July Newsletter (Issue 07-2021)

Decertification Of Religious Organizations Who Would Not Let Gay Persons In Their Organization Violated Free Speech Rights

In Inter Varsity Christian/USA v. University of Iowa, the 8th Circuit held that the University of Iowa, violated Plaintiff’s clearly established First Amendment rights by decertifying Plaintiff’s and other religious organizations student organizations who would not let an openly gay member seek a leadership post.

“The university had not allowed Christian, Muslim, and Sikh groups to appoint leaders based on their shared faith, selectively enforcing its policy requiring all clubs to offer equal opportunity and access regardless of classifications including race, religion, national origin, age, gender, sexual orientation, or gender identity.”

The primary issue in this matter was that other organizations while required to comply with the human rights policy were allowed to limit leadership roles in the group this included fraternities and sororities.  

A reasonable “nondiscrimination policy that is viewpoint neutral on its face may still be unconstitutional if not applied uniformly.” Alpha Delta Chi- Delta Chapter v. Reed, 648 F.3d 790, 803 (9th Cir. 2011). “The government must abstain from regulating speech when the specific motivating ideology or the opinion or the perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).

The 8th Circuit issued a stern warning in denying qualified immunity that: “…university officials who ‘make calculated choices about enacting or enforcing [such] unconstitutional policies should be on notice that they are not entitled to qualified immunity but instead will be held personally accountable for their actions.” Inter Varsity Christian/USA v. University of Iowa, (8th Circuit 19-3389, 7/16/21)

Comment Howard: I thought the warning by the 8th Circuit that university officials who make calculated choices in enforcing unconstitutional policies could face individual liability was a welcome approach to dealing with issues

Ordinance Prohibiting Blocking Of Traffic Regulated Conduct Not Speech

Facts and Procedure: Lansford v. City of St. Louis, involved a constitutional challenge to a traffic ordinance of St. Louis.  Jessica Langford attended an event called the Women’s March in January 2017.  After Langford marched to a rallying point and observed the event, she joined a number of people returning the same way they had come by walking in the street.  Police officers told the marchers to move to the sidewalk, but Langford refused.  An officer arrested her for violating §17.16.275, which prohibits obstructing traffic (Ordinance).

After the charge against Langford was dismissed, she sued the City of St. Louis (City) under 42 U.S.C. § 1983, challenging the constitutionality of the Ordinance under the First and Fourteenth Amendments. The district court granted Langford’s motion for partial summary judgment, concluding that the Ordinance was an unconstitutional restriction on speech, was void for vagueness, and was unconstitutionally as applied to Langford. The City appealed to the 8th Circuit

Analysis: Ordinance Prohibits Conduct Not Speech

Based on the text of the Ordinance the Court concluded that the Ordinance is primarily addressed towards conduct and not speech.  The Ordinance forbids a person to “position” herself “in such a manner as to obstruct . . . the reasonable movement of vehicular or pedestrian traffic.”  The text of the Ordinance was not “specifically addressed to speech or to conduct necessarily associated with speech.”  In fact, it says nothing about speech.  The Court concluded that the Ordinance furthered the City’s legitimate interest in “ensuring the free and orderly flow of traffic on streets and sidewalks.”  Langford had not shown, based on the text and application of the Ordinance, that substantial overbreadth exists.

Burden on Speech – Overbreadth and Vagueness 

Langford, also argued that the Ordinance placed an incidental burden on speech that is greater than necessary to satisfy the City’s substantial interest in regulating traffic; however, an ordinance need not exempt those who wish to engage in expressive activity on public thoroughfares when its purpose is the prohibit the blocking of traffic. Prohibiting a person to “position” herself “in such a manner as to obstruct . . . the reasonable movement of vehicular or pedestrian traffic” relates to conduct not speech; therefore, the ordinance is not overly broad.  The Court concluded that the Ordinance provided fair notice as to what conduct is deemed likely to cause a traffic problem and that it was not unconstitutionally vague.

Mens Rea

The trial court found that the Ordinance failed to provide fair notice because it did not contain a mens rea requirement.  The Court noted, that under Missouri law a court will impute a mental state of “purposely or knowingly” when a municipal ordinance fails to prescribe a culpable mental state.  The City prosecutor assured the Court that it interpreted the Ordinance to require mental culpability, not subject to change at the prosecutor’s whim.

