April Newsletter (Issue 4/22/2019)

Board Fees for Jail Can Not Be Billed as Court Costs
Facts and Procedure: George Richey pleaded guilty to violating an order of protection and was sentenced to jail.  Upon his release from jail, the circuit court ordered him to pay the board bill, amounting to $3,150.  The circuit clerk prepared a fee report, which included his board bill.  Richey was ordered to pay $3,266.50 as court costs.  Richey made no payments, and the circuit court issued an arrest warrant for failure to pay the court costs.  He was placed in custody in the county jail again, based on his failure to pay the board bill.  After Richey was released, the circuit court taxed as court costs another board bill, this time for $2,275, for the 65 days Richey served in jail on the January warrant.  Richey’s new court costs bill amounted to $5,541.50.

After his release, Richey was required to appear in court for “payment review hearings” approximately once a month.  In total, Richey attended 18 “payment review hearings.”  Richey made payments totaling $1,600 during those months, but as of May 2018, Richey still owed $10 for the “CVC” charge and $3,931.50 for the two board bills.
Richey filed a motion to retax costs in March 2018, arguing the circuit court had no statutory authority to tax his board bills as court costs. The circuit court overruled the motion and Richey appealed to the Missouri Supreme Court.

In a similar case, that was consolidated with the Richey case, Wright incurred a board bill for his stay in jail, which was taxed as court costs in the amount of $1,358.  A motion to re-tax cost was filed by Wright based on the argument that there was no statutory authority to tax the board bill as court costs and that he was entitled to $380 repayment because his payments has exceeded the non-board bill in that amount, which motion was overruled.  The circuit court overruled the motion and Wright appealed.

Analysis: The legal analysis is straightforward.  Cost are creatures of statute.  Statutes allowing taxation of cost are strictly construed.  The express statutory authority must be clear, definite, and unambiguous.
In this case, the statute defined, “court cost” as “the total of fees, miscellaneous charges and surcharges[] imposed in a particular case.” The State argued that jail board fees could be construed as “miscellaneous charges,” which definition is “the amounts allowed by law for services provided by individuals or entities other than the court.”  The State also argued that incarceration is a “service” which may be billed under the statute because the dictionary meaning of “services” is as “an act done for the benefit or at the command of another.”  In addition, the State argued because Sections 550.010 and 550.030 contemplate that incarceration fees are “costs.”
The Court concluded that the statutes do not explicitly authorize board bills to be taxed as court cost.  In addition, the lack of express authority is even more glaring when comparing these statutes with other statutes that specifically authorize designated fees to be billed as court cost.

With respect to the claims for refunds, the Court reasoned that since Richey and Wright still owed the balance of the board bill they were not entitled to a refund; however, Wright’s case is different than Richey’s because Wright had incurred an additional charge of $2,275 while he was incarcerated 65 days for failure to pay the earlier board bill; therefore, this bill was based on an illegal incarnation and was not valid and was cancelled.  State of Missouri v. Richey, (SC97604, 03/19/19).

Comment Howard: If you have not already advised financial officers you should do so immediately because this will impact budgets for jails in an already difficult environment for financing law-enforcement services.  Obviously, this case has pretty much everything you want to know about court cost for the billing of jails costs.

Comment Ragan: At some point I think the legal system tangled up this matter and it could result in some nasty unexpected consequences as the issue gets sorted.

Trial Court Has No Obligation to Rule on Motion When the Blood Alcohol Content Is Below .08
Facts and Procedure: McCree parked his vehicle on the side of the road in Warren County after it broke down.  A sheriff’s deputy arrived on the scene and asked McCree to exit the vehicle.  As he did so, the deputy smelled a heavy odor of intoxicants and observed that McCree had watery eyes and difficulty standing.  McCree admitted to the deputy he had consumed three to four beers, and he staggered as he spoke.

The deputy arrested McCree for driving while revoked and transported him to the county jail, where he was arrested for driving while intoxicated.  He refused to complete field sobriety tests or a chemical test of his breath.  The deputy obtained a search warrant to determine McCree’s blood alcohol concentration.  McCree provided two blood samples revealing alcohol concentration levels of .052 percent and .039 percent.

