May Newsletter (Issue 05-2021)

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

Introduction: This spring there was a deluge of very important cases affecting local government law.  First, there was the invalidation of a $3 surcharge to be used for the retirement of elected sheriff’s and their spouses and on the same day a huge victory in a labor case invalidating state legislation, which put stringent restrictions on the ability of local government to engage in collective-bargaining.  In addition, there were other important Missouri cases as well as the United States Supreme Court winding up its 2020/2021 session.

Three Dollars Surcharge On Municipal Court Cases Violated The Open Court Provision Of The Missouri Constitution:

judge_gavel_312468Facts and Procedure – In 1997 the General Assembly amended an existing law to provide for a $3 surcharge for the violation of traffic laws of the state, including infractions to be collected by municipal court clerks to pay for benefits related to retired elected County sheriffs and their spouses.  After paying the surcharge, Fowler and Keller (Plaintiff’s) brought an action alleging that the $3 surcharge violated Article I, Section 14 of the Missouri Constitution because the surcharge “did not reasonably relate to the administration of justice.”  The Missouri Sheriffs’ Retirement System (Retirement System) raised a number of procedural issues, which the Court had to dispose of before reaching the constitutionality of the statute in this case. After a bench trial the trial court granted judgment for the Retirement System and Plaintiff’s appealed to the Missouri Supreme Court.

Analysis: Threshold Arguments – First, the Court cleared the deck by holding that the Plaintiff’s had standing; that Plaintiff’s did not waive their constitutional claim by not raising it first in municipal court; that the municipal clerks did not have a pecuniary interest in the matter since the Retirement System was subject to an unjust enrichment claim; and that the Plaintiffs did not waive their claim for reimbursement by paying the surcharge

Open Courts – Article I, Section 14 of the Missouri Constitution provides “[t]hat the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.” The Court traced the origin of the “open courts” provision of the Missouri Constitution back to Magna Carta.  Earlier, Missouri Supreme Court precedent had established a bright line holding that court cost cannot be used to enhance compensation paid to public officials that are ”not reasonably related to the administration of justice,” without violating Article I, Section 14.  This earlier case controlled. Fowler v. Missouri Sheriffs Retirement System, (SC98412, 06/01/21)

Comment Howard: The opinion of the court was unanimous, extremely short and straightforward.  Special congratulations to those who participated in the effort to get this law tossed into the trash bin of history.

Comment Ragan:  It took a significant amount of effort to address this issue.  I know a major opponent of the matter was Frank Vatterott.  I appreciate the effort everyone made to correct this matter.  The court’s opinion leaves out some significant history behind this fee, including an advisory opinion by the Attorney General’s office.  You should check with your municipal court and make sure you are no longer collecting this fee or take immediate action to stop the collection.  I’m extremely thankful for the Supreme Court’s decision because it corrects an issue I found extremely troubling.  What happens next will be interesting?  In my view the Sheriff’s Retirement Fund should not be entitled to keep funds that were clearly unconstitutional to collect.  To allow them to keep the money will encourage this behavior in the future.

HB 1413 Violated The Collective Bargaining Provision, In Article I, Section 29 Of The Missouri Constitution And The Equal Protection Clause Of The Missouri Constitution:

HB 1413 was Unconstitutional because it violated the collective bargaining provision, in Article I, Section 29 of the Missouri Constitution and the equal protection clause of the Missouri Constitution.

Facts and Procedure: In 2018, the General Assembly passed HB 1413 creating two types of distinct regulations for public sector employee groups for collective bargaining purposes.  There were separate regulations for public safety labor organizations and another set of regulations that applied to other public labor organizations.  HB 1413 required labor organizations to adopt a constitution and bylaws and provide detailed reporting and annual filings; it also mandated that officers and employees of labor organizations file certain disclosures.  Public employees must annually authorize withholding labor organization dues and fees from their earnings.  Annual authorizations are also required from public employees for the labor organization to use dues for political contributions or expenditures.

The bill prevents supervisory employees from being included in the same bargaining unit as those they supervise and also disallows the same labor organization to represent both supervisory and non-supervisory employees.  In addition, HB 1413 transformed the manner in which a labor organization is selected and retained by requiring a labor organization to gain recognition only through an election conducted before the state board of mediation, for a fee, by secret ballot with more than 50 percent of all public employees within the bargaining unit voting positively to certify the labor organization.

