May Newsletter (Issue 05-2018)


On Friday, April 20th, 2018 at IMLA’s Mid-Year Seminar in Washington, D.C., IMLA recognized Allen Garner of Allen Garner Law, LLC for his efforts in drafting an amicus brief on behalf of IMLA and other local government organizations.

The International Municipal Lawyers Association’s Amicus Service Award seeks to recognize lawyers who have been actively involved in legal advocacy for and on behalf of local governments and IMLA, and who have done exemplary work to protect and advance local government interests.  Mr. Garner drafted the amicus brief in the Sophian Plaza Association v. Kansas City case.

“IMLA’s legal advocacy program is vital to our mission and without lawyers like Mr. Garner, we would not be able to sustain it.” – Amanda Kellar, Associate General Counsel / Director of Legal Advocacy, IMLA

IMLA thanks Mr. Garner for his hard work and dedication in advancing the interests of local government!

MMAA Summer Seminar

Don’t forget to register for the MMAA Summer Seminar which runs from July 20-22 at Tan-Tar-A.  MMAA Summer Seminar.


Local Government Is Not a Person Under Public Accommodation Law
Facts and Procedural Background: Plaintiff (“B.Z.”) initiated a lawsuit in the Circuit Court of Jackson County against the Blue Springs School District (“School District”) and three individuals employed by the School District (“Individual Defendants”).  B.Z. alleged that while she was a kindergartner, she was sexually harassed and assaulted by other students at her elementary school.

Count I of B.Z.’s petition alleged discrimination in public accommodation pursuant to Section 213.065 of the Missouri Human Rights Act (“MHRA”).  Count II of the petition alleged the tort of negligent supervision/breach of ministerial duties.  Count III of the petition alleged the tort of breach of fiduciary duty/confidential relationship.  All three Counts named the School District and the Individual Defendants as defendants.

The School District filed a motion for summary judgment alleging that Count I of B.Z.’s petition failed to state a claim because political subdivisions are not “persons” who are liable for public accommodation discrimination pursuant to Section 213.065.  After the motion for summary judgment was denied the School District filed a writ of prohibition with the Western District asking that it direct the circuit court to take no action other than to grant the School District’s motion for summary judgment.

The writ was premised on the legal argument that the School District, was not a “person” subject to liability for public accommodation discrimination pursuant to Section 213.065; and that the School District’s MOPERM insurance policy did not waive sovereign immunity for the torts alleged in B.Z.’s petition by affording the School District employees and public officials coverage.

Opinion: The Court reasoned as follows.
Count I of B.Z.’s petition alleged discrimination pursuant to the MHRA, and specifically, discrimination in public accommodation pursuant to Section 213.065. B.Z. alleged that the School District directly or indirectly discriminated against her use of a public elementary school on the grounds of sex.

Section 213.065.2 limits liability for discrimination in public accommodation to “any person.” “Person” is statutorily defined as follows:

[I]ncludes one or more individuals, corporations, partnerships, associations, organizations, labor organizations, legal representatives, mutual companies, joint stock companies, trusts, trustees, trustees in bankruptcy, receivers, fiduciaries, or other organized groups of persons.  Section 213.010(14).

The School District argued that it is a political subdivision, and that a political subdivision is not included in the statutory definition of “person” citing numerous cases that if the statutory definition fails to specifically mention “political subdivision” as part of the definition of “person” a political subdivision is not included.  In addition, a political subdivision is not a corporation as that term is ordinarily used under Missouri law.  Furthermore, statutory provisions that are alleged to waive sovereign immunity are strictly construed against the waiver; therefor-strict construction of a statute presumes nothing that is not expressed. “[I]n the absence of an express statutory exception to sovereign immunity sovereign immunity is the rule and applies to all suits against public entities․”

In addition, the Court reasoned that since claims pursuant to the MHRA are of statutory origin that sound in tort and that the other claims are pled as torts the School District is entitled to the defense of sovereign immunity unless it has waived the defense by procuring insurance for the claim.

