January Newsletter (Issue 01-2020)

No RLUIPA Claim By Catholic School For Regulations That Prohibit Nighttime Lights For Baseball Field 
Facts and Procedure: Vianney is an all-male Marianist high school that has operated in the City of Kirkwood, Missouri since 1960.  The school’s mission statement provides that it is “dedicated to forming young men for spiritual, academic and personal excellence in the Catholic, Marianist tradition.”  Vianney states that its students and faculty use all of its approximately thirty-seven-acre property as a forum to evangelize by drawing people to the campus and sharing their faith.  Student athletes and coaches pray before every athletic event and practice.

The school campus includes classroom buildings, a track, an outdoor football and soccer stadium, and a sports field used primarily for baseball.  Vianney’s track, football, and soccer facility is equipped with lights and a sound system that were installed before 2012.  The baseball field is bordered by residential homes and has been used to play baseball and other sports without lights for decades.  Vianney’s efforts, from 2012 to 2016, to install lights and an updated sound system on this baseball field form the basis of this dispute.

Before 2012, Kirkwood’s zoning code did not contain any lighting regulations.  In November 2012, Kirkwood adopted a revised zoning code that included new regulations limiting the maximum level of light a property owner can cast onto nearby residential properties to 0.1 foot-candles.  The stated purpose of the 2012 regulations was to “strike a balance of safety and aesthetics by providing lighting regulations that protect drivers and pedestrians from glare and reduce . . . the trespass of artificial lighting onto neighboring properties.” Kirkwood also has sound regulations that prohibit “loud, unnecessary noises” that “unreasonably or unnecessarily disturb[] . . . the comfort, repose, health, peace, or safety of others in the city.”

Vianney began the process of installing lights on its baseball field in late 2014.  In 2015, contractors told the school that no lighting configuration could both comply with the lighting regulations and be bright enough to play baseball safely at night.  Vianney therefore applied for a variance from the regulations.  Kirkwood’s city planner told Vianney it did not need a variance, mistakenly thinking the baseball field already had lights.  In October 2015, Vianney submitted a site plan for its improvements to the baseball field, which Kirkwood approved.  Vianney then installed the lights at a cost in excess of $235,000.  In January 2016, Vianney also installed an updated sound system on its baseball field.

After the lights were installed and tested, neighbors complained.  Vianney submitted another site plan in 2016, which the city approved subject to several conditions on the use of the lights and sound system.  Vianney took issue with the conditions, claiming they deprived it of all meaningful use of its baseball field at night.

Both Vianney and the local public high school, Kirkwood High School (“KHS”), have football stadiums that are used for other sports, such as soccer, and were equipped with lights and sound systems before 2012.  Both parties acknowledged that the city “grandfathered in” the lights on both schools’ football fields after the lighting regulations were adopted, allowing unrestricted use of the lights and sound systems on those fields.  Both high schools also have baseball fields that were not equipped with lights before 2012, and KHS has not installed lights on its baseball field.

Vianney filed a petition against Kirkwood in state court, alleging two claims under RLUIPA, a claim under the Missouri RFRA statute, and inverse condemnation under Missouri’s Constitution.  Kirkwood removed the case to federal court based on Vianney’s RLUIPA claims.  Both Vianney and Kirkwood moved for summary judgment The  district court granted summary judgment to Kirkwood, which Vianney appealed  to the Eighth Circuit.

Analysis: Substantial Burden: Vianney claimed that Kirkwood’s lighting and sound regulations (collectively, “regulations”) placed a substantially burden on its religious exercise in violation of RLUIPA.  RLUIPA’s substantial burden subsection provides that no government shall implement a land-use regulation in a manner that “imposes a substantial burden on the religious exercise” of an institution, unless the government demonstrates that imposing the burden (1) furthers a compelling governmental interest and (2) is the least restrictive means of furthering that interest.

In support of this claim, Vianney  asserted that various forms of religious exercise “motivate the school’s use” of its baseball field at night.  The school emphasized that athletics is part of the “formation of young men” in the Catholic Marianist tradition and that nighttime sports games allow it to reach out to the community and engage in religious fellowship.  RLUIPA broadly defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

The Eighth Circuit concluded that Vianney had not demonstrated its religious exercise is substantially burdened, rather than merely inconvenienced, by its inability to use its baseball field at night.  Vianney also has not shown that its religious exercise will be substantially burdened by being limited to using its baseball field only during daylight hours, as it has for decades because Vianney has alternative times and locations, such as at its baseball field during the day and its football and soccer facility at night, to carry out its religious mission.  Vianney is not being forced to violate its religious beliefs because Kirkwood’s regulations require only that Vianney engage in these forms of exercise of community outreach, athletic activities, student prayer, and other activities either during the day or at alternative locations.  Because Vianney has not demonstrated a requirement that it avail itself of these alternatives would substantially burden its religious exercise, its substantial burden claim failed.