The department of corrections of the state of Missouri was excluded from the requirements of HB 1413 as well as public safety organizations.  The revised provisions of Sections 105.500 to 105.598 “apply to all employees of a public body, all labor organizations, and all labor agreements between such a labor organization and a public body.” HB 1413 provisions, however, do not apply to “[p]ublic safety labor organizations and all employees of a public body who are members of a public safety labor organization” or to the department of corrections and its employees. The definition of a “public safety labor organization,” is a labor organization that “wholly or primarily represent[s] persons trained or authorized by law or rule to render emergency medical assistance or treatment . . . and persons who are vested with the power of arrest for criminal code violations.”

Labor unions, that were not public safety organizations, who were subject to all provisions of HB 1413 sued claiming that legislation violated their right to collective bargaining under Article I, Section 29 of the Missouri Constitution and the equal protection clause of the Missouri Constitution.  The trial court found for the Plaintiff’s and enjoined the enforcement of the Act, declaring that HB 1413 violated the above constitutional provisions.  Defendant’s appealed to the Missouri Supreme Court.

Analysis – The Missouri Supreme Court held by a 5 to 2 vote that the Act violated Article I, Section 29 of the Missouri Constitution by infringing on public employees’ right to bargain “through representatives of their own choosing,” and the Missouri Equal Protection Clause, by giving one class of employees preferences over other employee groups without a rational basis.

Violation of Constitutional Right of Employees to Engage in Collective Bargaining – The Court held that the constitutional right of public sector employees to bargain through the “representatives of their own choosing” “…equates to having complete freedom of choice to organize and choose their collective bargaining representatives.” “Inherent in this freedom of choice is that coercion from any source, (management, union, or any other group or organization) is a denial of this right and a direct infringement on it.”  “The end result of exempting public safety labor organizations in HB 1413 is a myriad of requirements on all other labor organizations.”

The Labor Unions argued that the legislation dictating how selection of a “representative of their choosing” were forced to choose between representation of labor organization with additional restrictions and one without denying employees complete freedom of choice to organize and choose their collective representatives.

“HB 1413 defines public safety labor organizations as those labor organizations which “primarily”—but not necessarily exclusively—represent public safety employees.  Section 105.503.2(1) Accordingly, by definition, public safety labor organizations are not limited to public safety employees, nor do public safety labor organizations encompass representation of all public safety employees.  As a result, HB 1413’s public safety labor organization exemption does not apply to only or all public safety employees involved in collective bargaining. Public safety employees represented by labor organizations that “primarily” represent other types of employees will not be protected by HB 1413’s exemption.  Rather, public safety employees will benefit from the exemption only so long as the labor organization that represents them “primarily” represents public safety employees.  As a result, despite the State’s arguments to the contrary, the type of labor organization, not the type of employee, creates the basis for the exemption.”

Equal Protection – The Court concluded that the Act provided for preferential status for certain labor organizations over others and not certain employees over others; therefore, there was no rational basis for protecting public safety employees for most if not all of the provisions of the Act.

“Instead, the only effect (and, therefore, the only evident purpose) of the exemption for public safety labor organizations is to give preferential treatment to some labor organizations over others for some reason other than those employees they represent.  Accordingly, this exemption violates equal protection and is invalid on that ground.”

Severability –Applying Missouri statutory rules with respect to severability, the court concluded that the convoluted process of adopting the legislation made it clear that the legislature would not have enacted the statute without differentiating between public safety units and other public sector unions.  Missouri National Education Association v. Missouri Department of Labor and Industrial Relations, (SC08412, 06/01/21)

Comment Howard:  This case has enormous implications with respect to future legislation by the General Assembly by making it more complicated to legislate.  Even though the Missouri Supreme Court applied a rational basis to determine if the HB 1413 violated the Constitution, it seems pretty clear that belonging to a union is a fundamental right making it subject to strict scrutiny. This is the conclusion that Cole County Circuit Court Judge Beetem, appeared to reach in his recent decision involving the validity of SB 1007, which abolished civil service protection for state employees.  AFSCME et al v State of MO (18AC-CC00407)

The Missouri Supreme Court sidestepped the strict scrutiny issue by employing a rational basis test.  It seems to me that strict scrutiny is the correct standard.  If strict scrutiny is applied it will be very difficult for the legislature to limit the constitutional right of public employees to belong to a public union.  Even though, the Court decided the case on equal protection grounds it used extremely expansive language to describe the right belong to a public sector union.  Consider these statements by the Court.  Under the Missouri constitution public employees have the “complete freedom of choice to organize and choose their collective-bargaining representatives.”  These are WOW statements that could be used very effectively in shielding local government from future legislative intrusions by the General Assembly.

