August Newsletter (Issue 08-2019)

University Of Missouri Required To Bargain With Graduate Workers
Facts and Procedure: The University of Missouri (University) has approximately 2,600 graduate students.  The University offers graduate student programs in a variety of subjects to students pursuing advanced degrees.  Many graduate students enrolled in the programs are graduate assistants, graduate teaching assistants, graduate research assistants, graduate instructors, graduate fellows, and graduate library assistants (collectively “graduate workers”).  The primary duties of graduate workers include teaching three-hour classes, teaching five-hour classes, leading discussions or laboratory sections of a course, proctoring and grading large lecture exams, preparing and grading lab exams, assisting faculty with research and writing activities, helping students and faculty use microscopes, computers, and other lab equipment, teaching lab sections, keeping the library open and staffed, cataloging new acquisitions, and checking out assigned readings.

Some of the graduate students established the Coalition of Graduate Workers (CGW), an unincorporated labor organization, for the purpose of engaging in collective bargaining with the University.  CGW asked the University to hold an election for graduate workers on its Columbia campus to choose whether they wanted CGW to be their exclusive bargaining representative with respect to collective bargaining with the University.  The University denied the request. Thereafter, CGW held an election with the assistance of the League of Women Voters.  The election ballot asked graduate workers whether they wanted CGW to serve as their exclusive representative in collective bargaining with the University or whether they wanted no representation.  Approximately thirty percent of roughly 2,600 eligible graduate workers voted in the election, and eighty-four percent of the ballots cast were in favor of CGW serving as the exclusive collective bargaining representative of graduate workers.

Following the election, CGW sent a written communication to the University’s chief of staff asking that the University to recognize CGW as the exclusive bargaining agent and that the University commence bargaining, which request was denied.

Plaintiff’s then filed a lawsuit seeking a declaratory judgment that graduate workers are employees within the meaning of Article I, Section 29 of the Missouri Constitution and asking the trial court to order the University to recognize and bargain with CGW as the exclusive bargaining representative for graduate workers.  In the alternative, Plaintiffs sought a declaration that the University violated their rights under Article I, Section 29 by refusing to hold an election and asking the court to order the University to hold such an election.

The parties filed a joint stipulation of facts and cross motions for summary judgment.  The trial court granted Plaintiffs’ motion finding that graduate workers are employees under Article I, Section 29 of the Missouri Constitution and that CGW is the duly elected exclusive bargaining representative of graduate workers at the University and ordered the University to recognize and collectively bargain with CGW.  The University appealed to the Western District.

Analysis: Are graduate workers employees under Article I, Section 29? 
The University argued that graduate workers are more like students than employees because they are only eligible for positions based on admission to their graduate degree programs, their work is done as students of those programs rather than employees, and their stipends and other remuneration come from a public institution.

The Western District noted that Article I, Section 29 of the Missouri Constitution provides that “employees shall have the right to organize and to bargain collectively through representatives of their own choosing” and case law has held that this provision applies to both public and private sector employees.

Furthermore, graduate workers are employees under its plain and ordinary meaning as found in the dictionary.

“The word ‘employee’ is commonly defined as ‘one employed by another, usually in a position below the executive level and usually for wages,’ as well as ‘any worker who is under wages or salary to an employer and who is not excluded by agreement from consideration as such a worker.’”

The Court noted that the following undisputed salient facts show that graduate students are employees.

The University pays graduate workers a flat stipend or an hourly wage.  The University requires that “[a]ny assignment of responsibilities, such as teaching a course, must be associated with fair and reasonable compensation” and prohibits volunteering for extensive service commitments to the academic programs.  The minimum stipend for doctoral level graduate workers is $20,197.50 per year for academic year 2016-2017; for master’s/specialist level graduate workers, the minimum stipend is $18,361.25 per year.  The minimum hourly rate for doctoral level graduate workers is $19.80; for master’s/specialist level graduate workers, it is $18.00.  Payments to graduate workers are paid as earnings and taxed at the time of payment, and the federal government regards the payments as income for tax purposes.

