January Newsletter (Issue 01-2019)

Room and Board for Prisoners Can Not be Taxed as Court Cost
Facts and Procedure: Wright pleaded guilty to the misdemeanor offenses of stealing and resisting arrest on July 27, 2016, and was sentenced to ninety days in the county jail.  The clerk prepared a fee report and taxed as costs the “Board Bill” totaling $1,358.28.  The court issued a show cause order for Wright to re-appear on August 17, 2016, and every month following, to review payments Wright has made.  Wright made payments totaling $380.00 and requested a refund for any money erroneously paid.

After sentencing Wright filed
 a motion to retax costs which sought to eliminate the jail debt assessed against him, which was denied; thereafter Wright appealed to the Western District.

Opinion: The legal analysis begins with the recognition that at common law costs, in criminal, as well as civil matters were unknown; therefore, the recovery of court cost rests entirely on statutory provisions.  Also, these statutes are strictly construed because they are criminal in nature.

State law provides that every person who is committed to  a common jail “…shall bear the expense of carrying him or her to said jail, and also his or her support while in jail, before he or she shall be discharged; and the property of such person shall be subjected to the payment of such expenses, and shall be bound therefor, from the time of his commitment, and may be levied on and sold, from time to time, under the order of the court having criminal jurisdiction in the county, to satisfy such expenses.”  In addition, the statute also states that if a person has not paid all of the money owed upon release from custody “and has failed to enter into or honor an agreement with the sheriff to make payments toward such debt according to a repayment plan, the sheriff may certify the amount of the outstanding debt to the clerk of the court in which the case was determined.”  Once the outstanding debt has been reported by the sheriff to the clerk, the clerk “shall report to the office of state courts administrator [OSCA] the debtor’s full name, date of birth, and address, and the amount the debtor owes to the county jail.” The State argued that taxing these costs to Wright was justified because Section 550.010 states that “[w]henever any person shall be convicted of any crime or misdemeanor he shall be adjudged to pay the costs, and no costs incurred on his part, except fees for the cost of incarceration, including a reasonable sum to cover occupancy costs, shall be paid by the state or county.”

The Western District acknowledged that while Sections 550.010 and 550.030 appeared to contemplate that costs of incarcerations could be taxable as “costs” Section 221.070, does not provide for taxation of the costs of incarceration as court costs, but instead provides an alternate mechanism for collection by reporting the outstanding debt to OSCA.  The statute specifying these measures, states that OSCA may take action to collect on this liability; therefore, the section specifying collection, § 488.5028, quite plainly distinguishes between just court costs on the one hand and the costs of incarceration under Section 221.070 on the other.  The Western District, recognized that even if it held that Sections 550.010 and 550.030 provide some limited support for the taxation of costs of incarceration as court costs, Sections 221.070, 488.5028, and other provisions of Chapter 488, all indicate that the costs of incarceration are recoverable in a different fashion, and distinguish the financial liability created by Section 221.070 from “court costs.”  Because the right to tax items as court costs can be created only by express statutory authorization and because such statutes are strictly construed, the Western District  held that the debt for costs of incarceration established by Section 221.070 is not taxable as a cost against a criminal defendant.  State of Missouri v.  Wright, (WD81666, 12/11/18).

Comment Howard:  This case will have an impact on county and city budgets that rely upon recovery of room and board for incarceration.  You may want to give your budget officer a heads up.  In addition, Missouri Lawyers Weekly, noted that docket calls may be substantially reduced due to defendants no longer being required to appear before the court.  The opinion of the court was limited to statutory construction and did not get into the broader question of the impact of these fees on the poor and minorities.

Panhandling Ordinance of Joplin Found to be Unconstitutional
The panhandling ordinance of the City of Joplin (City) was amended to enact stricter language to prohibit panhandling within 150 feet of an intersections where the speed limits were more than 45 mph.  The stated purpose was to move panhandlers away from major intersections in response to concerns about safety by citizens.

The Snyder’s, a homeless couple, living in their car solicited money at the intersection of I-44 and Missouri Highway 43 in Joplin to provide themselves with basic necessities.  After the ordinance took effect, Snyder was issued a warning and told by a police officer that a second violation would result in a ticket for an arrest.