The State charged McCree with driving while intoxicated.  McCree filed a motion under Section 577.037.2, arguing that because the chemical analysis demonstrated his blood alcohol concentration was less than .08 percent, that the charge should be dismissed because the State failed to present evidence to prove dismissal unwarranted.  The circuit court held a hearing on the motion.  Neither the State nor McCree called any witnesses or presented any evidence.  The circuit court overruled the motion and McCree filed a preliminary writ of mandamus before the Missouri Supreme Court requesting that the writ be made permanent.

Analysis:  Section 577.037.2 requires dismissal of the DWI case unless the State presents evidence and the court finds one or more of the following considerations causes the court to find a dismissal unwarranted:

(1) There is evidence that the chemical analysis is unreliable as evidence of the defendant’s intoxication at the time of the alleged violation due to the lapse of time between the alleged violation and the obtaining of the specimen; (2) There is evidence that the defendant was under the influence of a controlled substance, or drug, or a combination of either or both with or without alcohol; or (3) There is substantial evidence of intoxication from physical observations of witnesses or admissions of the defendant.

Section 577.037.2 indicates what evidence the State must present to avoid a dismissal of a case, when the blood alcohol content of the defendant is less than .08, but the statute does not state when the court has to rule with respect to the evidence required above.  On appeal, the defendant argued that the State failed to present any evidence in opposition to its motion to dismiss, which was required once the circuit court took up the motion.  The defendant conceded that the circuit court could have expressly reserved its ruling on the motion until trial, but having taken up the motion it was obligated to rule in defendant’s favor because the State failed to present any evidence to support one of the three exceptions in the statute (see above); therefore, the circuit court erred in not sustaining defendant’s motion.

The Court reasoned that since the statute does not require a pre-trial determination the trial court was within its discretion to overrule the motion.  The trial court had the option to defer its ruling, subject to later review.  Furthermore, the ruling did not prevent the defendant from seeking a reconsideration of its motion.  Since the ruling was not final, it could later be reconsidered; therefore, a writ was not an appropriate remedy.  State of Missouri ex rel. McCree v. Dalton, (SC97186, 03/19/19)

Comment Howard: The opinion was only a plurality opinion, with the court splitting 3 to 3 with Judge Breckinridge, concurring in the courts opinion because the appeal was from an interlocutory order and any error or failure to dismiss was subject to review on appeal.  The dissenting opinion was very strong arguing that the statute requiring the State to present evidence in the event the breathalyzer test was below .08 required a ruling much like a summary judgment motion.  I liked the plurality opinion because it left the trial court in control of the case so it could decide whether or not to rule on the motion, take it up later or rule at the time of trial.

Under Missouri Implied Consent Law Revocation Is Immediate – Due Process Is Provided
Facts and Procedure: Mr. Carvalho was stopped for speeding in Washington, Missouri.  Carvalho had crutches in the car and stated he had been at a hospital due to a foot injury.  The officer’s report stated he suspected Mr. Carvalho was driving while intoxicated based on his “very strong odor of intoxicants” and “watery, bloodshot, and glassy” eyes.  Carvalho said he had not been drinking but declined to allow the officer to perform a horizontal eye nystagmus test, stating, “I ain’t doing that, you can talk to my lawyer.”  In the incident report, the officer noted Carvalho slurred his words when he spoke.  The officer asked Mr. Carvalho to exit the vehicle, which he did with the assistance of his crutches.

The officer asked Carvalho to provide a sample of his breath and advised him of Missouri’s implied consent law.  When Mr. Carvalho refused, the officer arrested him for speeding and driving while intoxicated and transported him to the Washington police station.

At the police station, the officer asked Carvalho to provide a breath sample and read him “the implied consent warning” contained in the Missouri Department of Revenue alcohol influence report.  After talking to his attorney, Carvalho submitted to the breath test, which showed that he had a BAC of point .087.  In accordance with the statute, the officer took possession of Carvalho’s license and provided him with a 15-day temporary permit with notice that his “driving privilege will be suspended or revoked 15 days from the date of this notice if you do not request a hearing” and with a form explaining how to request a hearing.  As required by Section 302.510, the officer prepared and forwarded a report to the department of revenue but he did not check the foundational box.

Based on the officer’s report, the department suspended Carvalho license who then requested a hearing where the hearing officer sustained the suspension.  Carvalho appealed to the circuit court where he testified that he took the breath test based on use of the word “immediately” in the statutorily required warning because he thought this meant if he did not take the test he would be prohibited from driving for the remainder of the year to work and to school and was concerned he would lose his job.  He testified he did not realize he would get a temporary permit.  The circuit court sustained the suspension and he appealed to the Supreme Court.

