November Newsletter (Issue 11-2018)

Open Carry Of Firearms In Zoo (Probably) Prohibited By Ordinance And Statute
Facts and Procedure: The Zoological Park Subdistrict of the Metropolitan Park Museum District (Zoo) is a political subdistrict of the state of Missouri.  It is open to the public, free of charge, and averages twenty to thirty thousand visitors per day during the summer months.  Zoo policy prohibits visitors from carrying firearms on Zoo property.  Signs posted at the entrances state “No Firearms Or Weapons Allowed On This Property.”

Smith is a gun rights activist who resides in Ohio.  He carries an Ohio concealed handgun license.  Smith contacted the Zoo regarding its policy of prohibiting all firearms on the Zoo’s premises.  After multiple communications, Smith informed the Zoo he intended to enter the premises with a firearm.  Thereafter, the Zoo obtained a temporary restraining order, enjoining Smith from entering the Zoo in possession of a firearm.  Smith traveled to St. Louis and entered the Zoo carrying an empty holster.

The trial court held a two-day contested evidentiary hearing on the preliminary injunction.  The court entered a preliminary injunction, enjoining Smith from entering the Zoo in possession of a firearm.  Thereafter, the Zoo filed a motion for summary judgment on its petition for permanent injunction.  The trial court granted summary judgment in favor of the Zoo.  Smith appealed to the Eastern District.

 Opinion: The Opinion starts with an analysis of the distinction between judicial review of a summary judgment and an injunction.  An injunction is a remedy, not a cause of action; therefore, the injunction must be based on a recognized completed legal theory.  In this case, the Zoo did not include in its petition a request for declaratory relief that the ordinance and statute were valid nor did the Zoo plead lack of an adequate remedy and irreparable harm if the injunction was not granted.

The Western District concluded that the summary judgment was improper because the trial court failed to properly consolidate the three phases of injunctive relief (temporary restraining order, temporary or preliminary injunction following a hearing, and permanent injunction) for purposes of the evidentiary hearing.  The evidence showed that the parties fiercely controverted the facts; therefore, the trial court improperly concluded that there was no genuine issue of material fact for an injunction based upon a motion for summary judgment.

Failure to consolidate the three phases of an injunction without issuing an order consolidating these phases deprived Smith a reasonable opportunity to present evidence; therefore, the trial court’s decision was vacated and remanded for further proceedings.  Zoological Park Subdistrict of  Metropolitan Book Museum District v.  Smith,(ED105784, 06/11/18).

Comment Howard:This case is unremarkable, except it stands for a stark reminder that a request for an injunction needs to be based upon an underlying cause asking for a declaration of law with respect to the underlying claim and allegations that there is no adequate remedy and there will be irreparable harm if the injunction is not granted.  The decision to file an injunction was a smart move because it avoided a potential civil rights violation if Smith was arrested while carrying a gun.

There was a concurring opinion that is a lot more interesting and important because it analyzes the exceptions to areas where the carrying of a concealed firearm can be prohibited concluding that the zoo could prohibit the carrying of a firearm even if it was not concealed because the general provisions of Section 21.750, premising the open carry of a firearm upon a valid conceal carry permit, must give way to the more specific limitation on locations where is possible to prohibit the carrying of a   concealed firearm.

The concurring opinion implies that the legislature surely meant to limit the carrying of firearms, whether they were concealed or unconcealed, in those areas designated in the statute.  The concurring opinion gives local government officials the right to ban the carrying of any firearms in the areas designated in the statute until there is further clarification by the courts on this matter.  Seems like the concurring opinion was also a strong hint that carrying a firearm into the zoo based upon a permit to carry a concealed firearm was prohibited whether it was concealed or unconcealed.  It is worth noting that  gun rights advocates are looking for test cases, so be wary when you get notification by gun rights groups that they may test your law.

Top Flight Article On Latest Analysis Of Free Speech Under Reed
The November/December edition of the Municipal Lawyer has a must read article by DeWitt McCarley and Catherine Clodfelteron on the implications of Reed v. Town of Gilbert and the challenges it imposes for municipalities as they attempt to regulate signage and other communication without reference to the messaging.  This article is particularly useful because it has examples of “What Works and What Doesn’t Work.”  One of the big points made by the authors is that doing nothing, (not updating your sign ordinances) is not really an option because of the changes in the law caused by Reed.  You may access the article if you have not already received your copy of the Municipal Lawyer by clicking here.