Based on the analysis of the text the 8th Circuit concluded that ordinance is not an overbroad regulation of speech or void for vagueness and was not unconstitutional on its face.

As Applied

The trial court ruled that the Ordinance, as applied to Langford, was unconstitutional because she was not blocking or obstructing traffic since there was no traffic.  The police were clearing the street prior to it being opened up to traffic after the march for women.  All of the marchers, except for Langford, had left the street after being ordered by the police to clear the street.  Her argument failed because it conflated??  “the lawfulness of her arrest with the constitutionality of the ordinance.”

“If the police lacked probable cause to believe that Langford violated the ordinance, then she might establish a violation of the Fourth Amendment’s prohibition on unreasonable seizures. But an improper arrest would not demonstrate that the ordinance violates the First Amendment or the Due Process Clause.”

 Langford v. City of St. Louis, (8th Cir., No. 20-1488, 07/06/21)

Comment Howard: This is a great victory for local government. The opinion did not focus on the fact that the Ordinance had an exception for protests by labor unions. This could be a problem, so I would exclude any exceptions in order to avoid free speech claims.  When you make an exception, invariable you raise speech consideration.

Long COVID Disability Under the Americans with Disabilities Act

Long COVID, where people experience symptoms long after clearing the actual virus from their system can rise to a disability under the Americans with Disabilities Act.  This could require accommodations in the workplace; therefore, you may want to consider your policies with respect to disabilities and any application to make accommodations. This action by the federal government is discussed in Politico.

New Legislation Affecting Local Government

SB 2626, which becomes law August 28,2021 has a number of very important provisions pertaining to local government.  Some of the key provisions of interest to local government in SB 2626 are:


Under current law, the governing body of each political subdivision may revise, alter, increase, or decrease items in a proposed budget. This Act limits that right by prohibiting a political subdivision from decreasing the budget for its law enforcement agency, by an amount more than 12%, relative to the proposed budgets of other departments of the political subdivision over a five-year aggregate amount. Taxpayer are given a private right to enforce this provision by injunction.

  • BATTERY-CHARGED FENCES (Section 67.301)

This act provides that no city, county, town, village, or political subdivision may adopt or enforce an ordinance, order, or regulation that requires a permit for the installation or use of a battery-charged fence in addition to an alarm system permit issued by such city, county, town, village, or political subdivision.  Additionally, such political subdivisions shall not adopt an ordinance or order that imposes installation requirements for such fences or alarm systems or prohibit the use of a battery-charged fence.


No political subdivision shall enact any ordinance that regulates the physical security measures around private property, except that a political subdivision may regulate the aesthetics of physical security measures, access to public right-of-way, structural soundness of physical security measures, or changes to the drainage of a property.

  • VANDALISM (Section 574.085)

Under current law, a person commits the offense of institutional vandalism if he or she knowingly vandalizes certain structures. This act provides that a person shall be guilty of a Class E felony if he or she knowing vandalizes any public monument or structure on public property.


Employers shall defend and indemnify law enforcement officers against civil claims made against an officer while the officer was acting within his or her duties as a law enforcement officer.  If any criminal convictions arise out of the same conduct, the employer is no longer obligated to defend the officer in the civil claim.  Law enforcement officers shall not be disciplined or dismissed as a result of the assertion of their constitutional rights in any judicial proceeding, unless the officer admits to wrong-doing.

  • POLICE USE OF FORCE DATABASE (Section 590.1265)

Each law enforcement agency shall, at least annually, collect and report local data on use-of-force incidents involving peace officers to the National Use of Force Data Collection through the Law Enforcement Enterprise Portal administered by the Federal Bureau of Investigation (FBI).

  • EXPUNGEMENT (Section 610.140)

Under current law, any rights that were restricted as a collateral consequence of a person’s criminal record shall be restored upon issuance of the order of expungement.  This act adds that if a person was convicted of a federal misdemeanor crime of domestic violence, an order of expungement granted under this act shall be considered a complete removal of all effects of the expunged conviction.