Analysis: Failure to Provide Maintenance Report Within 15 Days
Carvalho contended the breath test results were inadmissible because the director failed to check the foundational box, thereby failing to comply with 19 CSR § 25-30.031(3), which provides that a copy of maintenance reports on breathalyzers must be filed with DHSS within 15 to comply days.  There was no question that the report was filed within the 15 required days.  The Court reasoned that the failure to check the box did not affect the actual performance of the maintenance test of the breathalyzers.  This was a question of first impression for the Missouri Supreme Court, which ruled that failure to check the box had no effect on the functioning of the breathalyzer test; therefore, the report was admissible.  This was not like failure to perform maintenance test of the breathalyzer, which could affect its underlying performance.

Required Due Process: The Court noted that drivers’ licenses are property interest protected by procedural due process and can not to be taken away without meeting the procedural due process requirements in the 14th Amendment.  Carvalho argued he was provided a constitutionally deficient notice of the hearing because the officer stated: “If you refuse to take the test, your driver’s license will immediately be revoked for one year,” which is required by Section 577.041.  Carvalho alleged that the notice in the statute was “misleading” because the suspension of his license did not occur immediately making, the notice inaccurate.  Carvalho objection was to the fact the statute does not also require the officer to inform him that, once his license was suspended, he would get a 15-day permit even if he refused the test; therefore. the suspension not “immediate.”

The Court noted that this argument failed because the foundational basis of the implied consent law is that a driver gives consent, as soon as he or she takes the wheel by driving on Missouri’s public roads, to test of the person’s breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of the person’s blood, if the police officer has reasonable grounds to believe the driver is intoxicated.  The purpose of the warning is only to inform drivers, such as Mr. Carvalho, that they can withdraw their implied consent and refuse to submit to any chemical tests but, if they so choose, there will be consequences.

Furthermore, under the statutes if you refuse to take the breathalyzer or other test for blood alcohol the officer immediately takes your license and gives you a temporary permit for 15 days, with information concerning how you can appeal the revocation.  In other words, the revocation happened immediately but was replaced by a temporary permit for 15 days, during which he could decide whether or not to contest the revocation.

With respect to procedural due process the 14th Amendment permits deprivation of a property interest by the government upon notice and an opportunity for a hearing, which was given in this case.

A court may stay the revocation but until the court acts the revocation is in effect.  The Court concluded that Carvalho was afforded due process.  Carvalho vs. Director of Revenue, (SC97394, 03/19/19).

Comment Howard: The opinion in this case is the best explanation of the implied consent law I have seen making it worthwhile to bookmark the case for future reference.

A Biological Female Whose Legal Sex Is Male Can State A Claim Of Sex Discrimination Against A School District For Failure To Provide A Public Accommodation Under The MHRA
Facts and Procedure: R.M.A. filed a charge of sex discrimination with the Missouri Commission on Human Rights (“Commission”) alleging he was discriminated by the Blue Springs School District and its Board (collectively referred to as “District”) in a public accommodation on the grounds of his sex.  The Commission issued a notice of right to sue.  R.M.A. then filed suit against the District.

R.M.A.’s petition alleged his “legal sex is male” and that, by denying him “access to the boys’ restrooms and locker rooms,” the District had discriminated against him in the use of a public accommodation “on the grounds of his sex” in violation of Section 213.065.2.  The District filed a motion to dismiss for failure to state a claim upon which relief could be granted.  The motion asserted that the MHRA does not cover claims based on gender identity and Defendants are not “persons” as defined by Section 213.010(14) and used in Section 213.065.2.  The circuit court sustained the Districts’ motion to dismiss without explanation and entered judgment dismissing R.M.A.’s petition with prejudice. R.M.A. appealed to the Missouri Supreme Court.

Analysis: The key issues in this case are whether or not R.M.A. has stated a cause of action under the MHRA and if the petition has stated a claim that the School Board and the School District are persons for the purpose of damages.  A literal reading of the definition of person could lead one to conclude that even though for the purpose of providing public accommodations a political subdivision is subject to the Act it is not a person for determining damages.  For this reason, the Court first determined if a cause of action was stated and next if damages lie under the definition of “person.”

