Public Aid Program For Schools Based On Constitutional Provision That Barred Aid For Religious Schools Violated the Establishment Clause When There Was Public Aid For Private Institutions
Facts and Procedure: The Montana Legislature established a program that grants tax credits to those who donate to organizations that award scholarships for private school tuition. To reconcile the program with a provision of the Montana Constitution that bars government aid to any school “controlled in whole or in part by any church, sect, or denomination,” Art. X, §6(1), the Montana Department of Revenue promulgated “Rule 1,” which prohibited families from using the scholarships at religious schools. Three mothers who were blocked by Rule 1 from using scholarship funds for their children’s tuition at Stillwater Christian School sued the Department in state court, alleging that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen. The Montana Supreme Court struck down the program relying on the “no-aid” provision of the State Constitution, which prohibits any aid to a school controlled by a “church, sect, or denomination.” The matter was appealed to the United States Supreme court.
Analysis: The issue before the Court was whether the Free Exercise Clause precluded the Montana Supreme Court from applying Montana’s no-aid provision to bar religious schools from its scholarship program, which allowed public aid for private non-religious institutions.
Chief Justice Roberts, begins his analysis by noting that the Religion Clauses of the First Amendment provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Citing Trinity Lutheran Church of Columbia, (a Missouri case) where the Court recognized that the Establishment Clause was not violated by including churches in a playground resurfacing program).
The Chief Justice, noted that Trinity Lutheran, distilled these and other decisions into the “unremarkable” conclusion that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposed “a penalty on the free exercise of religion that triggers the most exacting scrutiny.” Montana’s no-aid provision bars religious schools from public benefits because of the religious character of the schools and parents who wish to send their children to a religious school, from those same benefits, solely because of the religious character of the school. This is apparent from the plain text of the Montana constitution, which bars aid to any school “controlled in whole or in part by any church, sect, or denomination,” and that provision is very similar to the Missouri Constitution.
One of the questions in the case was whether or not the violation occurred on the basis of use or status. The Montana Supreme Court applied the no-aid provision solely by reference to religious status.” Chief Justice Roberts, held that the violation was based on status leaving to another day the question of use, which Roberts deemed unnecessary to this opinion. The result of the application of the Montana constitution was that if you were a religious organization you could not qualify for the grant program making the constitutional violation one of status.
As noted, the opinion relies heavily on Trinity Lutheran, (a Missouri case that interpreted a similar no aid provision in the Missouri Constitution as unconstitutional, as applied,) while distinguishing Locke v. Davey, where the U. S. Supreme Court held a Washington State scholarship program prohibiting use of public funds to fund the study of devotional theology for a minister was not valid. The Chief Justice noted that funding of a religious program for study of devotional theology for a minister was clearly something the Founding Fathers would not have allowed under the Establishment Clause. Locke v. Davey, now seems to be the line not to be crossed when considering funding of religious activities.
This was a 5 to 4 decision, with the traditional conservative liberal split. The dissenters argued that since the Montana Supreme Court invalidated the entire law there was no reason to decide this case. Nevertheless, the Court rejected that argument on the grounds that the invalidation of the entire aid provision, as the Montana Supreme Court opinion invalidating the entire program made the case moot. This left the result of case in the position of seemingly requiring the continued funding, even though the Chief Justice made it clear that there was no constitutional requirement to fund religious education. This of course leaves open the question of what to do about existing programs and whether or not they can be reduced or discontinued. Espinoza v. Montana Department of Revenue, (U.S. 18-1195, 06/30/20)
Comment Howard: Clearly this was one of the most far reaching, controversial and consequential opinions of the term. Good bye, to the Missouri constitutional prohibition against funding religious activities, except for funding of the education of ministers or something very similar. From the standpoint of the local government attorney, life got a lot easier because the rule is so clear. Anything that hints of hostility towards religious activities or casts the eligibility for a governmental program based on status is suspect and presumed to be invalid. Some commentators suggest it will not be so simple until the parameters are fully explored. Other areas of the law related to the religious clauses have not yet been divined. Will the Lemon test be impacted? What about restoration of old churches?
