April Newsletter (Issue 04-2021)

MMAA/MML Standing Request Regarding Litigation Of Statewide Interest

Are you aware of litigation with the potential to affect all Missouri cities that may not be well known?  MMAA members are encouraged to notify Missouri Municipal League staff and/or MMAA board members about pending litigation with the potential to impact Missouri local governments statewide.  Relaying such information to a central hub provides an opportunity to formulate a statewide response as the issue percolates through the court system   MMAA or MML may be able to offer contact information for experts familiar with the issues or in some cases even provide resources for Amicus Briefs if appropriate.  (MML can be reached at 573-635-9134 or info@mocities.com).

United States Supreme Court Establishes New Test For Free Excercise Cases (Most Important Free Exercise Clause Case In The Last 31 Years)

prayerIntroduction – California adopted a law prohibiting at-home religious exercise of more than 3 persons while permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.  The United States Supreme Court held in a 5 to 4 per curium opinion in Tandon v. Newson, that the California law violated the Free Exercise Clause of the United States Constitution.  This opinion is extremely important to local government attorney’s because it established a new test for evaluating laws that effect the Free Exercise of Religion Clause under the First Amendment.

Finally, the courts have issued an opinion that is a whole lot simpler than an explanation of it by a legal pundit.  One sentence and 30 words. (I am not kidding).  Here it is.

“Government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.”

    • It is no answer that a State treats some comparable secular businesses or other activities as poorly as or even less favorably than the religious exercise at issue.

How to apply new test (taken from the text of the opinion):

Whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue.

  • Comparability is concerned with the risks various activities pose, not the reasons why people gather.

The government has the burden to establish that the challenged law satisfies strict scrutiny.

  • To do so in this context, it must do more than assert that certain risk factors “are always present in worship, or always absent from the other secular activities” the government may allow.
  • Instead, narrow tailoring requires the government to show that measures less restrictive of the First Amendment activity could not address its interest in reducing the spread of COVID.  Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied.  Otherwise, precautions that suffice for other activities suffice for religious exercise too.

Even if the government withdraws or modifies a COVID restriction in the course of litigation, that does not necessarily moot the case.

  • And so long as a case is not moot, litigants otherwise entitled to emergency injunctive relief remain entitled to such relief where the applicants “remain under a constant threat” that government officials will use their power to reinstate the challenged restrictions.

Tandon v. Newson, (SCOTUS 20A151), 04/09/21)

Comment Howard: The Tandon case, is described by one commentator as “the most important free exercise opinion since 1990.”

As a local government attorney, I note that it is almost impossible to write an ordinance that will met this test.  Of course, strict rules might pass the Courts test but are politically unlikely.

Protecting lives is surely one the most important function of government.  When this was smallpox in the 18th Century, before a vaccine was developed, 80% of the children who caught the smallpox died.  Before there was a small pox vaccine, the answer was to institute a very strict quarantine.  You know, you cannot leave the ship or the town.  With respect to Corvid 19, the deaths are at the opposite end of the age bracket of the small pox, 85% of the 585,000 covid-19 deaths have been persons 65 years or older.  If the impact was reversed would that have made a difference?  Think of polio as a good indicator of public opinion when children were infected.

There was an excellent dissent in this case by Justice Kagan, joined in by Justices Breyer and Sotomayor. Chief Justice Roberts did not join in the opinion or the dissent although in similar cases he has expressed his opinion that the courts should give the legislature a wider birth.

In Case Of First Impression The Missouri Supreme Court Held That The Measurement Of The 1,000 Feet Under The Child Sex Offender Law Is Measured From the School Property Line To The House

Downtown-SpringfieldFacts and Procedure: In April 2017, the Greene County sex offender registrar received an anonymous tip that McCord, a registered sex offender, was residing at a home (“Residence”) near Carver Middle School in Springfield, Missouri.  Section 566.147 of the Child Sex Offender law prohibited sex offenders from residing within 1,000 feet of a “school.”  When measuring from property line to property line, the Residence was 839 feet from Carver Middle School.  Two police officers visited the Residence and after measuring the distance arrested McCord when they learned he had been living there since January 2017.

