October Newsletter (Issue 10-20)

Probable Cause Not Required To Make Initial Stop As A Condition Of Requiring Breathalyzer

On February 20, 2019, at 1:01 a.m., Deputy Morgan Webb (“Deputy Webb”) and Deputy Ethan Logan (“Deputy Logan”) of the Henry County Sheriff’s Office observed a white Chevrolet truck in a field of a city-owned park.  It was snowing and snow had accumulated on the ground.  The truck was unoccupied and appeared to be stuck in the field, as the ground was disturbed around its tires and there were ruts in the mud. Despite the cold temperatures, the truck was still warm.  Deputy Webb testified that upon looking inside of the vehicle, he observed “a container of what appeared to be an alcoholic beverage.”  Deputy Webb’s narrative report indicates the container was empty.

Although there were footprints in the snow leading from the truck to a nearby restroom, a canvas of the area did not immediately reveal any potential driver.  During a search for the driver, dispatch notified Deputy Webb that the truck belonged to Turner.  The registration for the white Chevrolet truck was also associated to a 2004 GMC.  Fifteen minutes after the deputies initially observed the truck in the field, they witnessed it leaving the area of the park.  While following the truck, the deputies did not detect any traffic violations.  However, because the park had closed at 11:00 p.m., and the truck was being driven from the park after being found stuck in the field with an empty alcohol container inside, Deputy Webb initiated a traffic stop and contacted the driver who was later identified as Turner.  Deputy Webb’s narrative report indicates that the deputies asked Turner why his truck was previously in the field and Turner responded that he “slid off the road and got stuck.”  The narrative report further states that the deputies did not observe slide marks in the snow on the road.

Deputy Webb indicated that he detected a strong odor of alcohol emanating from Turner and his truck, his eyes were watery, and his speech was slurred.  Turner admitted to drinking alcohol earlier in the night.  Deputy Webb testified that he attempted to perform field sobriety tests on Turner; however, Turner refused to perform the tests and stated to the deputies, “I can’t,” and “I won’t pass them.” Deputy Webb then arrested Turner for driving while intoxicated.  At the police station, Turner submitted a breath sample which showed he had a blood alcohol content (“BAC”) of .174 percent.  Following the breath test, Turner’s driving privileges were suspended as a result of driving with a BAC in excess of the legal limit set forth in Section 302.505.1.

Turner requested an administrative hearing to review the suspension of his driving privileges. Following a hearing on May 1, 2019, an administrative hearing officer for the Director of Revenue affirmed the suspension. Thereafter, Turner filed a timely petition for trial de novo pursuant to Section 302.535, and the Circuit Court of Henry County conducted a hearing.  At that hearing, Deputy Webb, the investigating deputy, and Deputy Oakes, the breathalyzer operator, testified.  The Director introduced one exhibit consisting of Deputy Webb’s alcohol influence report and supporting documents.  Turner affirmatively stated that he had no objection to the admission of the Director’s exhibit, other than to object that there was no probable cause to arrest Turner.

The trial court then entered its “Amended Findings of Fact, Conclusions of Law and Judgment,” finding that the evidenced adduced by the Director was credible.  The court ruled that there was no probable cause to arrest Turner “for an alcohol-related offense, in that: no field sobriety tests performed.”  Furthermore, on the issue of probable cause to arrest, the court found that there was “insufficient evidence to support initiating traffic stop.  The Officer did not testify to any suspicion of criminal activity.”  The court did not make a finding as to Turner’s BAC “due to finding insufficient evidence to justify initiating traffic stop and no probable cause for arrest.” The Director appealed to the Western District.

AnalysisLawfulness of Traffic Stop: The trial court ruled that the Director did not meet its burden to establish probable cause to arrest because there was insufficient evidence to support a traffic stop as the arresting officer did not testify to any suspicion of criminal activity. The Director argued that the Director was not required to establish there was a reasonable suspicion that Turner was engaged in criminal activity prior to his traffic stop.

The Western District started its analysis by examining the statutory grounds for suspension as set forth in Section 302.505.1:

The department shall suspend or revoke the license of any person upon its determination that the person was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was eight-hundredths of one percent or more by weight, based on the definition of alcohol concentration in section 302.500[.]

