October Newsletter (Issue 10-2021)

Notice Required To Sue City Is In Conflict With State Law

Screen Shot 2021-12-05 at 12.50.02 PMFacts and Procedure: Zang was injured when he fell off his bike while crossing the open-grate metal Barter Street Bridge.  Zang claimed the property was owned and/or controlled by City of St. Charles (City).  Zang sued and alleged negligence and premises liability against the City.  The City filed a Motion to Dismiss arguing Plaintiff failed to give proper notice of the alleged dangerous condition to Respondent, pursuant to Section 12.3 of the City of St. Charles Charter claiming Plaintiff’s action was barred.  Plaintiff responded that the notice requirement was unconstitutional and void due to a conflict with Section 516.120 and the Missouri Constitution, Article VI, Section 19.

The trial court granted the City’s motion.  Specifically, as to premises liability, the trial court found the charter provision mirrored four statutes that require similar notice provisions in other sizes and classes of cities pursuant to Sections 77.600 (Third class cities), 79.480, 81.060, (Fourth Class cities) and 82.210, (special charter with a population and of 500 to 3000); and that the charter provision was “not inconsistent or in conflict with state law.” Citing Missouri Supreme Court precedent and other cases, the trial court held notice was a condition precedent to maintaining an action against the City.  Zang appealed to the Eastern District. 

Analysis:Plaintiff alleged the trial court erred in granting City’s Motion to Dismiss Count II of Plaintiff’s Petition because Plaintiff was not required to give notice of his claim as prescribed by the City charter because the charter provision was in conflict with state statutes, notably Sections 537.600.1(1).

The Eastern District noted that local laws may supplement state law but they cannot, “permits what the statute prohibits or prohibits what the statute permits.

The question before the Eastern District was whether the ordinance prohibit what the state law permits?

The Eastern District began its analysis by comparing what the state law permits to what the City Charter provision (ordinance) prohibits:

Section 537.600.1(2) of the state law makes local government liable for dangerous conditions on its property provided notice is given in accordance with Section 82.210 RSMo.

“No action shall be maintained against any city of this state which now has or may hereafter attain a population of one hundred thousand inhabitants, on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, until notice shall first have been given in writing to the mayor of said city, within ninety days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of the injury, and that the person so injured will claim damages therefor from such city.”  (emphasis added by Court).

Section 12.3 of the City of St. Charles (City) charter ordinance provides that:

“Notice of Suits. No action shall be maintained against the city for or on account of an injury growing out of alleged negligence of the city unless notice shall first have been given in writing to the mayor within ninety days of the occurrence for which said damage is claimed, stating the place, time, character and circumstances of the injury, and that the person so injured will claim damages therefor from the city.”  (emphasis added by Court).

The City Ordinance prohibits all actions for negligence, unless the 90 days notice is given to the City, while that the state statute permits only actions relating to injuries growing out of “any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare” in the city.  Therefore, there is a conflict between the City Ordinance and the state statutes.  The City ordinance prohibits all actions for negligence of the city unless the 90-day notice is given, while the state statute limits lawsuits to only actions relating to “any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare” in the city, if the 90-day notice is given.  The City ordinance is in conflict with the state law because it prohibits (all actions based on negligence) what the state statute allows (all other actions, except for those within Section 82.210.).  Zang v. City of St. Charles, (ED109422, 10/19/21)

Comment Howard: The case makes it clear that the City can amend its charter by adopting the state law.  If your city has an identical provision within the purview of Section 82.210 you should also use this opportunity to amend your ordinance to conform to state law.  In addition, to the four provisions noted by the Court there are other identical provisions around that require notice differently than the state law so you might to check your charter and ordinances. 

Unlawful to Fire Employee for Filing a Workers Compensation Claim

Jackson_County_Courthouse_Independence_MO-croppedFacts and Procedure: Poke was employed by the Independence District (District) as a custodian.  Poke injured his lower abdomen and groin while attempting to fold a cafeteria table.  Poke then initiated a workers’ compensation claim with the District.  He was directed to the District’s authorized treatment provider, who diagnosed Poke with inguinal tenderness Poke also provided the District’s authorized treatment provider with a urine sample. The day after he provided the urine sample he was dismissed for violating the District’s policy that prohibited District employees from being under the influence of drugs or controlled substances while on duty making them subject to termination.  The termination letter, stated that his urine sample tested positive for marijuana relying on the positive drug test to deny Poke’s workers’ compensation claim.