 MOPERM Insurance Policy: The MOPERM policy provides coverage for dangerous conditions and for the operation of motor vehicles.  The policy also provides coverage for employees and public officials.  The fact that there is coverage for employees and public officials does not constitute a waiver of sovereign immunity for the political subdivision.  In addition the policy provides:

“Nothing contained in this section, or the balance of this document, shall be construed to broaden the liability of the [School District] beyond the provisions of Sections 537.600 to 537.610, RSMo., nor to abolish or waive any defense at law which might otherwise be available to the [School District] or its officers and employees.”

Language similar to the above has been construed in other cases to protect a political subdivision from waving sovereign immunity.  State Ex Rel., Blue Springs School District v. Grate, (WD81197, 05/01/18)

Comment Howard: This is a Wow opinion, written by Judge Martin.  The opinion is very strong and extremely well reasoned.  It is also a case of first impression and runs counter to 32 years of acceptance of the current law.  Local government attorneys should recognize the argument about the definition of a political subdivision although it seems odd that no one has raised this argument before (to my knowledge) during the life of this statute.  I think it’s going to be hard for anyone to reverse this opinion other than through remedial legislation.

City Has Standing To Challenge Whether Water Quality Goals Are Appropriate Before Incurring Costs

The City of Kennett was successful in getting the Eighth Circuit to reverse a federal district court decision that held the City did not have standing to challenge whether or not water quality goals are appropriate or attainable for Buffalo Ditch, which was where the City discharged its wastewater from its treatment plant.  The EPA argued that the City did not have standing because the matter was not ripe for review since no costs were imposed on the City to purchase expensive treatment systems that would be required.  The Eighth Circuit reversed and remanded to the district court to determine if it would be advisable to address the issues raised by the City earlier rather than later due to the cost of preparing applications and submitting them to EPA. City of Kennett v. Environmental Protection Agency, (8th Cir. 17–1713, 04/09/18)

Comment Howard: If your city is involved with DNR/EPA in establishing discharge limits from your wastewater treatment plant you may want to look at this case considering the financial impact that could be imposed to meet clean water standards.  The principle articulated in this case is extremely important because prior to this decision local government was required to incur substantial cost before it could challenge the proposed standards.

Can A School District Withdraw A Fulltime Para-Professional For A Handicapped Person When The Original Accommodation Was Not Justified?

Baldridge v. Kansas City Public Schools, presents an important question of law concerning whether or not the withdrawal of an accommodation (dedication of a fulltime paraprofessional to assist an ADA handicapped person) can be introduced into evidence to show a hostile work environment.

Facts – Baldridge is a C4-C6 quadriplegic due to a car accident when he was sixteen years old.  He has no functional hand movement, limited upper body strength and use, and no use of his lower extremities.  He has used a power wheel chair for mobility for over forty years and uses a customized splint on his arm for limited writing tasks. Baldridge has a bachelor’s degree from University of Arizona, a master’s degree in Arts and Teaching from Drake University, and a master’s degree in Community Health from University of Missouri-Kansas City.

Baldridge was hired by KCPS in 2002 to work as a counselor at an alternative school program for students, who were suspended from classes for short or long-term periods.  During Baldridge’s first position with KCPS he worked in an alternative setting where he worked in a room with two co-employees that were available to assist him with tasks whenever it was necessary.  When that program was discontinued, KCPS reassigned Baldridge to a traditional school guidance counselor position at James Elementary.  Due to Baldridge’s inability to scan, copy, and write, he was provided with a dedicated paraprofessional to assist him with tasks he could not perform due to his disability, which continued until there was a review of Baldridge’s position by KCPS’ Human Resources Director KCPS’ resulting in the withdrawal of the accommodation of Baldridge’s dedicated paraprofessional.

After failing to find another reasonable accommodation, Baldridge sued for violation of the ADA.  A jury found in favor of Baldridge who was awarded $230,000 in compensatory damages and $576,075 in punitive damages.  KCPS then filed a motion for new trial or remittitur.  The trial court granted KCPS’ motion in part by awarding a new trial on the grounds that it erroneously allowed Baldridge to present evidence regarding the removal of the dedicated paraprofessional, it erroneously allowed Baldridge to present evidence of several actions on the part of KCPS which did not legally constitute unlawful or unreasonable lack of accommodation, it erroneously allowed Baldridge’s claim of failure to provide accommodations for eating and drinking assistance as proof of hostility and cruelty, the evidence did not support submission of a punitive damage claim, and the court erroneously failed to allow the withdrawal instructions submitted by KCPS relating to the claims involving the withdrawal of the dedicated paraprofessional accommodation and paid administrative leave.  The trial court denied all other forms of relief requested by KCPS.  Both parties appealed to the Western District.