Next it examined Missouri case law on the question of making the initial stop under the statute.  In Riche v. Director of Revenue,  the Supreme Court expressly held:

 [N]either section 302.505.1 nor the constitution[] . . . require that the arresting officer’s initial stop be based upon probable cause.  To the extent that [other Missouri cases] impose a probable cause requirement on the initial stop and apply the exclusionary rule in Section 302.505 proceedings, they are overruled. (My emphasis)

Based upon the precedent in Riche v. Director of Revenue the Western District concluded that:

“There is no authority which supports imposing on the Director an obligation to establish a reasonable suspicion of criminal activity prior to a traffic stop.  In fact, settled precedent in this State provides that the sufficiency of the legal basis to justify the traffic stop is immaterial in an administrative suspension hearing.”

Therefore, the trial court erred when it concluded that there was no probable cause for stopping the vehicle.

Necessity of Field Sobriety Tests : The trial court also ruled that that the  Director did not meet the Director’s burden because the Officers failed to conduct field sobriety tests before arresting Turner.  The Director asserted that case law does not require field sobriety tests because probable cause to show intoxication can be established in other ways.  Citing White, as precedent  the Western Districtnotes that “the level of probable cause to make an arrest will exist when a police officer observes unusual or illegal operation of a motor vehicle and observes indicia of intoxication on coming into contact with the motorist.”  In this case there was sufficient evidence based  on the surrounding facts and circumstances for the officers to believe that Turner was intoxicated.  Turner v. Director of Revenue, (WD83439, 09/29/20)

Comment Howard: I had a lot of difficulty with this case.  I am bothered with the Court’s analysis of the basis for stopping the car because it seems to mix up its use of probable cause and reasonable suspicion.  After all, at the time the officers pulled the vehicle over and first came into contact with the driver they were clueless about whether or not a crime had been committed; however, based on the evidence the Officers saw in the park they had reasonable suspicion or as we discussed earlier a basis for an investigatory stop.  Seems to me that the officers could make an investigatory stop based on seeing the circumstances surrounding the  disabled/abandoned  car in the park when it was closed but that was not the analysis used by the Court. 

Cash Bonds May Require A Hearing To Determine Ability To Pay

Facts and Procedure: The State charged Nichols with one felony count of unlawful possession of a firearm.  The judge issued an arrest warrant for Nichols on the same day, which contained a monetary condition of release set in the amount of “$30,000 cash only.”  The only information available to the Judge at the time he set this monetary condition of release was the felony complaint and the accompanying probable cause statement, neither of which contained any information about Nichols ability to pay the bond.

Nichols was subsequently confined and at a hearing on his confinement, Nichols argued that the initial arrest warrant should be recalled because the monetary condition of release, $30,000 cash only, was set without any consideration of Nichols’s ability to pay.  This argument was rejected and Nichols pursued an unsuccessful attempt to obtain a writ of mandamus relief and a direct appeal.  He then filed a petition for declaratory judgment alleging no adequate remedy at law challenging  the monetary condition of release fixed in the initial arrest warrant, claiming that it violated Missouri law because the cash bond was set without a hearing on his ability to pay.  Nichols petition for a declaratory judgment was denied and he appealed to the Eastern District.

Analysis: Nichols challenged the circuit court’s dismissal of his petition for declaratory judgment on a motion to dismiss on the grounds that he had no adequate remedy at law, and that he had pled a viable claim for declaration of rights as a matter of law.

Lack of Adequate Remedy: One of the required  elements in order to bring a declaratory judgment is the limitation that you cannot have an adequate remedy at law.  Rule 33.09 governing the setting of bonds states that: “if the defendant or the state allege the court . . . set inadequate or excessive conditions of release, the defendant or the state may seek remedial writ relief in a higher court . . . .” (Emphasis added).  The circuit court ruled that Nichols had an adequate remedy under Rule 33.09  because he could file a remedial writ seeking relief concluding that he was not entitled to bring a declaratory judgment.  Prior to bringing the declaratory judgment Nichols had filed a writ of mandamus to compel the trial court to hold a hearing to determine whether or not Nichols had the ability to post a $30,000 cash bond, which writ  was denied by the Court of Appeals and the Supreme Court, without comment. Furthermore, when his request for a writ of mandamus was denied he filed a direct appeal that was also denied. 