Medical Marijuana
With the passage of Constitutional Amendment Number 2, (Medical Marijuana Amendment), local government attorneys will need to consider what steps should be taken to make sure city/county laws comply with the Act.  Obviously, there are a lot of unanswered questions since regulations have not yet been established. Missouri Lawyers Weekly noted that existing policies regarding drug use and drug testing need to be carefully evaluated in order to ensure that local government policies and procedures do not get caught in the trap between other laws pertaining to employment (think handicap laws) and the new medical marijuana law.

In addition, the location of certain facilities such as a Medical Cultivation Facility, Dispensary Facility, Manufacturing Facility, and Testing Facility will require review of local zoning ordinances to determine where these facilities can be located.  I did not see any express preemption of zoning or employment laws.  In fact, with respect to public safety and employment the Amendment makes it clear that the provisions of the Act do not apply to the operation of any dangerous device or a vehicle.

Promulgation of rules for the Act specifically requires the Department to provide instructions or guidance for local authorities and law enforcement officers.  Local government may want to work with the Department in providing input into these instructions.  The Act appears to be well written and was based upon statues in other states.  My source tells me that the Missouri law was a compilation of “best practices” based upon Colorado, Oregon and Washington laws.  He also noted that Nevada appeared to have a pretty clean set of regulations and that Colorado currently appears to be a regulatory maze.  Further determination of its origin would be very useful in providing a roadmap to answering basic questions concerning the impact of the Act.  A link to the Act is provided here.

Red Alert– Statutory DWI Warning Given Prior To Breath Test That License Would Be “Immediately” Revoked Is Not Accurate And Is Seriously Questioned
In a case that could rock the foundations of DWI prosecutions, the Eastern District, referred to the Missouri Supreme Court, Thomas vs. Director of Revenue, a case involving whether or not the statutorily required warning given to a person, believed to have been driving while intoxicated or in a drugged condition is constitutional.

Thomas who was an arrested for driving while intoxicated argued, and the trial court found, that his constitutional right to due process was violated because the arresting officer falsely informed Mr. Thomas that his license would be “immediately”revoked if he refused to submit to a breath test.  This warning, according to the trial court, was “blatantly incorrect” because, under the statute, he would receive a fifteen-day driving permit prior to the date of revocation.  Thomas argued that the “untrue” and “coercive” warning invalidated his consent by prejudicing his ability to make an informed decision. In reaching this conclusion, the trial court relied on an earlier opinion by the Missouri Supreme Court that held an individual’s due process rights were violated by inaccurate information in an implied consent warning.

It was uncontested at trial that the warning given by the officer in this case fully complied with Section 577.041.1 RSMo.  It is also undisputed that Section 577.041.1 expressly required the officer to inform Mr. Thomas that his license would be “immediately”revoked if he refused to submit to the breath test.  Based on the facts in the case, the trial court found that Mr. Thomas’s due process rights were violated because “[t]he use of the word ‘immediately’ is patently untrue.”

The trial court reasoned, “There can be no question that being given false information prejudices, and in fact completely disables, a person’s ability to make an informed decision.” The trial court further reasoned, “the breath test results were obtained in violation of the requirements of 577.037.4, as well as [Mr. Thomas]’s due process rights, therefore rendering the results inadmissible.”  Case referred to the Missouri Supreme Court for further proceedings.  Thomas vs. Director of Revenue, (ED106360, 11/13/18)

Comment Howard: Obviously, the Eastern District did not want to handle this hot potato and kicked it up to the Missouri Supreme Court.  It will be interesting to see how the Missouri Supreme Court handles the meaning of the word “immediately” particularly in light of the catastrophic consequences to DWI prosecutions in the event the Supreme Court upholds the trial court’s decision.  Stay tuned.

