September Newsletter (Issue 09-2021)

Requests For Records Under Sunshine Law Must Be Filed With The Person Designated As The Custodian Of Records

sunshine-smileyFacts and Procedure: Patrick Starr, Maurice Charles, and Lee Francis (collectively, Requestors) filed a request for records under the Sunshine Law with the “Jackson County Prosecutor’s Office, Attention: Trista Davies.”  They also contacted her several times by e-mail and phone about the status of their request.  Davies got sick and left the Prosecutor’s Office.  When the records were not produced in time requestors filed suit against Jackson County, Prosecuting Attorney.  Davies was not the person designated in the Sunshine Law policy as the Custodian of the Records.

A bench trial was held.  Davies testified that she was not the custodian of records for the Prosecutor’s office.  Davies, a paralegal, was responsible for gathering records that may be responsive to a request, scanning them, and flagging those that might be closed. But it was not her job to determine which records were subject to release under the Sunshine Law; those decisions were made by attorneys on the office’s executive staff.

The Prosecutor’s Office, filed a motion to dismiss on the grounds that the Requestors did not file their request with the Custodian of the Records as required by the Sunshine Law.  The trial court ruled that the Requestors failed to establish all of the statutory elements to show a violation because one of the elements is receipt of the records request by the custodian of records.  Requestors appealed to the Western District.  

Analysis: The Western District, first noted, that Section 610.023, of the Sunshine Law provides: “Each public governmental body is to appoint a custodian who is to be responsible for the maintenance of that body’s records.”  Furthermore, the identity and location of a public governmental body’s custodian is to be made available upon request.  The time to respond starts when the request is filed with the Custodian of Records.  In this case, the Requestors did not file the request with the Custodian of the Records until the request was attached to an e-mail that went to the Custodian. 

Apparent Authority – Requestors argued that Davies had apparent authority.  Requestors asserted that Davies previously responded to Sunshine Law requests filed by counsel in two other different matters, so counsel “assume[d] that [Davies] was the go[-]to person in their office for document requests” but offered no evidence that Prosecutor communicated, either directly or indirectly, to counsel that Davies was authorized to act as custodian of records.  In addition, the parties agreed that the Prosecutor did not exercise her authority to designate Davies as records coordinator under Section 1204.2 of the Jackson County Code. Simply serving as the contact person on prior Sunshine Law requests was an insufficient basis to find apparent authority.

Substantial Compliance – Alternatively, Requestors argued that they substantially complied with § 610.023.3 by delivering their requests to Davies.  The Western District noted that no Missouri court has addressed substantial compliance in the Sunshine Law context.  Furthermore, the cases cited by Requestors addressing substantial compliance in another context were not relevant.  The Western District held that Requestors failed to identify any authority for adoption of a substantial compliance standard under the Sunshine Law.   Francis v. Jackson County Prosecuting Attorney, (WD83634, 09/14/21)

Comment Howard: When Springfield originally adopted its policy with respect to Sunshine Law requests for records the theory was to expediate the process by providing for decentralized responses.  This no longer works because the person responding needs to have a good understanding of the law and the consequences of failing to properly respond has too many dire consequences.  No matter, this case requires that the request be submitted to the designated Custodian of the Records.

Bullying, Student Suicide, HBO Special, Coroner’s Crusade, School Board Accused Of Negligence In Suicide Of Student And Lots Of Red Meat Sunshine Law Questions Make For One Very Big Hot Mess

sunshine-smileyGlasgow School District v. Howard County Coroner, held that a coroner’s report is an investigatory report under the Sunshine Law and is protected from disclosure until the investigation becomes inactive.  This is not particularly surprising.  What is of interest to local governmental lawyers is the other Sunshine law questions.

Facts and Procedure: A student allegedly committed suicide because of being bullied by another student leading the coroner to open a coroner’s inquest.  The coroner declared at the outset of his investigation that he was bent on exposing the extent of bullying so that it would not happen again.  This was a particularly high-profile case since the school district was alleged to have been negligent. 

The Coroner chose to hold the inquest into K.S.’s suicide in public because he did not want to be responsible for letting another child die.  In an interview with the television network HBO in 2017, the Coroner stated, “this is bullying that’s so bad that a kind, 17-year-old boy, took his life. “We need to do something to prevent that from happening again.”

The inquest concluded that:

“K.S. died from a felony and identified an individual as the perpetrator.  It also concluded School District was negligent.  The person identified in the inquest as the responsible party was charged criminally…”

In order to clear its name, the School District requested a copy of the coroner’s report, which was previously transcribed at the inquest.  Attached to the transcript were a number of exhibits that were delivered by the Prosecutor to the Coroner.  At the end of the Inquest, these exhibits were delivered from the Coroner back to the prosecutor.  