For your convenience click here for a summary of the bill. Click here for the full text of the bill


Budgets: One key provision of SB 2626 relates to protecting the budgets of law-enforcement from defunding of the police by political subdivisions.  Political subdivisions are prohibited from decreasing the budget for the police department by more than 12% relative to the budget of other departments over a five-year aggregate.  Enforcement of this provision is given to taxpayers who may file for an injunction if the defunding limitation is violated.  The bill becomes effective on August 28, 2021, making it necessary to factor this into the upcoming budget cycle, which is upon many local governments. You should immediately notify the budget for the local government agency, administrators, and council members.  I would consider having the chief financial officer certify with the budget submission that the budget as submitted meets the criteria in S6 626, although since this is a rolling average over 5 years initially creating ambiguity.  I suggest considering that each year the chief financial officer provide the over or under relationship in terms of dollars in the budget document.

Police Officer Bill of Rights: It seems that local government got the worst of both sides of the debate between protecting police officers and citizens clamoring for police reform.  Based on my experience in handling police officer disciplinary matters and my review of the Police Officers Bill of Rights, is that this will make it extremely difficult to discipline police officers.  It seems like the bill was written by police officers for police officers, without considering the practical effect of how this process works.  Of course, police officers feel they are under attack by the public or interest groups, which the legislation reflects.

Constitutional home rule cities and counties may not be impacted like statutory cities or counties since Article 6 Section 22 of the Missouri Constitution prohibits the legislature from creating or “…fixing the powers or duties…,” for any office or employment of a home rule city.  Most of the provisions of this law would seem to simply establish rights of police officers and procedures to be followed in disciplining officers.  Other provisions, like requiring the employer to defend and indemnify the police officers from civil rights claims seem questionable.  Also, the police officers bill of rights would not seem to be have any impact on civil rights litigation since the Civil Rights Act would seem to control, although the defend and indemnify may impact police officers and legal strategy.  No doubt, these questions will be tested in court to determine their impact on the police officers Bill of Rights. 

In any event, it will be necessary to develop new procedures to replace old ones. This is the first order of business.

Comment Howard: It will be necessary to amend building codes; provisions relating to disciplining of police officers; and your budget process.  The roll out of the new law is going to be very messy and will, in my opinion, lead to further deterioration of local government with the public when the government cannot respond adequately to police officer misconduct. Consider, local government officials cannot investigate a police officer when the officer has been subject to civil rights claim unless the officer has been criminally convicted.  Local government agencies will need lots of help in responding to this law, particularly smaller units.  Lots of homework for local governmental officials between now and August 28,2021.

Missouri Supreme Court Unanimously Upholds Medicaid Expansion

The decision by the Missouri Supreme Court, upholding Medicaid expansion, is more than of general interest to local government attorney’s because cases relied on by the Supreme Court in interpreting Article IV, Section 3(c), pertaining to initiatives, and local government initiatives fall under this provision of the Missouri Constitution. The Court’s interpretation of this provision provides a road map for local government attorney’s when applying Article IV, Section 3(c), to local initiatives.

Two major issues were decisive in this case.  First, there was the question of whether or not the initiative mandated the legislature to appropriate funds for Medicaid expansion.  Second, there was the question of whether or not funds that were already appropriated by the legislature in 2021 could be used be used to pay for the expansion approved by the voters.

 Did the initiative mandate that the legislature appropriate funds for Medicaid expansion?

In August 2020, the Missouri voters approved a citizen ballot initiative that amended the Missouri Constitution to change MO HealthNet coverage.  MO HealthNet, known in Missouri as Medicaid, provided health care benefits to only certain categories of low-income Missourians.  The initiative, now Article IV, Section 36(c) of the Missouri Constitution, referred to as “Medicaid Expansion” increases MO HealthNet eligibility from what had previously been permitted under Missouri law.  Article IV, Section 36(c) defines a new category of eligible Missourians for MO HealthNet coverage and services: adults ages 19 to 64 whose income is at or below 138% of the federal poverty level.  It is estimated this new category could include more than 275,000 Missourians.  Article IV, Section 36(c) provides this new category of eligible Missourians “shall be eligible for medical assistance under MO HealthNet and shall receive coverage for the health benefits service package.”