Retaliation Claim Can Be Based On Request For A Handicap Accommodation
As a matter of first impression, under Missouri law, the Eastern District held in Lin v. Washington University in St. Louis, that a retaliation claim could be based on a request for a handicap accommodation, even though the underlying claim for handicap discrimination was dismissed.  While, this is a case of first impression, under Missouri law, the outcome is not particularly startling because there is ample precedent under federal law to support the reasoning followed by the Eastern District.  This case was replete with indications that the actions of Washington University to terminate the employment of Dr. Lin for lack of funding for the project and failure to find other work to accommodate her disability was an excuse to terminate her employment.

 Facts and Procedure: Dr. Lin was employed by Washington University, as a medical research scientist, from 1996 to 2012.  During the course of her employment, Dr. Lin held numerous positions working in various laboratories, each supervised by a different lead researcher.  Between 1996 and 2012, Dr. Lin’s position was eliminated on at least four occasions because her supervisor left the university.  Each time, however, Dr. Lin was quickly able to apply and transfer to a new position in a different laboratory.  All of Dr. Lin’s work at Washington University was funded by grants secured by the lead researcher in the lab where she was working at the time.  Often, Dr. Lin would work on multiple grants at the same time, with a portion of her salary paid for by each grant.

In 2004, Dr. Lin transferred to a position in a laboratory supervised by Dr. Ellis, where she worked for the next eight years, until her termination by Washington University on November 30, 2012.  During her employment, Dr. Lin began suffering from chronic back pain and was diagnosed with two herniated disks by her physician.  She informed Dr. Ellis of her back condition and requested an accommodation to avoid tasks that aggravated her back pain.  Dr. Ellis provided the requested accommodation.  Sometime in 2011, Dr. Lin’s back pain became more severe, and she asked to be excused from performing tasks involving cell culture and extensive bench work, both of which required working at a laboratory bench with her back bent over for extended periods of time.

One type of work that Dr. Lin could perform was micro-array analysis, which involved processing DNA from samples of cancer tissue for a project called the R01 Grant.  Dr. Ellis accommodated Dr. Lin’s request and assigned her to work predominantly on the R01 Grant performing micro-array analysis.  The micro-array analysis work, related to the R01 Grant, was projected to conclude by the end of 2012.

Sometime in early 2012, Dr. Lin had a minor disagreement with a colleague regarding office correspondence that resulted in a complaint being filed against her.  On June 28, 2012, Dr. Ellis forwarded this complaint to the Administrator, asking to have the human resources department initiate a process “with a view to terminating [Dr. Lin’s] position” based on this complaint.  The Administrator forwarded this request to Ms. Sandra Sledge, a human resources consultant, employed by Washington University (“Human Resources”).  At this point, everything changed with respect to Dr. Lin future employment.  Human Resources drafted notes for Dr. Ellis explaining that the funding for Dr. Lin’s position was running out.  Human Resources worked with the Administrator to draft a letter to Dr. Lin, explaining the reasons why there was no more funding for her position, which was subsequently used as the justification for Washington University’s decision to terminate Dr. Lin’s position for lack of funding.

When Dr. Ellis met with Dr. Lin in mid-July of 2012, he informed her that funding for her work on the R01 Grant would end in six months and that as a consequence her position would be eliminated.  He discussed the other types of work she could perform, given the work restrictions due to her back pain.  Subsequently, Dr. Lin then applied for forty-one available positions at Washington University.  She was not accepted for any of these positions nor was she granted a single interview, unlike the last four times when her position was eliminated.  Washington University terminated Dr. Lin’s employment on November 30, 2012.

After Dr. Lin was terminated, Dr. Ellis applied for and received a one-year “no cost” extension on the R01 Grant.  Dr. Ellis then used the funds from the R01 Grant, originally budgeted to last until December 31, 2013, to pay salaries for employees in his lab through the end of 2014 including the micro-array analysis work through 2014.

Dr. Lin then filed a charge of discrimination with the Missouri Commission on Human Rights (“Commission”), alleging Dr. Ellis and Washington University (collectively “Defendants”) discriminated against her based on her disability by failing to provide a reasonable accommodation for her herniated disks, and retaliated against her for requesting a reasonable accommodation by discharging her and preventing her from transferring to a new position at Washington University.  After receiving a right-to-sue letter from the Commission, Dr. Lin filed a petition in circuit court, asserting her claims of disability discrimination and retaliatory discharge against Defendants.