Equal Terms : An equal terms claim under RLUIPA requires the plaintiff show that a government entity imposed or implemented a land-use regulation on a religious institution that treats the religious institution “on less than equal terms with a nonreligious . . . institution.”  Vianney brought an “as-applied” equal terms claim, which required a showing of discriminatory application of an otherwise generally applicable regulation.  Both Vianney’s and KHS’s football fields were grandfathered in because both had lighting and sound systems installed before the 2012 lighting regulations were enacted.  Kirkwood has not allowed either school to use lights on their baseball fields that exceed the brightness limits set by the regulations because neither Vianney nor KHS had installed lights on the fields at issue before 2012.  Therefore, the Eighth Circuit concluded that the schools had not been treated unequally.

Pendent State Claims: The district court granted summary judgment to Kirkwood on the claims by Vianney  with respect Missouri state claims, which was appealed to the Eighth Circuit.   In upholding the dismissal of the pendent claims the Eighth Circuit noted that there is a dearth of case law interpreting the Missouri RFRA.   Furthermore, the normal practice is to dismiss pendant claims without prejudice when the federal claims are resolved before trial allowing the plaintiffs to freely pursue state law claims in state courts.  In addition,  the Missouri RFRA  is unusual and there is a lack of relevant case law interpreting it and that  Missouri law  appears to be more protective of religious exercise then the federal law; therefore, the Eighth Circuit remanded the state claims the District Court for dismissal without prejudice.

Inverse Condemnation Claim: The Eighth Circuit noted that Missouri inverse condemnation law is well established therefore comity interest is  way different than in the Missouri RFRA   context leading the court to review the grant of summary judgment on the inverse condemnation claim.   There is nothing in the record to suggest that the Kirkwood regulations were unreasonable nor anything to suggest that they impose unusual restrictive limitations. In addition, the regulations did not deprive Vianney  use of its use for other purposes; therefore, the Eighth Circuit affirmed  the district court’s dismissal of the inverse condemnation claims on the use of lights and the sound regulations.  Marianist Province of the United States; St. John Vianney High School, Inc. v.  City of  Kirkwood,  (8th Cir., No. 18–3076, 12/13/19)

Comment Howard:  This case is especially significant because it is the first case decided by the Eighth Circuit interpreting RLUIPA,  in a land use context.  Of particular interest, is the Court’s limited discussion of the Missouri law, which appears to be somewhat broader than RLUIPA.  We will have to stay tuned to see what happens to the state law claims.

The Missouri Supreme Court Adopted The Rational Basis Test To Determine If A Special Or Local  Law Was Unconstitutional Reversing Years Of Precedent
Introduction: Just in time for Christmas and the New Year, the Missouri Supreme Court  handed down on December 24th a landmark decision in City of Aurora v.  Spectra Communications LLC, dealing with how  to determine if a law violates the  special/local  law prohibition in the Missouri Constitution.  Out with the old and in with the new was never truer than in this case, which upended years of precedent that ebbed and waned with different tests over its 150 years.  The opinion written by Judge Breckenridge, meticulously traces the history of special law jurisprudence.  My focus is on the new rule and how to apply it, although some understanding of why the old rules were thrown out is useful, otherwise you can forget the old rule and move on to the new one.

The good news, for local government lawyers, is that we will benefit from the new rule, making it much easier to determine when a law is special or local.  The good or bad  news, (depending on which side of the case you are on) is that the new rule for making this determination will make it harder to find a law was special or local making it unconstitutional, which can be either good or bad depending on the circumstances of the case.  For purposes, of my review the term “local law” is seemingly synonymous with “special law.”

On the same  day, the Court issued its ruling in City of Aurora,  it issued another opinion in City of Chesterfield v.  State of Missouri (SC96862, 12/24/19), applying the new interpretation in City of Aurora to a St. Louis countywide sales tax, which will be discussed following the analysis this of this case.

Facts and Procedure: In 2012, the cities of Aurora, Cameron, Oak Grove, and Wentzville  (Cities)  filed a declaratory judgment action against CenturyLink alleging it had failed to pay all of the required license taxes owed under the Cities’ respective ordinances.  The Cities further alleged CenturyLink failed to enter into right-of-way user agreements with Cameron and Wentzville and failed to pay Cameron linear foot fees under Cameron’s right-of-way ordinance.

Central to this case was the assertion by CenturyLink that the Cities right-of-way ordinance was a constitutionally invalid special law.  Section 67.1846 defined a “grandfathered political subdivision” as “any political subdivision which has, prior to May 1, 2001, enacted one or more ordinances reflecting a policy of imposing any linear foot fees on any public utility right-of-way user, including ordinances which were specific to particular public right-of-way users.”  It was alleged that the grandfathering provision in Section 67.1846 created a closed-ended class based on an immutable, historical facts (only those cities that were grandfathered because they had adopted the tax before the date of the  Amendment could continue the tax) making this an unconstitutional special law under the law.  The Cities argued Section 67.1846.1 was not a special law and even if it was, the grandfathered political subdivision provision is substantially justified.

