August Newsletter (Issue 08-2021)

Mask Mandates And COVID Law

We have now moved into a time where there are even more questions about mandating masks.  Missouri has so far won on this issue but politics is constantly changing creating new issues.

If you need a deeper dive into the law of mask mandates Lawfare has a great article dated August 12. 2021 on: Why Carefully Designed Public Vaccination Mandates Can—and Should—Withstand Constitutional Challenge.  The article is well worth the read.

Missouri has taken steps to ban mask mandates by local government resulting in ongoing challenges in the courts to mask mandates.

Also, the recent approval of the Modena, Pfizer and J&J vaccines, by the FDA, removing the emergency status for these vaccine’s, has now led to a surge of a number of employers to require vaccines.  Although, there was never any serious questions by medical professionals about the safety of these vaccine’s the approval by the FDA and lifting the emergency status resulted in a surge of employers mandating vaccines.

In the July/August 2021 Journal of the Missouri Bar there is an excellent article about employment law and COVID by Janis Prewitt and Katlin Cundiff titled COVID-19: A Primer For Your Practice.  This is a very well written article and covers a lot of COVD-19 issues primarily related to employment law.

The Kansas City Star reported in its August 3, 2021 Edition that the St. Louis County mask mandate was blocked by St. Louis County Circuit court after the St. Louis County City Council voted 5 to 2 to repeal the mask mandate issued by Chief Executive Sam Page.  The Attorney General also vowed to take Jackson County to court after the Chief Executive issues a mask mandate for Jackson County.  In Jackson County the city council did not vote to repeal the mask mandate issued by the Chief Executive making the claim by the AG that he will block the mask mandate in Jackson County problematic.  Missouri Lawyers Weekly reported in its August 23,2021 Edition that a St. Louis Circuit judge blocked the enforcement of the mask mandate until a decision was made on the request to enjoin the mask mandate.

Other News:

  • The Dangers of Politics and Employment: Missouri Lawyers Weekly reported in its August 16,2021 Edition that a jury vindicated Sturgeon Police Chief by awarding him $300,000 in compensatory and punitive damages for violating his due process rights.  The police chief was targeted by a City Council member and then fired after the police chief reported to the Boone County Sheriffs Department an incident involving domestic violence and child neglect by one of its officers, that officer happened to a be a friend of a City Council member.  In addition it was alleged the City Council member also improperly removed the Sturgeon Police Chief’s personnel file from city offices and requested him to run an unlawful criminal background check on a political opponent.  The lawyer for the Sheriff commented that this case sent a powerful message to not interject politics into local law enforcement. .
  • Attorney Fees: 8th Circuit affirms district court attorney fee award over one million dollars against the State of Missouri in case involving non-compliance with Section 5 of the National Voter -2- Registration Act of 1993. See 52 U.S.C. §§ 20504, 20510(b).  Plaintiffs subsequently obtained a preliminary injunction requiring Missouri to send voter registration forms to thousands of Missouri citizens and to make certain changes to its voter registration procedures in time for the 2018 midterm elections.
  • HB 85, Which Declared That Federal Laws And Regulations That Regulate Guns Are Invalid Violates Supremacy Clause: HB 85, known as the Second Amendment Preservation Act adopted by the General Assembly declared that federal laws and regulations are invalid and was set to go into effect August 28, 2021. The Justice Department filed a Statement of Interest supporting an earlier suit brought by the City of St, Louis seeking to declare that the Missouri statute violated the Supremacy Clause of the United States Constitution. A hearing was held in Cole County Circuit Court on August 19, 2021. Even though HB 85 is invalid on its face and is laughable, if the law is allowed to go into effect it will create lots of confusion for law enforcement as noted in an NPR Article.  Eric Schmitt, Attorney General for the State of Missouri and candidate for the Senate Seat of Senator Blunt has declared he will defend this law all the way to the highest court, as he jesters by throwing fresh meat to his base. Update: Cole County Judge Green has denied an injunction against HB85 on August 27, 2021.  In his ruling the Judge stated that:   “(I)f plaintiffs have an adequate remedy at law, then the court cannot issue declaratory relief,” Green wrote in the ruling. “Plaintiffs directed this court to at least two pending cases filed against them under this statute, however, ‘[W]here [the] alternative remedy is a pending suit, there is even greater justification to apply the rule against allowing declaratory judgement actions.'”  Read more here.