Did Plaintiff’s Petition State a Cause of Action: R.M.A. alleged that the District discriminated unlawfully by barring him from the boys’ restrooms and locker room because he “is transgender and is alleged to have female genitalia.”  The Court made it clear that the MHRA prohibits sex discrimination, not discrimination based on transgender status; therefore, this case is about sex discrimination.  In determining whether or not the plaintiff states a cause of action of sex discrimination, the Court examines the petition to determine if the four necessary elements are alleged in the petition to state a sex discrimination claim.  The Court simply looked to the four elements, through the lens of a modified MAI instruction, which it constructed, and concluded that the four elements were alleged in the petition.

To summarize, R.M.A.’s petition alleged he is a member of a protected class, he was discriminated in the use of a public accommodation, his status as a member of a protected class was the basis for the discrimination he suffered, and he sustained damages, as required by Section 213.065.  At this stage of the proceedings, that is all that is required; therefore, the circuit court should have overruled Defendants’ motion to dismiss.

The Board and the School District Are Persons Under the MHRA: Defendants argued they cannot be held liable because neither the School Board or the School District are person’s under Section 213.065 of the MHRA. Section 213.065.2 states: “It is an unlawful discriminatory practice for any person, directly or indirectly, to refuse, withhold from or deny any other person … any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation … on the grounds of … sex.”

The Court reasoned that the definition of the term “person,” in Section 213.010(14), provides that a person “includes 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.”

Furthermore, the definition of “person” in Section 213.010(14) expressly states that it “includes” the individuals and entities listed therein, not that it is limited to them.  The Court noted that the state and its political subdivisions need not be explicitly listed to be encompassed in a statute if “an intention to include them is clearly manifest, as where they are expressly named therein, or included by necessary implication.”

The Court reasoned that the definition of “person,” includes the School Board and the School District because the statute plainly extends to accommodations owned by the state or its subdivisions.  Section 213.00 (15)(e) (providing a “public accommodation” includes “Any public facility owned … by or on behalf of this state or any agency or subdivision thereof ….”).  Also, the MHRA plainly prohibits discrimination by the state or its subdivisions on the basis of sex. See § 213.070 (“It shall be an unlawful discriminatory practice … (3) For the state or any political subdivision of this state to discriminate on the basis of race, color, religion, national origin, [or] sex ….”).

Furthermore, “… it would be illogical for the legislature to, on the one hand, ban discrimination in public accommodations and, on the other hand, exempt the owner of the public accommodation from liability for that discrimination.  Continuing,“… if the legislature intended to exclude schools (including school districts and school boards) from liability under the MHRA, it is unlikely it would have hidden its intent to do so in the definitions of “employer” and “person.” (The legislature “does not, one might say, hide elephants in mouseholes.”).”

The Court concluded that the state and its political subdivisions need not be explicitly listed to be encompassed in a statute if “an intention to include them is clearly manifest, as where they are expressly named therein, or included by necessary implication.”  Accordingly, the state and its subdivisions, including the School District and the School Board, are “persons” as defined by Section 213.010(14) and used in Section 213.065 and can be liable under the MHRA.  Appleberry v. Blue Springs R-IV School District, (SC96683, 02/26/19)

Comment Howard: There was quite a bit of bickering between the principal opinion and the dissent about the proper procedures to follow in order for the court to properly consider this case, which I have not covered in order to avoid a distraction from the real importance of this case. The Courts analysis, concluding that the petition stated a cause of action is extremely straight forward.  The Court simply looked to the four elements required under the statute, through the lens of a modified MAI instruction and concluded that the four elements were alleged in the petition.  End of story on that issue, but we can be sure there will be more to follow.

Most local governmental attorneys, including myself, recognize, that the black letter law on the issue which have almost uniformly recognized that if the definition of a person does not explicitly include a political subdivision then local government is not included in the definition.  Having made this argument, in the past on numerous occasions, I confess, I was mesmerized by the power and simplicity of this argument, that carried the day in the earlier Court of Appeals decision, overlooking the obvious, which is that if state and local government, were subject to the public accommodations provisions that it did not make sense to exempt it from damages.  Or did it?

The footnotes seem as important as the text of the case.  For example, one of my favorite footnotes is FN 14 where the Court rips the dissent for the argument that proof of legislative intent is the year after year effort by the legislature to include in the MHRA provisions gender discrimination, noting that this is a very weak argument citing chapter and verse to support its argument.  The Court makes it clear that this case is not about sex stereotyping, except as a form of sex discrimination, or gender discrimination.  The Court states its ruling is based upon “sex” discrimination, although sex stereotyping can be proof of sex discrimination. “The MHRA does not provide for types of sex discrimination claims; a claim is either a claim or sex discrimination or it is not.  Sex stereotyping can be evidence of sex discrimination; therefore, the Court leaves for another day consideration of gender discrimination.