Opinion: KCPS argued that the dedication of a fulltime paraprofessional is not a reasonable accommodation as a matter of law and therefore Baldridge should not have been able to present evidence or argue that withdrawing the dedicated fulltime paraprofessional constituted evidence of harassment or a hostile work environment. Since this case was submitted to the jury as a hostile work environment case the question for the jury was whether or not KCPS’ conduct “unreasonably interfered” with Baldridge’s work performance, and whether or not Baldridge’s disability was a contributing factor in KCPS’ conduct. The Court concluded that it does not follow that “unreasonably interfering with work performance” is limited as a matter of law to the removal (or failure to provide) of reasonable accommodations.  The removal of a paraprofessional (whether dedicated or fulltime) after eight years was plainly “conduct;” therefor, this was a fact question for the jury as well as other conduct by KCPS, which was sufficiently severe and pervasive as to alter the terms, conditions, or privileges of Baldridge’s employment and interfering with his work performance. Therefore, the trial court’s decision granting a new trial was reversed.  Baldridge v. Kansas City Public Schools, (WD80289 consolidated with WD 80230, 04/24/18)

Comment Howard: At the conference for the jury instructions the trial court submitted its own verdict director based upon a hostile work environment rather than an instruction based upon failure to provide a reasonable accommodation.  Both parties had submitted verdict directors to the trial judge based upon failure to provide a reasonable accommodation; nevertheless, the trial court overruled the objections by the parties and imposed its will over their objections by requiring that the case be submitted on a hostile work environment theory.  It sounds like the trial judge took over the case.  As we know, the scope of a hostile work environment case can be breathtaking, representing in this case a significant disadvantage for KCPS who tried its case on a different theory.  It seems that initially KCPS should have more carefully determined whether or not the assignment of a full-time dedicated paraprofessional to assist Baldridge was required, recognizing that its later withdrawal could be very difficult, as shown by the results of the trial.  Having assigned Baldridge a full-time dedicated paraprofessional for years and defending its subsequent withdrawal in the context of a hostile work environment was unlikely to succeed for KCPS.

City Was Entitled To The Defense Of Sovereign Immunity Against Wrongful Termination Claim Of The Police Chief

Pogue, the chief of police of the City of Leadington, (City) was terminated but did not appeal that decision.  One year later Pogue, filed a wrongful termination claim against the City in circuit court, which was dismissed based upon a motion for summary judgment filed by the City, which asserted it was entitled to sovereign immunity.

Pogue appealed to the Eastern District claiming that his action was based upon a contract, which was not subject to the defense of sovereign immunity.  Pogue argued that Section 106.273 gave him certain substantive and procedural rights, including the right to be terminated only for “just cause.”  He argued that the statute created a quasi-contract relying upon the Russell case, which held that a breach of contract claim for retirement and other work-related benefits sound in contract and was not barred by sovereign immunity.  Pogue’s claim differed significantly from his pleadings, which did not allege any contractual rights.  In fact, Pogue failed to mention the word contract in his pleadings.  The Court noted that exceptions to sovereign immunity are narrowly construed; therefore, based on the pleadings the City properly asserted the defense of sovereign immunity.  Pogue v. City of Leadington, (ED105829, 04/17/18). NOTE: This is a Memorandum Order that is not a formal opinion and is not to be cited or used in unrelated cases.

 Comment Howard: Even though this case will be unpublished it is well worth the read because it does an excellent job of describing when a law creates a contract (like pensions) or not, in which case it is subject to the defense of sovereign immunity unless the claim falls within one of the recognized exceptions.

 Does The Voluntary Cessation Of Illegal Noncompliant ADA Violations Make A Case Moot?