Comment Ragan: The decision has been coming down the pipe line for a long period of time and is deeply entrenched in the ideology of government neutrality towards religion superseding separation of church and state. The next issue is that once government becomes involved with funding, even neutral funding, it no longer becomes neutral. Government funds are not unlimited and the religious organizations that are able to obtain government money will have a distinct advantage over organizations that don’t have the extra government funding source. The net result will be that politically powerful and connected religious organizations will have a distinct financial advantage, which results in the government picking winners and losers. All you have to do is look across the religious and political landscape to see this playing out. The Supreme Court might believe it is protecting religious liberty but it could have haunting negative consequences.
Under Title VII Employer Cannot Discriminate Against Homosexual Or Transgender Employees
Facts and Procedure: Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay and R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed. All three cases, involving sex discrimination under Title VII of the Civil Rights Act of 1964, were appealed to the United States Supreme Court, and consolidated into one case, Bostock v. Clayton County.
Justice Gorsuch, delivered the opinion of the Court in a 6 to 3 decision, joined by the four liberal Justices ( an unusual alignment) and Chief Justice Roberts. Justice Gorsuch tees up the question before the Court: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.” His opinion is classic textualism
Justice Gorsuch, first recognized that the legislators who adopted the Civil Rights Act of 1964, might not have anticipated their work would lead to this particular result, nor were they thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. Nevertheless, the limits of the drafters’ imagination supply no reason to ignore what the law demands.
“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
Justice Gorsuch, noted that the Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment, otherwise judges could add to, remodel, update, or detract from old statutory terms inspired by extratextual sources and their imaginations, the court would risk amending statutes outside the legislative process reserved for the people’s representatives. Textualism avoids this analysis by looking at the text to determine its meaning, even though the writers might not have anticipated the result.
Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” Justice Gorsuch, then embarks on his analysis by examining the text of the statute by noting that while “sex” is the primary term in dispute, the question isn’t just what “sex” meant, but what Title VII says about it.”
The statute prohibits employers from taking certain individual actions “because of ” sex, which ordinarily means “because of or by reason of or on account of.” This is the “traditional” standard of but-for causation. This means:
“…a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.’
Justice Gorsuch, noted that the text of the statute refers to “individuals” in three separate instances making it clear that what is prohibited is sex discrimination against an individual, not a group.
“An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group.”
The statute is written in broad language with no exceptions. Justice Gorsuch concluded that when Congress chooses not to include any exceptions to a broad rule, the Court applies the broad rule. There is no donut rule with exceptions hidden inside the broad rule. Furthermore, from the ordinary public meaning of the statute’s language, a straightforward rule emerges:
“An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision.”
Justice Gorsuch, provides a rule and an example. The rule is that if changing the employee’s sex would have yielded a different choice by the employer, a statutory violation has occurred than is intentional. As described:
“For example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”
Justice Gorsuch, concluded that “…when the meaning of the statute’s terms is plain, our job is at an end.”
“The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.”
Comment Howard: The impact of this case is enormous both short term and long term. Besides the immediate impact is the long term impact, which the opinion avoids by avoiding any consideration of its effect on other statutes and constitutional provisions, like the religious clauses and Title IX. This case has generated an enormous amount of controversy as the commenters weigh in from all sides. See Scotus blog on this case and the commentary it has already generated. Perhaps, the greatest impact will be an expanded application of textualism. In this case, four liberal judges joined with two conservative judges to generate a result that is based more on logic than politics.
Time To File Claim Attacking An Administrative Order As Void?
Facts and Procedure: On June 3, 2016, the City of Marshall (City) recorded with the Saline County Recorder’s Office a Condemnation Notice against certain property (“the Property”). At the time of recording, the Property was owned by Marshall Revitalization Group, LLC. The Condemnation Notice and Notice of Hearing before the City’s Board of Building Code Enforcement (Board) was sent to Marshall Revitalization Group, LLC., with the hearing scheduled for September 9, 2016.
On or about August 29, 2016, the Property was transferred by Quitclaim Deed from Marshall Revitalization Group, LLC to the Tyler’s. The Deed was signed by the LLC’s “Managing Member,” Gerald Tyler.
On September 9, 2016, Gerald Tyler appeared before the Board. Tyler advised the Board that he intended to rehabilitate the Property after the City demolished the adjoining building. The Board continued the matter concerning the Property to September 22, 2016, for further consideration.