One of the mysteries of the case is the statement where R.M.A. where alleged he is a “biological female” whose sex is legally male.  This is explained further in an earlier case involving R.M.A. and is only mentioned in the opinion of this case as a footnote.  To explain: Pursuant to Section 193.215.9, R. M. A. obtained a name change from the state registrar for birth certificates, based upon a certified copy of an order indicating that the sex of R.M.A. had been changed, thereby making him by law a male under this statute, although R.M.A. does not claim his reissued birth certificate is determinative of his claim of discrimination.  Since the trial court was only ruling on a motion to dismiss, this question is not interjected into the opinion.

Missouri Supreme Court Holds That Sex Stereotyping Can Be Brought Under The MHRA As A Sex Discrimination Case
Facts and Procedure: Lampley filed charges of sex discrimination and retaliation pursuant to the MHRA, (Act) in 2014 against his employer, the State of Missouri, Department of Social Services Child Support Enforcement Division (hereinafter, “Employer”), pursuant to Sections 213.055.1(1) and 213.070.1(2) of the Act. Lampley’s “Charge of Discrimination” form submitted to the Commission provided a list of discriminatory actions and instructed the complainant to check the appropriate boxes.  Lampley checked boxes indicating he was discriminated against based on “sex” and “retaliation.”  Lampley also provided a more detailed factual summary of his claims.  In his factual recitation, Lampley stated he is a gay man.  Lampley elaborated he does not exhibit the stereotypical attributes of how a male should appear and behave.  Lampley alleged other similarly situated co-workers, those who were not gay and exhibited stereotypical male or female attributes, were treated differently.  Because he exhibited non-stereotypical behaviors, Lampley asserted he was subjected to harassment at work.  Lampley alleged he was grossly underscored in a performance evaluation in retaliation for his complaints.

Later in 2014, Frost submitted her “Charge of Discrimination” form to the Commission containing the same list of discriminatory actions and instructions as Lampley’s.  Frost checked boxes indicating she was discriminated due to “retaliation” and “other.”  Following the indication of “other” discrimination, Frost wrote, “Association with person protected by Section 213.010 et seq.”  Frost also provided a more detailed factual summary of her claims.  In her factual recitation, Frost detailed her close friendship with Lampley, noting his non-stereotypical attributes of how a male should appear and behave.  Frost alleged she filed a complaint against Employer for violating its policy and breaching confidentiality after publicly announcing her performance review.  Frost believes Employer’s conduct stemmed from her friendship with Lampley.

After filing her complaint, Employer moved Frost’s desk away from Lampley and other co-workers with whom she collaborated.  Frost was informed she and Lampley were no longer allowed to eat lunch together.  Unlike other employees, Frost and Lampley had vacation time docked for meeting with their union representative.  Frost alleged she continued to suffer from Employer’s verbal abuse, threats about her performance review, and other harassing behaviors.  The Commission opened investigations into Lampley and Frost’s claims.

The Commission’s investigator assumed Lampley’s claim of discrimination based on sex meant “sexual orientation.”  The investigator concluded sexual orientation is not protected by the Act.  Similarly, the investigation summary of Frost’s claim asserted her claim of “association with someone who is gay” is not protected by the Act. Subsequently, the Commission terminated its proceedings in both matters in 2015, stating Lampley’s and Frost’s complaints do not involve a category covered by the Act.  The matters were closed administratively.

Lampley and Frost then filed petitions for administrative review or, alternatively, a writ of mandamus, asking the circuit court to direct the Commission to issue notices of right to-sue letters.  Both petitions made the same averments as in their respective charges of discrimination.  The circuit court consolidated their petitions.  The parties filed cross motions for summary judgment.  The circuit court sustained the Commission’s summary judgment motion, finding Lampley’s and Frost’s claims failed under Pittman v. Cook Paper Recycling Corp., which held that the Act did not cover sexual orientation. Lampley and Frost appealed to the Missouri Supreme Court.

Analysis: Lampley Stated Cause of Action for Sex Discrimination: The Act makes it is an unlawful employment practice “to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of … sex ….” The Act is a remedial statute to be liberally construed to include cases with the spirit of the law and all reasonable doubts are to be construed in favor of its applicability to the case.