Facts and Procedures: From 2013 to 2016, Jabari N. Wright visited the RL Liquor store several times.  Wright, was paralyzed from the waist down and confined to a wheelchair, encountered barriers at the store: the parking lot had no van-accessible parking spots or signs, the entryway threshold’s slope was not ADA compliant, and the counter’s height was higher than the ADA standard.  Wright sued RL Liquor and Ruth L. Dailey, for violating Title III of the Americans with Disabilities Act (ADA).  After receiving the complaint, RL Liquor designated van accessible parking and posted signs, changed the threshold on the entryway to comply with the ADA.  After a bench trial, the district court dismissed as moot the claims about the parking-lot barriers and on the remaining claims ruled that Wright failed to meet his burden to prove a readily achievable barrier removal method.  Wright appealed to the Eighth Circuit claiming that cessation of the illegal practice did not make the case moot.

Opinion: A defendant’s cessation of a illegal ADA violation makes a case moot only if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”  Only in those situations where it is clear that the voluntary cessation of an illegal practice is not likely to return is a case moot.  In this case, after the Defendant’s were made aware of the ADA violations it made structural changes by placing proper handicap signs and changes to the entryway threshold slope to comply with the ADA.  This case was readily distinguishable from other cases were permanent changes were not made and all that will be required is to change the policy, which could easily occur.  Wright v. RL Liquor, (8th Cir., 17-1133, 04/04/18)

Attorney General Does Not Have Authority To Condition Grants To State And Local Government Based On Compliance With Sanctuary City Policies

Facts and Procedure: The Seventh Circuit Court of Appeals held that the Attorney General of the United States did not have the power to condition grants to law enforcement by requiring state and local government cooperation with respect to the immigration policy of the executive branch; therefore, the Seventh Circuit issued a nationwide injunction against the Attorney General of the United States to enjoin the Attorney General from enforcing notice and access conditions imposed by the Attorney General upon recipients of grants under the Edward Byrne Memorial Justice Assistance Program (Byrne JAG program).  The Byrne JAG program is the primary program used by the federal government to provide assistance to local and state law enforcement. These conditions were imposed in order to eliminate sanctuary programs for immigrants by state and local government.

Issue: The “notice” condition mandated advance notice to federal authorities by local and state authorities of the release date of persons who are believed to be aliens.  The “access” condition required local officials to provide access to federal agents at correctional facilities where the aliens were being held.  The issue before the Court was described by the Court as: “…the bedrock principles of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government, the separation of powers.”

“The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government.  If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken.”

After numerous failed attempts to amend the Byrne JAG grant program to allow the Attorney General to condition grants with state and local government to force cooperation with the Attorney General in enforcing immigration laws the Attorney General used his powers to condition grants, which were challenged in this lawsuit.

Opinion: The Attorney General places all his purported authorization to impose conditions on grants pointing to 34 U.S.C. § 10102(a)(6) as authorizing the Assistant Attorney General to impose conditions on grant recipients.

“(6) exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.” (emphasis added by Court)

 The Court concluded that the Attorney General’s interpretation is contrary to the plain meaning of the statutory language because the word “including” by definition is used to designate that a person or thing is part of a particular group.  Its plain meaning is to set forth a subcategory of the types of powers and functions that the Assistant Attorney General may exercise when vested in the Assistant Attorney General either by the terms of this chapter or by delegation of the Attorney General.   “The inescapable problem here is that the Attorney General does not even claim that the power exercised here is authorized anywhere in the chapter, nor that the Attorney General possesses that authority and therefore can delegate it to the Assistant Attorney General.”  City of Chicago v. Sessions, (7th Cir. 17-2991, 4/19/18)

Comment Howard: I was very skeptical if the legal theory that the federal government could not commandeer local and state resources was a viable legal theory to defend sanctuary city policies.  This case makes a very strong argument about the separation of powers between federal and state government in the context of the federal government forcing local and state government to do their bidding.  Still it is important to remember that this case simply involves statutory construction, which might be changed by Congress, leaving the much larger question about separation of powers. But wait; in less than 30 days after this decision, the United States Supreme Court answered the viability of legislative solution with a resounding opinion in Murphy saying Congress does not have this authority based on the separation of powers.  The United States Supreme Court case in Murphy v. National Collegiate Athletic Association is discussed below.  While it is unlikely that local government practitioners will see a separation of powers case, this opinion and the recent United States Supreme Court decision establishes the separation of powers as one of the bedrocks of our democracy. These two cases are a significant victory for state and local government having far reaching consequences.

