July Newsletter (Issue 07-2018)

Search Warrant Required To Track Suspect Using Cell Phone/Tower Technology
In a landmark decision the United States Supreme Court considered whether or not the Fourth Amendment, prohibiting unreasonable searches, required a search warrant by the government to obtain historical cell phone records that provided a comprehensive chronicle of the user’s past movements.

Technology Background: The Court starts its analysis by reviewing the pervasive scope of the use of cell phone technology and its implications with respect to providing information concerning cell phone users by noting that: “There are 396 million cell phone service accounts in the United States—for a Nation of 326 million people.  Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites.” Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, or the sides of buildings.  Cell sites typically have several directional antennas that divide the covered area into sectors.”

“Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site.  Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features.  Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI).  The precision of this information depends on the size of the geographic area covered by the cell site.  The greater the concentration of cell sites, the smaller the coverage area, making the location of the cell phone more precise.  As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic.  That has led to increasingly compact coverage areas, especially in urban areas.”

“Wireless carriers collect and store CSLI for their own business purposes, including finding weak spots in their network and applying “roaming” charges when another carrier routes data through their cell sites.  In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information of the sort at issue here.  While carriers have long retained CSLI for the start and end of incoming calls, in recent years phone companies have also collected location information from the transmission of text messages and routine data connections.  Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI.”

Facts of the Case: Police officer’s arrested four men suspected of robbing a series of Radio Shack and T- Mobile stores in Detroit.  One of the men confessed that, over the previous four months, the group (along with a rotating cast of getaway drivers and lookouts) had robbed nine different stores in Michigan and Ohio.  The suspect identified 15 accomplices who had participated in the heists and gave the FBI some of their cell phone numbers; the FBI then reviewed his call records to identify additional numbers that he had called around the time of the robberies.

Based on this information, the prosecutors applied for court orders under the Stored Communications Act to obtain cell phone records for petitioner, Timothy Carpenter and several other suspects.  This statute permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation,” which is less than the probable cause standard to get a search warrant under the Fourth Amendment.  The Federal Magistrate Judges issued orders directing Carpenter’s wireless carriers—MetroPCS and Sprint—to disclose “cell/site sector information for Carpenter’s telephone at call origination and at call termination for incoming and outgoing calls” during the four-month period when the string of robberies occurred. The first order sought 152 days of cell-site records from MetroPCS, which produced records spanning 127 days.  The second order requested seven days of CSLI from Sprint, which produced two days of records covering the period when Carpenter’s phone was “roaming” in northeastern Ohio.  Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements—an average of 101 data points per day.

Carpenter was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence.  Prior to trial, Carpenter moved to suppress the cell-site data provided by the wireless carriers.  He argued that the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause.  The District Court denied the motion.

At trial, the FBI agent offered expert testimony about the cell site data explaining that each time a cell phone taps into the wireless network, the carrier logs a time-stamped record of the cell site and particular sector that were used.  With this information, the expert produced maps that placed Carpenter’s phone near four of the charged robberies.  In the Government’s view, the location records clinched the case: They confirmed that Carpenter was “right where the . . . robbery was at the exact time of the robbery.” Carpenter was convicted on all but one of the firearm counts and sentenced to more than 100 years in prison.

The Court of Appeals for the Sixth Circuit affirmed holding that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers concluding that the resulting business records are not entitled to Fourth Amendment protection. An appeal based on a violation of Carpenter’s Fourth Amendment rights was taken to the United States Supreme Court.

Opinion: The question before the Court was how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person’s past movements through the record of his or her cell phone signals. Cell phone tracking partakes of many of the qualities of the GPS monitoring the Court considered in Jones, where it held GPS tracking of a vehicle by attaching the device to the underside of the vehicle without a search warrant, which detailed, encyclopedic, and effortlessly record collecting violated the Fourth Amendment against unreasonable searches. In the Jonescase, the majority opinion written by Justice Scalia considered the installation of a GPS tracker, as a trespass based upon a property analysis.  In the Jonescase, Justice Sotomayor, concurred in the majority opinion noting however that the property right theory adopted by Justice Scalia was insufficient to deal with the advancement of technology and its ability to intrude in our lives where we had a reasonable expectation of privacy. Chief Justice Roberts recognized this concern as follows:

Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts.  As with GPS information, the time- stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.”