Section 566.147 prohibits sex offenders from residing within 1,000 feet of a “school” but does not define where the 1,000 feet must be measured from. The distance from Carver Middle School, when measuring from property line to the Residence was 839.05 feet. The Defendant argued that the Rule of lenity should apply.  Under this rule that statute should be construed against the government seeking the penalties and in favor of the person being penalized.  In addition, this rule applies when the court cannot even guess what the legislature intended.  The circuit court rejected Defendant’s argument and found McCord guilty of residing as a sex offender within 1,000 feet of a school, a class E felony. The trial court held that the 1,000 feet from the property line of the school.  McCord appealed, arguing that the 1,000-foot buffer mandated by Section 566.147 must be measured by the distance between the school and residential structures, rather than corresponding property lines.  The case, one of first impression, was transferred to the Missouri Supreme Court.

Analysis: The statute was silent as to where the measurement was to be made; therefore, the Court looked to the meaning of the word “school” as defined by Section 566.147.1(2), which prohibited sex offenders from residing within 1,000 feet of “any public school as defined in section 160.011(2) ….” In turn, Section 160.011 defines elementary school as: “a public school giving instruction in a grade or grades not higher than the eighth grade[.]” McCord did not dispute the this definition applied to Carver School. The Court reasoned that Instruction is given and provided to students in school, both inside and outside the school building. Certain parts of a school’s curriculum are generally taught outside on the school’s property noting that:

“For example, physical education classes may be instructed on a school’s playground. A recess break also frequently occurs outside the school building in the schoolyard.  A teacher or coach may even conduct class projects or extracurricular activities such as track and field, football, tennis, or soccer, outdoors on the school grounds.”

Based on the plain and ordinary meaning of the word “school” the Court concluded that the legislature intended that the word “school” as used in Section 566.147 encompassed an area where student instruction takes place: both inside the school building and outside on school grounds; therefore, the measurement was to be taken from the school property line.  The trial court’s decision was affirmed.  State of Missouri v. McCord, (SC98546, 04/06/21)

Comment Howard: While I agree with the opinion, I am bothered by the application of the rules of statutory construction.  First, the Court rejects McCord’s argument that since the statute is penal it should apply the rule of lenity, which requires that statute be construed against the government seeking the penalties and in favor of the person being penalized.  In addition, this rule applies when the court cannot even guess what the legislature intended.  The Court then goes on to determine the legislature’s intent by giving the plain and ordinary meaning to the words in the statute.  In order to apply the rule of lenity it had to first conclude that it could not even guess what the legislature meant, so how can the court go on to conclude that by applying rules of statutory construction the legislature intended that the distance should be measured from the property line.  Seems the route to affirming the trial court judgment did not have to be convoluted.  The Court’s reasoning in failing to apply the rule of lenity is hopelessly flawed.

State Law Prohibiting Expenditure Of Public Funds To Advocate For Or Against Ballot Issues Is Unconstitutional

megaphone-clip-art-3Paul Martin reported that in the Judgment Maryland Heights case that the Cole County Circuit Court issued an important circuit court decision, holding that the portion Section 115.646, which restricts the contribution and expenditure of public funds to support or oppose a ballot issue was on its face unconstitutional because it violated the free speech and due process of clauses of the United Stated Constitution.  Section 115.646 provides:

115.646.  Public funds expenditure by political subdivision officer or employee, prohibited — personal appearances permitted. — No contribution or expenditure of public funds shall be made directly by any officer, employee or agent of any political subdivision to advocate, support, or oppose any ballot measure or candidate for public office.  This section shall not be construed to prohibit any public official of a political subdivision from making public appearances or from issuing press releases concerning any such ballot measure.

The Order correctly noted that free speech was impacted, citing the 2015 U. S. Supreme Court opinion in Reed. Under current law strict scrutiny applies making it very hard to get a different result.  If this case holds local government attorneys will no longer have to edit comments made by city council member.