The ACLU filed a civil rights lawsuit against the City, alleging that the ordinance violated their right of free speech.  Snyder contended in his lawsuit that a police officer asked him: “You don’t got a job yet?”Snyder alleged that: “I was so scared of being arrested that my wife and I left Joplin and lost an opportunity to find stable housing through an organization.”  The ACLU quoted Snyder as saying. “Our rights shouldn’t be threatened because we asked for help.”

When the (City) realized that it’s panhandling ordinance, which limited solicitations within 150 feet from major intersections was unconstitutional, it took steps to repeal the ordinance, first trying to modify it and then repealing it in its entirety.  The City then filed a motion to dismiss arguing that the case was moot.  The mootness motion was overruled by federal district court on the grounds that the Snyder’s had been damaged based upon lost opportunity to obtain housing in Joplin; therefore, the case was required to be submitted to arbitration and if that was not successful there would be a trial on damages.

Comment Howard: The City of Joplin (City) found out the hard way that getting rid of an unconstitutional ordinance can be a lot like the tar baby.  Once you touch it is hard to get rid of the consequences.  Sure, the City quickly realized, after being sued that the ordinance was unconstitutional because it violated the free speech rights of Snyder.  Having adopted an unconstitutional ordinance, the City was stuck with expensive and unnecessary litigation over the damages.  This case highlights the need for local government to review its ordinance and if it determines there is unconstitutional ordinances it should take immediate steps to stop enforcement and repeal the ordinance.  Springfield, stopped enforcing its’s panhandling ordinance until was able to adopt a new ordinance that would appear to be constitutional.

Amendment to the MHRA is Prospective
Facts and Procedure: Bram (Caucasian), began working for AT&T in August of 2011 as a retail sales consultant.  Bram sold phones and products in AT&T’s Oak Park retail store.  Later that year, Bram was transferred to AT&T’s Belton store.  In January of 2013, Deja Rogers (African-American) became the assistant manager of the Belton store.  From July to October 2013, Bram took short-term disability leave for a medical condition.  While Bram was on leave, Iesha Lynch (African- American) became the manager of the Belton store.

The facts, set forth motion for summary judgment showed that Lynchand Rogers, African-Americans supervisors of the AT&T store, made disparaging remarks about Caucasians and in particular Bram who was Caucasian.  These remarks by her supervisors were highly insensitive such as: “…would “not hire another f-cking white woman again;” Sale and Crystal Clark heard Lynch say “…she would never hire or train another white woman;”“f-cking white b-tch;” and she only wanted to hire African-Americans.  Lynch and Rogers blocked sales from Caucasian employees and diverted them to African-American employees, even when customers asked for one of the Caucasian employees by name, which affected the income of Caucasian employees including Bram.  African-Americans employees were allowed to use their personal cell phone at work even though Caucasians could not use their personal cell phones.  There was a litany of other examples including preferential treatment for African-Americans with respect to scheduling and violation of work rules.  There were also questions about personal comments made by Bram at work concerning her active sex life and whether or not she was abusing FMLA.

Between September 2013 and March 2014, six Caucasian employees at the Belton store (not including Bram) resigned, were terminated, or took medical leave.  All filed charges with the MCHR alleging racial discrimination.  During that time, three African-American AT&T employees were transferred to the Belton store.

Bram eventually resigned from AT&T.  In her resignation, she stated that she was “forced to resign due to hostile work environment due to AT&T and your discrimination against me because of my race, as well as the retaliation of staff, management, and AT&T.”

Bram subsequently filed a charge of discrimination with the MCHR, and was given a right to sue letter.  Bram then filed this lawsuit against AT&T alleging counts for racial discrimination, racially hostile work environment, and retaliation for complaining of discrimination.  AT&T moved for summary judgment on all three counts, and the trial court granted AT&T’s motion.

The trial court found Bram failed to establish prima facie cases of race discrimination, hostile work environment based on race, and retaliation.  In a footnote, the trial court noted that “[t]he parties briefed and argued orally regarding whether the August 28, 2017, MHRA amendments applied to this case,” and while the trial court found that “the Amendments and the new ‘motivating factor’ standard applied[d], the result in this case would be the same even under the contributing factor standard.”  Bram then appealed to the Western District.