Chief Justice Roberts further noted that:

“Cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones.  Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,”

In addition, when individuals leave their vehicle cell phone customers compulsively carry their cell phone with them making the technology even more intrusive than the geo-tracking, which the court found to be in violation of the Fourth Amendment in the Jonescase.  Therefore, the Court found that the use of cell phone/tower technology to track the movements of a suspect required a search warrant under the Fourth Amendment. Carpenter v. United States, (U. S. 16–402, 06/22/18)

Comment Howard:This case is incredibly important with respect to searches and seizures under the Fourth Amendment using modern technology to track individuals.  Your police officers and department policies should be immediately updated with respect to training.  Since Justice Kennedy just announced his retirement it is worth noting that he voted with the dissent and that strongly suggests that this opinion will survive the appointment of a new Justice to the Supreme Court, even though there was a vigorous dissent by four of the Justices.

Masterpiece Cakeshop Case Crushed in Mash Up
The Masterpiece Cakeshop case got crushed in a mash up, all to familiar to local government attorneys.  In the Masterpiece cake case the United States Supreme Court held that the Colorado Civil Rights Commission (Commission) showed a “clear and impermissible hostility towards the sincere religious beliefs of Phillips the owner of the Masterpiece Cakeshop.”  After all what could be more fundamental than making sure that the fact-finding board deciding the case was fair and impartial.  As local government attorney’s we have been there.  Court observers are now trying to read the tea leaves to see if they can make any sense out of the mash up.  Notwithstanding the difficulties, it is possible to make some general observations, but first a discussion of the facts.

Facts and Procedure: Masterpiece Cakeshop is a Colorado bakery owned and operated by Jack Phillips, an expert baker and devout Christian.  In 2012, he told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages that Colorado did not then recognize, but that he would sell them other baked goods, e.g., birthday cakes.

The couple filed a charge with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA), which prohibits, discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.”  Under CADA’s administrative review system, the Colorado Civil Rights Division found probable cause for a violation and referred the case to the Commission.  The Commission then referred the case for a formal hearing before a state Administrative Law Judge (ALJ), who ruled in the couple’s favor.  In so doing, the ALJ rejected Phillips’ First Amendment claims: that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and would violate his right to the free exercise of religion.  Both the Commission and the Colorado Court of Appeals affirmed and the United States Supreme Court granted certiorari.

Opinion: The opinion was written by Justice Kennedy, which immediately raises the question if the tealeaves provide any insights to how Court might rule without his presence.

Opinion Was Narrow: A member of the commission compared Phelps beliefs as a defense of slavery and the Holocaust, further stating that:

“I would also like to reiterate what we said in the hearing or the last meeting.  Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination.  And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

Other Commissioners made no objection to these comments.  Kennedy noted: “This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti- discrimination law, a law that protects discrimination on the basis of religion as well as sexual orientation.”

Furthermore, on three separate occasions the Civil Rights Division considered the refusal of other bakers to create cakes with images that convey disapproval of same-sex marriage, along with religious texts, concluding that the bakers acted lawfully in refusing this service.

Justice Kennedy’s opinion was incredibly narrow; with seven of the nine Justices concluding that the Commissioner’s had “a clear and impermissible hostility” towards the sincere and religious beliefs motivating Phelps.

Court Did Not Consider Free Speech Claim: Even though the majority opinion rejected the free speech claim the opinion of Justice Gorsuch, joined by justices Alito and Thomas would have accepted the free speech based upon the principal that no one “…can … reasonably doubt that a wedding cake without words conveys a message.” “Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding.” Obviously, with three Justices accepting the free-speech claim this theory is alive and will be the subject of intense future litigation considering that a more conservative judge, in all likelihood, will replace Justice Kennedy.