Based on the determinations in the earlier litigation the Eastern district concluded that Nichols did not now have an adequate remedy and could bring a declaratory judgment action. 

In this case, Nichols plead all of the elements to state a cause of action under the declaratory judgment act; therefore, the circuit court erred when it sustained the motion to dismiss the petition for declaratory judgment.  Even though, it now appeared that the case was moot the Eastern District decided to reach the merits based on the public-interest exception, since the circumstances in this case have occurred and are likely to reoccur.  The court noted that other lawyers have been confused on the selection of a remedy, and the availability of a  declaratory judgment.  Nichols vs. McCarthy, (ED108877, 09/22/20)

Comment Howard: This case caught my eye because it seemed very clear that Nichols was entitled to a hearing on whether or not the monetary condition of release, $30,000 cash only, was set without any consideration of Nichols’s ability to pay.  The Court’s opinion clarified the law by making it clear that a declaratory judgment could be filed.  This appears to be a case of first impression.

Unfortunately, Nichols selected the wrong remedy by seeking a writ of mandamus.  The Eastern District noted that mandamus is very limited applying only in emergency situations.  Its purpose is not to establish a right but to adjudicate it and there must be a clear unequivocal right to relief.  There is a good discussion of the use of the writ of mandamus.

Spot Zoning Challenge Rejected

Facts and Procedure: Landvatter is the owner of approximately twenty-five acres of land located on Old Route 66/West Osage Street near the intersection of Old Gray Summit Road in Franklin County, Missouri.  Landvatter applied to the Franklin County Planning and Zoning Department to rezone 12.68 acres of its property (“Property”)  to rezone it  from CD to CA3 for the purpose of operating a concrete batch plant to manufacture and sell concrete products.  Additionally, the remaining 11.93 acres of Landvatter’s land, which would give at least 650 feet between the plant and the residential properties along Old Gray Summit Road, would remain wooded and vacant to act as a natural buffer (“the Buffer”) between the residential properties to the south and southwest of the Property.

The properties between Old Route 66 and Old Gray Summit Road are zoned CD and across the road is zoned Commercial Activity Highway Service.  Properties to the west of and right across the street from Landvatter’s Property include a Missouri Department of Transportation (“MoDOT”) storage facility, a fireworks sales shop, a heavy vehicle repair business, a gas station, and an Ameren Substation.  The east of the proposed rezoning is bordered by actively used railroad tracks.  To the south and southwest of the Property are residential properties where Appellants live.  Lastly, immediately to the north of the Property is Interstate 44.  The ingress and egress of the Property is located on the outer road of Interstate 44.

The Franklin County Planning and Zoning Commission (“the Planning Commission”) held a public hearing, where testimony was given from proponents and those opposed to the rezoning of Landvatter’s Property.  The Planning Commission postponed voting on the rezoning application until further review from the Planning Commission’s Review Committee.  That committee then recommended approval of the rezoning from CD to CA3 by three votes to none.  The Planning Commission met again and voted seven to one to recommend the Commission order the rezoning of Landvatter’s Property.

The Commission held a public hearing regarding Landvatter’s rezoning application. The Commission heard evidence from proponents and those opposed to the rezoning application.  On March 12, 2019, the Commission unanimously voted to grant Landvatter’s rezoning application and change the Property from CD to CA3 because it determined the requested rezoning would not be detrimental to the area in question and rezoning would be beneficial to Franklin County as a whole.

The rezoning application was created in such a way that approximately twelve acres of trees on Landvatter’s land buffers the residential houses near the zoned Property. Landvatter sought to rezone the Property to CA3 because it allows for heavy manufacturing which includes concrete batch plants.  There was a plethora of testimony adduced at the various hearings.