Graduate faculty, administrative staff, or principal investigators supervise graduate workers.  Supervisors must conduct a written evaluation of the graduate worker’s performance at least once a year and should consider specific criteria such as accurate and efficient completion of assigned tasks; independent work; analysis and problem solving; adequate evaluations by students for instructional and tutoring assignments in courses, laboratory, and clinical settings; cooperation with mentor, director, and other graduate workers; and professional and ethical behavior in all assigned tasks and duties, including course studies and research.

The University includes graduate workers in its workers’ compensation coverage, which provides for the payment of medical expenses and compensation to any employee who sustains personal injuries arising out of, and in the course of, his or her employment.  Graduate workers qualify for a student medical insurance subsidy that is credited to the workers’ university accounts after enrollment in the insurance policy and eligibility has been verified.  The University requires graduate workers to complete mandatory employee training on discrimination prevention and the Family Educational Rights and Privacy Act.

The Western District rejected the University’s argument that it should apply the rationale used by the National Labor Relations Board, based on a case that was overruled, which considered graduate students as primarily students and educational rather than having an economic relationship with the employer.  This argument failed, however the Court noted that NLRB opinions are useful even if they are not binding, although they can be persuasive. The University’s arguments simply ignored the plain meaning of the word “employee” in the Missouri Constitution.

CGW As Exclusive Bargaining Representative: The University argued that the trial court erred in requiring it to recognize and bargain with CGW, as the exclusive bargaining representative, for all graduate workers because some of the workers included in the bargaining unit did not actually teach and preformed duties, other than teaching, like library duties or research.  Furthermore, the University argued that the Constitution does not provide a procedural framework for collective bargaining; therefore, the Court cannot require the University to hold an election.

The Court rejected the above argument, noting that the Missouri Meet and Confer law provides a procedural framework for handling elections and determining the appropriateness of a bargaining unit for all government employees, except for teachers and law enforcement officials.  With respect to teachers and law enforcement officials the Missouri Supreme Court has held that the employer may establish procedural rules with respect to collective bargaining employees not covered by the Missouri Meet and Confer law.  If the employer fails to establish procedural rules for holding elections and determining the appropriateness of the bargaining unit the employees may form their own association for the purpose of collective bargaining and hold an election to determine if the employees accept the association as its exclusive bargaining agent. The employer cannot avoid its duty to engage in collective bargaining by refusing to take action because it disputes the appropriateness of the unit; to allow this to occur would render the constitutional duty to bargain with employees meaningless.  In the event, the employer fails to establish rules for elections and determining the appropriateness of a bargaining unit the employee’s may proceed to form a bargaining unit and call on election, which election stands if the employer fails to challenge the bargaining unit.

In this case, the University asserted an affirmative defense that some of the graduate workers are not teachers and work as researchers and library assistants, which are not excluded from the Missouri Meet and Confer law.  Therefore, since the University disputed these facts the CGW was not entitled to summary judgment because the Missouri State Board of Mediation has exclusive jurisdiction over employees covered by the Meet and Confer law.  Coalition of Graduate Workers vs. The Curators of the University of Missouri, (WD 81978, 07/30/19).

Comment Howard: The Meet and Confer law was amended in 2019 to include teachers.  Even though this case may be a one-off, it is important because it defines what is an employee under the Missouri Constitution, rejecting weak NLRB arguments offered by the University.  A long list of the characteristics of what constitutes an employee is included in the above analysis.  This case is also useful because it provides a good summary of current Missouri public sector employer/employee collective bargaining case law.  In this case, the union got greedy by proposing a bargaining unit that included workers who were covered by the Missouri Meet and Confer law who might more appropriately be included in a different bargaining unit resulting in a do over with respect to these workers

The University’s position, as a institution of higher learning, failed to recognize the importance of a mutual beneficial relationship with employees.  The reality is that we are better off engaging in collective bargaining with employees because this gives employees a voice in the employer/employee relationship.  Furthermore, by listening carefully to their concerns it is possible to enhance the relationship and to ferret out ways to improve that relationship, particularly in the area of safety government and unnecessary rules.