Majority Opinion Rejected Broad Exemption for Religious Motivated Merchants: The majority Opinion rejected a broad exemption for religiously motivated merchants noting that gay persons and gay couples should not be treated as social outcast or as inferior in “dignity or worth.”  The courts with respect to the exercise of freedom by gays should give great weight on terms equal to others.  Masterpiece Cake Shop v. Colorado Civil Rights Commission, (U. S. 16 –111,  06/04/18)

Comment Howard:The interest groups, on both sides of these highly charged questions, are well financed and highly motivated promising a fertile field for continued litigation.  Local Government the attorney should focus on training for members of boards and commissions who engage in determining “rights, duties, and obligations” under the law.  Training should include examples, like what happened in this case, showing how comments by board members can be used to show bias and prejudice.  Particularly when a case is highly charged, local government attorneys should exercise extra caution by providing advice to the board chairman and its members.  It seems to me that a written statement could easily be drafted for the board to remind them of their duties prior to taking up a case.

Minnesota Ban On Apparel Containing Messages Inside Voting Area Unconstitutional

Facts and Procedure: Minnesota law prohibits individuals, including voters, from wearing a “political badge, political button, or other political insignia” inside a polling place on Election Day.  This “political apparel ban” covers articles of clothing and accessories with political insignia upon them only within the polling place.  State election judges have the authority to decide whether a particular item falls within the ban.  If a voter shows up wearing a prohibited item, the election judge is to ask the individual to conceal or remove it.  The question presented to the United States Supreme Court was whether this ban violated the Free Speech Clause of the First Amendment.

Five days before the November 2010 election, MVA, Jeffers, and other likeminded groups and individuals filed a lawsuit in Federal District Court challenging the political apparel ban on First Amendment grounds.  The groups, calling themselves “Election Integrity Watch” (EIW), planned to have supporters wear buttons to the polls printed with the words “Please I. D. Me,” a picture of an eye, and a telephone number and web address for EIW. (Minnesota law does not require individuals to show identification to vote.)  One of the individual plaintiffs also planned to wear a “Tea Party Patriots” shirt.  The District Court denied the plaintiffs’ request for a temporary restraining order and preliminary injunction and allowed the apparel ban to remain in effect for the upcoming election.

In response to this lawsuit, the State distributed an Election Day Policy to election officials providing guidance on enforcement of the ban.  The Election Day Policy specified examples of prohibited apparel to include items displaying the name of a political party, items displaying the name of a candidate, items supporting or opposing a ballot question, “[i]ssue oriented material designed to influence or impact voting,” and “[m]aterial promoting a group with recognizable political views.”

On Election Day, some voters ran into trouble with the ban, including petitioner Andrew Cilek, who allegedly was turned away from the polls for wearing a “Please I. D. Me” button and a T-shirt bearing the words “Don’t Tread on Me” and a Tea Party Patriots logo.

EIW argued that the ban was unconstitutional on its face.  The District Court granted the State’s motion to dismiss, and the Eighth Circuit affirmed the dismissal of the facial challenge and remanded the case for further proceedings on the as-applied challenge.  The District Court granted summary judgment to the State and the Eighth Circuit affirmed.  The United States Supreme Court granted certiorari.

Opinion: The Court recognized that some forms of advocacy could be excluded from polling places in order to set aside an “island of calm in which voters can peacefully contemplate their choices.”

“Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning.”

The Court determined that the polling place was a non-public forum that is not by tradition or designation a forum for public communications.  In such a forum the government has flexibility to craft reasonable rules and may reserve the forum for its intended purposes as long as the regulation is not an effort to suppress expression because public officials oppose the speakers views.

In this case, the term “political” was undefined and ambiguous furthermore the regulations were subject to individual in varying interpretation by electioneering judges.  Minnesota did not strike the balance in a way that affords the voter the opportunity to exercise his or her civic duty.  That is not to say that such a law cannot be crafted because other states have adopted regulations that would appear to be reasonable.  Minnesota Voters Alliance v. Mansky, (U.S. 16–435, 06/14/18)

Comment Howard:If you are advising election officials you may want to look at the prohibitions in Section 115.637(18) (below), which would, in my mind, not present any significant legal or factual questions thereby passing constitutional muster.