After the Commission entered an order approving Landvatter’s application for rezoning, Appellants filed a petition for writ of certiorari with the Circuit Court of Franklin County.  On a motion for judgment on the record, the Circuit Court affirmed the Commission’s decision.  Appellants appealed the Commission’s decision to rezone the 12.68 acres of Landvatter’s Property from CD to CA3 to the Eastern District.

Analysis – Spot Zoning: Appellants argued that the rezoning of Landvatter’s Property from CD to CA3 constitutes impermissible “spot zoning” because the rezoning operates as a wealth transfer for one entity, does not promote the public good, and does not follow the goals of the Master Plan.  The Court begins its analysis by considering whether or not the rezoning was “spot zoning.”  The term “spot zoning” is a descriptive word used for “[w]hen a zoning [decision] or an amendment puts a small area in a zone different from that of the surrounding area.”  The test to determine whether or not the rezoning was valid is whether the rezoning was done for reasons other than the general welfare.  If the rezoning is in harmony with the test in the comprehensive zoning plan and is done for the public good-that is, to serve one or more of the purposes of the enabling statute, and it bears a substantial relationship to the public health, safety, morals and general welfare, it is valid.

The Court concluded that the rezoning was consistent with the Master Plan, which  sets forth the goal of creating a diverse economy with a focus on sectors that create jobs and boost the economy, including manufacturing, transportation, and logistics.  In addition, one of the goals of  the Master Plan is to ensure new developments minimize conflict with existing residential activities.  The Master Plan also specifically discusses new industrial or commercial developments creating a buffer between differing uses. The Court noted that in this case, there was a buffer zone between the residential community and the concrete batch plant.  The Court concluded that the rezoning of the Property was not  done for reasons other than the general welfare.  Therefore, the Commission’s decision to rezone the Property CA3 does not constitute improper spot zoning.

Constitutional Challenges: There were a number of very weak constitutional challenges to the general zoning law from the validity of the zoning law ranging from equal protection, substantive due process based on the law being facially unconstitutional due to vagueness, substantial relationship to health, safety and morals or the public welfare and other claims.  These claims were easily rejected by the Court.  Dean v. County Commission of Franklin County, (ED108527, 09/15/20)

Comment Howard: It has been awhile since we have seen a spot zoning case. Unfortunately  this case was extremely weak standing for what spot zoning is not. When I think of spot zoning I think of a spot of zoning like heavy commercial or industrial surrounded by residential.  Hard to imagine a more disagreeable use than a batch plant for concrete, which of course drove the opposition.

Director Did Not Need to Show Where The Breathalyzer Was Acquired In Order To Introduce Results

Facts and Procedure: Officer Chris Sinnokrak (Officer) of the O’Fallon Police Department responded to the scene of an accident, where a moving car had struck a parked vehicle, turned on its side, and caught fire.  The Officer smelled a strong odor of alcohol on his breathe.  After administering field sobriety tests, the Officer placed Henke under arrest.  At the police department, the Officer administered a test of Henke’s breath using an Intox EC/IR II breath analyzer and completed the accompanying blood alcohol test report form provided by the Department of Health and Senior Services (DHSS), which showed that Henke’s BAC was .153 percent.

The Director notified Henke that it was suspending Henke’s driving privileges, and Henke petitioned the circuit court for a trial de novo.  At trial, Henke objected to the admission of the breath test result, arguing that the Director failed to establish a foundation for admission of the test because the Director presented no evidence that the Intox EC/IR II utilized to collect Henke’s breath sample was manufactured or supplied by Intoximeters, Inc. in St. Louis.  Henke argued 19 CSR 25-30.050(1) required the Director to establish not only that the police used an approved breath analyzer, but that such machine was manufactured or supplied  in St. Louis as shown in the Regulation.  The trial court agreed with Henke and excluded the evidence of his  BAC, reversing the suspension.  The Director appealed to the Eastern District.  


19 CSR 25-30.050 (2014) provides the following:
“(1) Approved breath analyzers are —

. . . Intox EC/IR II Intoximeters, Inc., St. Louis, MO” (Emphasis added)

Henke argued that in order to introduce the results of breath test results the Office needed to show that the intoximeter was manufactured or supplied in St. Louis, Mo., which it failed to do; therefore, a proper foundation had not been laid for the introduction of the breath test results.  The Director argued that the trial court erred  by excluding this evidence because the Regulation did not mandate that the location of the manufacturer or supplier, but only suggested where the machine could be obtained. 