Opinion: Application of 2017 Amendments to the MHRA: Bram argues that the trial court erred in applying the 2017 amended version of the MHRA retroactively to her claims that went into effect on August 28, 2017.  The amendment changed the standard used in assessing claims of discrimination under the MHRA.  Prior to the amendment, “an employer violated the MHRA if, in taking an adverse employment action, the employee’s protected status contributedin any way to the employer’s decision to take the adverse action.”  Post amendment, an employer violates the MHRA if the employee’s protected status was the motivating factor in an adverse employment action.  The question was which standard applied to Bram’s claims: the pre-amendment “contributing factor” standard or the post-amendment “motivating factor” standard

The Western District, started with the proposition that amendments to statutes are presumed to operate prospectively only, unless the legislature expresses an intent that the amendment was meant to operate retroactively or if the amendment is merely procedural or remedial, rather than substantive.  The amendments to the statute, did not express any intent for the statute to act retroactively.  In addition, the amendments to the statute make substantive changes in the law and are not procedural or remedial indicating that they were intended to act prospectively.  Furthermore, the Missouri Supreme Court in 2018, when they adopted jury instructions for the MHRA, explicitly stated that 2017 amendments (MAI 38.06) applied to “actions accruing on or after August 28, 2017,” and that this instruction applied to the new heightened standard.  Since the trial court applied the 2017 standards retroactively to this case it erred.

Discrimination Claim: In this case, there was a genuine issue of material fact that Bram suffered an adverse action whether her compensation, terms, conditions, or privileges of employment were negatively affected.  There was evidence that a fact finder could find that directing sales away from Bram was a contributing factor in the adverse action.   Since these facts were disputed the trial court erred in sustaining a motion for summary judgment.

Hostile Work Environment Claim: The MHRA’s prohibition against employment discrimination “includes within its scope generalized claims of discrimination based on a course of conduct,” such as claims based on a hostile work environment.  The evidence showed that there could be a hostile work environment that was intimidating, hostile, or offensive with respect to the work environment, which had an effect of unreasonably interfering with the work of Bram. “Once there is evidence of improper conduct and subjective offense, the determination of whether the conduct rose to the level of abuse is largely in the hands of the jury;”therefore, the trial court erred in granting the motion for summary judgment.

Retaliation Claim: The MHRA makes it an unlawful practice to retaliate or discriminate in any manner against another person because such person opposed a practice prohibited by the MHRA.

Bram  failed to show that she had a retaliation claim because there was no evidence that she suffered any damage because an investigation was opened and in fact she admitted that she did not resign because of the investigation.  The actions of a coworker in accusing Bram of inappropriate behavior while at work was not sufficient because Bram did not show that AT&T supervisors were in any way involved in instigating the accusations of the coworker or that there was a pattern or practice sufficient to show retaliation; therefore, the trial court did not err in dismissing the retaliation claim.  Bram v. ATT Mobility Services, (WD81538, 12/18/2018).

Comment Howard:This is one of the first cases to determine whether or not the 2017 amendments to the MHRA, applied retroactively or prospectively.  Applying the new 2017 standard to the facts in this case strongly suggests that discrimination complaints will be very difficult to make under the 2017 standard as shown by the trial court decision in this case when it applied the new test.  To me, this seems like a question for the jury, in any event, whether or not you apply the new or old test, unless the case for the employee is devoid of evidence showing that the employers’ actions were not a “contributing factor.”  Still the new contributing factor standard will tilt the cases way in the favor of the employer.

Retaliation Claim Survives Even Though Underlying Age Discrimination Claim Failed
White v.  Kansas City Public School District, involved claims for retaliation by the school district in which two employees of the Kansas City Public School District (KCPS) were each awarded $3,000 for their retaliation claim against KCPS by a jury.  They also filed a claim of age discrimination under the Missouri Human Rights Act (MHRA) in which the jury returned a verdict against the employees and for KCPS finding that there was no age discrimination.