“(18) Exit polling, surveying, sampling, electioneering, distributing election literature, posting signs or placing vehicles bearing signs with respect to any candidate or question to be voted on at an election on election day inside the building in which a polling place is located or within twenty-five feet of the building’s outer door closest to the polling place, or, on the part of any person, refusing to remove or permit removal from property owned or controlled by him, any such election sign or literature located within such  distance on such day after request for removal by any person;”

This case illustrates the extent to which first amendment, freedom of speech questions have come to dominate the legal scene.  It would seem that sooner or later local government attorneys are going to be free speech experts.

Quill Overruled – Physical Presence No Longer Required To Tax Interstate Sales

The Missouri Municipal League recently advised MML officials that the United States Supreme Court in South Dakota v. Wayfair, overruled it’s long-standing decision in Quill that held states could not tax businesses that did not have a physical presence in the state.  This was a 5 to 4 decision with the four dissenters arguing that stare decisis should control because the opinion was long-standing and in any event Congress can control whether or not businesses that do not have a physical presence under Quill should be taxed.  Even though Justice Kennedy was the author the opinion it would seem that his opinion is relatively safe, in his absence, because the dissent was based upon stare decisis and the ability of Congress to control this matter, the dissent was not based upon substantive grounds or that the Quill doctrine any longer served a useful purpose under the Commerce Clause.

Obviously, this opinion is extremely important to local government because state and local revenues have been strapped due a predilection of some legislators to cut taxes no matter the consequences with respect to public services.  It would be good if the new Governor would embrace this case as an opportunity to fund important governmental services like construction of roads and bridges and education or some other infrastructure program.

I would like to think that all we have to do is sit back and wait for the revenues to flow but that is not the case considering implementing legislation will be needed by the General Assembly. Plus there is lots of money at stake for those who like to keep their prices low.

It would appear that the South Dakota legislation would be a good model to follow because the court takes particular note of its many good features that protect the South Dakota legislation from other possible legal challenges.  In addition, there remains the possibility that there are other grounds to attack the taxation of businesses that do not have a physical presence under Complete Auto.  With Quill gone the legal framework in Complete Auto controls.  It is important to remember that there may still be unanswered questions, as noted by Justice Kennedy’s statement, with respect to the fact that the principles set forth in Complete Auto, have not been tested in contexts of interstate sales by state and local government.  The fat lady is singing but it’s not over until she hits the last note.

Eighth Circuit Clarifies Burden of Persuasion in Mixed Motive Discrimination Cases       

Facts and Procedure: In 2012, Howard hired Mahn, as a deputy clerk.  In 2014, Howard did not run for reelection.  He supported fellow Democrat Jeanette McKee. According to Mahn, Howard “summoned [her] into his office” to “forcefully impress upon [her] the need for her to vote for McKee and the Democratic ticket.”  She responded, “I’ll vote for whoever I want to, and what you’re threatening is unconstitutional.”  Mahn voted in the August 5, 2014, Republican primary election.  On August 26, Howard told her: “Just wanted to chat with you a little bit.  Just wanted to let you know that, you know, I know how you voted.  And I don’t think you made the right decision.  You know this could cause you your job.”  On September 19, 2014, Howard terminated Mahn’s employment.  Her termination letter stated: “Poor work performance, unable to complete tasks correctly and within given time lines.  Abuse of sick leave, insubordination by lying to assigned supervisor.”

Mahn believed Howard terminated her because he learned she voted in the Republican primary.  She alleges that Wes, Howard’s son, had “access to all voter information” because he was the county clerk/election authority.  She claims Howard and Wes “reached a mutual agreement and understanding to commit the unlawful act of disclosing who [Mahn] had voted for, and thereafter, to discharge her from her employment for exercising her right to vote.”

Mahn brought a First Amendment patronage-discharge claim under 42 U.S.C. § 1983 against Jefferson County, Missouri; Howard Lee Wagner (“Howard”), individually and in his official capacity as circuit clerk of Missouri’s 23rd Judicial Circuit; Howard Wesley Wagner (“Wes”), individually and in his official capacity as county clerk/election authority of Jefferson County; and Michael Reuter, in his official capacity as (successor) circuit clerk.