Article III, Section 51 of the Missouri Constitution provides, “The initiative shall not be used for the appropriation of money other than of new revenues created and provided for thereby, or for any other purpose prohibited by this constitution.”  This is one of the central questions that the Court addressed.

Blacks Law Dictionary defines an “appropriation” as: “[a] legislative body’s . . . act of setting aside a sum of money for a specific purpose.”

 “By its plain language, Article III, Section 51 prohibits only initiatives that are used for “the appropriation of money.”  And, the plain language of Article IV, Section 23 makes clear an appropriation is the authority to expend and disburse a specific amount of money for a specified purpose.  Therefore, what Article III, Section 51 prohibits is an initiative that authorizes the expenditure and disbursement of a specified amount for a specified purpose without providing new revenue.  This includes an initiative that deprives the General Assembly of discretion and requires it to appropriate money for the initiative’s purposes.”

The Court then examines the ballot proposal and case law (as noted, exclusively cases involving local government).  These cases have been limited to initiatives where the effect of the proposal was to impose a new obligation, leaving no discretion as to whether the local governments would or could pay this new obligation and no new source of revenue in the ballot sufficient to fund the obligation.

Did the initiative mandate the appropriation of money?

Again, local government case laws provide the framework for answering this question.  For example, a local initiative petition that proposed an ordinance creating a fireman’s pension plan that required the city council to appropriate the amount asked for by the trustees administering the pension plan violated Article III, Section 51.  Similarly, an initiative that would have required that the salaries of members and employees of the University City Fire Department be paid not be less than salaries received by members and employees of the Fire Department of the City of St. Louis left the city no discretion in the matter of fire department salaries thereby violating Article III Section 51.

The Court then examined the Medicaid Expansion ballot concluding that the plain text did not mandate or require an appropriation; therefore, the initiative did not violate Article III, Section 51 of the Missouri Constitution.  In this case, the initiative simply costs money to implement but does require the appropriation of funds.  The Court concludes that the General Assembly maintained its discretion in appropriating funds to implement that initiative.

Can funds already appropriated by the legislature be used for Medicaid Expansion?

The answer is yes. Article IV, Section 36(c) of the Missouri Constitution, increased MO HealthNet eligibility from what had previously been permitted under Missouri law. The substantive law defines the scope of MO HealthNet and, among other things, sets the eligibility criteria for participants and providers.  Eligibility for MO HealthNet was previously a matter of statute but, now, that substantive law includes Article IV, Section 36(c).

Under this provision Department of Social services (DSS) was required to “submit all state plan amendments necessary to implement this section to the United States Expansion Department of Health and Human Services, Centers for Medicare and Medicaid Services” by March 1, 2021, and to “take all actions necessary to maximize federal financial participation in funding medical assistance pursuant to this section.”

After the passage of Medicaid, DSS submitted a state plan amendment to the federal government to comply with the requirements of Article IV, Section 36(c), anticipating the General Assembly would appropriate sufficient monies to fund Medicaid expansion. T he General Assembly, then considered and rejected several recommendations for separate line-item funding for Medicaid expansion and, in the end, it appropriated money for MO HealthNet that did not reference Article IV, Section 36(c).  As a result, DSS withdrew its proposed state plan amendment.

Plaintiff’s alleged they were now eligible for MO HealthNet coverage and services under Article IV, Section 36(c) and that DSS is in violation of that provision by not providing them coverage and by failing to maximize federal funding for Medicaid.  The Plaintiffs sought (1) a declaratory judgment stating DSS’ decision to refuse to extend benefits violated Article IV, Section 36(c); and (2) an injunction requiring DSS and MO HealthNet to take the steps necessary to implement Article IV, Section 36(c), which included re-filing the state plan amendment.

The argument by DSS that the legislature did not appropriate funds for Medicaid Expansion failed because there was nothing in the appropriations bill that limited the use of funds appropriated for MO HealthNet coverage and services. The Court refused to imply a limitation.  Doyle v. Tidball,  (SC99185, 07/22/21) 

Comment Howard: The lawyering in this case by Plaintiff’s attorney Chuck Hatfield, was exceptional. Local government cases cited by the Supreme Court in holding that Medicaid Expansion did not violate the no mandate funding provision in Article III, Section 51 provides local government lawyers an outline on how to answer similar questions in the context of local government initiatives.  Also, the analysis of what constitutes an appropriation is very useful in resolving similar budgetary questions.  The idea that the constitutional amendment was incorporated into the statute is novel (at least to me) and very interesting.  Seems to me that this expands the opportunity to use initiatives by making it hard for the legislature to change the law. 