The trial court held that state statute did not violate the special/local provisions of the Missouri Constitution  prohibiting special legislation.  CenturyLink appealed to the Missouri Supreme Court.

Analysis: Facially Special Law: CenturyLink asserted that the trial court erred by awarding Cameron damages for unpaid linear foot fees under the city’s right-of-way ordinance because the fees were  a constitutionally invalid special law.  Specifically, Section 67.1846.1 created a closed-ended class based on an immutable, historical fact (only grandfathered cities could have the tax) making the law, an unconstitutional special law.  The Cities argued that Section 67.1846.1 is not a special law and, even if it is, the grandfathered political subdivision provision is substantially justified.

The question before the Court was whether Sections 67.1830 to 67.1846, which generally prohibits political subdivisions from recovering payments from public utility right-of-way users for the use or rent of public rights-of-way in excess of the political subdivision’s management costs constitute a special law because the prohibition did not apply to all political subdivisions?

The Court began its analysis by first examining the constitutional text prohibiting local and special legislation in Article III, Section 40 through 42 noting that section 40, prohibits 30 types of local or special laws in all circumstances.  Exceptions (1) through (29) are identified by the subject matter or effect of the law in question.  Exception (30), establishes a general rule, not based on subject matter, which  provides that:

(30) where a general law can be made applicable, and whether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on that subject.

Exception 30 of the Constitution forbids any local or special law “where a general law can be made applicable[.]” As a result, a plain reading of the constitutional language at issue showed that a party seeking to challenge the constitutional validity of a statute under Article III, Section 40(30), must demonstrate: (a) the statute is a local or special law and (b) a general law can be made applicable.

The Court then engaged in an extended 10 page historical review of exception number  30 by noting that the test for identifying local or special laws has received significant attention by the Missouri Supreme Court since these provisions were first added to the Missouri Constitution in 1865 concluding:

It may be that, in the 15 decades since the prohibition against certain local or special laws first was added to the Missouri Constitution, this Court’s analysis began to conflate the absence of a rational basis with the absence of a “substantial justification” for such a law.   It also may be that, at some point, this Court began to conflate the question of whether the local or special law at issue was one “where a general law could be made applicable” under Section 40(30) with the question of whether that local or special law was substantially justified.  The former error unnecessarily heightens the level of scrutiny employed in the threshold determination whether a statute is a local or special law.  The latter error unnecessarily blurs the line between this threshold element in Section 40 and the second element, that one of the 30 specific prohibitions against such law has been violated.  The resulting confusion from these errors diluted the constitutional language and generated complex and confusing criteria for analyses of whether a statute is a prohibited special law.

Conclusion: Based on the above, “…this Court shall return to the rational basis test…”.

Even though a party defending the constitutional validity of a statute under the rational basis test does not bear the burden of proof at trial, as the movants for summary judgment, the Cities had the burden of proving they were entitled to judgment as a matter of law.

The Court makes two other important points: (1) “Under rational basis review, this Court will uphold a statute if it finds a reasonably conceivable state of facts that provide a rational basis for the classifications.” (2) Identifying a rational basis is an objective inquiry that does not require unearthing the legislature’s subjective intent in making the classification.  In addition, whether “…the legislature used closed-ended or open-ended criteria to define classes is immaterial, although the criteria used to exclude certain political subdivisions sheds light on whether there was a rational basis for the legislature’s decision to exclude certain members.”

Other Issues: Obviously, this case was hotly contested and many other issues were raised but not related to the central issue as to whether or not the statute constituted special legislation.  Some of these issues were what I would call kitchen sink issues and were dealt perfunctory by the Court.  Others resulted in a good discussion of certain issue such as whether or not a contract in the circumstances of this case constituted a franchise, which it did not.  In addition, there was a good discussion of whether or not attorney’s fees could be awarded based upon conduct that the court determine was less then willful.  No attorney fees were justified in this case.  City of Aurora v. Spectra Communications LLC, (SC96276, 12/24/2019).

Comment Howard:  One of the more interesting aspects to this case was the fact that  the Court never discussed the history surrounding why the Missouri Constitution contains prohibitions against local or special legislation.  The history of why  prohibitions against special legislation were adopted by Missouri and many other states in their 19th century constitutions is well documented.  It’s as though the Court did not want to get into the reasons  (subjective intent ) for adopting  these prohibitions, which in my mind leaves us without a North star to navigate.  This may not be important in this case but may be important in other cases.  History Of  Special Laws.