City Violated Constitutional Right Of Minors By Releasing Police Report That Contained Intimate Private Matters
Facts and Procedure: The appellees are sisters and stars of the popular reality show 19 Kids and Counting.  The show chronicles the lives of Jim Bob and Michelle Duggar and their 19 children.  In 2006, the appellees, their siblings, and parents, were interviewed as part of a police investigation into sexual misconduct by the appellees’ brother, Josh Duggar.  The appellees were under the age of 16 at the time of the alleged misconduct and at the time of the investigation.  The police promised the appellees and their family that their statements would remain confidential.  Both the  City Police Department and the County Sheriff’s Department documented the family’s statements in reports.  No charges were ever filed against Josh.

In 2015, a tabloid publisher submitted Freedom of Information Act (FOIA) requests to the City and County to access these reports.  On May 19, 2015, the tabloid published an article naming Josh as the target of an “Underage Sex Probe” and promised more details to follow.  The original article identified Josh as the perpetrator and unnamed sisters, later identified as the appellees, as the victims.  On May 20, the City released its report to the tabloid; the next day, the County released its report as well.  O’Kelly, the City Police Chief, and Cate, the City Attorney, directed the release of the City’s report, while Hoyt, an officer in the County Sheriff’s Office, directed the release of the County’s report.  The appellees described the released City report, for example, as containing “graphic descriptions about their molestation.”  Though the appellees’ names were redacted, the reports contained other identifying information, such as the appellees’ parents’ names and the appellees’ address and ages.

At the district court, the officials claimed FOIA required them to release the reports in the time and manner in which they did.  The appellees alleged in their response that the officials hastily and wrongfully released the reports in response to pressure from the press in an effort to promote the appearance of transparency.

Following the officials’ release of the reports, the tabloid published both reports, as well as several salacious articles based on the reports’ content.  Because of the public’s prior knowledge about the Duggar family, the non-redacted details, i.e., the parents’ names, the victims’ ages and address, allowed readers to ascertain the appellees’ exact identities.  While the pre-disclosure March 19 article indicated that some of the many Duggar children had been abused, the March 20 and 21 reports confirmed these rumors and enabled the appellees to be specifically identified.  A torrent of media attention followed, and the appellees claimed they “were subjected to spiteful and harsh comments and harassment on the Internet and in their daily lives.”  Joy Duggar subsequently filed a motion in state court to expunge copies of the City report from the public record; the court granted this motion on the basis that Arkansas law had prohibited their release.  Nonetheless, copies of the report continued to circulate online.

The appellees then brought this suit under 42 U.S.C. § 1983 in federal court, alleging the officials violated their constitutional and common law rights by directing the reports’ release.  The officials moved to dismiss for failure to state a claim, invoking the protection of qualified immunity for the constitutional claims. With regard to the constitutional claims, they argued the appellees had not alleged constitutional violations, or, in the alternative, that the constitutional right at issue, i.e., the right to informational privacy, was not “clearly established.”  The district court sustained the motion to dismiss and the appellees appealed to the Eighth Circuit.

Analysis: The Court starts its analysis with the recognition that the United States Supreme Court has held that one component of the protection of the right of privacy embodied in the 14th amendment is an individual’s interest in avoiding disclosures of personal matters.  The Eighth Circuit has adopted the understanding that the 14th Amendment recognizes the right to confidentiality protecting “against public dissemination of information” concerning “highly personal matters representing the most intimate aspects of human affairs.”

To violate a person’s constitutional right of privacy the information disclosed must be either a shocking degradation or an egregious humiliation of her to further some specific state interest, or a flagrant breach of a pledge of confidentiality which was instrumental in obtaining the personal information.  To determine whether a particular disclosure satisfies this exacting standard, we must examine the nature of the material opened to public view to assess whether the person had a legitimate expectation that the information would remain confidential while in the state’s possession.  When the information is inherently private, it is entitled to protection.