After Being Arrested For A DWI The Driver Had No Right While In A Car To Talk Privately With His Attorney Unless He Requested A Private Conversation

 Facts and Procedure: After the police officer stopped the defendant for going 75 miles an hour in a 60 mph zone and administering a series of test to determine if the driver was intoxicated the officer advised the driver that he was under arrest for driving while intoxicated.  The officer then advised the driver of his rights with respect to taking a blood alcohol test.  The driver then asked the police officer if he could speak to his attorney.  The officer then handed the phone to the driver and after consulting with his attorney the driver refused to submit to the chemical test.

The driver was then notified that his driving privileges were revoked for one year.  The Director suspended the driver’s license.  The driver then filed a petition for review of the Director’s decision and after an evidentiary hearing the trial court entered its judgment sustaining the revocation of driver’s driving privileges.  The driver appealed to the Eastern District.

Analysis – The driver argued that under statute and Roesing, an earlier case, that his statutory rights were violated because he was unable to make a call in private while in the car.  The Eastern District noted that the statute only applied to a police station, constable or Sheriffs office or detention facility and that it did not apply to the officer’s car. Since the Driver did not ask the officer while he was in officer’s car to speak with his attorney in private the trial court did not err in sustaining the director’s revocation of the driver’s license.  Hummel v. Director of Revenue, (ED109096, 05/25/21)

Standing –Fundamental Question in Every Lawsuit 

At the outset of every lawsuit there is the fundamental question of whether or not there is standing.  The court may raise this question at any time, even while the case is on appeal and not briefed by the parties.  A recent article in the May– June 2001 Edition of the Journal of the Missouri Bar has an excellent article on standing in Missouri’s Federal and State Courts by Anthony Meyer.  You would do well to bookmark this case for future reference.  It is worth noting that the United States Supreme Court in its recent decision involving the Affordable Care Act dismissed the appeal for some of the parties based on lack of standing.  Journal Of The Missouri Bar

Columbia Obtains $54 Million Dollars Judgment Against CenturyLink For Failing To Pay Taxes

The City of Columbia recently won a case in St. Louis County awarding the City  $54 million dollars against CenturyLink for failure to properly collect taxes.  The judgment includes interest, penalties and attorney’s fees.  In addition to the judgment, the City will keep an additional 2.3 million and business license taxes that CenturyLink had paid under protest.  The City of Joplin was awarded $1.2 million dollars in the same case.  Special congratulations to the cities of Columbia and Joplin.  City of Columbia vs. Century Link

Homeless Person Wins Civil Rights Lawsuit Against St. Louis County For Violation Of His Free Speech

St. Louis County recently got an abrupt waking to the tune of $159,000 in attorneys’ fees and costs for losing a civil rights lawsuit to a homeless person.  According to a recent St. Louis Post Dispatch News article federal district court Judge, Steven Limbaugh, Jr., recently held two St. Louis county ordinances were unconstitutional because they violated the free speech clause of the United States Constitution.  The County required licenses for soliciting that applied only for those asking for property or financial assistance or selling or taking orders for certain items.  The ordinances did not apply to persons advocating for political calls, soliciting votes or seeking petition signatures.  Judge Limbaugh, Jr. also prohibited the enforcement of an anti-vagrancy ordinance, because they do not give ”…fair notice of what is prohibited and because they lend themselves to arbitrary enforcement.” If you have an anti-vagrancy ordinance on the books you should immediately stop enforcing the ordinance and consider repealing it.  You should also consider suspending enforcement of ordinances that’s differentiate between types of soliciting, conduct a study, and repeal the ordinance if it violates the free-speech clause of the United States Constitution.  Fernandez v. St Louis County, 4:19-cv-01638-SNLJ, 5/18/2020).

Judge Orders Governor Parson To Resume Contract Talks

Circuit Judge Jon Beetem ruled recently that a 2018 law, signed by former Gov. Eric Greatens on his final day in office, was unconstitutional.  AFSCME et al v State of MO (18AC-CC00407)

Ivan Schreader explains – The takeaways for municipalities from this decision are that before unilaterally modifying a collective bargaining agreement through the exercise of legislative or administrative rule making authority, the employer must demonstrate that it acted in good faith during the process of negotiations; and that an evergreen provision does not absolutely prohibit an employer from unilaterally changing a collective bargaining agreement.  The Missouri Supreme Court has a case pending decision from an appeal from St. Louis County Circuit Court before it related to challenges to HB 1413 and SB 1007adopted by the legislature and the attempts to legislate controls and limitations on the constitutional right to engage in the collective bargaining process.  Personnel Attorney Ivan Schraeder has provided MML with further analysis of the case available here. Thank you Ivan.