In the past, when I have looked at this section, it seemed to me to be very narrow, generally applying only to the expenditure of government funds that advocated either for or against a ballot issue, with some exceptions, like for public appearances and press releases.  Prior to becoming a United States Supreme Justice Brennan, while serving on the New Jersey Supreme Court, wrote a very powerful opinion holding that laws could restrict the use of public funds to advocate for or against a ballot issue.  Of course, the free speech world has dramatically changed since Justice Brennan wrote the New Jersey opinion, but still I would not discount the importance of this opinion.  Maryland Heights v. State of Missouri, (19AC-CC0026, 4/24/21)

Western District Holds MOPERM Liable For Excess Judgment Above $2,000,000 Because It Does Not Have Sovereign Immunity

3D_Judges_GavelIntroduction: The Western District in BRENDA ESTES, AS GUARDIAN AND NEXT FRIEND FOR JANE DOE v. THE BOARD OF TRUSTEES OF THE MISSOURI PUBLIC ENTITY RISK MANAGEMENT FUND, (Ragan need to link) held that MOPERM did not have sovereign immunity, for its bad faith denial of an insurance claim, making it liable for that portion of the judgment in excess of the $2,000,000 statutory cap, as adjusted for inflation.

While the basic legal principle in this case is very simple (MOPERM does not have sovereign immunity) the fallout from the case could be significant. The case is of interest because of the denial of sovereign immunity for MOPERM’s alleged bad faith failure to settle within the policy limits and a claim of breach of fiduciary duty arising out of MOPERM’s handling of the claims asserted against Hughes in the Underlying Lawsuit has great consequences. Of interest, is the potential impact on many MML members and other units of local government who procure insurance from MOPERM.

There were two lawsuits. First, there was a lawsuit for negligence in providing care to a developmentally disabled woman patient, referred to as the Underlying Lawsuit.  After a jury verdict in the Underlying Lawsuit and a final judgment, that was affirmed by the Western District, there was a Second Lawsuit brought by Estes against MOPERM for bad faith denial of the insurance claim in the Underlying Lawsuit. The Second Lawsuit led to the opinion in this case denying MOPERM sovereign immunity.  We will discuss the Underlying lawsuit before addressing the Second lawsuit.

 Facts and Procedure: Underlying Lawsuit – Doe, is a developmentally disabled woman who requires daily caretaking services.  Doe was receiving services from Progressive Community Services (“PCS”), a “public entity,” insured by MOPERM.  During the course of treatment by PCS, the husband of an employee of PCS raped and impregnated Doe.  Estes, as legal guardian and next friend for Doe, brought a negligence action against Hughes, the employee of PCS, for negligence while Doe was under Hughes’s care (“Underlying Lawsuit”). MOPERM accepted Hughes’s defense in the Underlying Lawsuit, subject only to a reservation of rights for any obligation to cover an award of punitive damages.

Prior to trial, Estes purportedly offered to settle her claims at or below the $2,000,000 statutory limit; however, MOPERM’s Board of Trustees never offered more than $150,000 to settle Estes’s claims against Hughes.  A jury trial returned a verdict of $3,000,000 for compensable damages against Hughes, which was reduced by 30 percent for fault allocated to Doe’s grandmother.  The Underlying Lawsuit was appealed to the Western District, which affirmed the Judgment.  While the Underlying Lawsuit was pending on a Motion to Transfer to the Missouri Supreme Court the parties entered into negotiations to see if the Underlying Lawsuit could be settled, resulting in a remand to the trial court by the Missouri Supreme Court. The prejudgment and post judgment interest on the Judgment boosted the judgment in the Underlying Lawsuit to $8,000,000.

After the negotiations failed, the parties agreed to a partial satisfaction of the judgment in the amount of $2,000,000, but not punitive damages, which would be determined later in another phase of this lawsuit.  Since MOPERM had already paid $2,000,000 for partial satisfaction of the judgment there is still a $6,000,000 exposure left for MOPERM.  MOPERM did not have excess coverage for judgments above $2,000,000, even though the statute allows MOPERM to purchase excess coverage above the statutory cap of $2,000,000.

Second Lawsuit: After the negotiations failed Estes filed the second lawsuit against MOPERM for its alleged bad faith failure to settle within the policy limits and a claim of breach of fiduciary duty arising out of MOPERM’s handling of the claims asserted against Hughes in the Underlying Lawsuit.  MOPERM filed a motion for summary judgment, which the trial court sustained and Estes appealed to the Western District.