While the Eighth Circuit has protected public officials from liability for public disclosure of private information under the doctrine of qualified immunity, it has done so in situations that do not involve egregious humiliation with the release of information that is inherently private and highly personal.  The “…limitation does not swallow the right.”  Furthermore, the Court noted that general statements do not have to be particularized with respect to an individual case because the generalized statement  “may apply with obvious clarity to the specific conduct in question” as it did in this case.  In this instance, the Eighth Circuit held that right of minor victims of sexual abuse not to have their identities and the details of their abuse revealed to the public was clearly established.

Under the facts in this case the Appellees alleged a plausible claim for violation of their constitutional right of privacy.  This right has been clearly been established; therefore, the district court did not err in failing to dismiss the complaint.  Dillard v. City of Springdale, Arkansas, (8thCir., 17–3284, 07/12/19)

Comment Howard: Missouri has a very robust case law on privacy making this Eighth Circuit case very noteworthy.  It seems to me it would be pretty easy to sloop into releasing this information unless the individuals involved were under strict rules not to release information that could possibly affect the privacy of a minor.  In this case, the city attorney was involved in reviewing the request and ordering the release, consequently he is a party to the lawsuit and was denied qualified immunity as a public official.  I assume the city attorney will ultimately get off based on absolute immunity. Maybe, it would have been better for the City to have filed a declaratory judgment providing a court with the information under seal asking for determination as to whether or not this information could be released.  It sounds to me like the damages to the parties could be pretty horrific.

Vehicle With Key in Ignition, Driver At Wheel And Asleep With Engine Running Constituted Operating Vehicle
Facts and Procedure: Sgt. Renkenmeyer (Officer) of the City of Washington Police Department received a call from a gas station clerk who reported that a vehicle at the gas station was parked for about an hour, with the driver passed out inside the vehicle. Officer went to the scene and saw a car parked with its engine running.  The vehicle was not parked in a parking spot and was not illegally parked but was parked unusual, not the way vehicles were typically parked at this location.  The Officer observed Anderson in the vehicle, slumped forward with his eyes closed.  The Officer knocked on the window and shook the vehicle in order to rouse Anderson.  He asked Anderson to unlock and open the door, which Anderson did while another officer reached in the car and turned off the engine.

The Officer asked Anderson if he  had anything to drink and during the conversation Anderson admitted that he had an alcoholic beverage over an hour ago.  The Officer asked Anderson if he drove himself to the gas station an Anderson replied that he did. They Officer asked Anderson to submit to a preliminary breath test but Anderson refused.

The Director of Revenue (Director) revoked Anderson’s license for a period of one year because he refused to submit to a chemical test in violation of state law.  Anderson appealed to the circuit court, which reversed the revocation of Anderson’s driver’s license finding that there was not competent and substantial evidence to establish probable cause for believing Anderson  operated his vehicle while intoxicated.  The Department appealed to the Eastern District

Analysis: Missouri statutes provide that if a person under arrest refuses to submit to an officer’s request for a chemical test that person’s license shall be revoked immediately.  In order to uphold the revocation, the Director must show the person was arrested or stopped; the officer had reasonable grounds to believe that the officer was operating a motor vehicle while in an intoxicated condition; and the person refused to submit to a chemical test.  The Court defined the issue as: whether the Director had probable cause to believe Anderson was operating a vehicle while intoxicated.  The determination of probable cause is not precise, but rather depends on “the particular facts and circumstances of the individual case.”

The Court noted that the definition of “driving” is “physically driving or operating a motor vehicle,” which is a more narrow definition than “operating.”  “Operate” is defined more broadly as “to cause to function usually by direct personal effort: work. The bright line test to determine if the if a car is being operated is whether it causes its motor to function.  Once the key is in the ignition, and the engine is running, an officer has  probable cause to believe that the person sitting behind the steering wheel is operating the vehicle, even if that person is sleeping or unconscious.