Poke then filed a petition (“Petition”) against the District that alleged the stated basis for his termination was pretextual, and that he was actually terminated in retaliation for exercising his rights under the Workers’ Compensation Law.  Poke’s Petition asserted that “[t]he actions of [the School District], including [Poke’s] discharge from employment and denial of [Poke’s] previously accepted workers’ compensation claim, were acts of retaliation, in violation of [section] 287.780.”

The School District filed an answer (“Answer”) to the Petition and denied that Poke was discharged in retaliation for filing a workers’ compensation claim asserting that “[Poke’s] claim[ is] barred by the doctrines of governmental, sovereign, and/or Eleventh Amendment immunity.”

The School District filed a motion for summary judgment, which was granted.  The Judgment concluded that, pursuant to current case law the School District enjoyed sovereign immunity with respect to Poke’s Section 287.780 claim for retaliatory discharge. Poke appealed to the Western District.

Analysis: Poke asserted that the trial court erred as a matter of law when it entered summary judgment in favor of the School District on the basis of sovereign immunity.  Poke claimed that the General Assembly’s inclusion of the state and its political subdivisions in the definition of “employer” constituted an express waiver of sovereign immunity for Section 287.780 retaliatory discharge claims asserted against an employer.

Section 287.780 provides: No employer or agent shall discharge or discriminate against any employee for exercising any of his or her rights under this chapter when the exercising of such rights is the motivating factor in the discharge or discrimination. Any employee who has been discharged or discriminated against in such manner shall have a civil action for damages against his or her employer.” (emphasis by the Court)  

The Western District held that that the General Assembly’s creation of a civil action for damages in Section 287.780 was express and controlled over other statutory provisions that were general.  The court relied on the rule that in order to waive sovereign immunity the waiver must be explicit and cannot be general.  In this case, the trial court erred in finding that the District was protected by sovereign immunity.  Poke v. Independence School District, (WD84198, 09/07/21).

Comment Howard: This case illustrates how careful you have to be when taking disciplinary action against an employee who has previously asserted a right since they can turn your actions into a claim of retaliation in a heartbeat. Also, the Court noted a common mistake lawyers make is failing to properly assert this defense as an affirmative defense, by including this as part of the pleadings. See FN # 4 page 4 of the opinion. As the footnote #4 suggests if the other side files the affirmative defense as a motion you should move to dismiss the claim for failure to state a claim. Someday a lawyer is going to get caught in this trap. I also wonder if the employer can show that in every instance it routinely fires an employee for a violation of the drug policy if this could defeat the retaliation claim?

Boeing Loses Age Discrimination Lawsuit -Statistical Analysis Critical

787-8_dreamlinerMissouri Lawyers Weekly recently reported in its October 25, 2021 Edition that Boeing recently lost an age discrimination lawsuit resulting in a verdict in the amount of $700,000, plus attorney fees.  This case is interesting because when Boeing terminated seven contract pricing specialists out of 57 pricing specialists all seven of the terminated pricing specialists were 53 or older.  A statistical analysis of this reduction in force decision showed that the probability of all seven of the terminated employees being 53 years or older was 1.5 percent without age discrimination.  Boeing defended its decision on the grounds that the employee was selected for termination based on his performance ratings.  The juror’s voted 11 to 1 in favor of the employee.  The statistical analysis was obviously a key component to the employees’ case if not critical.  It seems to me that an employer might consider a statistical analysis prior to making the final decision.  Local government HR directors would do well to do an initial statistical analysis when making layoffs of a large group.  Without some kind of age discrimination analysis of the population being laid off it would be easy to fall into this trap without even knowing it.  At $700,000 a pop, plus attorney fees taking extra precautions is a worthwhile exercise.  To top this off there are six more of these claims pending.  St. Louis County Circuit Court case #17SL-CCO2353.