Originally, the special or local law prohibitions were included in constitutions by many states because of the concern of  single purpose horse trading  by legislators who would support special legislation by another legislator in order to get their own special legislation.  The bankruptcy of canals and railroads triggered a  populist reform movement against the greed of politicians,  in the mid nineteenth Century.  In today’s political environment, greed and special favors have resurged (in my mind) with a vengeance.  It is interesting that the Missouri legislature was able to grant special charters  to cities that were  completely unique to that city prior to 1873; however by 1873 the Missouri Constitution made it clear that legislature could no longer grant special charters to cities, although a handful special charter cities continue to operate  to this day based upon the original charter.   At the same time the 1873 Constitution provided specifically four distinct classes of cities and counties based on population.  What happened to legislating by general laws applicable to specific classes of cities and counties based on their size?

What happened was (in my opinion), one of the worst  mistakes made by  Missouri courts,  with respect to local government law was legislating by generic categories based upon  multifarious  criteria such as “a  charter city between 100,000 and 200,000  in a non-charter County.”   Obviously, this made it easy to legislate and to solve particular problems for very specific communities without affecting almost anyone else.  It allowed state legislators to reach a bargain with local communities  without affecting other communities.  Commonality between communities no longer existed since the community could obtain what is essentially legislation for that community.  Maybe this is good particularly in the context of communities instead of particular individuals.  It still leaves me wondering about what will happen over time.

Tax That Was Unique to St. Louis County Passes Rational Basis Test
Facts and Procedure: Chesterfield is located in St. Louis County.  In 1977, St. Louis County adopted a county sales tax pursuant to Section 66.600.1, which now provides:

The governing body of any county of the first class having a charter form of government and having a population of nine hundred thousand or more may, by adopting an ordinance, impose a countywide sales tax for the benefit of both the incorporated and the unincorporated areas of the county[.]

St. Louis County is the only county governed by Section 66.600 because it is the only first-class county having a charter form of government and a population of 900,000 or more.

In addition, Section 66.620 apportions the revenues from Section 66.600.1  by classifying all cities in St. Louis County into two groups.  Group A consists of cities located at least partially within St. Louis County that passed a city sales tax prior to the county adopting the county sales tax.  Group B consists of all cities located  at least partially within St. Louis County that have not passed a city sales tax prior to the county adopting the county sales tax.  St. Louis County sales tax revenues are distributed first to Group A cities based on the location of the sales.  The remaining county sales tax revenues are then distributed to Group B cities in proportion to their populations.

When St. Louis County enacted its county sales tax in 1977, the area that now comprises Chesterfield was part of the county’s unincorporated territory.  Chesterfield incorporated as a city in 1988 and was classified as a Group B city under Section 66.620.  In 2014, Chesterfield brought a declaratory judgment action against the state, claiming Sections 66.600 and 66.620 were constitutionally invalid special laws.  St. Louis County, Ballwin, Florissant, Manchester, University City, Webster Groves, and Wildwood (collectively, “the Intervenors”) intervened as defendants.  The parties filed cross-motions for summary judgment.  The circuit court overruled Chesterfield’s motion for partial summary judgment, sustained the Defendants’ motions for summary judgment, and entered summary judgment in favor of the Defendants, holding Sections 66.600 and 66.620 are not special laws.  Chesterfield appealed to the Missouri Supreme Court challenging  the constitutional validity of Sections 66.600 and 66.620 as a special law.

Analysis: Chesterfield  contended that prior to 1991 amendment Section 66.600 applied to St. Louis County and St. Charles County; however, the 1991 amendment to the statute made the statute applicable only to St. Louis County because it applied only charter counties with a population of 900,000 or more.  Chesterfield relied upon a 2006 decision, Jefferson County Fire Protection Districts, which held that a statute was  presumed to be a special law if the population criteria was so narrow that no other  County could possibly fall into the classification.  The Court noted that the Jefferson County Fire Protection Districts case test was overruled by the City of Aurora case, decided on the same day as the Chesterfield case.

The Court applyied the rational basis test, if the criteria for class a statute is supported by any reasonable basis, the statute is not a local or special  law.  The Court noted that St. Louis County, is unlike other counties in the state.  It  has a large population, lacks a central city, has 90 separate municipalities within its borders, and has a large, unincorporated area.  In addition,  St. Louis County is responsible for providing municipal type services, such as police, street maintenance, and zoning to the unincorporated areas while simultaneously providing County type services, including court systems, jails, and roads to the County as a whole.  Therefore, the Court concluded, based upon the above, that the law was not a special law and there was a rational basis for the classifications in Section 66.600.

Absentee Ballot Applications Not Protected From Disclosure After The Friday Before The Election
Facts and Procedure: Mr. Roland represented a candidate taking part in the City of St. Louis August 2016 primary election.  He  made a Sunshine Law request to the custodian of records for the election board (Election Board) for certain election materials relating to elections held in the City from 2012 through 2016.  The Election Board complied with much of Mr. Roland’s request, but its in-house attorney informed Mr. Roland he had advised the election board that the Sunshine Law did not permit it to grant the portion of Mr. Roland’s request seeking absentee ballot applications and ballot envelopes connected to those elections.  When Mr. Roland continued to pursue the matter, the Election Board sought a legal opinion from the Missouri Secretary of State’s Office.  Counsel for the Secretary of State advised that the ballot applications were confidential pursuant to Section 115.289 and the ballot envelopes were confidential pursuant to Section 115.493; accordingly, both types of records were closed pursuant to Section 610.021(14).