In this case, probable cause existed because the parties stipulated that the key was in the ignition, the engine was running and the alleged driver was sitting behind the steering wheel asleep.  Anderson argued that the use of the word “may,” in the case law, indicates that there are exceptions that under certain facts there is not necessarily a per se violation when the keys are in the car, the person is sitting behind the wheel and the engine is operating.  For example, a truck driver asleep, sitting in a parked truck at a truck stop with the engine running is different than the facts in this case.  Based on the stipulation, the Officer had probable cause to make the arrest, on the grounds that the driver was operating the vehicle.  Anderson v. Director of Revenue, (ED 107027, 07/16/19)

Comment HowardNothing new in this case, although it is a good review of case law concerning the operation of a motor vehicle while  a car is parked, the driver is sleeping, and  the engine is running.

Warrant Authorizing Search Of The Home Included Evidence Buried In A Garden Because It Was Within The Curtilage
Facts and Procedure: A detective of the St. Clair Sheriff’s Department met with a confidential informant who advised him about possible drug activity occurring in a rural area near Osceola, Missouri.  Leland Daggett was living on the property.  The police obtained a warrant to search Daggett’s residence.  The following day, police officers began surveilling the property from a wooded area.  The surveillance lasted four hours.  During this time, officers observed various individuals coming and going from the residence and saw Daggett go to a garden located within 20-30 yards from the home “a few times.”

Late in the afternoon, police observed a woman arrive at the premises.  Daggett met with her for several minutes, went to his garden, and handed an item to the woman who placed it in her shirt or bra area.  The exchange was consistent with a hand-to-hand drug transaction.  Shortly thereafter, more police officers arrived to execute the search warrant.

Police then made contact with Daggett and searched him.  The police  searched Daggett’s garden, after the surveillance team advised that Daggett had visited the garden multiple times.  In the west side of the garden, among some lower-lying vegetables, police found a black container that was partially buried in a “cubbyhole” and was covered by some loose hay.  Inside the container, they found two digital scales, a spoon, two plastic bags, a playing card, and a large bag with 9.4 grams of crystal methamphetamine.  On the north side of the garden, among some corn plants, the officers spotted a loose pile of dirt that appeared to have been  recently disturbed.  They ran a metal detector over the top of the area, which signaled that there was something metal buried beneath.  They unearthed a bucket with a .22 caliber revolver inside of it.  The metal detector signaled again when the officers ran it over a different location in the garden (south of where they had found the black container).  There they found a container that was partially submerged in another “cubbyhole” covered by some loose hay.  Inside the container, the officers found a .38 special revolver.

Daggett was subsequently charged with several felonies.  Daggett filed a motion to suppress the evidence seized as a result of the search, contending that the search exceeded the scope of the warrant and thus violated his rights under the Fourth Amendment.  The circuit court denied the motion, “find[ing] that the garden in which the contested evidence was found and seized was within the curtilage of the residence.”  Daggett was found guilty on all three counts.  He timely appealed to the Western District.

Analysis: The issue in this case, is whether or not the evidence seized from the garden and search of the garden was by the warrant, which authorized a search of the home but did not expressly include the garden area.  The answer to this question depended on whether or not the garden was within the curtilage of the home.  The State argued that the warrant authorized the officers to search and seize evidence within the garden because it was part of the curtilage associated with the home based upon a United States Supreme Court definition of curtilage as “the area immediately surrounding and associated with the home.”

The Court begins its analysis applying the four factors used by the Missouri courts to  determine whether an area lies within the curtilage of the home.

1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) steps taken to protect the area from observation by people passing by.

With respect to factor # 1, (proximity of the area claimed to be the curtilage to the home), the Court noted that Missouri courts has declined to put a specific distance requirement because it is unrealistic and have instead looked to factors like whether the property is in a urban or rural area and its use.  In earlier cases, in a rural setting, a court held that a chicken coop that was about 75 yards from of the home was within the curtilage as well as a pond some 300 feet away from the dwelling.  In the instant case, the fact that the garden was located on acreage in a rural area some 20 to 30 yards from the house is sufficient to support the trial court’s finding that the garden was within the curtilage under factor # 1.

