February Newsletter (Issue 02-2019)

Abject Failure Of The Cole County Prosecutor,  To Comply With Sunshine Law Results In Penalties Of $12,100 To Prosecutor
Introduction: This case is about the abject failure of the Cole County Prosecutor,  Mark Richardson, to comply with even the basic fundamentals of a request for records under the Sunshine Law.  By  the time the case reached the Western District, Richardson had lost his reelection bid in in the Republican primary for Cole County Prosecutor.  On appeal the case took a dramatic turn, with Richardson admitting to the violations, leaving just two issues for the Western District to consider.  The Court provides an insightful analysis of how to answer Sunshine Law requests, where there may be a dispute.  In addition, the Court answers the question  of whether or not the $5000 statutory limit for penalties is a cap for all violations or if the $5,000 amount applies to each separate violation, allowing the total amount to exceed $5,000, which it did in this case. (Penalty for violations by prosecutor was $12,100).

Facts and Procedure: On three separate occasions from April 2015 through October 2015, Aaron Malin requested from the Prosecutor: (1) correspondence between the Prosecutor and a drug task force; (2) indictments by the Prosecutor relating to narcotic sales in public housing from July 2014 to the present; and, (3) Sunshine Law requests to the Prosecutor and any responses thereto from January 2015 to the present.  Each Sunshine Law request mirrored the Sunshine Law and stated that the records were to be provided without redactions or with only redactions permitted by law, and if any part of the request was denied, that the specific exceptions relied upon for each denial be listed.  On each occasion, the Prosecutor responded with general objections to the records requests, sometimes untimely, and indicated that the request was too burdensome and the task of searching for any responsive documents simply would not be performed; further, the Prosecutor stated his conclusions “without confirming or denying the existence of records you requested.”

Subsequently, Malin hired an attorney, who wrote to the Prosecutor and explained the untimely and statutorily deficient form of the Prosecutor’s Sunshine Law responses; the Prosecutor ignored the letters from Malin’s attorney who then filed a Sunshine Lawsuit.  After months of protracted litigation, the Prosecutor provided partial responses to some of the requests, again refusing to note the identification of other records responsive to the Sunshine Law requests and failing to provide specific statutory reasons for refusing to search for or disclose such records.

Malin then filed a motion for summary judgment seeking production of all records responsive to the Sunshine Law requests and further seeking civil penalties against the Prosecutor for the blatant disregard of the requirements of Missouri’s Sunshine Law. The motion was ruled in favor of Malin.  In its judgment, the circuit court noted with disdain that the Prosecutor’s admitted position was that the Prosecutor “would not even conduct a search for responsive documents because, as he asserted, every record retained by his office was exempted from disclosure under the Sunshine Law.”  The circuit court’s judgment found the Prosecutor’s conduct to be undisputedly purposeful, knowing, dilatory, and non-responsive to the requirements of Missouri’s Sunshine Law.

Specifically, the trial court’s judgment decreed: 1. Defendant knowingly and purposely violated the Sunshine Law. 2. Defendant must search for and produce all open records responsive to Plaintiff’s requests, which includes the following: a) any correspondence or communication between the Office of the Prosecuting Attorney of Cole County (or its associates/employees) and the MUSTANG drug task force (or its associates/employees); b) any indictments handed down in Cole County between July 1, 2014 and the present, limited to indictments for selling narcotics in public housing; and c) any Sunshine Law (or open records) requests received by the Cole County Prosecutor’s Office, as well as any responses provided, between January 1, 2015 and the present. 3. Defendant is ordered to pay a $12,100 civil penalty to Plaintiff. Defendant was ordered to pay Plaintiff’s costs and reasonable attorneys’ fees in the amount of $24,070.00.

Opinion: Failure to Properly Object to Production of Records: The Prosecutor argued on appeal that the granting of summary judgment was erroneous because the communications between the prosecutor and the drug task force and its employees and associates contained information that had the potential to endanger personal safety of officers and undermine the effectiveness of their investigations.