Mr. Roland then brought a declaratory judgment alleging that the Election Board violated the Sunshine Law by refusing to produce the absentee ballot applications and ballot envelopes.  He also alleged the claimed violation was knowing or purposeful, thereby entitling him to damages, which could include attorney fees, costs, and civil penalties, in addition to a  declaratory judgment of his entitlement to the documents.

The circuit court first tried the issue of whether the Election Board violated the election laws finding that the election board had violated the Sunshine Law by withholding the absentee ballot applications and ballot envelopes.  Subsequently, the Election Board released those records to Mr. Roland.  The circuit court addressed Mr. Roland’s claim of entitlement to attorney fees, costs and a penalty for this violation of the sunshine law.  It found the Election Board’s violation had been neither knowing nor purposeful because it had taken reasonable steps by consulting its in-house counsel and attorneys for the Secretary of State’s office, and accepting their advice that Mr. Roland’s interpretation of the law was incorrect.  The clerk taxed the Election Board’s costs to Mr. Roland in defending against the claim the Election Board’s violation was knowing or purposeful.  The Election Board appealed and Mr. Roland cross-appealed the clerk’s billing of costs to him, as he was the prevailing party at trial and the only party to establish a violation of the sunshine law.  The case was then transferred to the Missouri Supreme Court.

Analysis: Absentee Ballot Applications Were Not Protected From Disclosure After The Friday Before The Election Day
On appeal, the Election Board claimed that the circuit court erred in finding that it violated the Sunshine Law because, the ballot applications and envelopes are confidential pursuant to Sections 115.289 and 115.299 and, therefore, are closed records under Section 610.021(14).  Specifically, the issue before the court was the availability of the records  showing  who applied for an absentee ballot after the statutory period for confidentiality expired.

The Court first addressed the statutory framework.  The sunshine law provides that, in order to promote the policy of open public records its provisions “shall be liberally construed” and “exceptions strictly construed.”  Missouri election law specifically provides that prior to 8:00 a.m. on the Friday before an election all absentee ballot applications, lists of absentee ballot applications, or any information contained on the absentee ballot applications shall be kept confidential.  Use of the applications, lists, or information contained thereon by the election authority prior to 8:00 a.m. on the Friday before an election for purposes other than processing the absentee ballots shall be deemed a class one election offense.  After 8:00 a.m. on the Friday before an election any person authorized under Subsection 4 of this section may copy the list, and the election authority may make copies of the list available to such persons for a reasonable fee determined by the election authority.  Section 115.289.4 authorized “a candidate or a duly authorized representative of a campaign committee as defined in Section 130.011, or any person with written authorization from a candidate, or any person that has applied for an absentee ballot,” to access the lists after 8:00 a.m. on the Friday before an election.  Section 115.289.3 thereby makes confidential both the list of absentee ballot applications as well as the applications themselves and information in the applications prior to 8:00 a.m. the Friday before an election.

Roland argued that Section 610.011 makes election materials public records when their protection from disclosure is not otherwise provided for by law. Therefore, since Section 115.289.3 provides for confidentiality only up to 8:00 a.m. the Friday before the election for applications and their contained information, this is the only period of confidentiality the law provides.  Roland argued that once that confidential period concluded, the normal rule under the Sunshine Law requiring these documents to be open records. The Court agreed stating that it would not imply an exception to the rule that the public records are open when the statutory language is clear, leaving it to the legislature to make changes.

Assessment of Cost: The Election Board argued that it was entitled to costs in defending against Roland’s assertion that its violation was knowing or purposeful because it successfully defended this claim.  Roland  asserted that that the cost should not have been assessed against him because he was the only prevailing party.  The Court noted that costs are a creature of statute, and that courts have no inherent power to assess costs because they can only be granted by virtue of express statutory authority.  In this case, the statute only authorized assessment of costs to a plaintiff. Since statutes allowing taxation of costs are strictly construed the  Court reversed the trial court’s decision.  Roland v. St. louis City Board of Election Commissioners, (SC97781, 12/24/2019 )

Comment Howard:   The analysis by the Court was very straightforward, ending where it started, a liberal construction of the sunshine law to support the policy of providing transparency by making records available to the public and strictly construing exceptions.  In addition, the Court would not imply exceptions, particularly in the face of the plain language of the statute.  The trial found there was no purposeful or willful violation because Election Board requested an opinion from its attorney and the Secretary of State.  The Missouri Supreme Court did not directly address this issue, leaving this for another day.  Again, when faced with questions concerning whether or not certain records are open or closed you would be well advised to request an opinion from the attorney representing the public governmental body and the Attorney General.  In this case, that opinion was requested from the Secretary of State, the chief election official in the state of Missouri.