The Kansas City Public School District (KCPS) appealed the jury verdict to the Western District on their claims alleging retaliation under the Missouri Human Rights Act (MHRA).  KCPS, argued, amongst other things, that most of KCPS’s alleged retaliatory acts occurred before Plaintiffs filed complaints of discrimination, and the remaining alleged retaliatory acts were not supported by substantial evidence.  One of the key issues on appeal was how there could be a retaliation claim when the jury found that there was no underlying age discrimination.

The Western District held:

“A retaliation claim may survive even if the underlying discrimination or harassment claim is unsuccessful.” “The only issue is whether the person making the complaint has a reasonable good faith belief that there were grounds for the claim of discrimination or harassment.”

In addition, therewas sufficient evidence to support the claim of plaintiff’s that KCPS took actions that were intended to discourage the filing of a complaint with Human Resources or their union. The evidence showed that after the complaint was filed with Human Resources the complaining employee received a low rating in the area of “teamwork,” even though he had never received a low rating before. In addition, the officers were told that anybody going to the Union with their complaints would be “dealt with” and “terminated.”

The trial court awarded the plaintiff’s attorney $226,000 as attorney’s fees for litigating the matter through trial. KCPS argued that the attorney fee was excessive since the jury only awarded each plaintiff $3,000 on their retaliation claim.  The Western District rejected this argument because the claims were interrelated. In addition: “In human rights cases, the amount of the verdict or judgment may have little bearing on the amount of attorneys’ fees.” While a court might consider the extent to which a plaintiff prevailed on some claims and not others, “[t]he efforts of the prevailing attorneys … should not be discounted where the effort and proof were the same for the claims on which [the plaintiff] prevailed and those on which [the plaintiff] did not.” White v.  Kansas City Public School District, (WD80763, 12//11/18)

Comment Howard:   I  would urge some caution with the holding in this case, concerning whether or not a good faith reasonable belief is required in order to file a retaliation claim, in light of the holding discussed below in Gentry v. Orkin LLC and Danny Birion

Retaliation Claim Did Not Require Employee To Have A Good Faith Reasonable Belief That Employer Engaged In Prohibited Conduct

Procedure and Facts: Gentry began working for Orkin at the California, Missouri branch office in 2007 as a pest- control route manager and was transferred from the California office to became manager of Orkin’s Independence branch office.  Biron supervised Gentry and the other employees in that office.

Gentry took leave due to a shoulder injury.  One week before he was scheduled to return to work, Biron terminated Gentry for failing to return from a leave of absence, job abandonment, unsatisfactory performance, and misstatements on his application.  Even though Gentry was being dismissed for reasons reaching a high level of employee misconduct, the termination notice provided to Gentry stated that he was eligible for rehire and then went on with glowing words of praise of Gentry, as an employee, by stating in the termination letter that: “[h]is spirited personality and positive attitude are great attributes that I would love to have on my team.”

After he was terminated, Gentry filed a complaint of discrimination with the Commission alleging age and disability discrimination.  The Commission issued Gentry a right-to-sue letter, but he did not file a lawsuit.  Gentry then sent Biron an email seeking reemployment stating he would accept any position, including part-time or on-call.  Gentry’s email stated that he had loved his job and hoped that there would be a position available for him based on the letter of recommendation that Biron had previously provided him.  Biron replied, “Thank you for your interest in employment. I currently do not have any positions open at this time.  We will keep your resume on file.”  After receiving this email from Biron, Gentry believed that Biron would consider him for positions that would become available based on the “glowing recommendation” that Biron had given.

Later in October 2013, Orkin had a job opening for a pest technician.  The newspaper ad for the position stated, “experience preferred,” and asked applicants to fax a resume to apply.  Gentry was not contacted about the position but he did see the job posting in the newspaper.  He did not apply at that time.

Orkin then posted another job opening for a pest technician on December 4, 2013.  On December 30, 2013, Gentry faxed his resume to Orkin.  He never heard from Orkin after faxing his resume.  Two men, who had no experience were hired, even though the ad for the position stated, “experience preferred.”  Gentry then filed another complaint with the Commission.  In this complaint, Gentry alleged that Orkin and Biron refused to interview or hire him in retaliation for him previously filing the complaint of discrimination against them.