Comment Howard: The 42 page order issued by Cole County Circuit Court Judge Beetem, in this case, is well worth the read, particularly the conclusions of law, which applies strict scrutiny to any legislation affecting the fundamental right of collective bargaining in the Missouri Constitution.

End Of Community Caretaker Exception To Fourth Amendment

Introduction – The Eighth Circuit recently rendered an opinion in Steinebach v. Seltz, on the “community caretaker” exception to the Fourth Amendment requirement that a search warrant must be obtained in order to enter a home absent an emergency, exigent or situations that involved the community caretaker exception.  I thought the opinion was a masterpiece, only to learn a few months later the United States Supreme Court in Caniglia v. Strom, confined the Eighth Circuit’s opinion to the trash bin of history, except for the part that describes what constitutes the curtilage which is described in a separate note.  The opinion in Caniglia v. Strom, was unanimous with four of the justices joining in concurring opinions.  Justice Thomas, writing for the Court made it clear that it would not extend the reasoning in Cady v. Dombrowski’s involving a seizure under the Fourth Amendment from a car to a home.  The Fourth Amendment’s warrant requirement, which includes searches of vehicles, their compartments, their containers and even their occupants are not available for the home.

The three concurring opinions were unanimous in their support to not to extend the community caretaking exception created and followed by a number of the lower courts, although they recognize that there might be considerable play as to what constitutes an emergency or exigent circumstances.  Chief Justice Roberts, joined by Justice Breyer, were careful to note that that entry into a home was justified only when there is “an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger.”

Justice Alito’s, concurring opinion announced what the decision did not encompass by identifying six separate areas. He noted that the exceptions include exigent circumstances where a person is in need of medical treatment and cannot summon help.

Justice Kavanaugh wrote a five page concurring opinion, joining in the majority opinion that no community care taking exception extended to homes, elaborating in greater detail some of the exceptions. While the limited number of exceptions fall within the general rule the specifics are worth noting because they may provide guidance to police officers.

“…exigent circumstances doctrine allows officers to enter a home without a warrant in certain situations, including: to fight a fire and investigate its cause; to prevent the imminent destruction of evidence; to engage in hot pursuit of a fleeing felon or prevent a suspect’s escape; to address a threat to the safety of law enforcement officers or the general public; to render emergency assistance to an injured occupant; or to protect an occupant who is threatened with serious injury.

“…exigency precedents, …permit warrantless entries when police officers have an objectively reasonable basis to believe that there is a current, ongoing crisis for which it is reason to act now. The officers do not need to show that the harm has already occurred or is mere moments away, because knowing that will often be difficult if not impossible in cases involving, for example, a person who is currently suicidal or an elderly person who has been out of contact and may have fallen. If someone is at risk of serious harm and it is reasonable for officers to intervene now, that is enough for the officers to enter. A few (non-exhaustive) examples illustrate the point. Suppose that a woman calls a healthcare hotline or 911 and says that she is contemplating suicide, that she has firearms in her home, and that she might as well die. The operator alerts the police, and two officers respond by driving to the woman’s home. They knock on the door but do not receive a response. May the officers enter the home? Of course. The exigent circumstances doctrine applies because the officers have an “objectively reasonable basis” for believing that an occupant is “seriously injured or threatened with such injury.” (officers could enter the room of a mentally ill person who had locked herself inside with a knife). After all, a suicidal individual in such a scenario could kill herself at any moment. The Fourth Amendment does not require officers to stand idly outside as the suicide takes place. Consider another example. Suppose that an elderly man is uncharacteristically absent from Sunday church services and repeatedly fails to answer his phone throughout the day and night. A concerned relative calls the police and asks the officers to perform a wellness check. Two officers drive to the man’s home. They knock but receive no response. May the officers enter the home? Of course. Again, the officers have an “objectively reasonable basis” for believing that an occupant is “seriously injured or threatened with such injury.” Among other possibilities, the elderly man may have fallen and hurt himself, a common cause of death or serious injury for older individuals. The Fourth Amendment does not prevent the officers from entering the home and checking on the man’s well-being.” Caniglia v. Strom, (20-157, 05/17/21)

Comment Howard: Prior to decision by the United States Supreme Court in Caniglia v. Strom the Eighth Circuit recognized the community caretaker exception.  Obviously, police policy manuals will have to be up to be updated. Police officers will have questions as to when they can enter a house without a search warrant. You may want to consider based upon the guidance in Caniglia v. Strom, including the examples, as noted above, in your police officers policy manual update. While limited, these examples provide advice since Caniglia v. Strom, is as good as it gets, until the law Is more fully developed in this area.