The Eastern District, agreed with the Director noting that the Regulation did not use the word “shall” and listed the St. Louis location as a place where the machine could be obtained.  The designation of the geographic location of the machine did not affect the reliability of the results; furthermore,  the Director satisfied the three foundational elements.  Therefore, the trial court erred when it ruled against the admission of the test results.  Henke v. Director of Revenue, (ED108237, 09/15/20)

Correction Of ADA Violations Moot Case

Facts and Procedure: Hillesheim, a handicapped person, visited a restaurant  (Cafe) and perceived that the parking lot did not meet ADA Accessibility Guidelines because the access aisle for the handicapped parking space was too narrow;  that the slope of the parking space was too steep;  the access aisles were too steep and the slope on the remaining portion of the parking lot was too steep and did not meet ADA slope requirements.  After Hillesheim sued the Cafe made improvements to the accessibility space and access aisles.

The Cafe owner then asked Hillesheim to visit the Cafe to inspect the reconfigured areas, which he did.  Hillesheim continued to complain that the changes did not meet ADA guidelines and the parties went to trial.  The owner of the Cafe argued that the parking space and the access aisles meet or exceeded the ADA requirements and that the remaining slopes on the parking lot were outside the path of travel for wheelchair use.

The district court ruled the access aisles  and parking space meet ADA requirements and  that the remaining slopes were outside of the area where wheelchairs were used and held that Hillesheim failed to demonstrate a risk of ongoing or future harm, even though the remaining slopes on the parking lot did not meet ADA slope requirements.  The district court then dismissed the lawsuit as moot.  Hillesheim appealed to the 8th Circuit.

Analysis: The 8th Circuit held that there was no longer a case or controversy under the case or controversy provision of Article III of the Constitution, noting that a controversy must exist through all stages of the litigation. In the case of the ADA, permanent physical improvement are sufficient to eliminate a case or controversy if the changes provide the relief requested  since there is no ongoing injury. Since these changes occurred the 8th Circuit dismissed the lawsuit.  Hillesheim v. O.J’s Cafe, (8th Cir., 19-2508, 08/05/20)

Comment Howard: If your community is charged with an ADA violation you are well advised to determine if the violation is valid and if it is you should make the corrections and invite the person who made the charges to inspect the changes to see if you can agree.  If there no agreement that the changes correct the problem and you believe you are correct then consider filing a motion claiming that the complaint is moot.  The mootness argument is extremely strong because it is rooted in the case and controversy provision of Article III of the United States Constitution.

Along the same lines, recent ADA lawsuit was dismissed on the grounds that returning to the business was not sufficient an establish an injury after inspecting the property and concluding there was a violation.  The complainant must establish “an injury in fact.”  Smith v. Bradley Pizza Inn, (8th Cir., 19-2474)

$6.75 Million Dollars For Violations Of The Visual Artists Rights Act Of 1990 (Act)

A recent article, discussing the award of 6.75 million dollars for violations of the Visual Artists Rights Act of 1990 (Act) in a October 6, 2020,  New York Times  article serves as a warning to persons who deliberately destroy works of art on buildings or structures protected by the Act.  The Act imposes up to $150,000 for each violation of the Act.  Of course, the steep penalties were awarded because of the owner’s brazen defiance of the rule of law by acting before the building permit was granted.  “If not for Wolkoff’s insolence, these damages would not have been assessed,” the judge said in his ruling.  Even though local government was not involved directly in this case as a party it is also subject to the Act and is of course many times involved in the issuance of permits to destroy buildings where the art is located.  Complicating issues for local government is that sometimes artwork is illegal.  You may also find of interest a recent ABA article.

Justice Breyer Continues To Argue For A Narrowing Of Gilbert

Over the last several years local government has mightily struggled with First Amendment issues complicated by its decision in Reed v. Town of Gilbert, while local laws continue to be struck.  In a recent decision, Justice Breyer reiterated his argument in Reed, that not all content-based laws are the same subjecting them to  strict scrutiny. Consider Justice Breyers comments discussed in a SCOTUS Blog by Amanda Shanor. 