The Court’s opinion noted that the argument made by the Prosecutor reflected a fundamental misunderstanding of the trial court’s judgment because the trial court’s judgment only required the Prosecutor to produce all open records responsive to the Sunshine Law request; therefore, the trial court did not err since all the order required was for the Prosecutor to produce records that were open.

Furthermore, the objection made by the prosecutor was general and failed to cite to specific statutory provisions upon which the objection was made to a record or part thereof.  Moreover, the Western District  goes on to explain how these objections are to be made:

If the Prosecutor found records that were not “open” due to the fact that the record contained information exempt from disclosure, the Prosecutor must provide a written statement of the grounds for closing the record or a portion thereof by providing to the  trial court an  objection log for each record or portion thereof for which a claim is made that the record is not open citing the specific provision of the Sunshine  Law under which the record  is exempt.

At that point, the opinion explains that Malin would then have the opportunity to obtain a ruling from trial court compelling production of the record after an in camera inspection of the disputed record by the court.

Penalty in Excess of $5,000: The Prosecutor argued that the trial court erred in assessing a penalty of $12,100 because Section 610.027 limits the penalty to  $5,000. The Prosecutor argued that his argument was bolstered by the statutory rule of  strict construction, which required the application of lenity which precludes multiple penalties that exceed $5000.  Since this issue was not properly preserved the Western District did not rule on the question presented; however, the Court   answers the question ex gratia in FN 3:

Ex gratia, we note that the Sunshine Law provides that: “Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has purposely violated Sections 610.010 to 610.026, the public governmental body or the member shall be subject to a civil penalty in an amount up to five thousand dollars.” § 610.027.4.  The plain language of the statute connects the penalty of up to five thousand dollars to the finding of a single purposeful violation of the Sunshine Law.  Here, the circuit court made findings that the Prosecutor committed multiple, distinct violations of the Sunshine Law, outright refusing to search, adequately respond to, or fulfill in any manner at least three separate Sunshine Law requests from Malin.

Malin v. Cole County Prosecuting Attorney,  (WD81583, 01/15/19)

Comment Howard: It is hard to imagine anyone bungling this case worse than the Prosecutor, Mark Richardson, which the voters duly noted by not reelecting him.  I like the opinion because it provided an easy roadmap with respect to the process by which objections  should be made to records that are  closed under the Sunshine  Law.  In addition, the court clarifies that the $5,000 penalty is not a cap on total penalties, but rather, it is a cap  for each violation.

Judge Rules That State Auditor Did Not Knowingly And Purposefully Violate  Sunshine Law
Overview: Cole County Circuit Court Judge Beetem,  recently ruled that Missouri State Auditor Nichole Galloway, did not  knowingly and purposefully violate the  Sunshine Law with respect to a request for records from a conservative nonprofit organization, Missouri Alliance for Freedom  (MAF).  The issues in the lawsuit were driven by technology as related to the use of the Apple iPhone.  This  lawsuit seemed to be a politically motivated lawsuit intended to tag the State  Auditor, the only Democrat holding statewide office, with a knowingly and purposeful violation of the  Sunshine Law, with all of its nasty implications.  The lawsuit, did  not succeed.

The opinion by the trial court is packed with a lot of important legal analysis concerning how to respond to Sunshine Law requests, particularly with respect to how the technology can shape the  response; obligation to reformat a request into a different format; how specific a request must be; what constitutes a knowing and  purposeful violation;  and what remedies are available if there is no knowing and  purposeful violation.  Important stuff.

Facts and Procedure: After a state audit of the Department of Revenue,  MAF filed a lawsuit alleging noncompliance with Chapter 610, (Sunshine Law)  with respect to three requests for public records accusing the Auditor of knowingly and purposefully violating the Sunshine Law by not releasing all of records that were requested. Specifically, MAF sought relief by requesting  a declaration that the Defendant State Auditor’s Office (SAO) violated the provisions of Chapter 610 RSMo. (the “Sunshine Law”),  that the violation was knowing and purposeful, thereby requiring  imposition of the penalty provision of §610.027 applicable to knowing and purposeful violations.