No Summary Judgment On A Sovereign Immunity Defense Because There Was Fact Question As To Whether Or Not Criminal Acts Were A Superseding Intervening Cause
Facts and Procedure: The City of St. Joseph  (City) owns and maintains Riverside Road, which consists of one northbound lane and one southbound lane located within the City.  On April 14, 2017, Skylar Lucas- Cox (“Lucas-Cox”) drove a stolen Toyota Tundra in the northbound lane of Riverside Road, traveling at 62 miles per hour in a 40 miles per hour zone.  The Tundra’s passenger side wheels left the lane of travel and drove off the road.  The edge of the roadway did not have a line marking its location and there was an approximate nine inch drop-off from the edge of the pavement onto the roadside.  When Lucas-Cox attempted to remount the roadway, the vehicle veered sharply to the left and collided with a car in the southbound lane driven by Jacob Stallworth (“Stallworth”).  The Tundra had five passengers in addition to Lucas- Cox.  Three of the passengers Ginn, Jr., Crockett, and Thompson died in the collision and one passenger Dydell was seriously injured.

Lucas-Cox pled guilty to the criminal charges of two counts of involuntary manslaughter and one count of second degree assault and as part of the factual basis for the plea and he admitted that he was impaired by drugs and/or alcohol at the time of the accident.

Dydell then petitioned to recover damages against the City for the injuries he sustained in the accident and alleged that Riverside Road was in a dangerous and defective condition because the road had an “unreasonable and treacherous roadway drop-off on the east edge . . . which was unmarked and not maintained for the safe operation of motor vehicles.”  Thereafter, the remaining Appellants filed petitions for damages in wrongful death raising the same allegations regarding the dangerous condition of Riverside Road.  In its answer, the City denied the allegations and raised sovereign immunity as an affirmative defense.  After a period of discovery, the City moved for summary judgment.  The circuit court conducted a hearing, and the court entered its order granting summary judgment in favor of the City on February 22, 2019.  Plaintiffs appealed to the Western District.

Analysis: Appellants’ raised one point on appeal to the circuit court’s grant of the City’s Motion for Summary Judgment arguing that the City waived its sovereign immunity based on the dangerous condition of public property exception.

The City argued that it was entitled to the protections of sovereign immunity pursuant to Section 537.600, which provides that sovereign immunity is  expressly and absolutely waived for:

Injuries caused by the condition of a public entity’s property if the plaintiff establishes [(1)] that the property was in dangerous condition at the time of the injury, [(2)] that the injury directly resulted from the dangerous condition, [(3)] that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, [(4)] and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

The City argued in its Motion for Summary Judgment that:

Its Sovereign Immunity was not waived because as a matter of law the alleged [(1)] injuries did not directly result from any alleged condition of Riverside Road. [(2)] Even if there was a potentially dangerous condition on Riverside Road (an allegation which is denied), the direct cause of the alleged damages is the admitted criminal acts of Skylar Lucas-Cox.  Those criminal acts are intervening or superseding causes of plaintiffs’ alleged injuries.  Thus, those criminal acts preclude a finding of direct cause by any condition of the City’s property, and thus there is no waiver of immunity.

Appellants’ argued that the circuit court erred because there is a genuine issue of material fact as to whether Appellants’ injuries were the direct result of the defects on Riverside Road, namely its lack of an edge line marking and the existence of the excessive drop-off, and that the actions of Lucas-Cox did not constitute an intervening or superseding cause so as to relieve the City from liability.  Therefore, the sole issue on appeal is the application of these facts to the second element of causation is whether or not the “injury directly resulted from the dangerous condition of the roadway.”

The Court reasoned that the phrase “directly resulted from” in Section 537.600.1(2) is synonymous with “proximate cause” and that the negligence of the City need not be the sole cause of the injury, as long as it is one of the causes, without which injury would not have resulted.

The City argued that it did  not waive its immunity as a matter of law because the conditions of Riverside Road were not the direct or proximate cause of the accident since (1) the conditions on Riverside Road, namely the absence of an edge line, lack of signage, and the drop-off, did not cause Lucas-Cox to leave the roadway and (2) that Lucas-Cox’s criminal acts were intervening, superseding causes which preclude a finding of direct cause as a matter of law.

Did conditions of the road cause Lucas-Cox to leave the roadway: The Western District noted that the test to determine whether proximate cause exists is not whether the deficiencies caused the vehicle to leave the roadway but rather whether the deficiencies were the efficient cause of the Appellant’s injuries

The expert witness for the Appellants’ testified that lack of edge lines on the roadway would make it more difficult for a driver to maintain position on the roadway because you’re losing that informational guidance for the driver.  In addition, the nine inch edge drop at the side of the roadway was severe (Missouri Engineering Policy Guide recommends limiting the edge drop to not more than 2 inches, which is the industry standard).  Furthermore, when the right front tire of the vehicle left the roadway the vehicle steers left to remount the roadway creating a large cornering force that   creates a slingshot reentry making it a contributing factor that forced the vehicle into the southbound lane and was a contributing cause of the resulting  collision.  Based on this evidence the Western District concluded that the lack of an edge line, signs and the edge drop was an efficient cause of the appellant’s injuries and because reasonable minds could differ on this issue there was a genuine issue of material fact to be determined by a jury.