Education Opportunities:

  • Free SLLC Seminars Galore: Lisa Soronen, Executive Director of State & Local Legal Center, reports that the SLLC is offering THREE Supreme Court webinar in early to mid-September that are free.  The first is the annual SLLC SCOTUS Preview covering a wide range of cases.
  • The second event is about two recent elections SCOTUS cases held in partnership with NCSL.
  • The final event is on SCOTUS administrative and environmental cases in partnership with the State Energy & Environmental Impact Center. Feel free to promote far and wide.
  • SLLC Supreme Court Preview 2021-22
    • The Supreme Court has agreed to hear numerous cases of interest to states and local governments. On the docket already are three First Amendment cases including a sign case, a board member censure case, and a school choice case; a Medicaid case; and an “unreasonable seizure pursuant to legal process” case. Join Sarah Harris, Williams & Connolly, merits counsel in a case involving the Rehabilitation Act, Rick Simpson, Wiley, SLLC amicus brief writer in another case involving the Rehabilitation Act, and Ken Jost, author of Supreme Court Yearbook and Jost on Justice, in a discussion of the most important cases the Supreme Court is planning to decide so far, this upcoming term for states and local governments.
    • Date and time:  September 15, 1-2:15PM Eastern time
  • Supreme Court Elections Cases
    • This webinar will provide a deep dive into two recently decided U.S. Supreme Court elections cases. In Brnovich v. Democratic National Committee, the Supreme Court upheld two Arizona voting requirements which the DNC argued had a disparate impact on non-white voters in violation of Section 2 of the Voting Rights Act. Importantly, the court applied a number of factors which will apply in future cases. Americans for Prosperity Foundation v. Bonta isn’t obviously an elections case. The court held California violated the First Amendment by requiring charitable organizations to disclose their major donors to the state attorney general. In dissent, Justice Sonia Sotomayor wrote the court’s decision “marks reporting and disclosure requirements with a bull’s-eye.” Discuss what these decisions mean for state legislatures with Jessica Ring Amunson, Jenner & Block, and Erin Murphy, Kirkland & Ellis. Susan Parnas Frederick, NCSL, will discuss proposed federal legislation related to voting rights.
    • Date and time:  September 9, 2PM Eastern time – Register here
    • This event is in partnership with NCSL.
  • Supreme Court and the States: A Focus on Administrative and Environmental Law in the Prior Term and Trends to Come
    • Much of modern administrative and environmental law rests on longstanding precedent out of the Supreme Court. States have long relied on these doctrines to protect their rights. Now with changes in both the presidency and the Court, much hangs in the balance. Join state Solicitors General on Monday, September 13 from 12:30pm – 1:45pm ET for a conversation about last term’s cases and the upcoming ones on the Court’s docket, and the potential impact that the cases could have on states.
      • Date and time:  September 13, 12:30PM Eastern time – Register here

8th Circuit Declares That Challenge To Law Protecting Private Property From Animal Rights Proponents May Proceed

 The Arkansas General Assembly passed Ark. Code Ann. § 16-118-113 making it possible for an employer to file a civil lawsuit against someone who enters a nonpublic area of a commercial property and then captures data, records images, or installs surveillance devices, among other acts, that cause harm to the employer.  The law mirrors similar “Ag-Gag” statutes passed in state legislatures across the country that seek to thwart efforts by employees, activists, and journalists to conduct undercover investigations at agricultural sites.  In 2019, four animal and human rights organizations challenged the constitutionality of the Arkansas Ag-Gag law, filing a federal lawsuit against Peco Foods and the operators of Prayer Creek Farms.

The federal district court held that the Plaintiff’s did not allege facts sufficient for standing because their claim was too speculative.  The 8th Circuit held that the Plaintiff’s had standing because they alleged an injury in fact; a causal relationship between the injury and the challenged conduct; and a favorable decision will likely redress the injury (all of the elements necessary to state a cause of action).  

The Plaintiff’s also stated that there was a case and controversy under Article III of the Constitution.  In this case, the lead animal rights organization hired an investigator who would collect facts.  Based upon past practices of Petco there was reason to believe that Petco would engage in similar practices at this site.  They alleged the investigation by Animal Legal Defense Fund would allow the Plaintiff’s to advocate against questionable practices which is an exercise of their first amendment rights.  The private cause of action against the animal rights organizations alleged a credible threat of enforcement that also chilled their constitutional rights.  The complaint was sufficient to establish a case or controversy under Article III.  Animal Legal Defense Fund v. Vaught, (8th Cir., 20-1538, 08/09/21)

Comment Howard: The August 23, 2021 Edition of Missouri Lawyers Weekly had a good article that noted there were a number of other Ag “Gag Laws” cases in the Midwest that have been recently been decided.  In the Arkansas case 

Ragan Comment: Our judicial system needs to address in the harshest means possible the continuing sin of our political system and that is the tragedy of laws being adopted that serve the special and or powerful interest groups but have no tangible welfare or health benefit to the community and maybe extremely detrimental to our society. Consider that under the Arkansas law if an employee at a private child care facility decided to make secret recordings at the child care facility because they were concerned about a child being sexually exploited that employee could be sued and held liable for damages that came from that disclosure to the public.  At what point do we take away immunity for lawmakers who through sheer gross incompetence create a law that would protect pedophiles because they want to protect powerful interest and deny private individuals the right to investigate potential abuses by private entities.  Comically they also attach at the end an exception to this law where it would not be a remedy for state agencies, higher education, or healthcare providers.  

8th Circuit Denies Request For Preliminary Injunction With Respect To Enforcement Of Policy To Control Disruptions At Festivals

Facts and Procedure: Street Fest is an annual event in downtown Davenport (City) that coincides with the annual Quad Cities “Bix 7” road race.  The race usually has 12,000–18,000 runners.  Street Fest is organized by the Downtown Development Partnership and has been an annual two-day festival in the City for over forty years.  It draws approximately 20,000 total attendees each year.