After receiving notice of the retaliation complaint, Orkin provided the Commission with documentation that contained multiple errors and inconsistencies.  The hire date of one of the men hired for the December 2013 opening stated it had been filled on December 4th or 5th, but documentation provided to the Commission showed that one of the men hired had not applied for the position until December 16, 2013.  The documentation also showed that reference checks for this applicant were not completed until January 20, 2014, even though reference checks were required before an applicant could be hired.

Gentry again received a right-to-sue letter from the Commission.  This time, Gentry filed suit against Orkin and Biron alleging retaliation under the MHRA and seeking both compensatory and punitive damages.

The jury found in Gentry’s favor and awarded him $120,892.00 in compensatory damages, punitive damages of $10,000,000.00 against Orkin and $5,000.00 against Biron.  The trial court reduced the punitive damages and entered judgment in favor of Gentry, awarding him a total of $621,873.83 in compensatory damages, attorneys’ fees ($488,177), and costs; $3,109,369.15 in punitive damages against Orkin; and $5,000.00 in punitive damages against Biron.  Orkin and Biron appealed to the Western District.

Opinion:  Orkin argued that the verdict directing instructions failed to require the jury to find that Gentry had a good faith, reasonable belief that Orkin and Biron had engaged in prohibited conduct when Gentry filed his complaint with the Commission under McCrainey v. Kansas City Missouri School District.

Gentry countered that the “good faith, reasonable belief” language was not necessary in this case because “Gentry’s protected activity was under the participation clause of 213.070(2)[.],” which prohibits retaliation “in any manner against any other person because such person has opposed any practice prohibited by this chapter or because such person has filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding or hearing conducted pursuant to this chapter.”

The Western District, noted that Gentry’s retaliation claim against Orkin was based upon the filing of a complaint with the Commission, which is a protected activity under the participation clause in the statute.  There was no reason to narrow that protection by grafting into that a provision that required a good faith, reasonable belief for filing a complaint or otherwise participating in an investigation, proceeding or hearing under the MHRA.  Gentry v. Orkin LLC and Danny Birion, (WD81069, 12/26/18)

Comment Howard: The size of the verdict, $3,736,242., rang some loud bells, making the appeal of a highly combative trial even more contentious.  It looked like Orkin threw everything up against wall hoping that something would stick, as shown by 26-page opinion where objection after objection was overruled with little or no difficulty. One interesting part of the opinion was the description of Plaintiff’s counsel landing blow after blow in closing argument.  If I were looking for a way to push the limits on closing argument I might look at this case for guidance as to how to frame the jury argument.  It is pretty clear that the jury was mad as hell with Orkin.  In a way this case is true justice because it all started Orkin firing Wright, only to praise him in the highest by stating that he was eligible for rehire and extolling him to the high heavens as a great worker.  This blatant hypocrisy earned the juror’s wrath in the amount of $10 million in punitive damages.  Where was the quality control of Orkin?

Flash Bang Policy Should Be Reviewed
Recently, Missouri Lawyers Weekly ran an article about the City of Marion, Illinois settling a flash bang lawsuit for $15,000, plus $22,000 in attorney’s fees based upon its offer of judgment.  In this case, the police were executing a no knock search warrant at a residence.  The police used a pole to break the front picture window of the house and threw in and detonated a flash bang grenade.  When the officers’ opened the front door, they tossed two more grenades into the residence.  Three of the persons in the house were very young children . The smallest child suffered injuries to her face, was bleeding and terrified when the officers entered the house.

The Lawyers Weekly article reported that the allegations in the petition were modeled after a 7thCourt of Appeals decision in Milan v. Bolin, which has an excellent discussion of the use of excessive force when using flash bangs to execute an arrest.  Judge Posner, in Milan v. Bolin (7th Circ15-1207,  7/31/2015), noted that:

“the use of a flash bang grenade is reasonable only when there is a dangerous suspect and a dangerous entry point for the police, when the police have checked to see if innocent individuals are around before deploying the device, when the police have visually inspected the area where the device will be used and when the police carry a fire extinguisher.”

Judge Posner described flash bangs this way:

“These are explosive devices, similar to but a good deal less lethal than military hand grenades, that are intended to stun and disorient persons, thus rendering them harmless, by emitting blinding flashes of light and deafening sounds.  They can kill if they land on a person, especially a child. The police call them “distraction devices,” an absurd euphemism; we called them “bombs…”

Similarly, a 2016 decision in U.S. District Court for the Western District of Missouri in C. J. v. Kansas City,  highlights the dangers of using flash bangs in residential situations due to the danger to innocent persons such as children and elderly individuals.