On September 9, 2016, Gerald Tyler appeared before the Board. Tyler advised the Board that he intended to rehabilitate the Property after the City demolished the adjoining building. The Board continued the matter concerning the Property to September 22, 2016, for further consideration.
At the September 22, 2016, meeting of the Board, the condemnation of the Property was called for a hearing. The Tyler’s were not present. After considering additional evidence, the Board voted to order demolition of the structure on the Property, entered written Findings of Fact and Conclusions of Law concluding that the Property was in violation of the City’s Ordinances and Property Maintenance Codes and that the Property presented a danger to the health, safety, and welfare of the public. The Board’s findings and conclusions ordered demolition of the structure on the Property.
On November 30, 2016, the Tylers’ filed a Petition for Review with the Saline County Circuit Court pursuant to Section 536.100, seeking review of the Board’s decision to demolish the Property. On January 5, 2017, the City filed a Motion to Dismiss the Petition. The City alleged that Plaintiffs filed a Certificate of Service showing they hand-delivered a copy of the Petition to the Mayor of the City, but no proof of delivery or mailing was filed to show the Petition was served on the Board of Building Code Enforcement, the agency involved in the matter. Argument was heard on the motion February 15, 2017. On March 30, 2017, the court dismissed the Tylers’ Petition without prejudice.
Approximately three months later, on June 26, 2017, the Tyler’s filed a second Petition for Review requesting, pursuant to Section 536.100, judicial review of the decision of the City’s Board of Building Code Enforcement which condemned and ordered demolition of the Tyler’s property. The Petition alleged, among other things that, pursuant to Section 536.100, the Petition was not required to be filed within thirty days of issuance of the City’s Findings of Fact and Conclusions of Law because the order of the Board an administrative agency was void as a matter of law.
On July 25, 2017, the City filed a Motion to Dismiss on the grounds that the Petition for review of the administrative decision of the Board was not filed within thirty days, as required by Section 536.110. On December 31, 2017, the trial court denied the City’s motion with a docket entry stating that the Tyler’s were seeking to attack the City’s action as a void order under Section 536.100, not as review of an administrative order under Section 536.100. This section provides that “…nothing in this chapter contained shall prevent any person from attacking any void order of an agency at any time or in any manner that would be proper in the absence of this section.
At the December 11, 2018, bench trial on the Tyler’s Petition, various City ordinances were entered into evidence and Gerald Tyler testified. During argument, Tyler’s counsel argued that, even though the building had already been demolished by the City, the Tylers’ were contending that the City wrongfully demolished the building and, therefore, were requesting a ruling by the court that the City’s Findings of Fact and Conclusions of Law order was void because the document itself had “half a dozen ordinances violations.” Further, counsel argued the issue was not moot because the City’s condemnation of buildings and demolition process was flawed, and the Tyler’s had other buildings where the City had started condemnation procedures.
At trial, the City argued, pursuant to their July 25, 2017, Motion to Dismiss that, the Petition was untimely filed under Section 536.110; therefore, the Petition should be dismissed. In response, the Tyler’s’ counsel relied on Section 536.100 which provides that, nothing in Chapter 536 shall prevent any person from attacking a void order of an agency at any time.
The trial court entered Judgment May 25, 2019, concluding the Board’s findings regarding the Property were void under the provison in Section 536.150. The City appealed to the Western District.
Analysis: The Western District begins its analysis by examining Section 536.100, which provides in part,
“Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review thereof, as provided in Sections 536.100 to 536.140, unless some other provision for judicial review is provided by statute; provided, however, that nothing in this chapter contained shall prevent any person from attacking any void order of an agency at any time or in any manner that would be proper in the absence of this section. (Emphasis Added)
The question before the Court was whether the proviso within Section 536.100 that states, “nothing in this chapter contained shall prevent any person from attacking any void order of an agency at any time or in any manner that would be proper in the absence of this section,” allowed for an allegedly void order to be attacked under Section 536.100 when a petition for review under Section 536.100 is filed out of time.
In this case, it was undisputed that Tyler’s petition for review was filed beyond thirty days of the mailing/delivery of notice of the agency’s final decision as required by Section 536.100.1 was not timely.