When Can You Search The Curtilage Adjacent To A Home?

Facts and Procedure: In the early hours of a Sunday morning, a drunken man took a taxi from downtown St. Louis to Luer and Steinebach’s neighborhood in Ballwin, Missouri. The taxi stopped on the street near their house. The intoxicated rider exited the taxi explaining that he needed to fetch some money.  He never returned.  When the taxi driver realized he had been stiffed on the $65 fare, he called police at 2:38 a.m.

The officers arrived in minutes at 2:45 a.m.  The driver told Officer Clinton that “a white male wearing a white hat in his mid 30s” ran off and pointed in a general direction away from Luer and Steinebach’s home. Officer Clinton immediately went in that direction, between the house adjacent to Luer and Steinebach’s house, and the house two doors down.  He passed between the houses and checked both backyards.  Using a flashlight, he searched “[u]nderneath the back porch of the neighbor’s residence,” around the air conditioning unit, and behind trees and shrubs where someone could hide.  Officer Clinton found no sign of the fare skipper and crossed back across the neighbor’s yard, entered Luer and Steinebach’s backyard, and then proceeded onto a private garden pathway on the side of their home that connected to the driveway.  When on the pathway, Officer Clinton noticed a side entry to the attached garage was not fully secured: it is disputed whether the transparent outer storm door was closed or slightly ajar; the door leading into the garage was open.  This doorway is not visible from the street.

At that point, Officer Selz joined Officer Clinton and they approached Luer and Steinebach’s front door.  They knocked on the door and windows and rang the doorbell.  The house remained quiet, so the officers walked around the house to the backyard patio and knocked on the sliding glass door.  Receiving no response, the Officers returned to the side garage entrance.  At 2:55 a.m., they told dispatch to hold the channel because they saw an open door behind the storm door and then entered the garage.  Once inside the garage, the officers discovered that the door leading into the kitchen from the garage was open two to four inches.  They fully opened it and entered the house with their guns drawn.  The officers headed toward a light coming from the basement, but returned to the main level after encountering a locked door.  They continued searching the home until they encountered Luer, partially dressed, outside his bedroom.

Luer identified himself as the homeowner and said that his wife, Steinebach, and step-son were home.  The officers asked about his step-son, who then joined them in the hallway. The three dressed and went outside where the taxi driver identified the step-son as the fare skipper.  Luer consented to a search of his step-son’s bedroom to look for a white hat. The officers did not find a hat, and a sobriety test indicated that Luer’s stepson was not intoxicated.  After the officers decided that he was not the suspect, they left.  This lawsuit followed. The parties filed cross motions for summary judgment. The District Court denied the officers qualified immunity and granted Luer and Steinebach partial summary judgment on their claims that the officers unlawfully entered and searched their home and its curtilage, concluding the circumstances were insufficient to create an exception to the Fourth Amendment’s warrant requirement. The officers timely appealed to the Eighth Circuit.

Analysis – The 8th Circuits’ opinion was written prior to the United States Supreme Court rendered opinion in Caniglia v. Strom. The 8th Circuit initially analyzes the officer’s actions with respect to searching the curtilage before exploring the community caretaker exception in great detail. That part of the opinion dealing with the community caretaker exception was clearly overruled by the United States Supreme Court’s opinion in Caniglia v. Strom. That part of the 8th Circuit’s opinion pertaining to the curtilage is discussed below.

The Eighth Circuit notes that the curtilage obviously included the attached garage; the sliding glass door on the backyard patio, and the pathway and driveway leading from the back yard to the street alongside the neighboring residence. The Court concluded that the intrusion into these areas of the curtilage was entirely noninvestigative (not looking for evidence) and reasonable under the facts.

Next, the Court discusses the entry into the attached garage threw an open outside side door from a walkway alongside the outside of the garage.  At this point, the opinion gets muddled because it considers the entry into the garage as part of community caretaker exception, although it ends its analysis by discussing the garage as part of the curtilage. Which was it?

At this point, entry into the house was through a door from the garage directly to the house. The court analyzed a brief entry into the house under the community caretaker exception, which no longer exists under the recent ruling by the United States Supreme Court in Caniglia v. Strom.  Steinebach v. Seltz (18-3512, 2/16/21)

Comment Howard: If your police training manuals describe situations involving the community caretaker exceptions these need to immediately purged from your police-training manual and police officers need an update.  You may want to look at Justice Kavanagh’s opinion in Caniglia v. Strom, to determine if including some of the examples he used as clearly allowable under an emergency situation or exigent circumstances would be helpful to your law-enforcement officers.