Prior to trial, Dr. Lin voluntarily dismissed her disability discrimination claims against Defendants, and the case proceeded to a jury trial solely on the retaliation claims.  The jury returned a verdict in favor of Dr. Lin on her retaliation claim against Washington University, but not against Dr. Ellis.  Washington University filed a motion for judgment notwithstanding the verdict arguing that Dr. Lin failed to present a submissible case on her retaliation claim.  The court denied the motion and Washington University then appealed to the Eastern District.

Opinion: Requesting an Accommodation is a Protected Activity
Washington University argued that the trial court erred in denying its motion for judgment notwithstanding the verdict because a claim by a person seeking a disability accommodation is not a recognized claim under Missouri law.  More specifically, Washington University argued that Dr. Lin request for an accommodation was not a “protected activity” under the MHRA.

In response, the court noted that Section 213.070(2) of the MHRA protects employees from retaliatory discrimination for participating in conduct protected under the MHRA.  Participation in a protected activity includes opposing any practice prohibited by the MHRA, filing a complaint of discrimination, and testifying, assisting, or participating in any manner in any investigation, proceeding, or hearing conducted pursuant to the MHRA.  Since there was no Missouri case directly on point, the question of whether or not a request for accommodation constituted a protected activity the Eastern District turned to federal law.  Federal cases addressing this issue are numerous; consistently holding that the act of requesting, under the anti-retaliation provisions of the ADA, a reasonable accommodation is a protected activity; therefore, the Eastern District held that under Missouri law the active requesting a reasonable accommodation was a protected activity.

The McGinnis Doctrine: Washington University argued that the trial court erred in denying the motion for judgment notwithstanding the verdict because the verdict finding Dr. Ellis not liable for retaliation also exonerated Washington University under the McGinnis Doctrine.  Washington University argued that Dr. Ellis was the University’s agent and his conduct in discharging Dr. Lin was the “sole basis” for Dr. Lin’s claim.  The Eastern District, rejected this argument noting that the McGinnis doctrine  applied only if the employer’s liability is “wholly dependent” on the conduct of the exonerated employee.  In this case, there was ample evidence that the decision to terminate was based “in whole or in part” on the conduct of other employees such as employees in Human Resources and the Administrator.

Ultimately the Eastern District found that the verdict director in this case assumed as true disputed facts that Dr. Lin request was “reasonable,” and that she acted in good faith.  Since Washington University disputed whether or not Dr. Lin was acting in good faith the verdict director was in error; therefor, the case was reversed for further proceedings in accordance with the opinion.  Lin vs. Washington University in St. Louis, (ED105886, 11/13/18)

Status of Arbitration  Law
It is hard to keep track of the status of the law with respect to arbitration clauses in employment contracts, particularly as it relates to at-will employees.  I assume local government agencies do not normally require arbitration, although I can see that it might be particularly useful with respect to certain key employees like city managers/administrators, as well as some other key employees.  With respect to key employees, it would seem that neither party would want to air their so called dirty laundry in public and would have a mutual interest and could find legal consideration to arbitrate certain matters, even though the ultimate outcome of arbitration may require disclosure of some of the details of any settlement.

A recent article in the Fall-2018 edition of Missouri in-House Counsel provides the best and most current up-to-date analysis of the ongoing battles over arbitration clauses.  I found that the comment made by Judge Laura Denvir Stith, (discussed in the article), that there is no consideration when an at-will employee agrees to arbitration, was very persuasive because of the lack of consideration.  Still, not everybody agrees with her analysis, as the article notes.

I also wonder why, with respect to allegations concerning a violation of discrimination laws, there is no discussion concerning the fact that discrimination is against public policy, which in my mind is a red line beyond the pale of arbitration (like custody of children); or alternatively at a minimum requiring an extra heavy burden, in order to force submission of any agreement to arbitrate discrimination claims.  In any event, the debate over arbitration clauses, particularly with respect at-will employees, is of great interest and may soon come to a conclusion.