Document Request: MAF issued a very broad request for all documents; notes; correspondence; memoranda; letters; email; faxes; spreadsheets; databases; telephone call logs; recordings or notes of telephone conversations; recordings or notes of voicemails; recordings, notes, minutes, or agenda of meetings, text messages, instant messages, and calendar entries, basically everything.  Both the May 2 and May 26, 2017, requests demanded “native format”files “preserving all metadata” for all electronic data responsive to the requests.  In discovery, MAF asked the SAO to identify “all text and instant messages that you contend you produced to MAF in their native format in response to its May 26 request.”

Opinion: I –  No Requirement to Create a Record That Does Not Exist: The difficulty with the request by MAF, with respect to text messages, is that Apple devices (used by the SAO) present challenges to data recovery because the devices are encrypted to prevent unauthorized access.  Given the information and technology available to the SAO, when a text message was to be saved, it was either by making a screenshot or forwarding it to an email or to a printer for a hard copy.  The request for a “native file” (complete metadata)  would essentially amount to a production of one or more cell phone databases, or the creation of a single report that pulled together the requested information from those databases, which cannot be accomplished with text message data on the Apple iPhone operating systems.  This is due, in part, to the fact that there is no text message “file” to produce, and also because the Apple iPhone operating systems actively attempt to prevent users from gaining direct access to such data.  In fact, the Apple operating systems are designed to prevent such access.

The trial court ruled, that an agency is not required to create a record that does not exist in order to satisfy a Sunshine Law request.  MAF’s request for a “native file” would essentially amount to a production of one or more cell phone databases, or the creation of a single report that pulled together the requested information from those databases (complete metadata).  The trial court’s ruling is consistent with other cases, and in particular Jones v. Jackson County Circuit Court, which held that the court administrator was not required to create a record that does not already exist in order to satisfy a Sunshine Law request.

Based  on the record, the  SOA was not guilty of a knowingly and purposeful violation of the Sunshine Law in not producing the records in the format requested.  Taking screen shots and using other methods as well as producing some 47,000 pages of records plus attachments showed that the State Auditor acted in good faith.

II-  No Sunshine Law Violation Because of  Lack of Specificity in the Request: The storage of text messages and retention of those messages was complicated by the fact that the Apple iPhone has two settings for length of retention.  One setting for retention is a setting for a period of 30 days, after which the text messages are automatically deleted from the system with no way to recover those messages while the other setting  provides for an indefinite retention period.

The request was for “all records of communication” with an instruction to interpret the request as broadly as possible, clearly covered text messages.  Wood, the person in charge of collecting the records for the SAO,  was unaware of the 30-day “keep messages” settings on the SAO iPhones and did not get to them within that timeframe. When  she realized that the settings were for 30 days she immediately informed the State Auditor and the settings were changed to indefinite storage.

 A request for records requires that the requestor be reasonably specific so that a custodian of records can access the record.  The trial court in its Conclusions of Law  noted that the specificity requirement has not received much discussion in Missouri law; therefore, the trial court, relied upon cases from other jurisdictions.  “If a requesting party could meet the [law’s] requirement of identifying the desired documents by requesting all of an agency’s documents, the identification requirement would be essentially meaningless.”

Here,  the trial court noted that the SAO provided all records requested. (Note: The request for text messages also asked for the “native file,” which did not exist.)  The  Court found that this request for all communications of the Auditor for a period of over two years was not reasonably specific.  While this lack of specificity may not excuse an agency from acting on the request, the fact that the SAO did not secure one particular instance of communications data (text messages) within 30 days did  not violate the Sunshine Law.

Lack of Remedy: MAF argued that it was entitled to some form of redress for the alleged failure to “not transfer custody, alter, destroy, or otherwise dispose of the public record sought to be inspected and examined, . . . until the court directs otherwise.”  The Court found that the form of the records requested did not exist. Given that the action sought production of “native format” files “preserving all metadata” for all electronic data responsive to the requests, the Court concluded that there has been no loss of any public record[s] which are the subject matter of the civil action.  According, section 610.027.1 provides no remedy.  The Court noted that there is no private right of action for a violation of the Sunshine Law.