When the transcript and Exhibits were not forthcoming, the School District made another request for the inquest transcript and exhibits.  This time the School District was informed it would have to pay for a copy of the inquest transcript.  The Coroner’s Office did not provide a copy of the transcript to School District.  The Coroner then had his son email a copy of the inquest transcript to Wilson.  Coroner’s Office but did not provide the transcript and exhibits to School District.  The School district then sent to the Prosecutor an Opinion Letter from the Attorney General that stated:

“It is our view that the exception specified in §610.025 are not applicable, and that the coroner’s jury, constitutes a “public governmental body,” that the coroner’s records, unless specifically designated otherwise, are public records and that the inquest conducted by the coroner pursuant to Chapter 58 is a “public meeting” within the provision of the Sunshine Law. … It is likewise our view that the county coroner does not have the authority the refuse to grant access to materials which may be presented at an inquest.

After reviewing a copy of the letter from the Attorney General, the Coroner’s Office still chose not to provide a copy of the inquest transcript or exhibits to the School District.  Next, the Coroner’s Office sent a letter to School District’s counsel advising that the requested records were a part of Wilson’s criminal investigation, were not open records, and could not be released until the Prosecutor released them.  On March 23, 2017, School District filed this lawsuit requesting access to the inquest transcript and exhibits.

On June 7, 2017, the television network HBO published a video interview with the Coroner.  In the interview, Coroner discussed the inquest matter.  Video footage from the inquest was aired.  The contents of the suicide notes left by K. C. were divulged.  Some of the typed pages of the transcript of the inquest testimony were also shown on screen.  Coroner knew his interview would be published.  Next the circuit ruled that the Coroner’s Office wrongfully denied access to the records.  At a hearing the circuit court judge told the Coroner that he was to exercise good faith to get with the sheriff’s department to get School District the remaining inquest exhibits.  Coroner did not reach out to the sheriff’s department but instead directed his attorney to write a letter to the sheriff’s department.  In the letter dated November 2, 2017, Coroner wrote to School District that the exhibits were documents generated by the sheriff’s department and are the property of the sheriff’s department.  The letter ended: “The Howard County Coroner’s office is willing to provide copies of these exhibits to the Glasgow School District only if the Sheriff’s department consents to their release, and provides copies of these documents to the Coroner’s office.”  The letter did not mention the court’s directive.

A bench trial was held where the court held that Coroner’s Office is not a “law enforcement agency” under Section 610.100.1(5). Coroner’s Office is a Missouri public governmental body under the Sunshine Law, Chapter 610.  The court determined that Coroner’s Office wrongfully and repeatedly denied access to open public records requested by School District in violation of the Sunshine Law.  The violations were purposeful, occurred on multiple occasions, and were a serious offense.  The court ordered Coroner’s Office to pay a civil penalty of $500 and awarded the School District its attorney fees.  Coroner’s Office appeals to the Eastern District.

Analysis: Transcript of the Coroner’s hearing: The Coroner’s Office argued the requested reports are closed documents under the Sunshine Law because it is a law enforcement agency, and the documents are investigative reports pursuant to Section 610.100.2.

Coroner’s Office claimed the trial court erred because it is a law enforcement agency, and the documents are investigative reports pursuant to Section 610.100.2. and are closed records.  Under Section 610.100.2: “investigative reports of all law enforcement agencies are closed records until the investigation becomes inactive.”  In this case, the Coroner’s Office was an investigative agency for a law enforcement agency, the prosecutor’s; however, the transcript of the hearing was not an investigative report.

“The inquest was open to the public, including members of the press.  Coroner spoke about the inquest to a television network.  A copy of the transcript was given to a party who, like School District, wanted to use it to clear the name of an implicated party.  The inquest itself was open and not closed.”

A determination that the transcript of this public event is also public does not jeopardize any potential investigation and prosecution; however, the Exhibits attached to the report were no longer in the possession of the Coroner because at the end of the hearing the Exhibits were returned to the Prosecutor.

Exhibits: The Exhibits were provided by the Prosecutor to the Coroner for the Inquest, but were returned after the Inquest to the Prosecutor; and were in the possession of the Prosecutor.  The School District should have asked the official custodian of the records for the Prosecutor.  No matter, the Exhibits were “investigative reports” of the Prosecutor, which are by law closed.