Recent Cases Illustrate Basics of Arbitration: Two recent opinions provide further insight into the basics of the arbitration process. In Esser vs. Anheuser–Busch LLC, the Eastern District discusses an agreement to arbitrate between Anheuser-Busch (A-B) and Esser (Respondent), an employee of Anheuser-Busch, where Anheuser-Busch, as a threshold question, sought to compel arbitration that allowed the arbitrator to compel arbitration.

Other than claiming that the DRP and delegation provision were mailed to Respondent, posted to A-B’s internal website, and explained in A-B presentations to its employees generally, A-B asserted no facts indicating that Respondent was ever actually aware of the terms or the delegation provision; therefor, the Eastern District concluded that there was no consideration to form a valid contract.

This case contains an excellent discussion of general principles governing the validity of arbitration agreements and would be a good starting point for any research on this question.  In addition, in another case involving arbitration the Eastern District concluded that arbitration provision was unconscionable to the extent it required one party to submit its claims to arbitration while allowing another party to precede in court for related claims.  Millennium Anesthesiology Consultants vs. Walsh, (ED106489, 11/30/18)

Application of Photo ID Law
In PrioritiesUSA vs. State of Missouri Implementation of the Missouri Photo ID Law hit some serious snags in the last month.  First, there was a Circuit Court decision by Senior Judge Callahan, in Cole County, in the case of PrioritiesUSA vs. State of Missouri,holding that the sworn statement requiring voters to present a voter ID with a photograph went too far; therefore, the affidavit prepared by Secretary of State, J Ashcroft, was in violation of a citizen’s right to vote guaranteed by the Missouri Constitution.  Judge Callahan, ruled that communications issued by the Secretary of State clearly led voters to believe they must present a photo ID to vote.  The State actually conceded no such requirement existed.  In addition, Judge Callahan noted that the affidavit prepared by Secretary of State Ashcroft for voters to sign, who did not have proper identification, was therefore clearly a misstatement of the law and invalid.

After the Attorney General and the Secretary of State were unable to obtain an appellate court order to block the ruling by Judge Callahan, in Cole County Circuit Court, they filed a motion claiming that local election authorities were not subject to the order since they independently enforced the law and were not parties to the lawsuit.  Judge Callahan, quickly clarified his opinion, in Priorities USA vs. State of Missouri, by ruling that it applied not only to the Defendants but also to all persons acting in concert with the Defendants, including local election officials.  This case is now on appeal to the Western District.

Comment Howard: This is the first time that I have had an opportunity to look at the right to vote under Missouri law.  The right to vote is not mentioned in the United States Constitution, it is implied.  However, in Missouri, it is much different, in that the Missouri Constitution has a very robust provision protecting the right to vote by all citizens who are residents of the United States.  Specifically, the Missouri Constitution guarantees that “all elections shall be free and open; and no power, civil or military, shall at any time prevent the free exercise of the right of suffrage.”  In addition, the Missouri Constitution provides that all citizens of the United States over the age of 18 are entitled to vote at all elections by the people.  The right to vote is a fundamental right that is subject to strict scrutiny, so held the Missouri Supreme Court in a 2006 decision invalidating an earlier voter ID statute.   In 2016, the voters approved a constitutional amendment authorizing a Voter ID law.  Even though Judge Callahan determined that the current Voter ID law is constitutional, its application as noted above was declared to be invalid because actions taken by the Secretary State suppressed the rights of voters.

If you’re interested in exploring the right to vote under state law Vanderbilt Law Review has excellent article on the “State Constitutional Right to Vote in Vol. 67:1:89 discussing in some detail the Missouri constitutional provisions.

Failure of the Legislature to Appropriate Sufficient Funds Invalidates Actions by The Secretary of State to Implement Voter ID Law

Facts and Procedure: A second case, recently decided by the Western District, Missouri State Conference of the National Association for the Advancement of Colored People v. State of Missouri, involved a challenge to the Voter ID Law, concerning whether or not the Missouri General Assembly appropriated sufficient funds for the implementation of the Voter ID law.  Initially, this was framed as a challenge under the mandates provision of the Hancock Amendment, but that dropped out of the case and it was decided on the following language, which required the state to appropriate the money necessary to fund a personal identification requirements of the Voter ID Law.