With respect to the factor #2, (whether the area was within an enclosure surrounding the home), neither the dwelling nor the garden was surrounded by an enclosure.  There was also a no trespassing sign at the two driveways.  Based on these facts, the Western District found that the absence of an enclosure weighed against the court’s finding on factor #2, that the garden was part of  of curtilage, but only slightly.

With respect to the third factor, (nature of the use), the use of a garden is commonly associated with a home particularly when it is a vegetable garden for growing corn and some low-lying vegetables including tomatoes commonly associated with domestic life. Therefore, the court found for the State on factor #3,  that the garden was sufficiently connected with the home to be regarded as an adjunct of the home.

With respect to the factor#4, (steps taken by the owner to protect observation from persons passing by), neither the garden nor the home was enclosed allowing the officers to surveill the property from a nearby wooded area.  Since the defendants lived in a remote and sparsely populated rural area, they would have no particular reason to believe they need to construct a high impenetrable fence around the backyard in order to assure their privacy; therefore, the Court found that factor # 4 weighed in favor of the defendant.

Of the four factors, only the absence of an enclosure weighs against the circuit court’s findings; therefore, the decision of the Circuit Court overruling the motion to suppress the evidence is affirmed.  State of Missouri v. Daggett, (WD81351, 05/28/19)

 Comment Howard: This case breaks down the elements of what constitutes the curtilage and should be included in the training for law enforcement officials.  This opinion is one of the best summaries I have seen on what constitutes the curtilage.

Fourth Circuit Holds That Non- Disparagement Clause In Settlement Of Civil Rights Lawsuit Violated Free Speech Clause Of The First Amendment
Introduction: Recently, the Fourth Circuit held that a non-disparagement clause in a agreement with the City officials of Baltimore and its agencies  (collectively referred to as City) was void because it violated the First Amendment, Free Speech of the claimant.  This case is important because there is no controlling United States Supreme Court opinion on non-disparagement clauses in settlement and whether or not they violate the First Amendment.  I assume non-disparagement clauses would routinely be included in settlements.  It is also a potential source for future litigation.  Since this case, now appears to be the leading case on non-disparagement clauses, an understanding of this case is important.

Facts and Procedure: When the City of Baltimore (City) settles civil-rights lawsuits, alleging police misconduct, it has typically required settling claimants to agree to a “non-disparagement clause,” where they promise not to speak to the media about either their underlying allegations or the settlement process itself.  Claimants who breach the non-disparagement clause are liable to City for damages equaling half of their settlement funds.

Ashley Overbey, a police-misconduct claimant who settled her case but then spoke about it publicly, claims that Baltimore violated her First Amendment rights when it enforced the non-disparagement clause against her.  Separately, a local news website, the Baltimore Brew (the Brew), claimed that the City’s practice of including non-disparagement clauses in virtually all settlement agreements with police misconduct claimants violated the First Amendment on its face.  The district court granted summary judgment to the City and Overbey appealed to the Fourth Circuit.

Analysis: The Arguments: Overbey argued that the non-disparagement clause was, and is, void, because it amounts to an unenforceable waiver of her First Amendment rights.  Overbey, further argued, since the clause is void, the City violated  her First Amendment right when it preemptively clawed back half of her settlement funds based on her comments about her case, which violated the non-disparagement clause.

The City argued that the non-disparagement clause did not require Overbey to “waive” anything in agreeing to be bound by the non-disparagement clause.  Overbey merely exercised her right to refrain from speaking in exchange for payment from the government.  No one tried to compel her to do anything.

Alternatively, the City argued that even if the non-disparagement clause was a waiver of Overbey’s First Amendment rights, there is no reason to hold that the waiver is void; therefore, the City’s enforcement of the waiver did not violate the First Amendment.