Comment Howard: Local government lawyers should review the flash bang policy of your agency.  If children are injured from a flash bang an investigation should occur in order to document the circumstances since there is a high probability of a lawsuit.  In addition, I thought the offer of judgment in the City of Marion case made a lot of sense because it was an efficient way to get rid of what looked like a loser, allowing the City to minimize its exposure for attorney fees.

Manure Storage Facilities For A CAFO Located Above The 100 Year Flood Plain Are Permitted Even If The Facilities Are Within The 100 Year Flood Plain
Hickory Neighbors challenged the Clean Water Commissions (CWC’s) legal authority to approve the permit issued by the Department of Natural Resources (DNR) to Trenton Farms because some manure storage facilities for a swine concentrated animal feeding operation (“CAFO”) would  be located within the FEMA Zone A 100-year floodplain boundary.  Hickory Neighbors alleged that this renders the CAFO ineligible for a permit as a matter of law pursuant to 10 CSR 20-8.300(4).

10 CSR 20-8.300(4) (A) provides:

Protection from Flooding—Manure storage structures, confinement buildings, open lots, composting pads, and other manure storage areas in the production area shall be protected from inundation or damage due to the one hundred- (100-) year flood.

It is uncontested, and the Administrative Hearing Commission (AHC’s) decision found, that some of Trenton Farms’ manure storage structures would be within the 100-year floodplain boundary as designated by FEMA.  The AHC nonetheless found that the manure storage structures are protected from inundation or damage due to the 100-year flood because the buildings will be above the 100-year base flood elevation.

The AHC found that based on, the certification by project engineer for Trenton Farms that the CAFO site would be protected from inundation and damage from a 100-year flood.  The AHC also relied on the testimony of Paul H. Reiz (“Reiz”), a professional engineer and certified floodplain manager who testified on behalf of Hickory Neighbors.  Reiz agreed that there is at least three feet of freeboard, or area, between 100-year base flood elevations and the manure storage structures on the Trenton Farms’ site.  Reiz also agreed that any erosion from flood waters in the area would be minimal, because the width of the floodplain at the CAFO site would yield low-water velocities.

Based on this, and other related evidence, the AHC concluded that even though manure storage structures on the Trenton Farms’ site would be within the horizontal FEMA 100-year floodplain boundaries, the structures would nonetheless be protected from inundation and damage from a 100-year flood because they would be above the base flood level elevation.

In addition, Hickory Neighbors challenged the appointment of members to the CWA contending that the appointment was in violation of the Missouri Constitution.  This argument clearly failed because a citizens group does not have standing to challenge the appointment of public officials.  Such an action must be brought as a quo warranto   may only be brought by the Attorney, or a prosecuting or county counselor of the state.

The Western District affirmed the rulings of the AHC.  In Re Trenton Farms v.  Hickory Neighbors United, Inc, (WD81385, 01/02/19).

2018 – Key Local Government Law Opinions

Looking back over decisions in 2018, I thought it might be useful to summarize some of the key opinions, which can affect your practice.



Quill Overruled – Physical Presence No Longer Required to Tax Interstate Sales –
No doubt that South Dakota v. Wayfair, was the most important local government case decided in 2018 because it overruled the long-standing decision in Quill that held states could not tax businesses that did not have a physical presence in the state.  Now that the legal hurdle has been cleared local officials will need to be active in the support of state laws to allow collection of taxes on out-of-state sellers who have a presence in the state.  New sources of revenue for local governments that are strapped for revenue is welcome.