Section 115.427.6(3) provides that “[a]ll costs associated with the implementation of this section shall be reimbursed from the general revenue of this state by an appropriation for that purpose.  If there is not a sufficient appropriation of state funds, then the personal identification requirements of subsection 1 of this section shall not be enforced.” (Emphasis added by the Court.)

Personal Identification Requirements – Section 115.427.6(1) imposes certain duties on public officials by requiring the State and all fee offices to “provide one nondriver’s license at no cost to any otherwise qualified voter who does not already possess such identification and who desires the identification in order to vote.”

The State and its agencies are further required to:

“provide one copy of each of the following, free of charge, if needed by an individual seeking to obtain a form of personal identification described in subsection 1 of this section in order to vote: (a) A birth certificate;
(b) A marriage license or certificate; (c) A divorce decree; (d) A certificate of decree of adoption; (e) A court order changing the person’s name; (f) A social security card reflecting an updated name; and (g) Naturalization papers or other documents from the United States Department of State proving citizenship.”

Any individual seeking one of the above documents, in order to obtain a form of personal identification to vote, may request the secretary of state facilitate the acquisition of such documents at no cost to the citizen asking for  identification sufficient to meet the requirements of the Voter ID Law.

The Missouri National Association Advancement for Colored People (MoNAACP) and the Missouri League of Women Voters (MoLWV) filed a petition for injunctive and declaratory relief against the State, the Secretary of State, and the Board of Election Commissioners for the City of St. Louis.  Count I alleging that Section 115.427 was unenforceable because the General Assembly had not provided a sufficient appropriation of state funds from the general revenue for the purpose of paying the costs associated with the implementation of Section 115.427 relating to state and federal 2018 elections.  Appellants requested that the trial court enter a declaratory judgment that the identification requirements of Section 115.427.1 may not be enforced and issue a permanent injunction prohibiting the State from enforcing Section 115.427.1.  They alleged that for implementation of Section 115.427 in Fiscal Year 2017, $80,000 of general revenue funds was appropriated to the Department of Revenue, and no funds were appropriated to the Secretary of State.  Furthermore, they alleged that for implementation of Section 115.427 for Fiscal Year 2018, $1.5 million had been appropriated to the Secretary of State, and $100,000 had been appropriated to the Department of Revenue.  They alleged that no funds were appropriated to any other agency of the State, to the courts, or to any political subdivision to implement Section 115.427 in Fiscal Year 2018, from general revenue or any other source, and there had been no supplemental appropriations related to the implementation of Section 115.427 for Fiscal Year 2018.

Appellants asserted that the legislature failed to provide a sufficient appropriation of state funds from the general revenue for the purpose of paying the costs associated with the implementation of Section 115.427, resulting in an inadequate implementation of the statute.  Specifically, Appellants contended that the Secretary of State failed to provide advance notice under the specific terms set forth under Section 115.427.5, resulting in the general public not receiving adequate advance notice of the Voter ID Law.  Further, Appellants alleged that, based on the stated appropriation of state funds, the Secretary of State would be unable to pay for the cost of the documents necessary for individuals to obtain nondriver’s licenses in the State of Missouri.

According to Appellants, the Secretary of State and Department of Revenue’s combined costs to reasonably implement the Law would total nearly $6 million, which is more than 350% of the actual appropriation.  Appellants alleged that they have been and will be required to shift their resources to do for their members and the public what Section 115.427 mandates that the State do.  Appellants asserted that because the appropriation to implement Section 115.427 was insufficient, under Section 115.427.6(3), “then the personal identification requirements of subsection 1 of this section shall not be enforced.”

The Secretary of State and the State each filed answers and moved for judgment on the pleadings.  The trial court granted the motion and entered judgment, finding that “the Second Amended Petition failed to state a claim for which relief can be granted and Defendants are entitled to judgment as a matter of law,” dismissing Appellants’ Second Amended petition without prejudice. Appellants appealed to the Western District.