Second, the relief could not be granted under the Sunshine Law because: A “knowing” violation of the Sunshine Law requires proof, by a preponderance of the evidence, that a governmental body knew that it was violating the Sunshine Law in taking its action. This standard required proof that the agency knew that what it was doing violated the Sunshine Law.  In this case Wood, the person collecting the records,  was conducting a search for all communications in the record-keeping sections of the office systems, and was not aware of the “keep messages” settings on iPhones, until after the 30 days had passed. Wood’s information came after-the-fact; therefore, she cannot be shown to have knowingly violated the Sunshine Law.  There was no evidence that Harper, the General Counsel for the SAO was not involved in collecting records, other than answering questions posed by Wood.  None of this evidence shows that Wood, or Harper, would have any reason to believe that they were violating the Sunshine Law.

The failure of proof of a knowing violation of the Sunshine Law defeats any claim for a purposeful violation because proof of an alleged purposeful violation requires a showing that: “there was a conscious design, intent, or plan to violate the law with an awareness of the probable consequences.” There was no such proof.

Whether or not records were properly preserved, the relief MAF requested lies in the penalty provisions contained in Sections 610.027.3 and 610.027.4, which provides the answer.  The Court has already found that the form of the records requested did not exist.  Given that the action sought production of “native format” files “preserving all metadata” for all electronic data responsive to the requests, the Court concluded that there has been no loss of any public record[s] which were the subject matter of the civil action.  Accordingly, Section 610.027.1 provides no remedy.  Missouri Alliance for freedom v. State Auditor, Nichole Galloway, (Cole County Circuit Court,  17AC-CC00365, 01/28/19)

Comment Howard:  Even though this opinion is just a trial court opinion I thought it was unique and important enough to report this case.  The State Auditor fared well because of the good faith effort to comply with the records request and because of the quality of her employees.  These efforts paid off with the Court crediting her witnesses.  Attitude does make a difference.  Contrast the results in this case with the results in the Cole County Prosecutor case.

Employee Entitled To Unemployment  After She Quit Job Due To Reduction  In  Pay
Facts and Procedure: Mickles, (Employee), a licensed cosmetologist, was the human resources director (HR) for Maxi Beauty Supply (Employer) making $12.50 per hour, plus commissions for eyelash services she performed at a company store, which services were discontinued several months before she was demoted to a non-managerial position,  at $10 an hour.  While she served as the HR director, she was allowed to bring her new born baby to work.  The demotion, new terms and conditions of employment were sent to her by text message (I am not kidding).  The Employee tried to engage the Employer with respect to other opportunities, which would allow her to continue to work for the Employer.  Unable to resolve the conflict the Employee  declined to accept the demotion, quit, and filed a claim for unemployment compensation.

The Hearing Officer determined that she quit for good cause attributable to her not being able to use her managerial skills and that the reduction in pay was “substantial.”  Employer appealed to the Division of Employment Security, which agreed with the decision of the Hearing Officer.  Employer then appealed to the Industrial Relations Commission (Commission), which disqualified her from unemployment benefits because she quit her job, without good cause.  Employee then appealed to Eastern District.

Opinion: Since the Missouri Employment Security Law is intended to provide unemployment compensation to persons unemployed through no fault of  their own, the statute is liberally construed to provide for payment of compensation to individuals with respect to their own employment.  Disqualifying provisions are strictly construed.  A claimant who has left work voluntarily without good cause attributable to such work is disqualified .  “Good cause”, includes only that cause which would compel a reasonable employee to cease working or which would require separation from work due to illness or disability.