Flow Chart Is a Handy Tool to Examine Requests For Religious Exemptions

The October 18, 2021, Edition of Missouri Lawyers Weekly has an interesting article describing a flow chart decision making tool developed by the Husch Blackwell Labor and Practice Group to evaluate a request for religious exemptions.  In looking at the flow chart, I think this is a very good way to get your arms around requests for religious exemptions in the workplace.  In reviewing the flow chart, it is obvious that a lot of thought has been given to this issue.  It is also clear that this is a very rapidly developing area of the law increasing the chances you will be dealing with this type of request.  Congratulations to and special thanks for the Husch Blackwell Labor and Practice Group  (Erik EisenmannBarbara GrandjeanTom O’DayBeth Zewdiein developing this tool and making it available to the public.  You may download the explanation of how to use the flow chart by clicking here. https://www.huschblackwell.com/newsandinsights/employer-tool-assessing-requests-for-religious-exemptions-from-vaccine-mandates

The flow chart may be downloaded here.


8th Circuit Invalidates Part of State Law Regulating Prisoner Mail For Pornography Holding It Violates Free Speech Clause While Rewriting Law So It Is Constitutional

jail_photoFacts and Procedure: Part of the wheelhouse for local government lawyers involves advising city and county officials about jails.  Sisney v. Kaemingk, is a case that involves the handling of mail for prisoners. This case involves a challenge to the South Dakota State Penitentiary’s (State) pornography policy under the Free Speech Clause and the Fourteenth Amendment by Sisney, a jail prisoner.  The State denied access to certain mail to Sisney, an inmate in the South Dakota prison system.  Sisney challenged the policy as applied to himself and a facial challenge to the policy.

Prison officials rejected several items in Sisney’s incoming mail.  These items included four issues of a comic-book series entitled Pretty Face; a reprint of the iconic Coppertone advertisement featuring a puppy pulling at a little girl’s swim bottoms; two erotic novels, Thrones of Desire and Pride and Prejudice: The Wild and Wanton Edition; a fine-art book entitled Matisse, Picasso and Modern Art in Paris; and nine pictures of Renaissance artwork featuring nudity, including Michelangelo’s “David” and the Sistine Chapel.  Prison officials based their decision to reject these items on the Policy, which prohibits inmates from receiving pornographic material.  The Policy defines “pornographic material” as follows:

“Includes books, articles, pamphlets, magazines, periodicals, or any other publications or materials that feature nudity or “sexually explicit” conduct.  Pornographic material may also include books, pamphlets, magazines, periodicals or other publications or material that features, or includes photographs, drawings, etchings, paintings, or other graphic depictions of nudity or sexually explicit material.”

“Nudity means a pictorial or other graphic depiction where male or female genitalia, pubic area, buttocks or female breasts are exposed.  Published material containing nudity illustrative of medical, educational or anthropological content may be excluded from this definition.”

 “Sexually Explicit includes written and/or pictorial, graphic depiction of actual or simulated sexual acts, including but not limited to sexual intercourse, oral sex or masturbation.  Sexually explicit material also includes individual pictures, photographs, drawings, etchings, writings or paintings of nudity or sexually explicit conduct that are not part of a book, pamphlet, magazine, periodical or other publication.”

(The above policy is of particular interest is useful because the district court took the unusual step of rewriting the policy so it could be applied to the facts in this case, and the rewrite is shown in the opinion. The case seemingly adjudicates the rewrite of the Policy, taking out the guesswork.  It is ready to go if you need an ordinance.)

Both parties moved for summary judgment.  The district court held that the policy was unconstitutionally over-broad on its face and then appeared to adjudicate Sisney’s as- applied challenges against a prior version of the Policy.  The district court rejected Sisney’s as-applied challenges to the Pretty Face comics and the Coppertone advertisement but sustained Sisney’s as- applied challenges to the other items.  Turning to Sisney’s overbreadth challenge, the district court concluded that the Policy was overbroad but that it was possible to remedy its constitutional defects without enjoining its enforcement in toto. The district court explained that the Policy remained enforceable to the extent that it overlapped with a hypothetical amended version of the Policy that the district court drafted. The defendants appealed to the 8th Circuit.