“Breyer argued that the plurality opinion is based upon an overly simplistic understanding of content neutrality that is “divorced from First Amendment values.” “This case primarily involves commercial regulation,” Breyer maintained, and shouldn’t face “‘strict scrutiny’ based on ‘content-discrimination,’” with its strong presumption of unconstitutionality.

Breyer articulated a scholarly, democracy-based approach to the First Amendment. “For our government to remain a democratic republic,” he explains, “the people must be free to generate, debate, and discuss both general and specific ideas, hopes, and experiences.” He continued:

From a democratic perspective, however, it is equally important that courts not use the First Amendment in a way that would threaten the workings of ordinary regulatory programs posing little threat to the free marketplace of ideas enacted as result of that public discourse. … Otherwise, our democratic system would fail, not through the inability of the people to speak or to transmit their views to government, but because of an elected government’s inability to translate those views into action.

In Breyer’s view, “[t]o reflexively treat all content-based distinctions as subject to strict scrutiny regardless of context or practical effect” is an overly blunt approach “untethered from the First Amendment’s objectives.”  Debt collection has “next to nothing to do with the free marketplace of ideas” and “everything to do … with government response to the public will through ordinary commercial regulation.” The government-debt exception should therefore face a form of intermediate, not strict, scrutiny, and under that standard, it is constitutional.

Breyer focused on the implications of content neutrality analysis for ordinary economic regulation.  The plurality, he noted, claims that its approach will not affect that kind of regulation. “But how is that so?” he asked. “Much of human life involves activity that takes place through speech.  And much regulatory activity turns upon speech content.”  Breyer noted, for example, the regulation of securities sales, drug labeling and tax forms, among others.  To treat “all content-based distinctions on speech as presumptively unconstitutional,” he maintained, “is unworkable and would obstruct the ordinary workings of democratic governance.”  It is also inconsistent with First Amendment jurisprudence, which has long looked to context; the categorical approach taken by the plurality, he argued, is “both wrong and reflects an oversimplification and over-reading of our precedent”

If you are litigating a case involving the application of Reed you may want to keep this issue in play.

Ladue Settles $2 Million Dollar Lawsuit For Shooting Women In The Back

Missouri Lawyers Weekly recently reported that the City of Ladue just settled a lawsuit for $2 million dollars.  The incident appeared to be a mistake as the officer thought she was tazing a women in custody but instead pulled out her revolver and shot her in the back causing the victim to lose her spleen.  I agonize over this type of case.  First you cannot under these circumstances taze  someone in the back  who has not even been arrested yet alone shoot them in the back.  The lady was permanently injured and I feel lots of compassion for her but also for the officer who made what appeared to be a serious mistake.  Being a police officer is tough and they are taught to  expect people to comply with their orders.  How do we train our police and get out of what seems like an endless cycle of violence?

Removing Police Officers From Behavioral Crisis Calls
A recent NPR article discusses the use of deploying public health professionals to handle some 911 behavioral crises calls instead of using police officers.  Apparently, a significant number of 911 calls involve calls from persons in a psychiatric, behavioral or substance crisis.  I recall a Missouri case from several years ago in the St. louis area involving a person who was in a state of hysteria wildly running around naked hugging a tree.  The police tazed the person several times to subdue him and he later died resulting in a civil rights verdict against the local governmental body.  At the time, I thought that the police officer had a thankless job and their training suggested that they subdue him instead of applying techniques “talk him down” approach.

Seems like police officers are not well trained to deal with these situations and the idea of having a team of public health professionals available to handle these calls is a good idea.  Of course, this takes resources and overcoming police department resistance to change.  Since about 1/3 of calls meet the criteria for this type of approach some valuable police resources might be saved.  San Francisco is about to embark on an experiment like this and some medium size cities like Eugene, Oregon have had this approach in place for years.  Other cities have used a co-responder public health professional to work with police officers.  Food for thought.