In this case, the Eastern District, found that Employee ended her employment relationship for good cause because she requested to stay on with the company as one of the Employers store manager positions (which was open) based on her extensive experience as a manager for the employer, a licensed cosmetologist, who held a bachelor’s degree in business management.  The reduction in pay from $12.50 per hour to $10 an hour and only weekend hours was a significant reduction in pay.  The Court noted that it is not always required to use a percentage analysis in determining whether or not the pay reduction is significant.  In this case, the percentage reduction in loss of pay for relatively low-paying job had a more severe impact since it was a lower paying job plus there were loss of other benefits.  Even so, the percentage of loss of about 25% brought was within the range to support a finding of good cause.  The Employee made multiple attempts to resolve the issue of job status and her future with the company.  Therefore, based on the facts, the Employee was entitled to unemployment compensation.  Mickles vs. Maxi Beauty Supply and Division od Employment Security, (ED106696, 01/29/19)

Comment Howard: I cannot recall ever having an unemployment compensation case during my tenure as a  city attorney even though demotions with loss of pay occur in government service.  In this case, the modification of terms and  conditions of employment was by text message.  I know it may sound stodgy but it’s pretty clear that the court  did not like the  utilization of a text message to modify significant terms and conditions of employment.  I agree.  Yes, I do use text messages and they are very convenient (kids made me do it) but really the message sent via text  is that the employee is just another cog in the machinery of business.

Missouri Supreme Court Reverses 2.5 Million Dollar Verdict Against Harris- Stowe State University For Retaliation
Facts and Procedure: Dr. Shereen Kader, Ph.D., came to the United States in 1999 to pursue graduate education.  Dr. Kader is an Egyptian national with prior teaching experience in her home country.  Dr. Kader received her master’s degree in literacy from Indiana University and her Ph.D. in early childhood education, creativity, and innovation from Pennsylvania State University.  Dr. Kader accepted a faculty position at Harris-Stowe shortly before completing her doctorate.  Upon obtaining her Ph.D. Harris-Stowe promoted Dr. Kader to assistant professor.  Thereafter, Harris-Stowe renewed her teaching contract annually from 2007 to 2009.

In 2009, Harris-Stowe promoted Dr. LaTisha Smith to dean of the college of education, making her Dr. Kader’s supervisor.  Dean Smith evaluated Dr. Kader’s teaching performance in October 2009.  The faculty evaluation contains 16 categories, each of which is rated on a scale of 1 (unsatisfactory) to 5 (outstanding).  Dean Smith gave Dr. Kader ratings of 5 in 12 categories and 4 (excellent) in the remaining categories.  Dr. Kader gave herself a rating of 5 in all 16 categories.  Dean Smith testified she based Dr. Kader’s slightly reduced marks on written and verbal complaints from students about Dr. Kader’s teaching.  Dr. Kader testified she believed she received lower ratings because of her race, religion, and national origin.

Dr. Kader lodged a complaint of discrimination with Harris-Stowe.  Harris-Stowe arranged for Dr. Kader and Dean Smith to meet with the human resources department to discuss Dr. Kader’s concerns, but Harris-Stowe cancelled the meeting after Dr. Kader informed Harris-Stowe she would be bringing an attorney with her to the meeting.  Dr. Kader testified Dean Smith told her bringing an attorney to the meeting could cause her to “face visa complications.”

Dr. Kader was authorized to reside and work in the United States during her time at Harris-Stowe, pursuant to a J-1 visa, a non-immigrant visa for individuals approved to participate in work and study-based exchange visitor programs.  J-1 visas require an employer sponsor.  Harris-Stowe supplied information necessary to maintain Dr. Kader’s visa while she was on the faculty, even though Penn State officially sponsored her visa from 2007 until it expired in 2010.  When she joined the faculty, Harris-Stowe indicated it would assist Dr. Kader with obtaining a new visa after her J-1 visa expired. Exchange visitors in the United States on J-1 visas usually return to their home countries for at least two years after their J-1 visas expire.  Visitors then apply for a new visa when they wish to return to the United States.

Dr. Kader, however, did not wish to return to Egypt for any period of time, so she filed for a waiver of the two-year waiting period to obtain an H1-B visa so she could continue teaching at Harris-Stowe.  Dr. Kader did not receive the waiver before her J-1 visa expired on June 13, 2010.  After June 13, Dr. Kader no longer had J-1 status, and she was required to depart the United States during a 30-day grace period unless she secured another visa.