That proviso does not have the effect appellant ascribes to it. It means that if an administrative agency’s order is void, the statute does not take from an aggrieved party other remedies-other, that is, than statutory judicial review-but leaves such remedies intact and available. The statute does not put aside the 30day limitation for filing a petition for judicial review under § 536.100, et seq.,
The Western District relied upon an earlier decision that the proviso meant “that if an administrative agency’s order is void, the statute did not take from an aggrieved party other remedies-other, that is, than statutory judicial review-but leaves such remedies intact and available.” The statute did not put aside the 30 day limitation for filing a petition for judicial review under Section 536.100, but leaves such remedies intact and available. The statute does not put aside the 30 day limitation for filing a petition for judicial review under Section 536.100. Tyler v. City of Marshall, (WD82903, 06/16/20)
Comment Howard: The analysis of the Court is further explained by a footnote, which cites a case where a party attacked a demolition order issued by Kansas City as void because it was in excess of designated ordinances, noting in particular that in the Kansas City case an administrative appeal was not filed. The rule is that if you file an administrative appeal you must include as part of the appeal that the administrative order is void because it exceeds the authority over the administrative agency, otherwise you have waived your right to challenge the administrative order as void.
Bill Amending The Composition Of The Clean Water Commission Was Constitutional
Facts and Procedure: Hickory Neighbors opposed the establishment of a swine concentrated animal feeding operation (CAFO) having successfully obtained a Court of Appeals opinion affirming a decision by the Clean Water Commission denying a permit to operate the swine CAFO. The day after the Court of Appeals decision affirmed the Clean Water Commissions denial of the permit the Department of Natural Resources (DNR) issued another permit to Trenton Farms to operate the swine CAFO in Grundy County
Hickory Neighbors again challenged the issue before the administrative hearing commission arguing that the manure storage structures would not be protected from inundation or damage in the event of a 100-year flood. The administrative hearing commission recommended the clean water commission affirm the permit’s issuance, finding the department of natural resources met its burden of proof and established that Trenton Farms’ CAFO permit complied with existing regulations.
The clean water commission scheduled a hearing for the consideration of the administrative hearing commission’s recommendation for its December 6, 2017 meeting. On December 5, however, then-Governor Eric Greitens appointed three new members to the clean water commission based upon a recently enacted change in the law related to qualifications of members. Before the clean water commission’s December 12 meeting, Hickory Neighbors filed a motion for a continuance and a motion to disqualify the three new commissioners, which was denied and voted to accept the recommendation of the Administrative Hearing Commission. This decision was appealed to the court of appeals, which transferred the case to the Missouri Supreme Court.
Hickory Neighbors asserted that HB 1713, which amended Section 644.021.1, violated the original purpose, single subject, and clear title requirements of the Missouri Constitution and that there was insufficient competent and substantial evidence that two of the proposed manure containment structures would be protected from inundation in the event of a 100-year flood.
Standing: The department of natural resources contended that, because Hickory Neighbors did not claim the clean water commission’s allegedly unconstitutional composition caused it to affirm Trenton Farms’ permit, Hickory Neighbors was not adversely affected by HB 1713 and, therefore, lacks standing. Since there was no cases on standing requirements for challenging the constitutional validity of the composition of a state commission the Missouri Supreme Court turned to United States Supreme Court opinions for guidance, noting that the US Supreme Court did not require the challengers to demonstrate that a properly appointed officer would have decided their cases differently. The rule followed by the U. S. Supreme Court and adopted by the Missouri Supreme Court was that a challenger need only to demonstrate that they were directly subject to the authority of the agency. Therefore, Hickory Neighbors had standing. Furthermore, the challengers were not required to use quo warranto to challenge the newly appointed officers because they were challenging the constitutionality of the statute rather than individual members title to their offices.
Original Purpose: Hickory Neighbors, asserted that HB 1713 was unconstitutional because it violated Missouri constitutional provisions pertaining to original purpose, single subject, and clear title requirements. Hickory Neighbors contends HB 1713 violated these constitutional provisions when the bill was amended to include a provision changing criteria for members of the clean water commission, altering the original purpose of the bill, rendering its title unclear, and broadening its scope to cover more than a single subject.
The Court noted, that recent cases interpreting the original purpose requirement focus on the meaning of the word purpose which the court has interpreted to mean “…the general purpose of the bill, not the mere details through which and by which that purpose is manifested and effectuated.” Based upon this guiding principle the Court concluded that changing the membership composition of clean water commission was germane to the original purpose relating to wastewater treatment systems since the Court liberally interprets the procedural limitation of original purpose resolving all doubts in favor of the procedural and substantive validity of legislative acts. The rule to determine if the amendment was germane is: “The membership of a regulatory body is germane to the regulation of matters it has the power and duty to oversee.”
