November Newsletter (Issue 11-2021)

Waiver Of Attorney Client Privilege

judge_gavel_312468Facts and Procedure: An Ozark County grand jury returned an indictment against Ruud and her then-husband, Robert Peat Jr., charging them with first-degree murder, felony abuse or neglect of a child resulting in death, second-degree murder, tampering with physical evidence in a felony prosecution, and abandonment of a corpse, all related to the killing of Ruud’s minor daughter.  Shortly before the charges were brought, Ruud sought and obtained legal representation from the Missouri State Public Defender’s Office (“MSPD”). 

Ruud met with MSPD investigator Nina Lane and legal assistant Kathy Holder.  Unbeknownst to Lane and Holder, Ruud recorded the entirety of their conversation on a digital recording device.  Prior to her arrest on the charges, Ruud gave an unsealed box of personal belongings to Peat to store in preparation for an over-the-road truck driving trip.  One of the items in the box was the digital recording of Ruud’s meeting with Lane and Holder.  Unaware of the recording, Peat placed the unsealed box in a bedroom closet in his parents’ house, where it remained for several years. 

Peat then discovered the recording in the unsealed box.  Peat’s attorney contacted the State, and Peat spoke with a member of the Ozark County sheriff’s office.  He informed the sheriff’s office he had discovered the digital recording and it included incriminating statements made by Ruud.  Peat surrendered the digital recording device to the sheriff’s office that same day, and it has remained in the sheriff’s custody since.

The State filed a motion in limine to determine if the recording was privileged and whether the State could use the recording as evidence against Ruud at trial.  Finding the attorney-client privilege protected the recording, the circuit court excluded its use at trial for all purposes. The State then sought a writ of mandamus from the Missouri Supreme Court asking the Court to direct the circuit court to rescind its order declaring the digital recording privileged and excluding the use of the recording at trial.  The Court issued a preliminary writ of mandamus directing the circuit court to take no further action in the matter other than rescinding its order.  The State now seeks to make the preliminary writ permanent

Analysis: Attorney-Client Privilege – The Missouri Supreme Court begins its analysis by reviewing the legal framework for the privilege. 

“Attorney-client privilege “exists for the benefit of the client,” and “it may be invoked by either the attorney or the client.” Id. (internal quotation marks omitted). The attorney-client privilege attaches to: (1) “information transmitted by voluntary act of disclosure”; (2) “between a client and his lawyer”; (3) “in confidence”; and (4) by a means which, so far as a client is aware, discloses the information to no third parties other than those reasonably necessary for the transmission of the information or for the accomplishment of the purpose for which it is to be transmitted.”

However, a party cannot claim attorney-client privilege for communications conducted when an unnecessary third party is included in the communications. 

Is Mandamus The Appropriate Remedy? – The Court first determined that a writ of mandamus is the appropriate remedy to review a circuit court’s order pertaining to an item’s privileged nature if “…he has a clear, unequivocal, specific right to a thing claimed.”  In this case, the recording was clearly within the claim of attorney client privilege.  However, the privilege may be waived by a voluntary communication to a third party. 

The Court concluded that Ruud disclosed her privileged conversation with MSPD staff to a third party when she gave the unsealed box containing the digital recording to her ex-husband, Peat.  The box was voluntarily given by Ruud to Peat and was not sealed or marked privileged or confidential, which constituted a voluntary disclosure.  Peat was not a party “…necessary for the transmission of the information or for the accomplishment of the purpose for which it is to be transmitted.”  State ex rel. Garrabrant, v. Holden, (SC98875, 11/09/21) 

Comment Howard: Local government attorney’s need to protect the attorney-client privilege by avoiding situations where they have not voluntarily waived the privilege.  Of course, you can share materials with staff who are involved.  It seems like office wide precautions are in order with respect to handling of documents including education of staff.  Boxes should be sealed and marked privileged and confidential and access to documents should be limited to persons who are “…necessary for the transmission of the information or for the accomplishment of the purpose for which it is to be transmitted.  

St. Louis Cashes In With $790 Million Dollar Settlement Over Rams Breach of Contract Lawsuit  

19-jpgThe December 6, 2021, Edition of Missouri Lawyers Weekly reported that the breach of contract lawsuit between the City and County of St. over the Rams football team leaving St. Louis and going to Los Angles was settled with the NFL and Stan Kroenke for $790 million dollars.  Yes, that is the correct number.  Of course, 35 percent comes off the top for attorney’s fees.  Not bad even for years of hard work.  The rest of the money can be used at the Plaintiff’s discretion. The details of the litigation were shielded by agreement of the parties.  Seems like Stan Kroenke and the NFL do not want information about their business practices to be disclosed.  This is top secret.