Analysis: Test – The 8th Circuit begins by following the four-part analysis adopted by the Supreme Court, known as the Turner test.  It is a two-step, four-factor test.  The first factor (the threshold) is that “there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.”  When the regulation in question “restrict[s] inmates’ First Amendment rights,” then it must also “operate[] in a neutral fashion” to further this interest.  The first factor operates as a threshold condition that the regulation must satisfy to pass constitutional muster. This requires the existence of a “rational connection” between the challenged regulation and a legitimate government interest.  This does not require proving that “the regulation in fact advances the government interest,” but it does require proving that the policymaker “might reasonably have thought that it would.”  Unless a rational connection between the regulation and the asserted interest is a matter of “common sense,” the prison “must proffer some evidence to support” the existence of such a connection.  If the regulation does not satisfy the threshold requirement you are done with your inquiry.

If the regulation satisfies the threshold requirement, the court must determine the regulation’s constitutionality by balancing the remaining three factors.  The “second factor . . . is whether there are alternative means of exercising the right that remain open to prison inmates.”  The Supreme Court has held that this factor weighs in favor of the constitutionality of a prison’s regulation of incoming mail if the regulation “permit[s] a broad range of publications to be sent, received, and read.”

The “third consideration is the impact [that] accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” This factor weighs in favor of the constitutionality of a regulation censoring material that would inhibit some inmates’ rehabilitation and that “would likely be disseminated” throughout the prison.

The fourth factor is: “…the absence of ready alternatives [to the regulation] is evidence of the reasonableness of a prison regulation.” “By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an exaggerated response to prison concerns.”

As Applied: After setting forth the legal framework, the 8th Circuit goes on to apply the test to the as applied challenges raised by Sisney.v With respect to the alleged two erotic novels the Court notes that the law allows its application if the “primary purpose” was sexual arousal because such material “would have a detrimental effect upon rehabilitation.” If a part of the novel meets the sexual arousal test the Court can ban the entire book; consequently, the Policy was constitutional.  A footnote describes the sexual arousal aspect for Pride and Prejudice:

The Wild and Wanton Edition, which is in the record, describes the book as follows:

“[W]e’ve never been able to see Elizabeth and Fitzwilliam in flagrante delicto—until now.  In this deliciously naughty updating of the beloved classic, you can peek behind the closed doors of Pemberley’s sexiest master bedroom—and revel in the sexual delights of your favorite couple.  From first kiss to orgasmic finish, this book is every Austen fan’s dream come true—the story you love, with the heat turned up to high.  It will come as no surprise that the dashing Mr. Darcy is as passionate and intense with his knickers off as he is with them on.”

“The record also includes an excerpt from Thrones of Desire, which we do not reprint here, that describes in detail a series of masturbations.”

The 8th Circuit reached the opposite conclusion regarding Sisney’s challenge to the Policy as applied to Matisse, Picasso and Modern Art in Paris and the nine pictures of Renaissance artwork.  Matisse, Picasso and Modern Art in Paris “are simply an art book.” Michelangelo’s “David,” and other art, while including nudity are constitutional because, the defendants did not identify anything that even arguably depicts its subject “lewdly or as engaged in any actual or simulated sexual acts.”

With respect to the argument by Sisney that the Regulation is on its face was unconstitutional because it is overly broad, the 8th Circuit noted that the district court recognized that the Regulation was overly broad in that it encompassed nudity and sexually explicit content were clearly unconstitutional because they were overly broad.  Sisney v. Kaemingk, (8th Cir., 20-2460, 10/15/21)

Comment Howard: This case is loaded with goodies for local government attorneys.  First, there is a rewrite of the law and seemingly adjudicates the rewrite, making this a law that is ready for adoption. The opinion walks you through the test providing a framework to test other similar policies.  Most cases examine visual materials but the emphasis in this case is on written materials.  Since we are now going through a period, where the book burners are now in full gear looking at the shelves of schools and public libraries for just about anything to purge that they do not like this opinion may be very useful.  For Jane Austin fans, who may want to explore the wild side, the case also identifies the pornographic version. 