The Commission assumed that the complaint filed by Lampley was a complaint based upon sexual orientation.  The Commission relied upon the Western District Court of Appeals opinion in Pittman, which held that the Act did not cover employment claims based upon sexual orientation.  The Court noted that Pittman provided no support for the Commissions’ decision in this case because sex discrimination based on sex stereotyping was not an issue in Pittman.  Instead, both Lampley and Frost alleged acts of employer sex discrimination.

As in the R.M.A. case, (discussed earlier in this newsletter), the Court noted that the path to stating a claim under the Act is the same.

The employee must demonstrate: (1) the employee was a member of a protected class; (2) the employee was qualified to perform the job; (3) the employee suffered an adverse employment action; and (4) the employee was treated differently from other similarly situated employees of the opposite sex.

The fourth element can be met if the employee provides some evidence that would give rise to an in inference of unlawful discrimination such as sexual stereotyping.  The Court cited the United States Supreme Court opinion in Price Waterhouse v. Hopkins, as a clear example of sexual stereotyping.  In Price Waterhouse a female senior manager was denied a promotion because she was “macho,” needing “a course of charm school” and failing to walk, talk and dress more femininely while needing to wear makeup and jewelry.  In Price Waterhouse the United States Supreme Court noted that adopting sex stereotypes will also apply to men and could constitute evidence of sex discrimination because the employee was treated differently from other males based upon characterizations of the sex.  Noting the difference between sexual orientation and sex stereotyping the Court stated:

Sexual orientation is incidental and irrelevant to sex stereotyping. Sex discrimination is discrimination, it is prohibited by the Act, and an employee may demonstrate this discrimination through evidence of sexual stereotyping.

In addition, the Commission had amended its rules to reflect the United States Supreme Court decision in Price Waterhouse v. Hopkins, to provide that “… an employer may not refuse to hire an individual based on stereotyped characterizations of the sexes …; therefore, the Circuit Court’s summary judgment was in error.

The actions of the Employer against Frost showed that she was discriminated based on her association with Lampley, thereby violating the statutory provision prohibiting discrimination based on association with a person protected under the Act.

Since the 180-day period, during which the Commission had jurisdiction over the complaint had expired, the Court directed the Commission to issue Lampley and Frost a right to sue letter.  Lampley v. Missouri Commission on Human Rights, (SC96828, 02/26/19).

Comment Howard: Obviously, this case and the R.M.A. case, discussed earlier in this newsletter, are landmark cases, although there are still some uncertainties since two of the five judges who joined the opinion in this case issued concurring opinions stating that the ruling was correct but the principal opinion went too far because it should have been analyzed and disposed of entirely on the basis of whether the facts alleged by Claimants assert sex discrimination claims covered by the MHRA.  Instead the principal opinion does not stop there because it proceeds to opine on whether “sex stereotyping,” as discussed in the Title VII context in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), is a type of sex discrimination under the MHRA.  Since only a plurality, three of the seven judges, of the Missouri Supreme Court applied the ruling in Price Waterhouse, it is an open question as to the extent that the ruling in Price Waterhouse, applies to MHRA cases.

There was a very strong dissent in this case, which would have decided the case on procedural grounds.  Since we are looking at the trees in this case, getting involved in the tit-for-tat argument between the judges over whether review was properly granted simply gets us lost in the forest.  Warning, this issue may be for another day but local government attorneys are well advised to look carefully at whether or not mandamus was the appropriate remedy, instead of review as a non-contested case under the ADA.  Frankly, in my opinion, if you strictly apply the rules, mandamus was the correct remedy.

Sheriff Is Entitled to Qualified Immunity For Dismissing Deputy Officer Who Ran Against The Sheriff As A Candidate
Facts and Procedure: The opinion in Morgan v. Robinson, by the Eighth Circuit, is a perplexing and interesting opinion that raises important First Amendment free speech questions, in the context of a sitting sheriff dismissing a deputy who ran against him in the primary.  The 8 to 3, en banc decision involving the dismissal of a deputy sheriff that ran against a sitting sheriff in a primary reversed the decision of the district court denying the sheriff qualified immunity.