Was there an intervening, superseding cause: Even though there was a genuine issue of material fact concerning whether the lack of edge force lines and signage as well as the edge drop were contributing factors to the accident the City could still prevail if  Lucas–Cox’s criminal actions constituted an intervening and superseding cause  precluding a finding of proximate cause as a matter of law if the evidence of the intervening cause eclipses the role of the City’s conduct.

In this case, the expert witness for the Plaintiffs testified that a driver who experienced the drop-off of the right tires would immediately react by attempting to reenter the northbound lane, and at even at 40 mph or less, a large steering angle would result in loss of control of the vehicle into the southbound lane which was what occurred in this case.  Therefore, the Western District concluded that the Appellants’ produced sufficient evidence in the summary record to show that the City should have foreseen the events  caused by the lack of the edge mark, lack of signs and  the excessive drop off the edge would cause a driver leaving the roadway, to  overcorrect upon reentry and crash the vehicle into a  south bound vehicle resulting in injuries. Thompson v. City of St. Joseph, Missouri,  (WD82589 Consolidated with WD82590, WD8291 and WD82592,  12/17/19)

Comment  Howard: This is an extremely well-written opinion in a case that is extremely close and well litigated.  The Court’s analysis of whether or not the criminal actions of Lucas–Cox’s is a great place to start research with respect to when the courts will determine that the criminal activity was an intervening/superseding cause.

No MHRA Jurisdiction Over Employee Working In Illinois
Facts  and Procedure: In the case of  Tuttle v. Dobbs Tire & Auto Centers, Inc. the  Missouri Supreme Court tackled the question of the jurisdiction under the Missouri Human Rights Act (MRHA) with respect to an in-state Missouri employer, who is alleged to have discriminated against an out of state employee who worked in Illinois.   The rule announced by the Missouri Supreme Court in Dobbs Tire is simple.  There is no MHRA  jurisdiction over a person who is working in Illinois, even though it was conceivable under the facts that were  pleaded, that all of the decisions with respect to his employment were made at the company headquarters located in Missouri.

In this case, Dotson Tire, the employer, filed a motion to dismiss arguing that the pleadings failed to show that there was any jurisdiction under the MHRA  because  Tuttle, an employee of Dotson Tire was an employee in Illinois, who worked in Illinois. The motion by Dotson Tire was sustained and Tuttle appealed to the Missouri Supreme Court.  The Missouri Supreme Court concluded that in Missouri there is no jurisdiction under the MHRA because there is a presumption against the extraterritorial application of  Missouri laws; therefore, an employee in Illinois could not file a complaint under the MRHA even though it was conceivable that all of the employment decisions were made in Missouri.

Analysis: The Court reasoned that Tuttle was not an “aggrieved party” under Section 213.07 5.4, because he was not aggrieved  by the unlawful discriminatory practice. “Aggrieved” is not defined by the MHRA.  In the absence of statutory definitions, the plain and ordinary meaning of a term may be derived from a dictionary, and by considering the context of the entire statute in which it appears.  The ordinary dictionary meaning of the world “aggrieved” means: “showing grief, injury, or offense; having a grievance; specific: suffering from an infringement or denial or legal rights.”

The  Missouri Supreme Court recognized that, for MHRA’s purposes, an alleged discriminatory act “must have had some adverse impact on the plaintiff before it becomes actionable.”  Said another way, it is the adverse impact that is actionable under the MHRA, but only if that adverse impact resulted from a prohibited discriminatory practice.

Tuttle does not specify in his petition exactly where each alleged discriminatory action took place.  Instead, he merely states, “some of the decisions and actions against plaintiff took place in Missouri.”  His reasoning appears to be that, because Dobbs Tire is headquartered in Missouri, therefore the decision-making process underlying all of the discriminatory acts may have, taken place in Missouri.

The Court reasoned that Tuttle was not aggrieved until the alleged discriminatory practice resulted in an adverse impact, which occurred in Illinois.  The motion to dismiss was upheld  because taking all of the alleged discriminatory practices as true, the adverse impact alleged by Tuttle occurred in Illinois.