Opinion: In mixed motive discrimination cases:

“[T]he burden of persuasion itself passes to the defendant-employer once the plaintiff produces sufficient evidence from which the fact finder reasonably can infer that the plaintiff’s protected conduct was a “substantial” or “motivating” factor behind her dismissal.  Accordingly, once the burden of persuasion shifts to the defendant-employer, the plaintiff-employee will prevail unless the fact finder concludes that the defendant has produced enough evidence to establish that the plaintiff’s dismissal would have occurred in any event for nondiscriminatory reasons.” (My emphasis)

The court noted that the inquiry at the summary judgment stage is whether or not the defendant’s can show, with all reasonable inferences drawn in the favor of the plaintiff, that the employer had a lawful reason to terminate the employee, even if her political affiliation had not been a factor, and that the termination would have occurred anyway and that there no genuine dispute of material fact on these issues.

Mahn had performance issues in 2013 and there was evidence that she had performance issues shortly before and shortly after the August 2014 primary.  Not withstanding, the strength of the evidence of poor performance, the “Mt. Healthy defense, at the summary judgment stage, required the employer “to show that the record would compel a reasonable jury to find that the adverse action would have occurred anyway, not merely that such action would have been warranted anyway.”

The court concluded that Howard and Reuter did not establish Howard would have terminated Mahn anyway for her performance issues.  Without evidence showing Mahn’s performance would have indisputably caused her termination, Howard and Reuter were not entitled to summary judgment under Mt. Healthy.

The Defendant Howard also argued that he was protected under the 11thAmendment, which protects states from damage claims.   This argument failed because the Plaintiff  was seeking equitable relief by restoring the employee to her former position, which is not prohibited by the 11thAmendment; therefore, the assertion by Howard of the 11thAmendment defense failed.  Mahan v. Jefferson County, (U. S. 8th, 16 – 1731, 06/07/18)

Comment Howard:If you are involved in a mixed motive discrimination case you should review this case because of its excellent analysis of the burden of proof standard.  I would start my research with respect to mixed motive cases with this opinion.

Western District Explains the Difference Between Retroactive and Retrospective Laws

Facts and Procedure: On October 2, 2014, Neil suffered a personal injury while being escorted from a Garcia Empire establishment by a Garcia Empire employee.  In May 2016, the Desais filed an amended petition against Garcia Empire seeking damages arising from Neil’s injury.  Garcia Empire advised Seneca of the Desais’ lawsuit.  Seneca offered to defend Garcia Empire subject to a full and complete reservation of rights regarding coverage.  Garcia Empire rejected Seneca’s offer to provide a defense subject to a reservation of rights.  In November 2016, Garcia Empire entered into a contract with the Desais pursuant to Section 537.065 wherein the Desais agreed to limit recovery of any judgment secured against Garcia Empire to insurance coverage.

On August 17, 2017, the Desais’ lawsuit was tried to the court.  On August 28, 2017, a law passed by the Missouri General Assembly became effective that provided:

  1. Before a judgment may be entered against any tort-feasor after such tort-feasor has entered into a contract under this section, the insurer or insurers shall be provided with written notice of the execution of the contract and shall have thirty days after receipt of such notice to intervene as a matter of right in any pending lawsuit involving the claim for damages.

The trial court entered judgment in favor of the Desais and against Garcia Empire on October 2, 2017.  The Missouri Constitution prohibits laws that are “retrospective.”  On October 31, 2017, Seneca filed a combined motion to intervene as a matter of right pursuant to Rule 52.12(a) and for relief from judgment pursuant to Rule 537.065 contract between Garcia Empire and the Desais.  The motion to intervene as a matter of right in the Desais’ lawsuit against Garcia Empire, was based on an amendment to Section 537.065 that took effect on August 28, 2017.

The trial court denied Seneca’s Motion because the legislature did not expressly provide for the amendment of Section 537.065 to be applied to proceedings that had or commenced under the statute prior to the amendment, which was August 28, 2017.  Seneca appealed to the Western District

Opinion: Article 1, Section 13 of the Missouri Constitution provides that “no …law … retrospective in its operations… can be enacted.”

