comment Howard: I thought this case was very interesting, as related to similar provisions in the Missouri constitution, but also useful to local government attorney’s since many city charters have a three-reading requirement.  Lots of history and background concerning the origin of these requirements.  This was a big victory for transparency and the protection of our democracy.