Outdoor events, such as Street Fest, are governed by the City’s Special Events Policy (the Policy), which provides requirements for event organization and management.  Events are required to have security on site, including Davenport Police Officers.  Events may have vendors and food stalls as long as all the vendors have the necessary permits.  In 2018, having received approval from the City, Street Fest was held from July 27–28 on public streets and sidewalks in downtown Davenport, covering Second Street between Ripley Street and Brady Street.  The streets were closed to vehicles.  The designated festival area was surrounded by six-foot-high temporary chain-link fence and had multiple entrance gates.  Tickets were not required for entrance, but festival security personnel monitored all entrance and exit areas.  The City required Street Fest to hire off-duty police officers to provide security at the event and on-duty officers were also present.  Vendor permits were issued with the express qualification that vendor presentations were subject to review, and, if necessary, exclusion, if vendors interfered with the safety and convenience of festival attendees or otherwise disrupted the festival’s objective of providing a wide variety of family activities.  Vendors were prohibited from playing music at their booths and had to obtain pre-approval to distribute literature or extend their activities beyond the confines of their assigned booths.

On July 28, 2018, Sessler, a resident of Iowa, and his colleagues attended Street Fest as members of the public. They did not have a vendor permit, nor had they applied for one.  Sessler and his colleagues had signs on extendable poles with messages such as: “Hell is enlarged for adulterers . . . homosexuals . . . abortionists. . . .”; “Fake Christians . . . don’t . . . smoke, vape, and get high . . . and think they’re saved”; and “Warning: if you are involved in . . . sex out of marriage, homosexuality, drunkenness, night clubbing . . . you are destined for a burning hell.” Sessler preached similar messages using a microphone and speaker.

Sessler’s group initially congregated at the corner of Second Street and Main Street, which was a location assigned to a fee-paying juggling and magic vendor.  After the police received complaints by citizens they moved Sessler’s group to another location.  This was repeated and after a while they were moved off site across the street from the main entrance.

After discussing the policy with the City, Sessler sued the City in federal district court in Iowa requesting that the court enjoin Defendants “from restricting and limiting his rights to peacefully share his message of faith by speaking with people, displaying signs, and/or distributing literature to those willing to receive it, in the public parks, public streets, public sidewalks, and public rights-of-way within the jurisdiction of the City.”

The district court found that Street Fest was a traditional public forum and that, although Sessler engaged in protected speech at Street Fest, the police officers’ decision to move Sessler to an adjacent location was likely a content-neutral limitation on the time, place, and manner of his speech.  In the Complaint, Sessler defines “Public Spaces” as “public parks, public streets, public sidewalks, and public rights-of-way within the jurisdiction of the City.”  The district court found the limitation would likely satisfy intermediate scrutiny and found Sessler unlikely to succeed on the merits of his claim.  Both parties appealed the decision.

Analysis: There is a high bar to issuing a preliminary injunction, particularly based on the facts in this case.  The facts as alleged by Sessler show that he was allowed to continue preaching in the City’s public sidewalks and streets, just not those demarcated and secured for use by Street Fest in July 2018.  And, although Sessler’s Complaint is based on his removal from a festival governed by the City’s Policy, Sessler does not provide any concrete plans to share his messages at future festivals in the City.  Although his statement that he intends to preach in “Public Spaces” could, in certain situations, include public property for which a private entity obtained a permit, it is too speculative as to whether any location on which Sessler preaches in the future would be subject to the City’s Special Events Policy.  This type of “[s]peculative harm does not support a preliminary injunction.”  Sessler v. City of Davenport, (8th Circuit 19-3310 3/18/2021)

Ministerial Duty

If you are looking for a case that finds a ministerial duty see Kemp v. Reynolds, (ED108982, 02/23/21) which involves the medical care responsibilities a school system has to its students..  In this case a 5-year-old student was diagnosed with tricuspid atresia, a heart condition which left her dependent upon a tracheostomy.  As a result, Cameron relied on a tube inserted into her neck in order to breathe.  Cameron’s tracheostomy required a daily regimen of regular care, to include: (1) saline administration to her tracheostomy to prevent the site from drying out; (2) routine suction and cleaning of the site to prevent secretions from obstructing her airway; and (3) an immediate replacement of an obstructed trach.  This routine care necessitated that Cameron always keep a bag (airway bag) with her containing a suctioning device, a spare trach, and saline.  Cameron also utilized a Passy Muir Speaking Valve for limited periods of time to enable her to eat soft foods and engage in minimal verbal communication.  How to treat her medically was memorialized in Cameron’s IEP on a form denominated “Physician Orders for School Based Individualized/Private Duty Nursing Services Plan of Care,” to enable her to safely attend school, and required specific steps to be taken and medical training for the school officials.  When these steps were not followed the student collapsed leading to her death.  Suit was filed and the Eastern District found that the IEP directions created a ministerial duty. Kemp v. Reynolds, (ED108982, 02/23/21).