MOPERM –  Creature of Statute – In addressing the sovereign immunity question it is important to note that MOPERM is a creature of statute.  Under the statute, MOPERM is a body corporate and politic created by the General Assembly.  It is authorized to provide insurance coverage to “public entities,” which is defined as: “…any city, county, township, village, town, municipal corporation, school district, special purpose or taxing district, or any other local public body created by the general assembly.”  Under the MOPERM statute PCS as a “public entity” elected to obtain insurance coverage from MOPERM.  PCS was issued a memorandum of coverage for the period from January 1, 2012 to January 1, 2013.  The memorandum of coverage also provided coverage to PCS’s officers and employees.

MOPERM Sovereign Immunity – The Opinion begins with an examination of the statutory framework, starting with the reestablishment of sovereign immunity with certain exceptions.

Section 537.600.1 provides: “Such sovereign immunity or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances: …”

The Western District noted that MOPERM got no benefit from the above statute since the MOPERM statute was adopted by the legislature after September 12, 1977.  In addition, there was no common law precedent for providing insurance by “public entities.”  Based on language in the statute the Western District concluded that MOPERM was not entitled to sovereign immunity.

The Court then considered whether or not MOPERM might be protected as a “hybrid entity” under the doctrine developed in Stacy in which the Missouri Supreme Court held that certain hybrid entities might be similar enough to a public entity entitling it to sovereign immunity under Section 537.600 if they meet the following three-part test.                                                                                                                                                                                                                                                                                                                                                                                                                                          

“First, each entity must perform a service traditionally performed by the government, i.e., the provision of a criminal justice database as in REJIS, metropolitan transportation as in Trimble, and medical care as in Cass Medical Center.” Id. “The second, and probably the most critical, requirement of entities entitled to sovereign immunity is that they are controlled by and directly answerable to one or more public officials, public entities, or the public itself.” Id. “The third requirement concerns what limitations, if any, apply to the creation of a public entity that will have the benefits of sovereign immunity. Put another way, the basic issue involves how and by whom is government or a public entity formed?”

The Western District, applied the three-part test and concluding that MOPERM only satisfied the third part to the test. “In fact, MOPERM was formed by the General Assembly as a body corporate and politic and thus satisfies the third Stacy requirement.”

MOPERM failed the first requirement “…because it does not perform a service traditionally performed by government.”  “…we are asking whether this entity does what government has typically done in the past…”

With respect to the second part of the test, the Western District concluded that MOPERM was not controlled by and directly answerable to public officials, public entities, or the public.

Though a hybrid entity’s governing board may be “controlled by,” (that is, populated by), public officials or public entities, it does not necessarily follow that the hybrid entity is “directly answerable to” public officials, public entities, or the public. To have meaning, the “directly answerable to” feature of the second Stacy requirement must be distinguished from the “controlled by” feature to require a hybrid entity to demonstrate that the entity and its governing board are meaningfully accountable to the sovereign whose immunity the hybrid entity seeks to appropriate.

In reaching the conclusion that MOPERM was not directly accountable to public officials, public entities, or the public the Court noted that “MOPERM’s enabling legislation imposed no reporting obligations on MOPERM’s board, and no means by which the board’s exercise of its broad powers and duties can be measured or assessed to ensure fidelity to MOPERM’s purpose or function.”  Estes v. The Board of Trustees of the Missouri Entity Risk Management Fund, (WD83764, 03/16/21)

Comment Howard: The Opinion in this case is some 62 pages, crammed with details dealing with important questions that are first questions of impression.  MOPERM has filed its notice to appeal this decision making it a near certainty that we have not heard the last word.  The Court’s Opinion, also appears to be written with more than the usual prospect for appellate review.

MOPERM noted the potential impact of this case in a communication of its Audit and Related Matters, dated December 3, 2020, which was updated after the March 16, 2021 opinion by the Western District to reflect the potential impact of this case:

“As of the date of this report, no court has determined any factual issue pertaining to the allegations of bad faith against MOPERM. T he courts have only addressed MOPERM’s sovereign immunity to this claim. MOPERM’s attorneys have raised substantive defenses to the allegations of bad faith, particularly that the appellate court’s opinion for the first time holds an agency of the state formed by the General Assembly and performing traditional government functions to not be protected by sovereign immunity for its actions. MOPERM and its attorneys are relatively confident of a successful outcome in this case.  The appellate court’s decision, if it stands as is, has significant negative precedential impact beyond the amount in question in this case.”  (My emphasis –  See page 30 of the Audit Report.)