During the campaign, Morgan, the deputy sheriff, publicly made statements about the sheriff’s department and his plans to improve it.  During the campaign, Morgan said: (1) the county communications center had not been completed; (2) rural fire departments lacked adequate radio systems; (3) the county needed more deputies on the road; (4) the office budget did not consider the public’s needs; (5) department morale was poor; (6) the department was not doing well; and (7) people were leaving the office because they did not feel respected.  The parties dispute whether all of Morgan’s statements were true; but they agree some involved matters of public concern.

Robinson the sitting sheriff won and six days later, Robinson terminated Morgan’s employment, claiming his campaign statements violated the department’s rules of conduct because it disrupted the office and his statement were not truthful.

Morgan sued Robinson for retaliatory discharge in violation of the First Amendment free speech rights.  Robinson moved for summary judgment based on qualified immunity.  The district court denied the motion, finding “genuine issues of material fact regarding the constitutionality of the termination, and whether Robinson should have reasonably known the termination was unlawful.”  Morgan appealed, (motion denying qualified immunity is appealable), to the Eighth Circuit where a panel of 3 judges, affirmed the denial of the motion and the Eighth Circuit granted en banc review of the case, reversing the district court.

Analysis: Legal Framework for Determining Qualified Immunity: First, the court established the legal framework for determining whether or not a denial of qualified immunity is correct.

Qualified immunity shields officials from civil liability in § 1983 actions when their conduct “‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”

“Qualified immunity analysis requires a two-step inquiry: (1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant’s alleged misconduct.” “Unless both of these questions are answered affirmatively, an appellant is entitled to qualified immunity.” “And, courts are ‘permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.’”

A clearly established right is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”. “[T]he longstanding principle” is that “‘clearly established law’ should not be defined ‘at a high level of generality.’”  Instead, “the clearly established law must be ‘particularized’ to the facts of the case.”  There does not need to be a case “directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”  However, requiring that the “clearly established standard” be defined with a “high degree of specificity” is necessary.  In other words, qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law.”
The person claiming the right has the burden to demonstrate that the law is clearly established.

Was the Sheriff Protected by Qualified Immunity: The Court skipped over prong of the test for qualified immunity and applied the second prong of the test concluding that the sheriff did not violate a “clearly established statutory or constitutional right[] of which a reasonable person would have known.”  The Court concluded that the speech did not necessarily override the sheriff’s interest in maintaining the “discipline and harmony” of the office holding held a sheriff could believe “…that that the speech would be at least potentially damaging . . . and disruptive; therefore, ” the sheriff could have logically and rationally believed that his decision to terminate was well within the breathing room accorded him as a public official in making a reasonable . . . judgment under the circumstances.”

In addition, in this case, the sheriff testified that Morgan statements as a candidate were detrimental to the office, harmful to morale, and adversely impacted the public’s trust of the office. See Sheriff’s was supported by five deputies in the office.  The Court cited Connick v. Myers, a United States Supreme Court decision holding that the First Amendment interest did “not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships.  Therefore, the Court concluded that Robinson, the sheriff was entitled to qualified immunity because there was no law putting him on notice that his actions violated clearly established statutory or constitutional rights of which a reasonable person would have known.  Morgan v. Robinson, (8th Cir., 17– 1002, 03/29/19).

Comment Howard: The summary of the law, with respect to qualified immunity, by Judge Benton, the author of the majority opinion, is one of the best summaries you could have in a case.  There was a very strong dissent by three of the 11 judges sitting in this case, which I thought was excellent and merited particular attention.  The dissenting opinion starts with the first prong of the test to determine if the sheriff is entitled to qualified immunity, concluding that the speech, in this case, was entitled to First Amendment protection.  In addition of the dissent noted that there was absolutely no evidence that the deputy’s candidacy disrupted the office nor were there any disparaging marks.

The dissent would have framed the question before the court as follows: “Could [Robinson] reasonably have believed, at the time he fired [Morgan], that a government employer could fire an employee on account of” the employee exercising his First Amendment right to free speech during a run for political office where that speech had no disruptive impact on office functioning?”

If the principal is allowed to stand it seems that just about anybody who runs against the officeholder from that same office could be dismissed because by its very nature running against the candidate in office when you are part of the same office is certainly bound to be disruptive.  It seems to me, the rationale for the majority opinion is deeply flawed because if you are to give any meaning to the constitutional right, that you can run against a current officeholder and talk about issues instead of personalities the rationale for the principal opinion needs to be revisited.  That just leaves United States Supreme Court.