Anti-Commandeering Doctrine Prohibits Congress From Directly Compelling States To Enact and Enforce a Federal Regulatory Program

In Murphy v. National Collegiate Athletic Association, the United States Supreme Court considered whether or not the provisions of the Professional and Amateur Sports Protection Act (PASPA) violated the anti-commandeering doctrine (recognized fairly recently by the United States Supreme Court) as part of the separation of powers in the United States Constitution.  The anti-commandeering doctrine prohibits Congress from, directly compelling states to enact and enforce a federal regulatory program.  Also the Court noted that any distinction between compelling a State to enact legislation and prohibiting a State from enacting new laws is an empty one.  The basic principle that Congress cannot issue direct orders to state legislatures applies in either event.  Murphy v. National Collegiate Athletic Association, (U. S. Sup. Ct. 16–476 and 16–477, 05/14/18)

Comment Howard: This case about a lot more than just gambling. It certainly solidifies the principle that state and local government have a large role in our federal system and that there are limits on how far the federal government can go in directing states and local government to carry out federal mandates by directing legislation or by commanding local government to perform actions like enforcing the immigration laws at the behest of the executive branch.

First Amendment Does Not Protect Public Employee’s Speech That Pertains To Professional Responsibilities

Facts and Procedural Matters: The former Director of the Energy and Environmental Research Center (the Center) at the University of North Dakota (University) sued University President Robert O. Kelley, Ph.D., in his individual and official capacities and the North Dakota State Board of Higher Education (Board), challenging the termination of his employment.  The Director claimed that defendants retaliated against him for exercising his First Amendment free speech rights and violated his Fourteenth Amendment due process rights by terminating his employment.  The district court granted defendants’ motion to dismiss holding that the Director failed to allege a constitutional violation.  The Director appealed to the Eighth Circuit Court of Appeals.

 The Director alleged that he was terminated in retaliation for speaking on a matter of public concern on the following issues: (1) his expressions regarding the amount of legal fees that the Center was required to pay to the University’s attorneys; (2) his discussion about the University’s reallocation of the Center’s intellectual property licensing fee revenue; (3) his bid for additional land and his communications with the North Dakota legislative committee about the Center’s need for additional space; (4) his statements to President Kelley about the Center entering into cooperative research agreements with other University departments; (5) his concerns about how the University’s “over taxation” was contributing to the Center’s budget deficit; and (6) his attempted discussions with Espegard regarding the newspaper article, the amount of legal fees that the Center was paying, and his desire to seek Espegard’s advice on how to make his budget concerns known to the Board.

The Director asserted that his speech was protected because he never spoke about his own personal or financial interests, but instead only spoke out because of his concern for the Center.  As Director of the Center, part of his professional responsibilities included overseeing the Center’s function and finances.  It was his responsibility to report to President Kelley budget variances, which were then ultimately reported to the Board.  In the above instances, the Director was not speaking as a private citizen, but rather in his capacity as director in an attempt to advance the Center’s position with respect to balancing its budget, bringing in more revenue, or expanding its existence within the University.  Part of the Directors professional responsibilities included overseeing the Center’s function and finances.  It was his responsibility to report to President Kelley budget variances, which were then ultimately reported to the Board.

Opinion: The Court noted that a public employee’s speech is protected under the First Amendment if he or she speaks as a citizen on a matter of public concern, but a public employee’s speech is not protected if he speaks pursuant to his official duties.  The Court stated that the critical question in this case was “whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”

A public employee’s speech is pursuant to his employment duties “if it is ‘part and-parcel of’ the employee’s concerns about his ability to ‘properly execute his duties.’” The First Amendment does not protect a public employee’s speech if it “owes its existence to his professional responsibilities,” which in this case it did.   Groenewold v. Kelley, (8th Cir., 16-4019, 04/24/18)

Comment Howard: Some of the reasons given for the dismissal seem very close to recognized free speech.  Certainly the Board had some reasons for the dismissal such as insubordination and failure to properly and timely file reports.  Suppose the director filed a letter to a newspaper urging that citizens look into the question of defunding of the department, budget deficits caused by removal of funds and the controversy between the athletic department over land.  Seems to me that the Court left itself little room for a department head to speak out at all about matters that might be of legitimate public concern.