The question before the court was whether or not the statute applied to contracts that were entered into prior to the passage of the Act and if it does is it a “retrospective” law in violation of the constitutional probation.  This issue turns on the definition of a retrospective law.

What Is a Retrospective Law: The Court started its analysis by noting that the terms retroactive and retrospective are frequently confused and interchanged even though they are not synonymous. “A law is retroactive in its operation when it looks or acts backward from its effective date and is retrospective if it has the same effect as to past transactions or considerations as to future ones.” This does not mean that the statutes related to past transactions cannot be constitutionally passed but rather such laws cannot be allowed to operate retrospectively.  A law is not retrospective if it does not change the legal effect of past transactions to the prejudice of parties involved.  If a law creates new obligations, imposes a new duty, or creates a new disability with respect to past transactions it is a retrospective law.  If a law relates to prior transactions but does not change their legal effect it is not retrospective

Application to the Facts: In this case, the statute did not change or cause any loss of substantive rights.  It simply provided for a procedural opportunity for insurance companies to intervene in the lawsuit prior to settlement.

The statutory rule of construction is that when a statute is alleged to apply to antecedent facts or transactions, the proper analysis should begin with whether the legislature has plainly expressed intent to apply the statute prospectively only.  If so, that express intent is controlling (regardless whether the statute is procedural or substantive in nature), and negates the need to address Article I, Section 13 of the Missouri Constitution.  However, if the statute does not plainly express an intent to apply prospectively only, then the analysis turn to whether application of the statute to antecedent facts or transactions would be impermissibly retrospective because it would create new obligations, impose new duties, or attach new disabilities with respect to a transaction or consideration already established.  There was nothing in the statute to indicate that it expressly applied to contracts entered into prior to the enactment of the statue; therefore, no notice was required to Seneca under the statute and as such the trial court ruling that Seneca could not intervene was correct.  Desai v. Seneca Specialty Insurance Company, (WD81220, 07/03/18)

Comment Howard: If you have a question involving retrospective laws this is the case. I don’t recall, ever having an issue involving a retrospective law.  If the issue of what is a retrospective law comes up the answer can be found in this opinion.  In addition, the Court  applied many of the rules that are used to determine if a statute is retrospective, providing the reader with a useful index.

Right to Farm Yields to Constitutional Provision That Established The Powers Of The Conservation Commission
Facts and Procedure: The Missouri Conservation Commission (Commission), is a constitutional entity that was created by Missouri voters through a ballot initiative in 1936, which vested the Commission with authority over the “control, management, restoration, conservation and regulation of the bird, fish, game, forestry and all wildlife resources of the state… and the administration of all laws pertaining thereto.”  The Commission acts through the Missouri Department of Conservation.

Among the wildlife the Commission regulates are elk and white-tailed deer, which are native to Missouri.  Both species are in the family cervidae, commonly known as cervids.  Respondents participate in Missouri’s captive cervid industry, which relies on two main types of activities: (a) selective breeding of cervids for desirable genetic traits like large antler racks and (b) the operation of private hunting preserves, where hunters pay thousands of dollars to hunt and take trophy bucks.  Respondents rely on an interstate market to obtain the captive cervids they need for their breeding operations and to meet demands for hunting on their preserves.

Cervids in Missouri are subject to chronic Wasting Disease, Disease (CWD), which is a fatal neurodegenerative disease.  It is spread directly through animal-to-animal contact as well as indirectly through environmental contamination.  CWD was first detected in Missouri in February 2010 at Heartland Wildlife Ranches (“Heartland”).  There is no method approved by the United States Department of Agriculture for testing cervids for CWD while they are still alive.  The approved test must be performed post-mortem.  CWD also has an incubation period of eighteen months, meaning a cervid can be CWD-positive for a period of time without showing any signs of the disease.

In an effort to manage the continued threat of CWD, the Commission proposed a series of amended regulations, which were set to go into effect on January of 2015, that were directed at Missouri’s captive cervid industry.  The amendments, most pertinent to this case, banned importation of cervids; imposed more rigorous fencing requirements; and imposed more rigorous record keeping and veterinarian inspection requirements.