City Of Grandview Wins Zoning Case Protecting Home Owners From Oil Wells 

Missouri Lawyers Weekly, reported a case involving the City of Grandview (City) where the Plaintiff claimed that the City improperly denied their request for a permit to drill some 68 oil wells on property that contained low density residential use in nature.  The claim was that the oil and gas rights were worth some 5.6 million dollars. The plan submitted by the applicant did not meet the spacing requirements under the zoning law; therefore, the City properly denied the request to drill under the residential density provisions of the zoning ordinance.  JTC Oil v. City of Grandview, 1516-CV15260-01/Oct.15, 2021

Codification of Whistleblower Case Law Still Allowed Whistleblower Case To Be Brought Under The Common Law

Missouri Lawyers Weekly reported in its November 22, 2021 Edition that even though the legislature overhauled the Whistleblowers law by codifying the right to bring whistleblower suits; limiting the damages; and requiring that the employee show that the discrimination was the motivating factor the plaintiff could still bring a suit under the common law, so held a Greene County Judge.  Hashagen v. Mercy Hospital,1931-CC00474/Oct. 21, 2021.  Keep this case in mind when you are faced with an uphill battle in a situation where the legislature has abolished a cause of action.

Boston Flag Pole Case Raises City Speech, Establishment Clause And Equal Protection Claims 

Facts and Procedure: The United States Supreme Court granted cert to decide First Amendment claims related to the denial by the City of Boston (City) to fly a religious flag under its flag pole policy.  This case is set for argument in January 2022 with a decision expected to be made by the end of the term. The case is of great interest since it involves whether or not the flags flown on the flag pole are government speech.  

The City owns and manages three flagpoles in an area in front of City Hall referred to as City Hall Plaza.  The three flagpoles are located in front of the entrance to City Hall.  One of the flags flown on the 3 poles is the City flag.  Upon request by a third party in connection with special events and after approval the City will from time to time replace its flag with another flag for a limited period of time.  In permitting these third-party banners, the City seeks to “commemorate flags from many countries and communities at Boston City Hall Plaza during the year” (emphasis in original).  The opportunity to display these kinds of flags was created in order to establish “an environment in the City where everyone feels included, . . . to raise awareness in Greater Boston and beyond about the many countries and cultures around the world[, and] to foster diversity and build and strengthen connections among Boston’s many communities.”

In a twelve-year period, the City approved 284 flag-raising events that implicated its third flagpole.  These events were in connection with ethnic and other cultural celebrations, the arrival of dignitaries from other countries, the commemoration of historic events in other countries, and the celebration of certain causes (such as “gay pride”).  In 2017, the City denied a request to fly a flag created by Camp Constitution.  Camp Constitution is an all-volunteer association that seeks “to enhance understanding of the country’s Judeo-Christian moral heritage.”  At the time of this request, the City had no written policy for handling flag-raising applications and the City had never before denied a flag-raising application.  City conducted a review of past flag-raising requests and determined that the City had no past practice of flying a religious flag.  City denied request to fly flag in accordance with the First Amendment’s prohibition of government establishment of religion.   The City did agree to permit Camp Constitution to hold an event but without permitting the flag.  The City then subsequently adopted a policy which forbids the “display [of] flags deemed to be inappropriate or offensive in nature or those supporting discrimination, prejudice, or religious movements.”

Plaintiffs Harold Shurtleff and Camp Constitution sued the defendants — the City of Boston and Gregory T. Rooney, in his official capacity as Commissioner of Boston’s Property Management Department (collectively, the City) alleging they — trampled their constitutional rights by refusing to fly a pennant, openly acknowledged by the plaintiffs to be a “Christian Flag,” from a flagpole at Boston City Hall. The district court granted summary judgment in favor of the City. An appeal followed to the First Circuit.  


Public Forum:  The Plaintiff’s argued that the City had created a public forum.  The First Circuit found the City controlled which third-party flags are flown from the City flagpole.  A flag-raising is approved only after the City screens a proposed flag for consistency with the City’s message, policies, and practices and the City provides final approval. The First Circuit concluded that City’s restrictions demonstrate an intent antithetic to the designation of a public forum, and those restrictions adequately support the conclusion that the City’s flagpole is not a public forum.

Government Speech Not Circumscribed by the Free Speech Clause: The City engages in government speech when it raises a third-party flag on the third flagpole at City Hall, that speech is not circumscribed by the Free Speech Clause.  The City is therefore “entitled” to “select the views that it wants to express.” This entitlement includes both the right to decide not to speak at all and the right to disassociate itself from speech of which it disapproves.  