Obviously, since the litigation is ongoing MOPERM is not commenting on the impact of this case, except in in a very general way, as shown in the Audit Report. Unanswered in my mind is whether or not MML should file an amicus brief?  Hard to know, without having discussions with representatives of MOPERM.

I am not optimistic that there will be a positive outcome to this case for MOPERM. I think that it will be very difficult to overcome the obvious facts in this case, which is that there was no common law analogue to any local government ever providing liability insurance prior to 1977.

Battle Over Bail Lawsuit Continues

3234281203_54fca4a962In Dixon v. City of St Louis, the federal district court recently entered an Order denying a motion for judgment on the pleadings filed by the defendants, City of St. Louis (City) and Judges, in the U. S. District Court for the Eastern District of Missouri, (Judges) to dismiss a lawsuit challenging the bail practices of the City and the Judges.  This case seems to have a lot of staying power having survived a trip to the 8th Circuit, which vacated a preliminary injunction issued by the district court and remanded to the district court “to consider whether an injunction served the public interest in comity between the state and federal judiciaries, particularly in light of the new guidance in revised Missouri Rule 33.01.”

In reviewing the opinion of the 8th Circuit opinion it is clear, based on the large number of parties filing suggestion that this case has drawn a very large national audience based on plaintiff’s underlying theory of wealth-based detention bail system:

“This suit from its inception has challenged the alleged lack of individualized analysis of each detainee’s relevant circumstances and any resulting necessity for cash bail.  The absence of those individualized determinations means cash bail often was required though unnecessary. The requested remedies did not include the absolute abolition of cash bail.  Instead, the Plaintiffs sought a declaratory judgment and injunctive relief based on the claim that “wealth-based detention that keeps them in jail because they cannot afford to pay a secured financial condition of release” is unconstitutional until it includes “an inquiry into or findings concerning ability to pay,” a “consideration of non-financial alternatives,” and the making of “findings that a particular release condition, or pretrial detention, is necessary to meet a compelling government interest.””

When the 8th Circuit remanded the case for further action it stated:

“The Missouri Supreme Court, by initiating an update to the rules pertaining to cash bail, was presumably using its superintendence powers to signal to the lower state courts that the status quo was unacceptable. The Defendants took the hint, “fully accept[ing] [before the district court] the propriety of compliance with the … new Missouri Rule of Criminal Procedure 33.01, to take effect in two weeks.”

“Here the district court resorted to the “extraordinary remedy” of a preliminary injunction without giving adequate consideration to the new rules and their implementation.  By doing so, it interjected the power of the federal government into the Missouri Supreme Court’s attempt to police its own lower courts, without contemplating what this would mean for federal-state relations. This failure constitutes an abuse of the district court’s discretion.”

 Dixon v. City of St Louis, (4:19-CV-0112-AGF, 2/17/21)

Comment Howard: The district court did not take the hint.  When the case was remanded it reasoned that there were factual issues to be resolved and that judgment on the pleadings did not allow the district court to determine the facts at this time.  There was no suggestion by the district court in its Order that newly adopted Rule 33.01 was insufficient.  The case now hinges on the theory, adopted by the district court, that somehow the defendants would apply the Rule improperly despite their denials to the contrary, in essence making this an “as applied” challenge. Seems to me that Rule 33.01 is mandatory, not allowing the lower courts the discretion to apply it any other way then as written and if they don’t the Missouri Supreme Court has the power to resolve the matter.

In addition, it seems to me that the district court failed to seriously consider in its Order what the continuation of the lawsuit would mean for federal-state relations.  Once again, the failure of the district court to apply rules of comity was an abuse of the district court’s discretion.  Of course, plaintiff’s in this lawsuit are looking to break new ground. This is not the case to do that.