Respondents filed an action against Appellants challenging the amended regulations seeking to enjoin Appellants from enforcing them.  Respondents claimed that because their captive cervids were not “game” or “wildlife resources of the state” under Article IV, Section 40(a) of the Missouri Constitution, the Commission did not have the constitutional authority to regulate Respondents’ cervids. Respondents also claimed the amended regulations interfered with their fundamental right to farm under the Missouri constitution.

Following a trial, the trial court declared all the challenged amended regulations to be invalid and prohibited the Commission from directly or indirectly relying on or enforcing them.  The trial court further found that Respondents are engaged in “farming and ranching” practices protected by right to farm Amendment in the Missouri Constitution.  In particular, the trial court noted that Respondents’ activities, including “acquiring, keeping, feeding and caring for herds of cervids,” breeding the cervids for desired traits and building and maintaining appropriate fencing and other facilities to contain the cervids, fall within the plain and ordinary meaning of “farming and ranching” practices.  The trial court further found: the amended regulations substantially burdened Respondents’ right to farm and ranch by eliminating the interstate market for captive cervids causing Respondents’ to potentially incur hundreds of thousands of dollars to comply with the amended regulations.  The trial court concluded that because the amended regulations would significantly impact Respondents’ right to farm and ranch, the amended regulations were subject to strict scrutiny.

The trial court in applying strict scrutiny found that the Regulations were not narrowly tailored, concluding that they were “patently both over-inclusive and under-inclusive.” They were over-inclusive because they prohibited importation of healthy cervids under a separate United States Department of Agriculture program, and it is under-inclusive in that the Commission claims that eliminating interstate movement of cervids is essential to managing CWD and that the Commission itself also recently imported elk, which are also cervids.  The trial court found that historically an “extraordinarily small percentage” of cervids shipped from CWD-certified herds were later found to be CWD-positive.  The Commission appealed the decision to the Missouri Supreme Court.

Opinion: Power of the Commission to Regulate Cervids: The Commission’s authority to enact the Regulations is derived from the Missouri Constitution, Article IV, Section 40(a), which provides:

The control, management, restoration, conservation and regulation of the bird, fish, game, forestry and all wildlife resources of the state,… and the administration of all laws pertaining thereto, shall be vested in a conservation commission․ (My Emphasis)

The Commission claimed that Respondents’ captive cervids are “game” and “wildlife resources of the state” such that they are subject to regulation by the Commission pursuant to Section 40(a) of the Missouri Constitution.  Appellants argued that the trial court erred in concluding that privately owned animals are not “game” or “wildlife” and that privately owned wildlife is not a “resource of the state” under the Missouri Constitution.

Resolution of this issue depends upon the meaning of the words “game” or “wildlife” and the meaning of the phrase “resource of the state” in Section 40(a).

In order to answer this question, the Court applied statutory rules of construction in the interpretation of the Missouri Constitution, recognizing that when interpreting the Constitution these rules are given a broader effect and more liberal construction because of their permanent character.  Also, the words conveyed to the voters are interpreted by applying the ordinary and usual meaning given to the words or phrases usually derived from the dictionary definition.  In addition, the grammatical order and selection of the associated words as arranged by the drafters is indicative of the natural significance of the words used.  The Court determined that the meaning of the word “the” in Section 40(a) required that it interpret “game” to modify “resources of the state.”  Applying the above statutory rules of construction the Court concluded that the Commission had the authority to regulate captive cervids.

Because the Commission also had the authority to regulate free-ranging cervids, which are both “game resources of the state” and “wildlife resources of the state” it had the authority to regulate captive cervids. Given the highly communicable nature of CWD, in that it can be spread both directly and indirectly through environmental contamination, the Commission’s efforts to restore and conserve free-ranging cervids would be threatened without the authority to regulate all cervids capable of infecting free-ranging cervids with this fatal disease; therefore, the Court found the Commission’s authority to regulate free-ranging cervids to include the authority to regulate importation and possession of captive cervids, which could pose a serious and fatal threat to free-ranging cervids.