Fire Protection Districts Annexation Law That Applied Only In A Designated Area Of St. Louis County That Also Excluded Designated Cities Within The Designated Area Was A Special Law

Facts and Procedure: The legislature in 2018 passed “HB 1446” (Bill). The title to the Bill reads: “To repeal Section 115.124, RSMo, and to enact in lieu thereof one new section relating to elections.” [Emphasis added.]

The Bill provided an exception to the ordinary consequences of a city annexing land that was part of a fire protection district.  This new law, however, applied only in a carefully designated area in St. Louis County that also excluded cities within the designated area.  The new law required the Fire Protection District would continue to provide services and levy and collect taxes in any area it served even after that area is annexed by a municipality unless a majority of governing bodies of the municipality and the district or a majority of the voters of the municipality and the district approve otherwise.

The City of De Soto (“De Soto”) and James Acres, a resident of De Soto, (collectively, “the Plaintiffs”) filed suit against the governor and the attorney general seeking a declaratory judgment that Section 321.320 is an unconstitutional special law that violated the single-subject provision of the Missouri Constitution. The State and the Plaintiff’s filed motions for summary judgment.  The trial court sustained the States motion and Plaintiffs appealed to the Missouri Supreme Court.

Analysis:The title to the final version of HB 1446 read: “AN ACT to repeal sections 115.124, 115.157, and 321.320, RSMo, and to enact in lieu thereof four new sections relating to elections, with an emergency clause for a certain section.” [Emphasis added.]

Plaintiffs claimed that subsections 2 and 3 of section 321.320 applied only to De Soto and, therefore, that statute violated the prohibition against multiple subjects in article III, section 23, which provides that “[n]o bill shall contain more than one subject which shall be clearly expressed in its title[.]” This Court noted that this provision plays an important role in focusing legislative debate, providing adequate notice and preventing surprise to legislators or the public, and deterring the use of “logrolling,” i.e., the practice of combining in a single bill multiple unrelated provisions that could not muster a majority individually but which can do so collectively.

“When determining the subject, this Court will first look at the title of the bill, and [t]o the extent that the bill’s original purpose is properly expressed in the title to the bill, [the Court] need not look beyond the title to determine the bill’s subject. In determining whether this standard is met, this Court will look only at the bill as finally enacted.”

The Court relying on the test established in Hammerschmidt v. Boone Cnty. concluded that the Bill related to annexations and not elections as stated in the title of the Bill; therefore, the Bill was a special law.  The Court further concluded that it could not sever the invalid provision of the bill from other provisions; therefore, the entire Bill was struck.  City of De Soto v. Parson, (SC98891, 07/22/21).

Comment Howard:  When reviewing this case, I am reminded of the Original Sin.  No, I am not thinking of Adam and Eve in the garden of Eden.  I am thinking of Article VI, Section 15 of the Missouri Constitution and how the deviation from this provision created what seems like an endless battle over special legislation.  Article VI, Section 15 provides:

“The general assembly shall provide by general laws for the organization and classification of cities and towns. The number of such classes shall not exceed four; and the powers of each class shall be defined by general laws so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. The general assembly shall also make provisions, by general law, whereby any city, town or village, existing by virtue of any special or local law, may elect to become subject to, and be governed by, the general laws relating to such corporations.”

As I understand it, once upon a time the General Assembly passed generic legislation, which the Courts found acceptable. (the Original Sin). Everyone liked it because it was a win/win since communities could get their legislative problem solved without messing with other communities.  Lobbyist loved it since it created more business.  Members of the legislature loved it because they could write laws without having to mess with concerns by other local government units and they could be problem solvers for communities.  Reminds me of the Original Sin in the Garden of Eden.  The above section of the Missouri Constitution faded into oblivion and changed the dynamics of legislating for local government forever.  I think the policy envisioned by the drafters of the above section made sense. But, it will never be changed. 