Establishment Clause: There is no evidence the City exhibited hostility toward religion or used the flag raising program to inhibit religious organizations.  The City went the extra mile: to help avoid any such impression, it offered the option of hosting an event alongside the flagpoles so as to permit the plaintiffs to continue to practice and share their religion.  The short of it is that neutrality toward religion does not obligate the City to fly the Christian Flag on its third flagpole.  The City remains neutral where, as here, it wholly refrains from passing judgment on religion. Shurtleff v. City of Boston (1st Circuit 20-1158, 1-22-21)

Comments Ragan: As many of you know this case is a hot case which is on appeal before the United States Supreme Court.  This case has everything the court loves.  Religion rarely loses with the Supreme Court so it will be interesting to see how the court treats this issue.  The 1st Circuit wrote a very strong opinion in the matter.  

Can States With An Interest In A Federal Rule Intervene

In 2019 the Trump administration promulgated a new definition for Immigration and Nationality Act (INA) using the federal rule making process.  The new definition defined “public charge” which is a status that can contribute to an immigrant not being admitted into the United States.  The definition adopted was challenged by the City of San Francisco and other governmental entities which obtained a preliminary injunctions in several courts on the grounds the rule was contrary to law.  The Supreme Court had agreed to hear the matter to determine if the definition was unlawful but upon the change in administrations it was decided the Biden administration would not defend the rule and it sought and received a dismissal of all challenges to the rule, including the Supreme Court case.  The Biden administration then subsequently rescinded the Trump administration definition without comment or notice. 

Following the Biden administrations actions Arizona and several other states then sought to intervene in the 9th Circuit case to appeal the 9th Circuit decision.  The Biden administration opposed the intervention on the grounds that the states are not asserting their own legal claims or defenses but merely disagree with the manner in which the existing parties have asserted their respective claims or defenses.”  The motion to intervene was denied by the 9th Circuit and now the matter to intervene is before the Supreme Court. 

The Supreme Court will consider whether States with interest should be permitted to intervene to defend a rule when the United States ceases to defend the rule,  whether the Rule is contrary to law or arbitrary and capricious, and whether the appellate decisions to the Rule should be vacated as moot under Munsingwear.  (Munsingwear is the federal procedure that vacates underlying decisions where the case has become moot preventing appellate review of the underlying decision.)  Arizona v. San Francisco City and County of California, (9th Fed, 19-17213, (4/8/2021)

Reed Continues To Keep Lawyer Gainfully Employed

In City of Austin v. Reagan National Advertising  now before the United States Supreme Court, we revisit Reed v. Town of Gilbert and whether or not the City of Austin’s (City) sign ordinance (Ordinance) that regulates “on premises” signage differently from “off premise” signage is regulating speech based on its content. The Ordinance prohibits digitized signs for off premise signs but allows digitized signs for on premise signs.  It has been clear since the moment the United States Supreme Court announced its decision in Reed that governmental lawyers would be extremely busy adjusting to everything touched by a very expansive court decision.  In this matter Reagan National Advertising companies wanted to digitize existing billboards so they could advertise for products or services that were off- premise. The City of Austin denied the application because the City of Austin’s Sign Code does not permit the digitization of off-premises signs.  Reagan sued arguing that the Sign Code distinction between on-premises and off-premises signs violated the 1st Amendment by making a content based distinction and therefore subject to strict scrutiny.  The 5th Circuit ruled that the City Ordinance was subject to strict scrutiny under the First Amendment and was unconstitutional. A review of the argument before the Court disclosed that there were differences between the justices making it difficult to determine how they were leaning. See the following analysis by Amy Howe.  Local government lawyers are hoping for some clarification.  Stay tuned.   City of Austin, Texas v. Reagan National Advertising of Texas Inc. (5th Fed, 19-50354, 8/25/2020)

Vaccine Mandate May Require Collective Bargaining

We are reminded by the Husch Blackwell labor group that Issuing a vaccine mandate may require one more step since it impacts terms and conditions of employment, under collective bargaining.  They suggest offering to bargain with the union over this condition since a waiver is unlikely.  Seems like life is not simple.

Requirement That Health Care Workers Get Vaccinated Upheld

 The U. S. Supreme Court rejected a challenge to New York state law requiring all health care workers be vaccinated. The state law did not include an exemption for religious beliefs. See Amy Howe, Court rejects religious challenge to New York’s vaccine mandate for health care workers, SCOTUSblog (Dec. 13, 2021, 8:59 PM),