Single Subject: Hickory Neighbors also claimed HB 1713’s inclusion of the provision changing the membership criteria for the clean water commission violated Article III, Section 23’s single subject requirement. The Court noted was that the test to determine if a bill contains more than one subject is: “whether all provisions of the bill fairly relate to the same subject, have a natural connection there with or are incidents or means to accomplish its purpose.” The title to HB 1713 states that it relates to the “regulation of water systems.” Clearly the composition of the clean water commission, a body that regulates the waters of the state is related.
No Clear Title: Based on the above analysis, the Court concluded that the title “to regulate the waters of Missouri” is not underinclusive because the clean water commission regulates the waters of Missouri as expressed in the title of the bill. HB 1713’s title clearly apprised legislators of its subject matter.
Location of manure storage facilities: Hickory Neighbors contended that the clean water commission erred in approving Trenton Farms’ permit because there is insufficient competent and substantial evidence that two of the proposed manure containment structures would be protected from inundation in the event of a 100-year flood. An engineer for Trenton Farms certified that one of the manure storage area for the CAFO was 3.5 feet above the base flood elevation (the 100 year flood) and the other would be 13.5 feet above the base flood elevation thereby satisfying the regulation. Trenton Farms v. Hickory Neighbors United, (SC 97695, 06/16/20)
In Noncontested Case Where The Granting Or Withholding Of A Privilege Is Committed By Law To The Sole Discretion Of An Administrative Officer, Such Discretion Shall Not Be Disturbed.
Facts and Procedure: In an earlier opinion (Sanders 1), Sanders sought review of the City Manager’s determination of the City of Columbia (City) as a contested case under Section 536.140. A trial court conducted review accordingly, and reversed the City Manager’s determination to terminate Sanders’s employment. The City appealed. On appeal in Sanders 1 the Court held that the procedures established by the ordinances of the City were improperly applied because the city manager, as final decision-maker, had the option of accepting or rejecting the recommendation from the personnel board to consider additional evidence not heard by the personal board at its public hearing. Therefore, the Western District reversed and remanded because the City Manager’s determination should have been reviewed as a noncontested case pursuant to Section 536.
Upon remand, the trial court in Sanders 2, conducted a trial de novo pursuant to Section 536.150 as a noncontested case. In this case, Sanders was disciplined for the use of excessive force for slamming a prisoner with a two-handed shove with such force that the prisoner flew airborne, striking his head on the concrete holding cell wall. The sound of Baker striking the concrete holding cell wall was so loud that it was captured by a microphone located in the booking room, which was located down and around two hallways. In Sanders 2, the City Manager determined that Sanders used excessive force and dismissed Sanders. Sanders then sought to review this decision in circuit court as a noncontested case.
The circuit court, after holding a trial entered its Judgment, including findings of fact and conclusions of law, concluding that the City Manager acted lawfully in determining that Sanders’s use of force was objectively unreasonable and retaliatory in violation of the City’s Use of Force Policy, permitting termination pursuant to City Ordinance Section 19-225(a)(4). The trial court’s Judgment also found that the City Manager acted lawfully in determining that Sanders’s treatment of Baker was abusive and improper in violation of City Ordinance Section 19- 225(a)(3). The circuit court, concluded that the City Manager lawfully exercised the discretion delegated him over personnel matters to terminate Sanders’s employment. Sanders again appealed to the Western District.
Analysis: Circuit Court Finds Facts De Nova But Can Not Substitute Its Discretion For the Administrative Officer
The Western District begins its analysis by examining the circuit courts authority to review a noncontested case under Section 536.150.1, which provides in part that: “… the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion; and the court shall render judgment accordingly, and may order the administrative officer or body to take such further action as it may be proper to require; but the court shall not substitute its discretion for discretion legally vested in such administrative officer or body, and in cases where the granting or withholding of a privilege is committed by law to the sole discretion of such administrative officer or body, such discretion lawfully exercised shall not be disturbed.”
Sanders argued that since the trial court had no administrative record to review, it did not owe any deference to conform doubtful evidence to the administrative decision maker and that it conducts a de novo review giving it“… the prerogative to substitute its discretion for discretion legally vested in the administrative officer or body.”
The Western District responded by noting that Section 536.150.1 required the Court “‘to accept the trial [court’s] credibility determinations and view the evidence in the light most favorable to the judgment, while disregarding all contrary evidence and permissible inferences.”
Sanders argued that the trial court was bound by Section 536.150.1 to make a de novo determination about whether Sanders’s conduct violated the City’s Use of Force Policy or City Ordinance section 225(a)(3). Sanders argued that the trial court should have substituted its discretion for that of the City Manager to make a de novo decision about whether Sanders’s conduct constituted a violation of City policy or ordinances. However, this is not a de novo determination the trial court was authorized to make pursuant to Section 536.150.1, as it would have required the trial court to substitute its discretion for the discretion vested in the City Manager. This is not permitted by Section 536.150.1
In Sanders 2, the circuit court made de novo findings about Sanders’s conduct, and made de novo findings that the conduct found by the circuit court was the conduct relied on by the City Manager to determine that Sanders violated City policy and ordinances addressing the use of unreasonable force and the abusive or improper treatment of a prisoner. The western District concluded that: “All that remained was a strictly legal question about whether these facts could, as a matter of law, have been relied on by the City Manager to make the discretionary determination that Sanders violated City policy and ordinances and should be terminated as a result.” Therefore, the trial court’s decision is upheld. Sanders v. City of Columbia, (WD82527, 05/26/20)
Comment Howard: The opinion in this case was a very good analysis of the role of the trial court in an noncontested case. I have always been leery of noncontested cases because so much power is vested in the trial court but as this case shows, where the facts are strong the trial court take over the case and run away with it since it can not substitute its judgment for the administrative decision maker.
Recovery Precluded Because No Written Contract And Res Judicata Precludes Recovery
Facts and Procedure: Epice filed a five count petition relating to real property in the City of St. Louis against the Land Reutilization Authority (LRA) for quiet title, breach of contract and quasi contractual claims grounded on promissory estoppel, unjust enrichment and quantum meruit. The contractual and quasi-contractual claims were based on an alleged oral agreement between Epice and the LRA. The LRA filed a motion to dismiss those counts, arguing that pursuant to Section 432.070, all contracts with municipal corporations must be in writing. The LRA also sought to dismiss the quiet title count based on res judicata, contending that title to the property had been previously litigated between these parties, in federal court, resulting in a final judgment declaring that the LRA owned the property in fee simple.
The trial court found that Section 432.070 requiring a written contract applied and dismissed Counts II through V, pertaining to the contractual and quasi contractual claims, and that dismissed the quiet title action in Count I because res judicata applied. Epice appealed to the Eastern District.
Analysis, Contractual Claims: Epice argued that the trial court erred in dismissing its contractual and quasi-contractual claims against the LRA on the ground that there was no allegation of a written agreement as required by Section 432.070, contending that statute did not apply to the LRA because LRA was not a “municipal corporation” as set forth in 432.070. The LRA statute (section 92.875) described the LRA as “public corporation,” which Epice contended did not perform governmental functions. This claim was completely bogus because Epice cherry picked just part of the statute since it actually stated that “…the land reutilization authority shall be deemed to be a public corporation acting in a governmental capacity.” Furthermore, other cases from the Eastern District, have held even though the LRA is defined as “a public corporation acting in a governmental capacity” in Section 92.875, LRA is “an arm of the State performing only governmental functions….”
The Eastern District then held that because the LRA is subject to the written agreement requirement in Section 432.070, recovery against it for breach of an oral contract is precluded. Likewise, recovery is precluded on any theory of implied contract, such as unjust enrichment or quantum meruit, and any attempt to recover based on a theory of estoppel.
Res Judicata: Epice claimed that summary judgment based upon res judicata was improperly granted for a procedural reason. The affirmative defense of res judicata was not filed until after the LRA filed its motion based on that defense. The Eastern District agreed with the general principle that the affirmative defense on which summary judgment is based must be properly pled. However, the affirmative defense was pled out of time with leave of court and Epice failed to assert any serious claim of prejudicial error with respect to the trial court granting the LRA leave to amend. The Eastern District concluded there was no procedural or prejudicial error.
In order for res judicata (a/k/a claims preclusion) to apply, “four identities” must be present: “(1) identity of the things sued for; (2) identity of the cause of action; (3) identity of the persons or parties to the action; and (4) identity of the quality or status of the person for or against whom the claim is made.”
The Eastern District noted that there was no question that the parties, the capacity in which they appeared and the property at issue are the same in both lawsuits; therefore, only the first two identities were at issue. While the “identity of the thing sued for” and the “identity of the cause of action” are often cited as separate elements of the res judicata analysis, the Court noted that they are actually rooted in the same central question: “what is the ‘thing’—the claim or cause of action—that has previously been litigated?”
In this case, the Court determined that the operative facts (key to answering what is the thing) that Epice sued for in both cases was title to the property which it claimed was a 2007 deed of trust, which the successor trustee conveyed title to the property to Epice when the promissory note was defaulted on. In both the 2007 federal case and the 2019 state case, Epice asserted that it held title to the property under the 2007 deed of trust, which it alleged remained “unblemished and unimpeded” from 2007 until the LRA filed an affidavit in 2018 to record the federal judgment declaring the LRA the fee simple owner. Even though Epice maintained the property from 2007 to 2018 these actions were not operative facts; therefore, LRA was entitled to summary judgment dismissing the res judicata claim. Epice vs. The Land Utilization Authority of the City of St. Louis, (ED108226, 06/23/20)
Comment Howard: I thought that the opinion did a great job of covering the issue of res judicata. I would book mark this for future reference.
No Cause Of Action Under The Civil Rights Act Because The Actions Of The Prison In Officials Did Not Substantially Burden His Religious Beliefs
Facts and Procedure: Iowa inmate Napolean-Ahmed Mbonyunkiza, has been a practicing Muslim since birth; his religious beliefs forbid consumption of pork or pork by-products. Pursuant to the Prison Litigation Reform Act of 1995 the prison had a grievance procedure that a prisoner confined in any . . . correctional facility must follow until such administrative remedies are exhausted. In 2017, Mbonyunkiza filed four separate grievances claiming he had eaten or been served food items that contained pork. Each of Mbonyunkiza four grievances were investigated and a response provided identifying corrective actions or explanations noting that the grievance procedure did not allow for damages.
After being denied Mbonyunkiza filed his 1983 action alleging violations of his First Amendment right to free exercise of religion and requesting damages.
The district court granted summary judgment in favor of Beasley and Weitzell. Mbonyunkiza appealed to the 8th Circuit.
Analysis: The 8th Circuit held that there was no cause of action under the Civil Rights Act because the actions of the prison officials did not substantially burden Mbonyunkiza’s religious beliefs. The prison was negligent in the implementation of its food policies and the instances were de minimus.
Furthermore, a 1983 action for violation of his religious free exercise rights would lie only for a law or regulation or a policy implementing such. The 8th Circuit agreed with the district court’s interpretation and application of the substantial burdens requirement. In addition, the 8th Circuit concluded that’s Free Exercise Clause claim suffers from a fundamental defect, lack of legislative action.
The Free Exercise Clause is directed at legislative action — “Congress shall make no law . . . prohibiting the free exercise [of religion].” Accordingly, the Supreme Court’s cases, and all the Eighth Circuit Free Exercise decisions our research has uncovered, have involved claims alleging that a statute, or a regulation or policy implementing a statute, unconstitutionally prohibited a sincerely held religious belief or otherwise unduly burdened the free exercise of religion. Mbonyunkiza v. Weitzell, (8th Cir., 183611, 04/24/20)
In this case, there was no legislative action that burdened Mbonyunkiza religious beliefs.
Matter of Interest
Remote Online Notarization Bill
Of particular interest to local government attorney’s is the adoption by the Missouri General Assembly of the Remote Online Notarization Bill (RON) (HB 1655), which becomes effective August 28, 2020. The (RON)) requires the notary to be in Missouri and registered with the Secretary of State. The Bill provides that the software for notarization must meet certain minimum standards as set forth in the RON. To perform a RON, a notary must have satisfactory evidence of the principal’s identity, which can be achieved by personal knowledge or by meeting specific adopted requirements in the Bill. Additional information about the RON can be reviewed by clicking here. The Secretary of State is expected to promulgate regulations concerning the use of the RON