Law Prohibiting Felons From Possessing Firearms Is Absolute

Facts and Procedural History: In Alpert v. State of Missouri, the Missouri Supreme Court held that Alpert’s claim was ripe and again upheld the Missouri statute barring felons from possessing firearms against a challenge that the statute violated the right to bear arms in the Missouri and United States Constitutions making this law absolute.

Alpert was a two-time convicted felon of a nonviolent crime (possession of a controlled substance) in the 1970’s who had successfully completed his sentences.  In 1983, Alpert filed an application with the United States attorney general to restore his right to possess a firearm that was prohibited due to his felony convictions, which application was granted.  In 1986, Alpert applied for and received a federal three-year, renewable license, permitting him to deal firearms.  After the license was issued, Alpert began buying and selling firearms.  Alpert’s license was renewed regularly.  In 2007, Alpert founded Missouri Bullet Company (hereinafter, “MBC”), a cast bullet manufacturer.

In 2008, the General Assembly amended Section 571.070, making it unlawful for any person who has been convicted of a felony under Missouri law “or of a crime under the laws of any state or of the United States which, if committed within this state would be a felony,” to possess a firearm.  When Alpert attempted to renew his FFL01 license he was told that he would be required to surrender his license.

Alpert then filed a declaratory judgment asking for a declaration that Section 571.070 could not be enforced against him without violating his right to own and possess a firearm under the Missouri and United States constitutions.  Alpert set forth facts demonstrating his law-abiding behavior since completing his sentences and having his federal gun rights restored.  Alpert’s petition further alleged he wished to possess two family heirloom pistols and a rifle he was awarded in 1993.  Alpert maintained his claims were ripe because the facts necessary to adjudicate the claims were developed fully in a manner giving rise to an immediate, concrete dispute, and he lacked an adequate remedy at law.

Alpert alleged Section 571.070 was unconstitutional, as applied to him, because it was underinclusive, overinclusive, and its prohibition barring felons from possessing firearms was not longstanding.  The state countered that Alpert’s claims were not ripe because he was not being prosecuted or threatened with prosecution (he was dying) for violating Section 571.070.  The state also argued Alpert, as a convicted felon, categorically was excluded from Second Amendment protections, and, therefore, his facial and as-applied challenges must fail.  The trial court sustained the state’s summary judgment motion that Alpert as a convicted felon was categorically excluded from Second Amendment protections, and, therefore, his facial and as-applied challenges must fail but rejected the state’s ripeness argument, finding it would be improper to bar Alpert’s pre-enforcement action because it would require him to violate the law before proceeding.

 Ripeness: The Court concluded that forcing Alpert to wait until he violates Section 571.070 and is prosecuted or threatened with prosecution put him “in a dilemma that it was the very purpose of the [d]eclaratory [j]udgment [a]ct to ameliorate.”  The Court held that there was no adequate remedy at law therefor; the issue was ripe because a party does not have to wait for the imposition of penalties in order to assert a constitutional claim for injunction.  The Court split four the three on whether or not this case should have been heard.

Constitutional Right to Bare Arms:
Article I, Section 23 Challenge: Alpert argued that Section 571.070 was not narrowly tailored to achieve any compelling state interest; therefore, it violated Article I, Section 23 because it was not restricted to violent dangerous offenders but applied to all felons.  The statute had no temporal limit to its applicability.  It applied to persons such as Alpert who actually demonstrated an ability to possess firearms peacefully and without incident since his much earlier conviction.  It applied to disabled veterans who may need  firearms for self-defense and even felons whose right to possess firearms was restored under federal law.  The Court answered that argument by noting that in Missouri the prohibition against felons possessing firearms was long-standing and that it had previously held that the statute was narrowly tailored and that it was not underinclusive because it did not apply to misdemeanants and other offenders likely to commit violent crimes; therefore, even when subjected to strict scrutiny under Article 1, Section 23 the statute was valid.