Search Warrant Was Constitutional Because It Described the Robberies, The Modus Operandi In Detail And Probability That The Records Would Identify The Robber

Over the course of several months, Martavis James robbed or attempted to rob multiple stores around the Twin Cities.  After law enforcement identified him by searching cellular-tower records, which showed that his cell phone was at or near at least four of the robberies, he challenged the constitutionality of the search warrant for cell tower records.  The motion to suppress search was quashed.  The search was constitutional because the affidavit supporting the warrant application described the robberies in detail and explained that a search of the data would have a high probability of identifying the robber.  The affidavits accompanying the applications described the robberies in detail, including the overlapping facts that led investigators to believe that a single individual committed all of them.  Prominently mentioned was the “nearly identical” modus operandi.  U. S. v. James, (8th Cir., No. 19-3789, 07/09/21)

No Qualified Immunity For Officer Who Immediately Shot Man When He Opened the Door

The Eighth Circuit denied qualified immunity for police officer for use of excessive force claim because the officers belief that he was about to be attacked was unreasonable as the officer shot the man immediately when the door was opened.  Banks v. Hawkins  

Eighth Circuit Denied A Police Officer Qualified Immunity Because Of The prolonged Use Of A Taser Even Though The Driver Did Not Resist, Flee Or Threaten The Officer, And Then Dropped Him Face Down On The Concrete

Seventeen year old Bryce Masters was driving a car that was stopped by Officer Runnels who stopped the vehicle because the license plate might have been associated with an individual with an outstanding warrant.  Upon stopping the vehicle Officer Runnels instructed Bryce Masters to exit the vehicle.  At no point did Officer Runnels request Masters insurance, driver’s license, or attempt to identify Masters.  Masters questioned why he was being ordered to exit the vehicle and why he was being detained.  A physical struggle ensued between Officer Runnels and Masters though at no point did Masters use physical violence towards Officer Runnels.  After being unable to remove Masters from the car Officer Runnels deployed his taser for 20 seconds.   Masters went into cardiac arrest due to the taser but was resuscitated by the medics at the scene.  Masters did not fully recover suffering hypoxia and anoxic brain injury as a result of his cardiac arrest.  A jury returned a verdict of 5 million verdict in compensatory damages and one million punitive damages.  Masters v. City of Independence, (8th Cir., No. 19-2242, 05/27/21)

Comment Howard: This case is tragic.  A young 17-year-old life is reduced to lifelong permanent care.  Why? Misuse of the taser.  There is a long-detailed explanation of how to use a taser, which is well worth the read. Consider making it required reading with testing over the details.  It seems that the officer violated a lot of the rules in his use of the taser, resulting in this tragic story.  Even though the 17-year-old was well within his rights in asking why he was being arrested, he should have simply obeyed the officers orders by voluntarily getting out of the car. Even the officers life was ruined since he ended up with a jail sentence for his actions.  All of this is so sad.

Under Title IX School Principal Must Have Actual Notice – No Liability When the Action Is An Intentional Tort

School principal did not have actual notice that the teacher had sexual abused the student; therefore, the principal and the school district did not have liability under Title IX.  In addition, the defendants were entitled to qualified immunity for actions arising from intentional tort by teacher.  KD v. Douglas County School District, (8th Cir., 20-1792, 03/18/21)

Official Immunity Protects Officers Who Failed To Adopt Policies Required By Statute Pertaining To Police Pursuit Of Vehicles

 Facts and Procedure: Lonnie Decker (“Mr. Decker”) filed a petition for wrongful death against Sergeant Dirk Helms (“Sergeant Helms”) and Chief Joe Edwards (“Chief Edwards”) of the De Soto Police Department and several other defendants following the death of Mr. Decker’s daughter, Lillian Flath (“Ms. Flath”).  Ms. Flath was a passenger in a vehicle who died during an automobile accident in the course of a police pursuit by separate defendant Officer David Krassinger (“Officer Krassinger”).

Sergeant Helms and Chief Edwards each filed separate motions to dismiss the claims, alleging the claims were barred by official immunity and the public duty doctrine.  The circuit court overruled both motions.  Sergeant Helms and Chief Edwards sought a writ of prohibition from the Missouri Supreme Court ordering the circuit court to dismiss Sergeant Helms and Chief Edwards from the lawsuit, which was granted.