Sovereign Immunity: The State argued that it was entitled to sovereign immunity as a matter of law because the State did not consent to be sued and was therefore protected under the doctrine of sovereign immunity.   The Western District concluded this argument misconstrued the Missouri cases on sovereign immunity because the sovereign immunity defense while blocking damages against the state does not bar a claim for injunctive relief to reverse a state agency’s prior violation of its statutory obligations, or to prevent future violations because it is form of equitable relief.

 Ripeness: The State argued that the lawsuit was not ripe for adjudication because it had until the end of the fiscal year (June 30, 2018) to appropriate funds and reimburse costs incurred in implementing the Voter ID law.  The Western District noted that in order “…to be ripe for a judicial determination the controversy must be of sufficient immediacy and reality before the issuance of a declaratory judgment.” The Voter ID Law required that the state provide the general public advance notice of the personal identification requirements contained in the law.  In addition, Missouri voters cannot incur costs in order to secure their ability to vote.  Section 115.427.6 (3) makes the enforceability of the identification requirements contingent on “a sufficient appropriation,” not on “sufficient implementation” of the statute by the secretary of state or other agencies; therefore, the requirement of a sufficient appropriation to cover the cost of implementing the Voter ID law presented a ripe controversy without awaiting the  actual incurrence of cost to implement the statute or the conclusion of the fiscal year in which the appropriation apply.

 Necessary and Indispensable Parties: The State argued that local election authorities (LEAs) were not named as defendants and were necessary and indispensable parties for injunctive relief in order to prohibit enforcement of the Voter ID Law.  In this case, Appellants alleged that the State is the entity responsible for the implementation and enforcement of Section 115.427.  Furthermore, the Secretary of State is the chief election official who is responsible for the implementation across the State of laws related to voting including Section 115.427 and for enforcing the photo ID requirements.  In this case, the second amended petition requested a declaratory judgment that the identification requirements of Section 115.427.1 may not be enforced by the State and that the relief was not directed to the LEA.  The Secretary of State did not explain why injunctive relief could not be granted without the LEA’s as parties or why declaratory judgment that the identification  requirements of the statue were unenforceable would not be binding on the LEA’s.  Furthermore, the absence of a necessary party is not fatal to jurisdiction and the remedy for failure to join a necessary party is by motion to add a necessary party by motion for joinder rather than a motion to dismiss.

Failure to State a Claim: The Missouri Constitution provides that no money shall be withdrawn from the state treasury except by warrant  drawn in accordance with an appropriation made by law nor shall any obligation for the payment of money be incurred unless the commissionable administration certifies it for payment and that the expenditure is within the purpose as directed by the General  Assembly of the appropriation and that there is an appropriation of an unencumbered balance sufficient to pay it.  In this case, the budget estimates submitted to the General Assembly for the enforcement of the Voter ID law was approximately $6 million.  The General Assembly only appropriated $1.5 million in amount that was 360% lower than the estimated cost for implementation.  Therefore, following the normal rules of statutory construction it was determined that words “sufficient appropriation” meant that it was “marked by quantity, scope, power, or quality to meet with the demands, wants, or needs of a situation or of a proposed use or end.”  Therefore, the petition stated a cause of action and was remanded to the Circuit Court for further action in accordance with the opinion.  Missouri State Conference of the National Association for the Advancement of Colored People v. State of Missouri, (WD81484, 10/30/18)

Comment Howard: One enlightening aspect to this case was a discussion in FN7 showing language in that Missouri Constitution that requires an appropriation and a certification by warrant that the expenditure had a sufficient unencumbered balance to support the expenditure.  This illustrates the origin of a rule that I always followed that was required by city charter and as a matter of ongoing practice without realizing the actual origin of the law was from the Missouri Constitution.  Good place to look for cases supporting similar charter provision.

Article IV, Section 28 of the Missouri Constitution provides that an appropriation must precede an expenditure:

“No money shall be withdrawn from the state treasury except by warrant drawn in accordance with an appropriation made by law, nor shall any obligation for that payment of money be incurred unless the commissioner of administration certifies it for payment and certifies that the expenditure is within the purpose as directed by the general assembly of the appropriation and that there is in the appropriation an unencumbered balance sufficient to pay it.”

Sound familiar!