First Amendment Analysis: The Court started its analysis with the recognition that the right not to speak is protected by the First Amendment. The Supreme Court has “held time and again that freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.’” At its heart, the right to refrain from speaking is concerned with preventing the government from “[c]ompelling individuals to mouth support for views they find objectionable.”

In other words, the right to refrain from speaking limits the government’s ability to sanction or override a private individual’s preference for not making certain speech.  The First Amendment’s protection of this right advances our bedrock societal interest in “individual freedom of mind.”

Was the non-disparagement clause a waiver of Overby’s First Amendment rights?: The City argued that Overbey’s promise not to speak about her case cannot be fairly characterized as an exercise of her right to refrain from speaking, because none of the interests protected by the right to refrain from speaking were ever at stake.  No one tried to compel Overbey to make speech she did not want to make; no one tried to punish Overbey for refusing to say something she did not want to say.  Instead, Overbey agreed, on pain of contractual liability to curb her voluntary speech to meet the City’s specifications.  In doing so, Overbey waived her First Amendment protections that would have otherwise shielded her speech from government sanction.

 The Court reasoned that under well-settled principles of law a person may choose to waive certain constitutional rights, pursuant to a contract with the government. Nevertheless, the court noted that the waiver of a constitutional right, even one that appears in an otherwise valid contract with the government, is enforceable; however, such waiver is enforceable only if it was made knowingly and voluntarily and the interest in enforcing the waiver is not outweighed by relevant public policy that would be harmed by enforcement.  Furthermore,the government bears the burden of demonstrating that the public policy is better served by enforcement than by non-enforcement.

The Court first weighed the public interest in non-enforcement versus enforcement of the non-disparagement clause.  It is important to have uninhibited, robust, and wide-open debate on matters of public interest, particularly when there is a “cautious mistrust of governmental power.  “The Court observed that the government can silence or censor speech just as effectively by using contracts, which are private as it can by applying laws or other means.  Making Overbey civilly liable, as a condition of the settlement, violated the important public policy that there is a need for robust debate on matters of public interest.

The City argued that the non-disparagement clause in its settlement saves time and money devoted to litigation; nevertheless, the Court noted that this interest alone was not sufficient to overcome the presumption disfavoring non-disparagement clauses.  In order to overcome the presumption against non-disparagement clauses it was necessary for the city to show an additional public interest related to the waiver of Overbey’s First Amendment Rights.  To that end, the City argued that the “individual autonomy” embodied in the right not to speak embodied in the First Amendment would be undermined if Overbey lost her ability to agree to not to speak in consideration of additional money.

 To support this reasoning, the City argued that if Overbey would prevail in this case the City would almost certainly offer less value in return for its settlement.  The Court was troubled by the underlying logic of this argument because it sounded like the City was paying hush money to obtain silence.  Other interests asserted by the City such as clearing the names of the officers and avoiding harmful publicity were considered by the Court to be insufficient.

After weighing the arguments for and against finding that the nondisclosure provision in the settlement violated Overby’s First Amendment rights the Court held it was void.  Overbey v. The Mayor and City Council of Baltimore, (Fourth Circuit, 17-2444, 07/11/19)

Comment Howard: There was a dissent in this case, which argued that the majority opinion undermined one of the bedrock principles of our country, the freedom of parties, public and private, to enter into agreements without worrying that the courts will rewrite them if one side has a change of heart.  In the view of the dissent, the majority opinion undermines the principle the parties have a right to rely on the certainty of contracts, entered into knowingly and voluntarily.

I thought the majority opinion failed to recognize the importance  of local government resolving matters so it could focus on the operation of government, instead of continuing to wrangle about allegations of misconduct.  It is  important to realize that the pleadings in the case remain public and there will be knowledge of the settlement, except comments by the parties will be limited by the terms of the agreement.  I think this case is a good one for the United States Supreme Court to review since it offers a sharp contrast over some pretty fundamental issues, (free speech versus the right to contract in order to settle a matter in dispute).