Second Amendment Challenge: Alpert argued that several federal Circuit Court of Appeals decisions applied because he identified “…traditional justifications for excluding from Second Amendment protections the class of which he appears to be a member” and has presented “…facts about himself and his background that distinguish his circumstances from those of persons in the historically barred class.” The Court rejected this argument based on existing Missouri law noting that Alpert “…disregards the common denominator that ties his case to the others: he committed two serious felonies requiring him to serve prison time.” Therefore, Alpert failed to demonstrate Section 571.070 violated the Second Amendment as applied to him.  Alpert v. State of Missouri, (SC96024, 04/03/18)

Comment Howard: This case has an excellent discussion of when an issue is ripe with respect to a request for a declaratory judgment, a matter that is common to the local government law practice. The opinion by the court with respect to the right to bear arms is excellent because it provides the latest up to date discussion of this issue, particularly with respect to felons. The prohibition against felons owning or possessing firearms is absolute.

Police Officers Can Move Portable Breathalyzer From One Police Vehicle To Another Police Vehicle

Facts and Procedures: Franklin County Sheriff’s Deputy Adam Albert (Deputy Albert) arrested Appellant for DWI based on his observations.  Deputy Albert escorted Appellant to the front seat of his patrol car.  Deputy Albert called another deputy and asked him to bring a breath analyzer instrument to his location.  Detective Albert testified he did so instead of going to the police station so that he could obtain a breath test closer in time to the arrest.  While Deputy Albert was waiting, he conducted a 15-minute observation period of Appellant’s mouth.  The other deputy arrived with an Alco-Sensor IV with printer unit (AS-IV-P) and put the unit in the back of Deputy Albert’s patrol car.  Deputy Albert administered a test of Appellant’s breath using the AS-IV-P and it showed Appellant’s blood alcohol content (BAC) was 0.119 percent.

The Director notified Appellant the department was suspending Appellant’s driver’s license, and Appellant requested administrative review.  Following a hearing, the hearing officer sustained the suspension of Appellant’s driving privileges.  Appellant requested a trial de novo in the circuit court.  At trial, Appellant objected to the admission of the results of the breath test as lacking foundation, arguing the Director failed to show that Detective Albert used the AS-IV-P in accordance with state regulations.  The trial court entered judgment sustaining the revocation of Appellant’s driving privileges, finding that Deputy Albert had probable cause to arrest Appellant for DWI and that Appellant’s BAC exceeded the legal limit of 0.08 percent.  Appellant appealed to the Eastern District.

Opinion: Appellant argued on that the trial court erroneously admitted Appellant’s breath test result without proper foundation because the Director failed to show compliance with 19 CSR 25-30.050 in that Detective Albert impermissibly used the AS-IV-P in a mobile fashion.

Appellant argued the trial court erroneously admitted Appellant’s breath test result without a proper foundation because the Director failed to show compliance with 19 CSR 25-30.050 in that Detective Albert impermissibly used the AS-IV-P in a mobile fashion.

In order to introduce the results of a breathalyzer test one of the elements that the Director must prove is that the approved procedures were used.  In particular the Appellant argued that the applicable regulations disallowed the movement of the unit from one police vehicle to another.  19 C.S.R. 25-30.050 lists approved breath analyzer units. The regulations provide that:

“(2) Breath analyzers are to be used within buildings or vehicles used for driving-while-intoxicated enforcement.  These breath analyzers are not approved for mobile use in boats or in outside areas.”

The regulation does not contain any further definition of “vehicle used for driving-while-intoxicated enforcement.”  Appellant argued that a routine patrol car does not fall within this category.

The Court found that the language “vehicle used for driving-while-intoxicated enforcement” is clear that it includes any vehicle that is used to enforce the offense of driving while intoxicated.  The same car Deputy Albert used to initiate the stop of Appellant is the car in which Deputy Albert used the AS-IV-P.   Such use is permissible under the plain language of the statute as written.

The Court concludes that: “The regulation plainly limits vehicle usage to within law enforcement vehicles.  For example, had Deputy Albert moved the AS-IV-P to Appellant’s vehicle to administer the test, such use would be improper under this regulation.”  Marquart v. Director of Revenue, (ED106024, 04/24/18)