Analysis: Doctrine of Official Immunity

The Court addressed the issue of official immunity.  Official immunity “protects public officials sued in their individual capacities from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts.”  There is a “narrow exception to the application of the official immunity doctrine.  This narrow exception comes into play “…when a public officer fails to perform a ministerial duty required of him by law.  Failure to perform a ministerial duty may result in the public official being personally liable for the damages caused.

Section 544.157.4 provides:

 “A public agency electing to institute vehicular pursuits shall adopt a policy for the safe conduct of vehicular pursuits by peace officers. Such policy shall meet the following minimum standards: (1) There shall be supervisory control of the pursuit[.]” § 544.157.4.

Mr. Decker petition alleged the absence of control of the pursuit, the absence of training in any capacity, and the absence of required policies.  Decker concedes Sergeant Helms and Chief Edwards may have had discretion in determining some aspects of these requirements.  However, Decker argued Sergeant Helms and Chief Edwards had no discretion to fail altogether in their duty to adopt some policy and conduct some training as required by Section 544.157.4.

The Court reasoned that Decker’s argument missed the mark because Section 544.157.4 places the “duty” to adopt vehicle pursuit policies on the “public agency electing to institute vehicular pursuits.”  Neither Sergeant Helms nor Chief Edwards, alone or combined, is a “public agency” as that term is used in Section 544.157.4.

More importantly, even assuming Section 544.157.4 imposes some duty on Sergeant Helms and Chief Edwards to adopt a vehicle pursuit policy, this is not sufficient to render the duty “ministerial” such that official immunity will not apply because official immunity will still apply if the official retains authority to decide when and how that act is to be done.

“Officials charged with the duty that statute imposes retain wide latitude to determine precisely what vehicle pursuit policy to adopt, when to adopt it, and when and how best to train peace officers under that policy.”

The above actions are the types of decisions the official immunity doctrine is meant to protect. The Court’s preliminary writ of prohibition is made permanent.  Helms v. Rathert, (SC98711, 06/15/21)

Comment Howard: It has been a long time since we had a case on official immunity. This is a good one. While no new law is created, this case now becomes the lead case on the doctrine of official immunity.  Book mark it.

Local Government Protected Under COVID Liability Bill

Last month the Newsletter noted that the General assembly adopted a COVID liability bill that becomes effective August 28, 2021.  This law applies to local government.  The term “employer” shall include a public entity.  You may review a summary of the bill by clicking here.  In addition, the full text of the bill  be reviewed here.  There has been very little litigation and with the passage of this bill the likelihood of litigation seems almost nonexistent. Just in case you have to talk someone down from filing you have the information here.

Supreme Court Finds House Bill 1446 (2018) Unconstitutional

From Chrissy Peters we received news about House Bill 1446.

 “The Supreme Court of Missouri has issued an opinion that House Bill 1446 (2018) is invalid and may not be enforced.

Specific to elections this does change 115.124 back to one thousand or fewer inhabitants to adopt a proposal concerning non-election. Also, in that section if you have an equal number of candidates to open positions AND a ballot measure – ONLY the ballot measure has to be placed on the ballot – in HB 1446, it changed the law in 2018 so that equal number of candidates also had to be on the ballot if there was a ballot measures for the political subdivision. This court ruling is now reversing that back to just the ballot measure has to be on the ballot if the number of candidates is equal.  https://www.jdsupra.com/legalnews/missouri-supreme-court-voids-2018-3802376/

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While the abortion and guns cases will very likely put the U.S. Supreme Court’s 2021-22 term in the history books, the 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, and Rick Simpson, Wiley, both counsel in cases 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.

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Supreme Court Preview for States 2021

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Blog Postings

Supreme Court to Decide Maine School Choice Case

SCOTUS to Decide Whether Disparate Impact Claims may be Brought Under the Rehabilitation Act

Supreme Court to Review Application of Hospital Medicare Drug Reimbursement Statute

SCOTUS to Decide if State Medicaid May Recover Future Medical Expense Settlements to Pay for Past Costs

SCOTUS to Decide Hospital Stay Medicare Reimbursement Case

SCOTUS to Rule on Emotional Distress Damages Case