While waiting to learn if she would receive a waiver of the two-year waiting period and obtain an H1-B visa, Dr. Kader also applied for an O-1 “extraordinary person” visa in a final effort to maintain work authorization.  Dr. Kader, requested Harris-Stowe provide documentation to supplement her application, and Harris-Stowe complied.  After several weeks without hearing whether her O-1 visa was granted, Dr. Kader contacted the agency responsible for processing the visa application.  The agency told Dr. Kader it had requested additional information and supporting documentation from Harris-Stowe and received no response.  On June 11, 2010, two days before her J-1 visa was set to expire, Dr. Kader contacted Harris-Stowe about her O-1 visa application and the agency’s request for additional information and supporting documentation.  Harris-Stowe denied receiving any such request.  The O-1 visa application was subsequently denied, and Harris-Stowe did not appeal.  Because she lacked a valid visa, Harris-Stowe notified Dr. Kader her teaching contract for the 2010-11 academic year would not be renewed, and Harris-Stowe began seeking another individual to fill her position.

Dr. Kader sued Harris-Stowe under the Missouri Human Rights Act (MHRA), alleging discrimination based on race and national origin.  She also sued for retaliation.  The case proceeded to trial, and the jury returned a verdict in Harris-Stowe’s favor on the race discrimination claim, but in Dr. Kader’s favor on her retaliation and national origin discrimination claims, awarding $750,000 in actual damages and $1.75 million in punitive damages.  The circuit court entered judgment on the jury’s verdict.  Harris-Stowe appealed to the Missouri Supreme Court, arguing the circuit court’s jury instructions were erroneous and prejudicial.

Opinion: The lynchpin of the appeal and the only real issue in the case was verdict director, jury instruction No. 8, which stated:

Your verdict must be for Plaintiff on Plaintiff’s national origin discrimination claim if you believe:

First, either:

Defendant did not respond to the USCIS request for evidence to support the O-1 Visa Petition; or
Defendant did not appeal the denial of the O-1 Visa Petition
; orDefendant did not renew Plaintiff’s employment contract; or Defendant denied Plaintiff a work leave of absence; and

Second, Plaintiff’s national origin was a contributing factor in Defendant’s conduct in any one or more of the respects submitted in paragraph First, and

Third, such conduct directly caused or directly contributed to cause damage to Plaintiff.

The Court limited it’s holding to the second disjunctive option (in bold above) concerning Harris-Stowe’s failure to appeal the denial of Dr. Kader’s O-1 visa application.  This Court did not address the validity or invalidity of the other disjunctive options because this issue was  dispositive.

In reaching its conclusions  the court noted that an unlawful employment practice under the MHRA prohibits an employer from discriminating against any individual with respect to terms conditions or privileges of employment that would otherwise affect their status as an employee.  Dr.  Kader argued that Harris Stowe’s failure to seek an appeal of her O-1 visa denial adversely affected her status as an employee in violation of the MHRA.

As a matter of law in order to qualify for the O-1 extraordinary person visa, an applicant must present “documentation of either (1) a one-time achievement (that is, a major, international [sic] recognized award); or (2) at least three of the ten types of lesser achievements enumerated in the regulations.”

Dr. Kader’s immigration attorney did not provide documentation, nor did the evidence presented at trial show, Dr. Kader had received a major internationally recognized award or that she had accomplished at least three of the “lesser” achievements.

The Supreme Court held that while Dr. Kader may have preferred Harris-Stowe seek an appeal of her denied O-1 visa application, the failure to act on such an appeal does not automatically constitute an unlawful employment practice when there is no evidence to support a claim seeking the  exemption.  Kader v.  Board of Regents  of Harris- Stowe State University, (SC97069, 01/15/19)

Comment Howard:   This is not the first time Harris-Stowe has come under the  punitive damage gun of multi-million-dollar awards.  An earlier case, several years ago resulted in a $5 million-dollar jury verdict, the bulk of which was punitive damages, which was upheld.  In that case, the court’s review of employment practices of Harris–Stowe  was scathing.   My review of their employment practices in the earlier case was based on avoiding worst practices of Harris-Stowe. https://wordpress.com/post/momunicipallaw.com/74935

Again, in this case, (Kader v.  Board of Regents  of Harris- Stowe State University) the bad employment practices of Harris-Stowe were again sufficient to cause a significant punitive damage or of $1.75 million dollars, although the Missouri Supreme Court allowed Harris–Stowe State University to escape the jury verdict by remanding for a new trial based upon erroneous jury instructions.