City Protected For Arrests At Protest Rally By Sovereign Immunity While Arresting Officer Is Denied Official Immunity

Facts and Procedure: In the evening of May 29, 2015, Ms. Hendrix and approximately thirty to fifty protesters gathered in downtown St. Louis to protest police brutality and systemic racism.  The protest began with Ms. Hendrix and others silently handing literature to pedestrians. The protestors later marched from Keiner Plaza to nearby Busch Stadium, where a St. Louis Cardinals baseball game was in progress.  After the game was over the protesters and Hendrix blocked traffic on the streets of St Louis walking in front of cars that were driving on the streets, which was recorded on video. 

St. Louis Metropolitan Police Department began arresting protestors for impeding the flow of traffic. While walking away Ms. Hendrix was placed under arrest and was tased three times by Officer Ogunjobi.   The first time Officer Ogunjobi deployed his taser for the full, five-second cycle.  The probes struck Ms. Hendrix in her hand and right breast.  After the first cycle, Ms. Hendrix fell to the ground, with her torso on top of her arms and the phone.  While Ms. Hendrix was on the ground, an officer can be heard ordering her to put her hands behind her back.  But before that officer even finishes his sentence, Officer Ogunjobi tased Ms. Hendrix a second time, again for the full, five-second cycle.  Ms. Hendrix can be heard saying, “I can’t[,] it hurts!” five times before saying, “It hurts so bad, please, please stop.” Officer Ogunjobi then tased Ms. Hendrix for a third time in less than a minute, again administering the full, five-second cycle.  Ms. Hendrix then cried out, “Oh my God, why are you doing this[?] I’m on the ground.” After the third cycle, Officer Wilson managed to cuff Ms. Hendrix.  Ms. Hendrix testified that she continued to feel pain from having been tased.

Ms. Hendrix filed suit demanding a jury trial.  She brought claims for excessive force/battery (Count I) and assault (Count II) against Officers Ogunjobi and Wilson; claims for false arrest/false imprisonment (Count III) and malicious prosecution (Count IV) against Officers Ogunjobi, Wilson, and the Lieutenant; and a claim for negligent training and supervision against the City (Count V).

The City filed a motion for summary judgment on Count V, the negligent training and supervision claim, asserting its sovereign immunity as a defense.  Ms. Hendrix responded by arguing that the City waived its sovereign immunity under § 537.610,3 by purchasing liability insurance or adopting a self-insurance scheme through the Public Facilities Protection Corporation (“PFPC”), which the City denied. The circuit court granted summary judgment in favor of the City on Count V because it was protected by sovereign immunity. The jury returned a verdict against the officer. The Officer filed a motion to overturn the jury verdict against him arguing that he was protected by official immunity, which motion was denied. Hendrix and the officer appealed to the Eastern District.

Analysis: Sovereign Immunity – The Eastern District begins it analysis by setting forth the basis for sovereign immunity.  The City is protected by sovereign immunity unless it purchases insurance or has established a self-insurance fund for these claims or the claim is for a dangerous condition or is related to an automobile. The City filed affidavits that it did not have a self-insurance fund for the claim from various city officials showing there was no insurance or a self-insurance program.  Hendrix failed to file anything that overcame this evidence; therefore, the City was protected by sovereign immunity.

Official Immunity – The Eastern District noted that official immunity protects the Officer for discretionary acts unless these was bad faith or malice.  In this case, the evidence showed that the officer used more force than reasonably necessary to effectuate the arrest. Tasing Hendrix three times, two of which were when she was down on her back and no threat to the officer, was more than reasonably necessary to effectuate the arrest.  Official Immunity for the police officer denied.  Hendrix v. City of St. Louis, (ED108858, 11/09/21)

Comment Howard: Seems like we see a lot of cases for us of unnecessary force involving the use of tasers. Someone needs to develop a better manual, if one has not been developed, on the proper use of tasers and institute training programs for all officers as a precondition to allowing officers to use tasers.