Mandamus Is Correct Remedy To Compel The Missouri Commission On Human Right To Act

Facts and Procedure: Appellant worked for CenturyTel for about thirty-six years.  CenturyTel suspended Appellant without pay for misuse of company property.  Appellant elected to retire.  Appellant then filed a discrimination complaint against CenturyTel and Wilmes with the Missouri Commission on Human Right (MCHR.)  Appellant requested the MCHR provide her with right-to-sue letters against CenturyTel and Wilmes.  Appellant alleged she was discriminated against at work based on her age, gender, and sexual orientation, and she was subjected to a hostile work environment because Wilmes harassed and intimidated her.  The MCHR issued Appellant a right-to-sue letter for her claims against CenturyTel but declined to issue her a right-to-sue letter for her claims against Wilmes. The MCHR argued it had no jurisdiction over Appellant’s allegations against Wilmes because the MHRA’s definition of “employer” was amended in 2017 to exclude individual employees.

Appellant filed a petition for judicial review alleging Wilmes’s conduct was a continuing violation that began before the 2017 amendment to the MHRA and the MCHR erred by applying the amended definition of “employer” retroactively.  Respondents moved to dismiss, arguing Appellant failed to state a claim upon which relief could be granted because the MCHR had no jurisdiction to issue a right-to-sue letter against Wilmes.  The trial court granted Respondents’ motion to dismiss, finding the MCHR properly applied the MHRA in deciding not to issue Appellant a right-to-sue letter for her claim against Wilmes.  Appellant appealed to the Eastern District.

Analysis: A petition to review an administrative decision, which alleges that the MCHR failed to issue a right to sue, as required by law, is insufficient to compel the MCHR to act.  Section 536.150 requires judicial challenges to administrative proceedings to be filed as a “suit for injunction, certiorari, mandamus, prohibition or other appropriate action . . ..”  Appellant argued to the trial court “other appropriate action” includes ordinary civil petitions.

The Eastern District noted that the Missouri Supreme Court has held mandamus is the correct mechanism for courts to compel the MCHR to act; therefore; the trial court did no err in dismissing Appellant’s action, although it was for the wrong reason.  The trial court should have dismissed Appellant’s petition for judicial review because Appellant failed to comply with Section 536.150 and was “made aware of the failure to follow Rule 94,” which informs the mandamus petitioner of requirements to file a mandamus action. that Appellant steadfastly refused to bring an action in mandamus despite being warned. Vinson v. Missouri Commission on Human Rights, (ED109171, 04/27/21)

Crestwood Required To Pay Afton Fire Protection District An Amount Equal To What The District Would Have Levied On The Taxable Property Within The Annexed Area Had Annexation Not Occurred

101192074The General Assembly adopted a law that applied only in St. Louis County governing fire protection services in certain annexed property.  Specifically, the law provides that the district must continue to provide fire protection services and emergency medical services to the annexed area but no longer can levy taxes on property in the annexed area, except for bonded indebtedness that existed before the annexation. Instead, the district taxes property within its territorial limits that lies outside the annexed area, and that tax rate determines the amount of the fee Crestwood pays to the district.  Crestwood must pay to the district an amount equal to what the district would have levied on the taxable property within the annexed area had annexation not occurred.  In other words, following Crestwood’s annexation of the previously unincorporated area, Crestwood now pays to the district what the district would have collected in tax revenue within the annexed area.

The City of Crestwood filed an action against the Afton Fire Protection District alleging that the law was a special law, an unauthorized tax and an unfunded mandate. The trial court granted judgment on the pleadings in the defendants’ favor and Crestwood appealed to the Missouri Supreme Court.


Special Law – While this case was pending, the Missouri Supreme Court changed the test to determine if a law is a special law.  Under the new test, established in City of Aurora, “…a law is special only if it does not apply equally to all members of a given class and its disparate treatment of class members has no rational basis.”  “Under rational basis review, the Court will uphold a statute if it finds a reasonably conceivable state of facts that provide a rational basis for the classifications.”  To determine if there is a rational basis the Court asks only whether there is “a plausible reason” for the classification created by the statute.