Eighth Circuit Remands Case To Determine Whether Clerk Of The Court Was Employee Of The State Or The City
Facts and Procedure: The City of Helena-West Helena, Arkansas (City) thought that Romona Evans had a warrant for unpaid court fines.  Evans was arrested, her car was towed, and was held at the police station for unpaid court fines, until it was discovered that she had paid the fines.  Evans then filed suit in federal district court against the City, alleging that the Clerk’s failure to document payments was “a practice, custom and habit,” and the City’s“ unconstitutional policies” caused a deprivation of her liberty and property, in violation of the Due Process Clause of the Fourteenth Amendment.

The district court dismissed Evans’s complaint for failure to state a claim, with one sentence of explanation: “Although Plaintiff’s allegations are troubling, especially if, as Plaintiff alleges, it occurs frequently, the Clerk and the District Court are state-government officials who are neither employed by Defendant, nor amenable to suit.” Evans appealed to the Eighth Circuit.

 Opinion: Immunity from Lawsuit: The City argued that as a municipality cannot be held liable without an unconstitutional act by a municipal employee.  The City of Helena-West is the defendant, and it has no immunity from suit.  The Eighth Circuit noted that case law is clear because: “While a municipality cannot be held liable without an unconstitutional act by a municipal employee, there is no requirement that the plaintiff establish that an employee who acted unconstitutionally is personally liable.”  Even though the clerk has absolute or qualified immunity from suit and damages, the immunity does not foreclose an action against the City if the complaint adequately alleges an unconstitutional policy or custom of a city employee.

Status of Employee: The City also argued that since the Clerk was a state government official, whose actions are not attributable to the city, there is no liability because under the 11th amendment to the United States Constitution the State is immune from suit.  The City maintained that because the Phillips County District Court was part of the judicial department of state government, and a judge of the district court appointed the clerk, the clerk’s actions against Evans were attributable to the State, not to the City.

The Eighth Circuit responded by noting that this depends on the definition of the Clerk’s official functions under state law, which cannot be determined by a motion to dismiss.  Since the status of the City’s judicial system under Arkansas  Constitution has not been fully examined this leaves open the question of whether or not the clerk was an employee of the City or the State.  The Eighth Circuit noted:

During the relevant period, state law gave cities and counties authority to set salaries for the district court clerk and the complaint alleges that employees of the court were hired by the City and paid by the City, with salaries accounted for in the City’s annual budget.

Since this case was resolved on a motion to dismiss, the record has not been developed with respect to the clerk’s duties and responsibilities, the source of the clerk’s pay, or the degree of control that state or local officials exercised over the clerk; therefore, the complaint states at least a plausible claim that the clerk was a city official at the time of the alleged wrongdoing.  Case remanded to the District Court for further proceedings.

Comment Howard: This is an important case, which could later provide some insight into how the Missouri courts will treat the question of whether or not the municipal courts in the state of Missouri have immunity from civil rights lawsuits.

Statutory Provision Requiring Remittitur for Damages in Excess of Statutory Limit Does Not Apply to Employee
Fact and Procedure: Brancati, a bicycle rider, was injured by Allen, a bus driver for Bi-State Development Agency (Metro), which provides public bus services in the St. Louis metropolitan area, pursuant to a compact between the state of Missouri and Illinois.  Brancati, sued Metro and the bus driver Allen, for her injuries resulting in a jury award in the amount of $625,000 against Metro and Allen, finding that they were jointly and severally liable.