 Missouri Supreme Court Clarifies Law on Nonuse Variance
All seven judges joined in the opinion making Antioch Community Church v. Board of Zoning Adjustment of The City of Kansas City,  the definitive case on nonuse variances.   A nonuse variance may be granted only if “practical difficulties” are shown noting that its cases have not set out specific criteria for determining when “practical difficulties” have been shown because a nonuse variance belies an all-inclusive definition since it is uniquely a question of fact for the Board.  Relevant criteria to be evaluated in nonuse variance cases includes:

“(1) How substantial the variation is in relation to the requirement, (2) the effect, if the variance is allowed, of the increased population density thus produced on available governmental facilities (fire, water, garbage and the like), (3) whether a substantial change will be produced in the character of the neighborhood or a substantial detriment to adjoining properties created, (4) whether the difficulty can be obviated by some method, feasible for the applicant to pursue, other than a variance, and (5) whether in view of the manner in which the difficulty arose and considering all of the above factors the interests of justice will be served by allowing the variance.” https://mmaanewsletter.org/2018-2/april-newsletter-issue-04-2018/(second case)

 St. Louis Ordinance That Allowed a Majority of Persons Living Within A 500 Foot Radius Of A Homeless Shelter To Approve A Shelter, Otherwise Prohibited, Was Not An Unlawful Delegation Of Legislative Power In Violation Of The United States Constitution.
The Eastern District, adopted the reasoning applied by the United States Supreme Court, in distinguishing between delegation of legislative authority to property owners requiring their approval of a use not otherwise permitted, versus allowing citizens to protest (veto) the use of the property as a homeless shelter.  This case is important because it allows a majority of residents in the immediate area to approve the use of property, which is otherwise prohibited. This is a very useful tool in the toolbox of local government to deal with controversial neighborhood uses that may constitute a nuisance to the area.  See New Life Evangelistic Center vs. City of St. Louis, (ED105737, 09/25/18)

No Exemption For Unpaid Person Who Engages In Lobbying Activities
With the adoption of Constitutional Amendment # 3, dealing with ethics reform, local officials will be required to determine who is a lobbyist.  The 8thCircuitaddressed the issue of what constitutes a lobbyist under the Missouri Ethics Law, holding that there was no exemption from registration as a lobbyist for persons who are unpaid, if there are other factors which show that the person is otherwise engaged in lobbying. Calzone v. Missouri Ethics Commission (8th Cir., 17 – 2654, 11/28/18)

See summary by clicking here  https://mmaanewsletter.org/december-newsletter-issue-12-2018/

Statutory DWI Warning Given Prior To Breath Test That License Would Be “Immediately” Revoked Is Not Accurate and Is Seriously Questioned (Case referred to the Missouri Supreme Court for further proceedings.)
The trial court reasoned, “There can be no question that being given false information prejudices, and in fact completely disables, a person’s ability to make an informed decision; therefore,  “the breath test results were obtained in violation of the requirements of Section 577.037.4, as well as [Mr. Thomas]’s due process rights, therefore rendering the results inadmissible.”   This case was referred to the Missouri Supreme Court by the Eastern District, after issuing an opinion that agreed with the trial court.   Stay tuned.  Thomas vs. Director of Revenue, (ED106360, 11/13/18)

 County Zoning Commission Required To Allow Citizens To Speak At Public Hearing To Rezone Property
Relying on the Missouri Supreme Court interpretation of Section 64.875 in Campbell v. County Commission of Franklin County, the Eastern District held speakers must be allowed to address the subject of a proposed zoning amendment.  Not allowing Concerned Citizens an opportunity to be heard before the PZC is a denial of due process, making the subsequent decision by the County void.

“The regulations imposed and the districts created under authority of sections 64.845 to 64.880 may be amended from time to time by the county commission by order after the order establishing the same has gone into effect but no amendments shall be made by the county commission except after recommendation of the county planning commission, or if there be no county planning commission, of the county zoning commission, after hearings thereon by the commission.”

In Campbell, the court applied the ordinary dictionary definition of the word “meeting” concluding that a “hearing” is “a session… in which testimony is taken from witnesses,” an “opportunity to be heard, to present one side of the case, or to be generally known or appreciated,” and “a listening to arguments. ”The law required the County to be guided by the recommendation of the PZC after a “hearing,” which did not happen. State ex rel. Kelly Brothers vs. County Commission of Franklin County, (ED104766, 05/15/18)

Howard Comment: Since it is fairly common to use the term “hearing” in the context of actions taken by a governmental agency you need to be aware of the potential for this issue to pop up in another context.  I would be careful about using the term “public meeting” without thinking about potential consequences. See analysis at: