May Newsletter (Issue 05-2020)

Application Of Roberts Rules Of Order At P And Z Hearing
Introduction:  Lynch vs . Franklin County, is one of those rare cases that reviews a motion to reconsider under Roberts Rules of Order and a Robert’s like rule of the Franklin County Planning and Zoning Commission.  We know that a motion to reconsider is a matter that is very technical and must be asserted at the proper time.  Interestingly, the Eastern District relied upon administrative law cases as an analog to strengthen its argument.

Facts and Procedure:  Meramec Aggregates, Inc.’s (“MAI”) applied for a use Permit to engage in the mining, production, and sale of sand and gravel on fifty-four acres of land near the Meramec River in Franklin County.  The area surrounding the property is mainly floodplain and zoned as low-density residential or undeveloped land.  The Commission held a public hearing on MAI’s Permit application, where both MAI and opponents (Appellants) attended and presented evidence as to whether the Permit should be approved.

After the hearing, the Commission’s Review Committee reviewed the Permit application and recommended approval of the Permit with eleven conditions.  Among the recommended conditions, one condition (“Condition No. 9”) restricted all hauling to and from the site to trucks owned or operated by MAI or its associated company, Havin Material Service, Inc. (“Havin”).

The Commission’s held a public meeting, during which the Commission discussed and voted on the Permit and proposed conditions.  The Commission noted that the Review Committee’s proposed conditions presented a compromise on the major issue of minimizing truck traffic and ensuring road safety.  During the discussion, the Commission focused its discussion on three of the eleven conditions.  One commissioner sought to confirm the Commission’s consensus on the first eight conditions.  The Chairman stated, “Before we need a motion, we need to get the conditions.”  The commissioner replied: “That’s what I’m doing.  For the conditions here? . . . And that’s what I’m doing with my motion.”  He stated he wanted to move forward “[w]ithout the recommendations of 9, 10, and 11.”  The Chairman proceeded: “We have a motion and a second to approve [the Permit] with conditions one through eight.”  On that motion, the commissioners conducted their first vote, and voted five to approve and five to deny—a tie vote.  The Chairman stated that the “motion is not carried.”

The Chairman then asked if there was any further discussion, and the Commission continued to debate the remaining three conditions.  At one point, the Chairman perceived a consensus to remove the eleventh condition, and a commissioner proposed a new motion accordingly.  The Commission still continued to discuss a variety of combinations of approving the Permit with either nine, ten, or eleven conditions.  The Commission extensively debated two proposed conditions: a condition restricting retail sales at the site (“Condition 10”) and a condition restricting MAI’s operation to winter months (“Condition 11”).  specifically noted the impact of the hauling restrictions set forth in Condition No. 9 on the site’s retail potential and addressed concerns about summer and winter operations.  A commissioner moved to vote on the Permit with the first eight conditions plus Condition No. 9, but without either the condition restricting retail sales or the condition restricting operation in winter months.  In this second vote, the Commission voted six-to-four to approve the Permit with the first nine conditions.  The Commission subsequently issued a written order reflecting that the Permit had been approved with the nine conditions.

Appellants, including Lynch, a scientist and owner of Hootie’s, and Citizens for the Preservation of the Meramec River, LLC, and Nick Norman (“Norman”) appealed the Commission’s order issuing the Permit to MAI.  Separately, MAI also appealed the Commission’s order, to the Board of Zoning Adjustment (Board) specifically appealing the addition of Condition No. 9.  The Board consolidated the appeals and, at its public hearing on April 25, 2017, accepted arguments and evidence for both appeals.

Following the parties’ arguments, the Board publicly debated the Permit and its conditions.  The Board acknowledged that it was charged to review the facts received in evidence and that it was empowered to affirm, deny, or modify any order entered by the Commission.  The Board discussed the Commission’s findings and considered whether approving the Permit would materially endanger public safety, substantially injure the value of neighboring property, and lack harmony with the area.  The Board voted to deny both Appellants’ and MAI’s appeals from the Commission’s order approving the Permit with the nine conditions and subsequently issued its written findings.

Appellants petitioned the circuit court under Section 64.870 on a writ of certiorari. The circuit court upheld the Board’s approval of the Permit and Appellants appealed to the Eastern District.

Analysis- Commission Rule Prohibiting Reconsideration at the Same Meeting:
The Court noted that procedurally there was a motion to approve the conditional use permit with conditions one through eight, which motion failed because a majority did not approve the motion.  (It was a 5 to 5 tie vote.) Appellants argued that this initial vote prohibited further consideration of the use permit under Reg. Section 98 of the Commission rules that:

“Whenever the Planning and Zoning Commission denies or revokes a conditional use permit application such action shall not be reconsidered by the board at a later time unless the applicant clearly demonstrates that… circumstances affecting the property …have substantially changed, or … new information is available that could not with reasonable diligence have been presented at a previous hearing.”

Appellants reasoned that the earlier 5 to 5 tie vote to approve the Permit with Condition Nos. 1–8 was a denial of the Permit application and that the subsequent vote to approve the Permit with Condition Nos. 1–9 was an improper reconsideration of the same Permit application, when there was a lack of any substantially changed circumstances affecting the property between the two votes.  Appellants further argued that Reg. Section 98 Subsection B did not apply, as no new Permit application was filed in the few intervening minutes of discussion.

The Eastern District reasoned that:

While the Commissioners cast two votes on the same Permit application, the two votes addressed different sets of conditions and thus were not identical votes.  A true reconsideration vote would have occurred had the Commissioners voted on the same application with the same conditions. Appellants’ argument that the second vote was a prohibited vote for reconsideration under Reg. Section 98 is unavailing because the set of conditions presented with each vote were not identical and contained substantive differences.

Furthermore, the Commissions’ second vote was more than a procedural matter because the inclusion of Condition No. 9 stipulated that only trucks from MAI or Havin could haul materials to and from the site, addressing roadway and traffic concerns by Commission members; therefore the vote did not violate the Commission’s Rules.

Roberts Rules Did Not Invalidate Commissions Approval: Even though Appellant’s did not properly preserve the claim that the approval was invalid because the Commission did not follow Robert’s Rules the Court gratuitously decided to rule on the merits.

The Court began its analysis by noting that under Robert’s Rules a tie vote is not a majority vote for adoption; therefore, the initial motion to approve the use permit, which was a 5 to 5 vote, `failed.  Robert’s further provides that a motion may be made to reconsider but a motion to reconsider must be raised promptly at the time the breach occurs.  Furthermore, Robert’s Rules also requires a point of order be made in the event of a perceived rule violation, in which case the chair must call for a ruling and enforce the regular rules.

The record showed that no motion was made to immediately reconsider the tie vote at the Commission hearing.  Failure to precisely follow Robert’s Rules, resulted in a waiver of the claim.  In this case, no point of order was raised at the Commission meeting to enable the Commission to correct such failure.  The Court held that Appellants first raised the alleged voting improperly in their appeal before the BAZ, thereby waiving the claim.

Appellants were present at the meeting of the Commission but did not interject a point of order when the alleged voting error occurred.  More importantly, no commissioner raised a point of order when the motion was made to vote on the approval of the Permit with Condition Nos. 1–9.  Thus, if the motion to vote on the Permit with Condition Nos. 1–9 was indeed out of order, then the time to identify and correct the error was when the Chairman made the motion to vote to approve the Permit with Condition Nos. 1–9, or immediately following the vote.

The Eastern District analysis was guided by Missouri administrative law, which recognizes that the conceptual framework of addressing alleged errors in an administrative agency.  Under Missouri law, a reviewing court may refuse to consider a claim of alleged error by an administrative agency when the aggrieved party fails to raise the objection before that agency.  Therefore, there was no procedural error and the circuit courts judgment was affirmed.  Lynch vs. Franklin County, (ED107731, 05/05/20)

Substantive Issues: The Court started its review by noting the standard for review of an agency’s decision is that it will be affirmed except in those rare cases where the decision is contrary to the overwhelming weight of evidence.  This decision is examined to determine whether it was “arbitrary, capricious or unreasonable, or involved an abuse of discretion.”  The court must defer to the Board’s view of the evidence and reasonable inferences therefrom and defer to the board’s view of the credibility of witness testimony.  The Court may not substitute its judgment for that of the Board.  The Court noted that the record was replete with evidence supporting the decision to grant the permit; therefore the approval of the permit was valid.  Lynch vs . Franklin County, (ED 107731, 05/05/20)

Political Tricks Do Not Constitute Wire Fraud
Facts and Procedure: For four days in September 2013, traffic ground to a halt in Fort Lee, New Jersey, because of traffic lane alignments on the busiest bridge in the world.  The cause was an unannounced realignment of 12 toll lanes leading to the George Washington Bridge, an entryway into Manhattan administered by the Port Authority of New York and New Jersey.  For decades, three of those access lanes had been reserved during morning rush hour for commuters coming from the streets of Fort Lee.  But on these four days, with predictable consequences, only a single lane was set aside.  The public officials who ordered that change claimed they were reducing the number of dedicated lanes to conduct a traffic study.  In fact, they did so for a political reason, to punish the mayor of Fort Lee, a Democrat for refusing to support the Republican New Jersey Governor’s reelection bid.  Baroni and Kelly were convicted and appealed to the United States Supreme Court contending that they did not violate the wire fraud statute because they did not seek to obtain money or property.

Analysis: The United States Supreme Court in a unanimous 8 to 0 decision overturned the fraud convictions for violating the federal wire fraud statute, which prohibits using wires for “any scheme or artifice to defraud by means of false or fraudulent pretenses, representations, or promises.”  The federal government contended that employees fraudulently obtained property by taking control of the bridge lanes thereby causing the Port Authority to pay for the cost of compensating the traffic engineers and backup collectors who performed work relating to the Lane realignment.  The United States Supreme Court held that the actions of the defendants did not violate the statute because it was not a scheme to obtain money or property.  Instead it was simply an administrative action of regulatory power, which did not appropriate the government’s property.  The use of Port Authority employees was coincidental to the mere cost of implementing the sought after regulation of the bridges toll lanes.  Justice Kagan, who wrote the opinion, noted that efforts to prohibit this kind of mischievousness would have to fall to the states and local government.  Kelly v. United States, (U. S., 18- 1059, 05/07/20)

Comment Howard: My quick review of the Missouri law on fraud suggests that Missouri statutes do not provide protection from these kinds of schemes.

State Birth And Death Records Are Open Records
Introduction: Once again, a Cole County circuit court judge has provided us with an excellent opinion dealing with the Sunshine Law.  An article in the April 27, 2020, edition of Missouri Lawyers Weekly indicates that this case may be of great interest to persons who are trying to run down Corona related deaths particularly during a time when there is little confidence in the information being provided concerning death rate related to the Corona virus.

Facts and Procedure: Plaintiff Brooke Schreier Ganz the founder, and President, of Reclaim the Records, submitted a Sunshine Law request for Missouri birth and death records for the period January 1, 1910, through December 31, 2015, to the Missouri Department of Health and Senior Services’ (“DHSS” or “Department”).

Nikki Loethen, DHSS’ General Counsel, reviewed the requests and directed Emily Hollis (also in the DHSS Office of General Counsel) to “do the 3-day response.”  In her response, Ms. Hollis stated that “[t]he Department is working to fill your request” and said that payment of research and copy charges may be required “prior to your receipt of the requested records” and at the same time asked Department employees to begin the collection of records.  Ms. Hollis after several months responded to Ms. Ganz’s request with a cost estimate of $1.49 million, based upon separate searches of each record, which she stated was pursuant to Section 610.026.  In response, Mr. Rhodes, counsel for Ganz advised Ms. Loethen that the $1.49 million estimate violated the Sunshine Law, which expressly provides that the only allowable charges are the actual time it takes a staff member to retrieve the records from the database.  The Department billed staff time at the rate of $41.78.

Mr. Rhodes then asked Ms. Loethen to provide him information as to the type of database DHSS used to maintain the birth and death lists so that he could propose a search methodology consistent with the Sunshine Law.  Then Mr. Rhodes sent Ms. Loethen an e-mail and explained how, using the information Ms. Loethen had provided about DHSS’s computer system, the two listings could be produced by using two simple date range searches, i.e., one search for the birth records and one search for the death records.  Later, Ms. Loethen sent Mr. Rhodes an e-mail dramatically revising the initial cost estimate from $1.49 million to $5,174.04 still showing staff time at the $41.78 hourly rate.

In the meantime, the Department hatched a secret plan to deny the request for the records based upon advice from Garland Land, the former state registrar who suggested that:

I would require them to take you to court and then bring national genealogical and records experts to testify that making indexes is not good public policy.  By delaying this you might file a regulation or get the legislature to clarify the intent of the law.

Exactly two weeks later, Ms. Loethen wrote Mr. Rhodes advising him that DHSS was denying Ms. Ganz’s request for birth listings and death listings because “the department has opted to exercise the discretion granted in Section 193.245(1), to decline these requests.”  The decision to deny Ms. Ganz’s requests came nearly six months after Ms. Ganz made her initial requests.

Ms. Ganz then filed a suit under the Sunshine Law in Cole County circuit court.  On April 15, 2020, the Court entered a 53 page Memorandum and Judgment granting Ms. Ganz’s motion for summary judgment finding that the Department knowingly and purposefully violated the Sunshine Law assessing penalties of $2,000 for knowingly violating the law and $10,000 for purposefully violating the law, plus attorney fees.

Analysis – Birth and Death Records Are Public Records: The Court first determined that the records requested were public records under the Sunshine Law, noting that the Department was required to keep track of “vital statistics” which is “data derived from certificates and reports of birth and death and to provide for the preservation of these records.  The Court then goes through the alleged violations of the Sunshine Law relating the facts to the law.

The Statute Does Not Specifically Prohibit Disclosure Of The Records: The Court begins its analysis by noting that under the Sunshine Law, public records are open to the public “except as otherwise provided by law.”  In addition, the public policy as set forth in the Sunshine Law is that public records shall be open to the public.  The phrase “except as otherwise provided by law” under Missouri case law means except as otherwise provided for by statute.  In other words, public records are open unless a state statute protects their disclosure.  The Sunshine Law specifically provides that “exceptions [be] strictly construed to promote this public policy.”  The Court concluded that these provisions make the records open unless a statute provides otherwise.

The Department also argued that Section 193.245, pertaining to the inspection and copying of vital records prohibited the disclosure of the birth and death information.  Section 193.245 provides: “A listing of persons who are born or who die on a particular date may be disclosed upon request, but no information from the record other than the name and the date of such birth or death shall be disclosed.”  Based upon a plain reading of statute and case law it is clear that 193.245 does not prohibit the Department from disclosing records.  In addition, the department admitted that years before Ms. Ganz request was made that it provided copies of these records. Therefore, since the statute, by use of the word ”may,” specifically authorized the disclosure of records it did not serve as a bar to disclosure.

Initial Charge Of 1.49 Million Violated The Sunshine Law: The State argued that the $1.4 million original charge to produce the records was just an estimate.  The fact that it was just an estimate did not resolve the obligation of the Department to perform “due diligence to confirm the basis of an estimate, particularly when it demands prepayment before producing the records.”  Relying upon a University of Missouri case, where the estimate was $100,000, the Court noted that the estimated cost of 1.4 million dollars for all practical purposes prevented Ganz from obtaining the records.

Reduced Charge of $5,174.04 Violated The Sunshine Law: Section 610.02 6 of the Sunshine Law establishes what a governmental agency may charge for staff time to produce records on computer facilities. It specifically provides:

Fees for providing access to public records maintained on computer facilities … shall include only the cost of copies, staff time, which shall not exceed the average hourly rate of pay for staff of the public governmental body required for making copies and programming, if necessary, and the cost of the disk, tape, or other medium used for the duplication.

The Court noted, that the Department in arriving at its calculation for the charges included charges for fringe benefits, indirect allocation, network charge, and server charge none of which are authorized by the statute, bumping up the hourly rate charged to $41.78, nearly a doubling of the allowed charge under the statute.  The statute states that the fee charged shall include only the charges listed in Section 610.026.1.(2) “…the cost of copies, staff time, and the cost of the medium used for duplication.”  In addition, the statute says governmental agencies may charge “staff time, which shall not exceed the average hourly rate of pay for staff required for making copies and programming.”  These terms have clear meanings.

To begin with, the term “pay” means “something paid for a purpose and especially as a salary or wage.”  In accord with that definition, the term “rate of pay” means “the amount of money workers are paid per hour, week, etc.”  As such, the amount of money workers are paid is their hourly wage.  In this case, that wage is reflected in DHSS’ own workpapers as the “direct PS rate,” where “PS” stands for “Pay Scale.”

Therefore, the revised charge of the Department to $5,174 violated the Sunshine law because it included charges not authorized by the statute.

DHSS Knowingly and Purposely Violated the Sunshine Law Knowing Violations: The Court begins its analysis by noting that case law defines a knowing violation of the Sunshine Law: “… when a public governmental body has actual knowledge that its conduct violates a statutory provision.”  In this case, the Department knew it violated the statute because it failed to provide the records after stating to Ganz on two separate occasions that it would provide access to the records based upon submission of all payment to procure the records.  Only after approximately six months did the Department state that it would not allow access to the records, which denial failed to cite a section in the Sunshine Law to support its denial.  Furthermore, the estimate provided by the Department was grossly inaccurate and did not comply with the plain meaning of the statute by failing to charge only the average hourly rate for staff time.

Purposeful Violation: The Court begins its analysis by defining a purposeful violation: “…when there is ‘a conscious design, intent, or plan to violate the law and do so with awareness of the probable consequences.” In this case, the Department denied the records request for the purpose of making the Plaintiffs sue the Department, while the Department sought to change Missouri law to close the requested birth and death records.  The Court calls the so-called “secret plan” as a textbook case of a purposeful violation of the Sunshine Law, as shown by the statement of the former State Register.
I would not honor the request.  I would require them to take you to court and then bring in national geneological [sic] and vital records experts to testify why making indexes is not good public policy.  By delaying this you might file a regulation or get the Legislature to clarify the intent of the law.

This statement was followed up by actions taken by the Department to first deny access to the records in order to provoke a lawsuit while the Department actively engaged in legislative efforts to obtain legislation exempting disclosure of the records.  Ganz vs. Department of Health and Senior Services, (16AC-CC00503, 4/15/20).

Comment Howard: This is a very well written Judgment tying together the facts and the law.  Even though it is a just a Circuit Court decision there are some very important lessons.  First, the case illustrates lack of proper supervision (really gross mismanagement) by the Attorney General, which was sorely lacking in this case.  In addition, the Attorney General was totally outmatched by the expertise of Plaintiff and her attorney.

The so-called secret scheme to deny access, knowing full well that the records were already covered by the statute, shows complete lack of respect (disdain) for the rule of law.  The case also illustrates the importance of making the initial decision as to whether or not there is any basis for denial of the records, under the statutory provisions in the Sunshine law.  I would also advise employees who are responsible for responding to Sunshine Law request to make sure that they are charging the correct amount as stated in this case.  I suspect the other side will be checking to make sure you are charging the correct rate.  It seems hard to believe that the Attorney General did not know how to properly calculate the cost charged for record searches.
Even though there is a cap on penalties for violations, the award of attorney’s fees were estimated to be $150,000 in this case, which can be a deterrent to engaging in the stalling and deliberately misleading activities of the Attorney General.

Can You Include a Charge For “Research” In The Cost Of Retrieving Records?
Recently, the Western District heard oral arguments in Gross v. Parson, which involved fees charged for a record request involving former Governor Greitzens.  The appeal challenges the ruling of the Circuit Court on the grounds that the State provided a cost estimate that improperly calculated the cost to produce the records by including a charge for research, which was not authorized by Subsection 610.026(2).  This subsection only authorizes “…the cost of copies, staff time, which shall not exceed the average hourly rate of pay for staff of the public governmental body required for making copies and programming, if necessary, and the cost of the disk, tape, or other medium used for the duplication.  We will be watching this case.   Stay tuned.  Gross v. Parson, (WD83061, 4/26/20).

Update: On May 26, 2020 the Western District issued its opinion in this case upholding portions of the judgment, reversing other portions and remanding the case for further proceedings.  The Western District,  amongst other things, held that the state could not charge for research time under Section 610.026.1(1).  The opinion is some 32 pages long  and will be analyzed in the June edition of the newsletter.

Search Invalid Under Terry Stop When Defendant Was In Handcuffs In The Back Seat Of Police Car
Facts and Procedure: Kohl’s employees allegedly saw Ledbetter shoplifting a sweatshirt from the store.  Police were notified, and police dispatch sent out a description of Ledbetter’s vehicle and a description of Ledbetter was radioed to law enforcement in the area.

Shortly thereafter, Officer Bowman came upon a vehicle matching the police dispatch description while patrolling the nearby area and initiated a stop of the vehicle encountering Ledbetter.  He instructed Ledbetter to show his hands and exit the vehicle.  Ledbetter was cooperative and voluntarily complied.  Once Ledbetter had exited the vehicle and without questioning Ledbetter or explaining the purpose of stopping,  Officer Bowman patted Ledbetter down to check for weapons, while Ledbetter was a safe distance from the vehicle, Officer Bowman then proceeded to search the glove box, center console, and underneath the seats of Ledbetter’s vehicle to check for weapons.  While doing so, he observed a McDonald’s sack in the driver’s seat, which was open and visibly contained a cheeseburger, fries, and a small, zipped first aid kit.

Once Ledbetter was in handcuffs and secured in the back of the officer’s patrol car, Officer Bowman then proceeded to conduct a warrantless search of the McDonald’s sack and the first aid kit contained the bag without Ledbetter’s consent.  Officer Bowman’s search of the first aid kit, which was small and incapable of containing a sweatshirt inside it, produced the discovery of a clear plastic, circular container with white crystalline substance that Officer Bowman recognized as methamphetamine.  In the first aid kit, Officer Bowman also found a sock, which contained pipes used to smoke methamphetamine.

Ledbetter was later charged with possession of a controlled substance.  Ledbetter filed a motion to suppress evidence from Officer Bowman’s warrantless search of the first aid kit and all evidence discovered as a product of the warrantless search.  Following a hearing, the trial court sustained the motion.  The motion court found that Officer Bowman had reasonable suspicion to stop and briefly detain Ledbetter to investigate the possible shoplifting crime but no probable cause to search the first aid kit, which was neither on Ledbetter’s person when he was arrested nor of a size that was relevant to a search for the sweat shirt alleged to have been shoplifted.  As such, the trial court concluded that the evidence of the contents of the zipped first aid kit was obtained in violation of Ledbetter’s Fourth Amendment due process rights and that all evidence acquired from the unlawful search, including Ledbetter’s statements made in response to the seizure of the zipped first aid kit, were to be excluded as “fruit of the poisonous tree.” The State timely filed an interlocutory appeal to the Western District.

Analysis: The Court started its analysis by stating the parameters for Fourth Amendment searches. The Fourth Amendment protects individuals’ right to be free from “unreasonable searches and seizures, which has been extended to the states. “A warrantless search is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’” Furthermore, the burden falls on the State to justify [the] warrantless search or seizure.

Exceptions relating to the requirement of a warrant to search the contents of Ledbetter’s vehicle vary depending upon whether the officer’s search was part of an investigative detention or whether the encounter was an arrest.

The State argued that the search of the McDonald’s bag (where the evidence was found) with hamburger, fries and a small first aid kit was incident to the arrest.  The Court reasoned that this argument belies the fact that once another officer arrived at the scene, Ledbetter was placed in handcuffs, and physically restrained Ledbetter in the back of the patrol car, constituting an arrest.  The Court noted that the facts in this case do not support the suggestion by the State that Ledbetter was immediately arrested upon being stopped, because only after the second officer arrived was Ledbetter handcuffed and placed in a police car clearly indicating that prior to the second officer arriving that Ledbetter was not under arrest.

Therefore, the subsequent search of the McDonald’s bag, which contained a small first aid kit with the incriminating evidence was not justified under the Terry exception because with Ledbetter handcuffed and in back seat of the police car, Ledbetter did not impose a threat to the officers.

The exception for a search incident to a lawful arrest “derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” These elements were not present in this case.  State of Missouri v. Ledbetter, (WD83251, 05/05 /20 )

Meatpacking Case Based On Public Nuisance Gets Tossed
Last month we reported in the Newsletter that a lawsuit filed in U. S. District Court for the Western District of Missouri, St. Joseph Division sought to enjoin the meatpacking operation of Smithfield Foods based upon a public nuisance theory.  This is the first case filed against the meatpacking industry on a public nuisance theory in the nation. As such it has attracted a lot of national attention, since meatpacking is conducted in a work environment where the coronavirus is easily spread to workers.  The case got tossed on a motion to dismiss based upon the primary jurisdiction doctrine, which reasons that the outcome of the case will hinge on the determination of whether the company is complying with CDC/OSHA joint guidance for industry meatpacking operations.  In this case there was a pending administrative hearing.