There was a vigorous dissent by Judge Draper, joined in by Judge Stith, arguing that the Plaintiff’s pleadings were sufficient to state a cause of action because some of the alleged discriminatory actions took place in Missouri or at a minimum the Plaintiff should have been allowed to amend its petition.  Tuttle v.  Dobbs Tire & Auto Centers, Inc, (SC97721, 12/24/19)

Comment Howard: The rule of law in this case is simple and you may never face it; nevertheless, I think the opinion was simply taking us back to the fundamental idea that there is no jurisdiction over discriminatory actions taken by employers in Missouri because the physical employment  (like the body) is in Illinois.  In this day and age, it really is not very hard to imagine every single action, with respect to the employment of the employee, could be made in Missouri, at the office headquarters, including the action of the firing the employee.  For example there could be a tweet telling the employee, “Your  fired.”

Missouri Supreme Court Upholds Revocation Of Peace Officers License Over Committing Violent Acts
Facts and Procedure: O’Brien, a licensed peace officer, engaged in an argument and physical altercation with his wife (from whom he now is divorced) because he believed she was having an affair.  O’Brien’s pushed her into a wall, onto a sofa and down to the floor. He choked her and caused her to feel threatened and in danger of physical injury. At times during the fight, O’Brien’s wife’s four-year-old child was present.  The fight ended only after O’Brien’s wife sent the child to the basement to wake the wife’s brother.  O’Brien’s wife sustained bruising and soreness as a result of O’Brien’s actions.

O’Brien then pleaded guilty to peace disturbance in violation of Section 574.010.  The imposition of sentence was suspended, and O’Brien successfully completed his probation.  Thereafter, the Director of the Missouri Department of Public Safety (Director), took disciplinary action against O’Brien’s peace officer license for committing a criminal offense, regardless of whether or not a criminal charge has been filed.  After an administrative hearing  before the Administrative Hearing Commission (AHC),  the Director issued an order revoking O’Brien’s  state license as a peace officer.  That decision was appealed to the circuit court.  The circuit court upheld the decision and O’Brien appealed to the  Missouri Supreme Court.

Analysis: Separation of Powers: Relying heavily on  City of Springfield v. Belt, O’Brien argued that Section 590.080.2 is unconstitutional because it violates the principles of separation of powers set forth in Article II, Section 1  of the Missouri Constitution in that this statute permits the AHC, rather than a court, to determine whether a peace officer has “committed [a] criminal offense.  The Court reasoned that under state law the AHC is authorized only to make a particular factual determination, such as whether a peace officer has engaged in conduct that Missouri statutes identify as a criminal offense.  Furthermore, O’Brien was not being tried for any offense because under the state law the AHC is authorized only to make a particular factual determination, such as whether a peace officer has engaged in conduct that Missouri statutes identify as a criminal offense.  The Court concluded that O’Brien misconstrued the fundamental nature of the administrative proceedings to revoke his license, which is civil in nature and not criminal; therefore, the Court held the statute allowing the revocation of a police officer’s state license is constitutional.

Competent and Substantial Evidence: O’Brien argued that the Director erred in revoking his license because it was uncontroverted that O’Brien’s prior service, psychological rehabilitation, knowledge, skills and abilities made him fit to continue in the profession.  The Court noted that this argument ignored the other part of the record, which showed that there was competent and substantial evidence to support the AHC’s finding that O’Brien had committed a criminal offense.  In applying the  administrative rules for appealing a contested case under Chapter 536 the Court  concluded that the record supported the finding that O’Brien had committed the offense; therefore, the Court upheld the decision of the AHC.

Of particular note is the Court’s statement concerning the duties of peace officer’s licensing agencies:

Nowhere is this obligation more important than in the licensing of peace officers. Their profession is intensely demanding, and it requires officers to demonstrate extraordinarily good judgment, reliability, and a high degree of control over one’s emotions.  Confrontations with members of the public are not merely possible, they are all too often a daily feature of the work of a peace officer.  Among the most essential attributes a peace officer must possess are the ability to decide, quickly and correctly, whether and when such a confrontation must escalate to the use of force, and the ability to calibrate accurately the least amount of force necessary to protect the officer, the other party, and the public in such a confrontation.

O’Brien v.  Department of Public Safety, (SC97656, 12/10/19)

Comment Howard: The above statement by Judge Wilson concerning the duties and obligations of peace officers particularly with respect to whether or not a confrontation escalates to the use of force is very powerful and it makes it clear that peace officers are held to a very high standard.  Of particular interest is language in the Act, which limits the actions of the administrative hearing commission and making it clear that the commission could not impinge upon discretion of the director to determine appropriate discipline if there is cause for discipline.  It is pretty clear in my mind and based on my experience that if this matter was being heard by a personnel board of a city they would have likely recommended little or no discipline due to the evidence produced by the peace officer at the hearing.  The above quote from the opinion lends itself to a very powerful argument that officials and agencies reviewing decisions concerning discipline should recognize that peace officers are put into a very difficult position and therefore it is important to make sure the officers’ temperament is well-suited for his or her difficult work.  Also, it seems to me that overlooking violent actions of police officers is much more problematic in light of the court’s statement concerning the standard for police officers.