Following trial, Metro and Allen filed a Motion for Remittitur arguing that they were entitled to a reduction of the verdict because the sovereign immunity cap in the state statute limited both of their liability to $414,418.  The trial court, entered its judgment, granting Metros’ Motion for Remittitur thereby reducing its liability to $414,418, while denying Allen’s motion, leaving Allen’s liability at $625,000.  Metro and Allen appealed to the Eastern District.

Opinion: Metro and Allen contended that the trial court erred in denying their motion to reduce the $625,000 reward against Allen to the statutory limit for damages to $414,418.  The Court noted that the cap on damages in Section 536.610 .2 does not apply to public employees because the statutory cap applies only to a “public entity.” Furthermore, case law is clear that the statutory cap applies only to the “public entity” and not employees who are negligent in providing services for their employer.  The Court declined the invitation by Metro to overrule existing case law; therefore, the trial court properly denied the Motion for Remittitur.  Brancati vs. Bi-State Development Agency (ED106359, 12/18/18)

Comment Howard: This case puzzles me because I am unsure of what the end game was in raising this point since the law is so clear.  There is no discussion in the opinion concerning the reasons that the precedents should be overruled.  Nevertheless, I am also bothered by the paradox that the employee of the public entity is liable for the entire amount of damages because as a practical matter the public entity surely indemnifies its employees, making the sovereign liable for the entire amount.  In addition, the judgment makes Metro jointly and severally liable along with its employee, which also is puzzling.

There is little to no love out there for local government.  We have a variety of ongoing legal issues in Missouri and a variety of legislative issues.  We need to keep a close eye on some of these issues and the potential ramifications.  We will keep you updated.

Full Eighth Circuit To Hear Unpaid Lobbyist Case
The February 4, 2019  Edition of  Missouri Lawyers Weekly indicated that the full Eighth Circuit will hear Calzone v. Missouri Ethics Commission (8th Cir., 17 – 2654, 11/28/18), the unpaid lobbyist case,  involving Ron  Calzone, which was  reviewed in the January 2019 MMAA Newsletter.  As you will recall, this case is a hotly contested lawsuit involving whether or not an unpaid  lobbyist is required to comply with Missouri registration laws in order to lobby.  A split panel held that Calzone was a lobbyist ( even though he did not get paid) and required to register.  Stay tuned!

Missouri Supreme Court Considers  Constitutional Right To Private Phone Call To Attorney In DWI Cases
 The January 2019 Edition of the MMAA newsletter reported on  State of Missouri v.  Wright, (WD81666, 12/11/18), a case where the court held that police officials could listen to a phone call, made by a person arrested for a DWI, to his attorney without violating his constitutional right to have a private confidential conversation with his attorney concerning whether or not to take the DWI breathalyzer test.  An article in the January 21, 2019 Edition of  Missouri Lawyers Weekly discussed the questions and statements made by members of the Missouri Supreme Court indicating that the judges have widely differing views on whether or not the Missouri statute allowing a person arrested for DWI to make a phone call to his or her attorney is confidential and constitutionally protected.  Seems pretty clear from the Lawyers Weekly article that this case has the attention of the Court.

Case Involving Taxing Room And Board As Court Costs For Prisoners Transferred To  The Missouri Supreme Court
In the January 2019 edition of the MMAA Newsletter we discussed,  State of Missouri v.  Wright.  This is a case involving a question as to whether or not there was statutory authority to tax room and board for prisoners as court costs, with the  Western District holding that there was no such authority.  This opinion obviously implicated local government budgets that relied upon recovery of these charges as a source of revenue.  The Missouri Supreme Court accepted transfer.  In another related case, the Southern District transferred a case involving a similar question to the Missouri Supreme Court because of the general importance of this question, increasing the likelihood that we will get an answer on this question.  Missouri  Lawyers  Weekly reported on oral arguments before the Missouri Supreme Court in its February 11, 2019,  edition indicating  that the judges have different views on this case.

Joplin Panhandling Lawsuit Settled
In January 2019 we reported that Joplin had been sued by the ACLU for enforcing an invalid panhandling ordinance.  Joplin recently settled its panhandling lawsuit with a homeless person brought by the ACLU for $3,510; of that amount $1500 will go to the  homeless person.