The District Court concluded in its Order that deference to administrative proceedings before OSHA/USDA will ensure uniform national enforcement of the regulatory guidance.  The Order Granting Defendants Motion to Dismiss mentions the public nuisance theory but does not provide much guidance either way since consideration of the public nuisance theory was not relative to the matter before the court, which was whether or not it had primary jurisdiction.  Stay tuned, since we may hear more about this case after the administrative hearing.  For more information concerning this case see the Newsletter by the law firm of Crowell and Moring.

Comment Howard: I thought that the statements presented by the Plaintiff’s expert, that the only way to have a safe work environment during the pandemic is for the meat processing facilities to slow down the production line was very interesting.  In other words, the meatpacking industry may have to sacrifice production in order to save lives and prevent serious illnesses from the virus to its workers.  I say eat less meat or pay more money.  Also, I thought that the opinion written by the federal District Court was excellent with citations to the leading cases with respect to quarantines.

City And County Of St. Louis Survive Motion For TRO Against Stay At Home Orders
On May 8, 2020, U.S. District Judge Stephen Clark, for the Eastern District, issued a Memorandum and Order denying plaintiff’s motion for Temporary Restraining Order restraining the County of St. Louis and the City of St. Louis from enforcing their stay-at-home orders on the grounds that the Orders violated their rights under United States Constitution.  In its Order the Court made the following statement with respect to the relationship of the City and County stay-at-home orders:

“The Court’s limited role of judicial review is not to assess the wisdom of the Orders, but to determine whether the Orders violate the law. Regardless of whether the Orders violate state law, the Court finds that they do not violate the Constitution because they have a real and substantial relation to the goal of stemming the tide of the public-health pandemic, and they are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”

The 22 page Memorandum and Order relied heavily on a long history where courts have upheld similar orders and in particular recent Eighth Circuit Court of Appeals opinions.  Since the State of Missouri had not issued a statewide declaration, declaring that there was a public health crisis and ordering certain institutions public and private to be closed there was no conflict between state law and laws adopted St. Louis City and County.  Memorandum and Order.

On May 29, 2020 the United States Supreme Court  issued an order by 5 to 4 vote declining to intervene in challenges by churches to southern California and Chicago stay-at-home  orders, which sought a Temporary Restraining Order against the stay-at-home orders.

Officer May Conduct Undercarriage Inspection Without a Search Warrant – Reasonable Suspicion Was Sufficient to Extend Stop
Facts and Procedure: An Arkansas state trooper stopped Jose Sanchez while he was driving a pickup truck without license plates shortly before midnight.  After confirming that Sanchez had no driver’s license, no criminal history, no outstanding warrants, the trooper continued to hold Sanchez and conducted a canine sniff of the truck.  In addition, the trooper crawled under the truck to look at the truck’s undercarriage.  From the ground, trooper could see a black plastic bag located above a spare tire, seized the bag and arrested Sanchez.

Sanchez moved unsuccessfully to suppress the evidence seized from the vehicle undercarriage, arguing a lack of reasonable suspicion to extend the traffic stop and there was a lack of probable cause to conduct the visual inspection of the undercarriage.  The District Court denied Sanchez’s motion to suppress, concluding that reasonable suspicion justified the extension of the stop and that exterior visual inspection of the undercarriage did not require probable cause.  Sanchez appealed to the Eighth Circuit.

Analysis: The State conceded that proper procedures were not conducted with respect to the canine sniff, leaving open the question of whether or not reasonable suspicion justified extension of the stop and the exterior visual inspection of the undercarriage.

Reasonable Suspicion: The Court concluded that a reasonable officer could view the collection of facts as suspicious.  After all, the officer saw an out-of-state truck with paper plates in the middle of night; that neither of the persons in the vehicle had a driver’s license; the paper plates were expired; there was confusion as to the name of the owner; the purported trip was for 2 to 3 day painting job but no supplies were present other than one can of paint; there was confusion about the first name of Sanchez; and it seemed unusual that an unlicensed driver would bring two small children and an unlicensed partner/significant other with him for the midnight travel in the unlicensed vehicle for a short term out-of-state job.

Privacy in the Undercarriage/Seizure: The Court concluded that absent a physical trespass and during an otherwise lawful extended stop, an officer may look at the undercarriage of the vehicle without probable cause. The Court compared this to looking through a window.  There is no recognized privacy interest in the exterior vehicles or the interior spaces visible to the public.  U. S. v. Sanchez, (8th Cir. 18-1890, 04/03/20)