Comment Ragan:  This is an issue where there is a not a great solution.  In my experience we tend to expect the police to resolve too many societal problems.  If you apply basic logic to this issue most people understand that they should not use a roofer to solve a plumbing issue or see an obstetrician when they have a heart issue but for some reason we want to use police for almost every issue.  Some of the problems we are seeing might be resolved by developing new specializations.   

Mail In Ballots Must Be Notarized

Facts and Procedure: In April of 2020 the Missouri State Conference of the National Association for the Advancement of Colored People, the League of Women Voters of Missouri, Meredith Langlitz, and Javier A. Del Villar (“Appellants”) (Appellants) filed a lawsuit concerning registered Missouri voters’ ability to vote amidst the ongoing public health crisis caused by the COVID-19 pandemic.  The State filed a motion to dismiss, arguing Appellants failed to state a claim on which relief could be granted.  The circuit court sustained the State’s motion, and Appellants appealed the dismissal. While the appeal was pending before the Missouri Supreme Court, the General Assembly passed and the governor signed Senate Bill No. 631, which affected absentee and mail in voting for some voters.  The Court, remanded the case in light of the changes to the law and Appellants amended their petition to reflect their concerns about certain limitations on the newly created mail-in voting system.

On remand the Appellants argued that Section 115.277.1(2) “permits registered voters who expect to confine themselves on Election Day due to COVID-19 to vote absentee in Missouri without a notary seal.”  The trial court ruled for the State after holding a bench trial, on the notarization issue and on the question of whether or not there was a constitutional right to vote by absentee ballot.  Appellants again appealed to the Missouri Supreme Court.

Analysis: Specifically Appellants contended that Section 115.277.1(2) allowed voters who “expect” to be prevented from going to the polls to vote on election day due to “ . . . incapacity or confinement due to illness or physical disability” to request and cast an absentee ballot without notarizing their ballot envelope.  In essence, Appellants argued that the statute allowed any voter who “expected” to confine themselves on election day to vote without notarization of their signature on the ballot.  Appellants contended that for voters who do not qualify for an absentee ballot, SB 631 created a no-excuse mail-in voting without the requirement that those voter obtain acknowledgment of their signature by a notary.

Applying rules of statutory construction the Court rejected Appellants argument by concluding, in a per curium opinion, that immediately expanded eligibility for mail in voting without notarization under Section 115.277 for the remaining 2020 elections was not intended by the legislature.

“In no ordinary sense does the phrase “confinement due to illness” encompass voters who expect to voluntarily confine themselves at home to avoid “contracting or spreading” a virus, but who do not expect to be sick or ill.  This Court should not second-guess the wisdom or policy of a legislative enactment.”

In addition, the Court held that there is no right in the Missouri Constitution to vote by absentee ballot.  Missouri State Conference of the National Association for the Advancement of Colored People v. Ashcroft, (SC98744, 10/09/20)

Comment Howard: After the election I suspect we will be revisiting election laws to facilitate ease of voting.  Citizens are tired of the hassle.  We need early voting and mail in voting should be the order of the day.  Missouri is one of the least progressive states in facilitating voting.  I am still waiting on my absentee ballot, which I requested on the first day for submitting absentee ballots.  Of course it may take another constitutional amendment to move Missouri from one of the least progressive states to a state that facilitates voting.

Mail in Ballots May be Returned Personally
A Federal District Court of the Western District of Missouri held that mail in ballots may be returned personally to the election authority.  This opinion was rendered in a case that challenged Missouri law based on the differences between the handling of absentee ballots and mail in ballots under the equal protection clause.  The case is significant because it eliminates the confusion caused by different treatment between mail in ballots and absentee ballots.  Organization for Black Struggle et al., v. Ashcroft, Case no. 2:20-cv-4184

Election Day and Afterwards
As we plow forward to election day it is clear that there may be massive chaos.  No matter your politics, local government will be at the center of this turmoil.  How do we prepare?  I thought a recent article in the November, 2020 Edition of The Atlantic made a reasonable attempt to game out some of the scenarios.  I apologize for this being a one sided political article but this could be your next crisis, regardless of your politics.