“Here, a plausible reason for limiting the application of Section 72.418 to St. Louis County is the unique risk of annexation that exists in St. Louis County, which in turn presents a unique risk to the economic viability of fire protection districts levying taxes in areas subject to annexation.  St. Louis County is the most populous county in Missouri, and the plaintiffs themselves acknowledge St. Louis County has “approximately 90 cities, towns, and villages.”  The greater the number of cities, the greater likelihood annexation may occur.  This is particularly true given the large, unincorporated but urbanized area within St. Louis County.  Indeed, this Court has recognized that St. Louis County is unique because it “has a large population, lacks a central city, has 90 separate municipalities within its borders, and has a large, unincorporated area.”

The challenged classification scheme “insulates the fire protection district from a loss in tax revenue resulting from annexation.”  This is a rational basis for the challenged classification.

In short, the economic viability of fire protection districts in St. Louis County is a plausible reason for the challenged classification in Section 72.418.2.  Likewise, there is a plausible reason for the interrelated exclusion in Section 321.322.3, without the exclusion, Section 72.418.2 would not apply to fire protection districts in St. Louis County and those fire protection districts would not be guaranteed the same revenue they would have collected in the previously unincorporated areas.

Was the Charge a Tax – Crestwood argued that the charge was in effect a tax.  Citizens of Crestwood were deprived of these revenues, which could have been used for services in Crestwood.  The Court rejected this argument noting that the City paid the charge, not taxpayers.  Crestwood further argued citizens in the newly annexed area might have their taxes increased by the fire protection district. The Court rejoined this argument by noting that taxes could not be increased under the Hancock Amendment without a vote of the taxpayers in the fire protection district.

Unfunded Mandate – Crestwood argued the circuit court erred because section 72.418.2 created an unfunded mandate in violation of the Hancock Amendment, article X, sections 16 and 21 of the Missouri Constitution because the statute require Crestwood to undertake a new and increased level of activity “by financing the operations of the District in providing fire protection services in an adjacent political subdivision.” The Court rejected this argument by noting that Crestwood voluntarily annexed the area in the fire protection district; therefore, it was not an obligation imposed by the state.  City of Crestwood v. Affton Fire Protection District, (SC97653, 4/20/21 )

Comment Howard: Crestwood got the rug pulled out from this case when the Missouri Supreme Court changed the test to determine if a law constituted special legislation, while this case was pending.  The solution imposed by the statue was a common-sense solution.  The Court found that St Louis County was unique due to the number of municipalities.  Furthermore, protecting the tax base of fire protection districts from the impact of annexation by municipalities was rationale. Without this protection municipalities could simply gobble up areas within the fire protection district making the district no longer economically viable.

Comment Ragan: I guess I don’t really get it.  It seems to me this is exactly why there is a prohibition against special laws.  What’s really going on here is the creation of special legislation to protect a particular group of fire protection districts.  Maybe I’m wrong but it seems fundamentally anti-democratic because it denies the voters a choice to choose who provides them services or how they control the services provided.  One reason people choose to be annexed into a city is because they want the benefit of the services being provided by that city or they value the leadership in that community.  Oddly the state law provides that those annexed citizens will still receive services from that fire protection district.  Certainly the fire district shouldn’t be required to provide services without payment.  What if the annexed citizens feel it is in their best interest to no longer be apart of that fire district.

What Constitutes Race, Age And A Hostile Work Environment

In C. L. Clark v. AT&T Mobility Services, the Western District reversed the granting of a summary judgment by for AT&T by the trial court determining that there was sufficient evidence to support discrimination claims against AT&T for race, age and a hostile work environment.  This is a good case to review as to what constitutes race, age and a hostile work environment. Clark v. AT&T Mobility Services, (WD83821, 04/20/21)

Application of Private Street Requirements Upheld

The County cannot impose public street requirement on a private street if the plat designates that the streets are private.  County subdivision regulations do not require city standards for road construction on a private street.  Emerald Point vs. Taney County Planning Commission, (SD36725, 04/08/21)

Calculating Economic Losses in 8th Circuit Employment Cases

The Journal of the Missouri Bar has a great article on Guidance for Calculating Economic Losses in 8th Circuit Employment Cases that references guidance from 8th Circuit case law to each of the 8 elements to calculate lost earnings: pay, benefits, worklife, mitigation, raises, present value, interest, and taxes.  Seems like a great reference tool.  You may access the article by clicking here, https://news.mobar.org/guidance-calculating-economic-losses-8th-circuit-employment-cases/