Right To Farm:  The Commission argued that the “right to farm” is subject to the Commissions constitutional powers; that the respondents are not engaged in farming or ranching practices and that the challenged regulations are rationally related to a legitimate state interest that is narrowly tailored to achieve that interest.

With respect to the level of scrutiny applied to the regulations adopted by the Commission the Court concluded that the regulations “…do not implicate a suspect class because they do not classify on the basis of race, national origin, gender or any other arbitrary personal characteristic.”  Therefore, the Court applied intermediate scrutiny to determine the validity of the regulations using a rational basis as the test.

In addition, under the Right To Farm Constitutional Amendment, captive cervids are not traditional farm or ranch animals and do not fulfill the stated intent of the Amendment, which is to provide food, energy, health benefits, and security as the foundation and stabilizing force of Missouri’s economy.

The Court found that the Commission has “…a legitimate interest in protecting its wildlife resources, and as previously discussed, CWD is a serious and fatal threat to the cervids of the state.  The fact that the disease can be spread both through animal-to-animal contact as well as indirectly through environmental contamination, regardless of whether the cervids involved are free-ranging or captive, adds to the concern over the disease and devastation it can cause.

The importation ban, the increased fencing standards and record-keeping and veterinary requirements contained in the challenged regulations are rational means of dealing with the directly and indirectly communicable and fatal threat of CWD.  As such, the regulations rationally relate to conceivable, legitimate regulatory goals of protecting the wildlife resources of the state.  The importation ban is a rational means of reducing the risk of further spread of CWD into Missouri, especially into hunting preserves where cervid populations are more concentrated.  The fencing standards are also a rational means of reducing the risk of any spread of CWD between captive cervids and the free-ranging cervids outside the fences forming the boundaries of captivity.  The trial court’s judgment does not specifically address the record-keeping and veterinary requirements in the amended regulations, and Respondents have otherwise failed to establish that they are irrational.

Therefore, the Court found that the Commission had authority to regulate free-ranging and captive cervids.  Hill v. Missouri Department Of Conservation, (Mo. SC96739, 07/03/18).

Comment Howard: This case is a masterpiece with respect to application of statutory construction.  The analysis of the world “the” to derive meaning from the Missouri Constitution is brilliant. In addition, the Court concluded that intermediate scrutiny is the standard for interpreting the “right to farm” constitutional amendment, which should be extremely useful to local governmental attorneys when they are faced with interpretations of the right farm amendment.

You may find that the post: “Missouri Supreme Court Lays Waste to the Constitutional Amendment Guaranteeing the Right to Farm” on my municipal law blog is of interest.


Other posts that may be of interest are:

No Constitutional Right To Grow Marijuana https://momunicipallaw.com/2017/12/25/no-constitutional-right-to-grow-marijuana/

Large Scale Industrialized Hog Farms Threaten the Welfare of Missouri Citizens. https://momunicipallaw.com/2011/05/07/692/

Right to farm Constitutional Amendment On August 5, 2014 the voters of the State of Missouri will vote on whether or not to adopt a constitutional amendment to forever guarantee that farmers and ranchers have the right to engage in farming. https://momunicipallaw.com/2014/07/30/right-to-farm-constitutional-amendment/

Police Cannot Search Cell Phone Without A Warrant – Aug 6, 2014 7:41 AM


Search Warrant Not Required to Search Abandoned Cell Phone https://momunicipallaw.com/2018/03/05/search-warrant-not-required-to-search-abandoned-cell-phone/

Can the Police Search a Magnetic Tape on the Back of a Credit, Gift or Debit Card Without Obtaining a Search Warrant? – Dec 12, 2016 2:03 PM

No Search Warrant Required to Search Cell Phone if There Are Exigent Circumstances https://momunicipallaw.com/2017/02/22/no-search-warrant-required-to-search-cell-phone-if-there-are-exigent-circumstances/

Search and Seizure In World Without Walls Feb 7, 2012 11:07 AM https://momunicipallaw.com/2012/02/07/search-and-seizure-in-world-without-walls/  “It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. In any case, to wear an improper expression on your face… was itself a punishable offense. There was even a word for it in Newspeak: facecrime…”  
 George Orwell, “1984” – Book One, Chapter V.