Attorney Fees – Safe Harbor: There was plenty of evidence that the Coroner acted “purposefully” in rejecting the request by the School Board entitling the School Board to a penalty plus its attorney fees for its efforts in trying to obtain the transcript of the hearing.  The Court mentioned that under the Sunshine Law there is a safe harbor provision, if a request for a declaratory judgment.  Glasgow School District v. Howard County Coroner, (WD83990, 9/21/2021)

Comment Howard: Obviously, this case is really a big deal with HBO doing a special on bullying and the Coroner stating in the Inquest Report that the School Board was negligent for the child’s suicide.  On top of that, there were Sunshine Law questions galore, which are always red meat for the news media.  It seems like this could have been very easily resolved by the Coroner, the School District or the Prosecutor seeking the Safe Harbor provisions of the Sunshine by asking for a declaratory judgment on whether or not the transcript and the Exhibits were open or closed.  There were simple legal questions.  Saying that, I am not sure who was really negligent in this case but seems like there are plenty of suspects.  Lots of unanswered questions.

How an inquest works is detailed in the opinion making this case a go to case, if you have a case involving coroner’s inquest, which in my experience rarely occurs in normal local government law practice.

Charge For Sewer Based On Usage Is A Fee Under Hancock – Lien For Sewer Fee Survives Foreclosure Of The General Lien Release

 Eclipse Property Development LLC vs. Ammari, involves a challenge to a tax bill on the grounds that it violated the Hancock Amendment because it was a tax, not a fee.  In addition, Eclipse argued that the District’s sewer lien is inferior to the general real estate tax lien and did not survive foreclosure of the general lien release when Eclipse obtained the collector’s deed from Jefferson County (the “County”).

Fee – Because the base user sewer fee is charged based on usage only to properties connected to the District’s sewer service line, the District’s sewer fee is a fee, not an unconstitutional tax, and is properly charged to the Property.  The Court applied the 5-part test under the Hancock to determine if it was a fee.

The charge met the five criteria to determine if it was a fee or a tax under Hancock, which are as follow:

 “(1) whether the political subdivision is providing a service in exchange for the charge; (2) whether the charges are paid by all or almost all the residents of the political subdivision or by those who actually use the good or service for which the fee is charged; (3) whether the charge is paid only on or after provision of a good or service; (4) whether the charge is more or less dependent on the level of goods or service provided to the fee payer; and (5) whether the service is historically and exclusively governmental. No single criterion is determinative, and the criteria are not a set checklist but rather an aid in determining the fee’s categorization.”

Priority of Liens – Because Section 249.255 gives the District’s sewer liens special priority and enforcement status equal to state and county tax liens, the District’s unrecorded lien was not extinguished by the County tax sale.  The opinion relies on existing case law that held the General Assembly has the power to determine whether or not a lien is equal to or has preference to other liens.  Eclipse Property Development LLC vs. Ammari, (ED109298, 09/21/21.)

Can Not Waive Right To Due Process Or Equal Protection In An Administrative Hearing

The City of St. Louis has an interesting and very useful procedure when it is taking disciplinary action against its employees, which allows employees who are appealing a disciplinary action to waive the procedures applicable to a fully contested case by asking for a simplified process.

Facts and Procedure: The St. Louis City Civil Service Commission suspended Elizabeth Smith from her employment for 15 days, which she appealed alleging that the Commission failed to adhere to the procedural safeguards contained in its written submission process, thereby violating her due process rights.  

Smith was a paramedic in the St. Louis Fire Department.  She submitted Family/Medical Leave forms to the City’s Fire Division Medical Officer.  Upon seeking clarification about the content of Smith’s forms, the Medical Officer discovered that the doctor who purportedly signed the forms on July 30, 2018, had left his local medical practice and had not worked in Missouri for five months.

The Disciplinary Review Board conducted a pre-disciplinary review for Smith finding that she violated the rules that: (1) prohibit the making of untruthful and inaccurate reports and the making of misleading statements with intent to deceive; (2) require prescribed forms be completely and accurately filled out; and (3) prohibit the filing of false reports. Smith was suspended for 15 calendar days.  Smith appealed to the City’s Civil Service Commission.

The Commission sent Smith a letter describing the appeal process, which stated in part:

“If you wish to proceed with your appeal before the Civil Service Commission, please indicate with a check mark in one of the boxes below which type of hearing you are requesting and return the form within ten (10) calendar days to the Civil Service Commission if you wish to proceed with your appeal.

The Civil Service Commission recommends and encourages the use of the written submission process. It believes it is an efficient and effective method to get issues before the Commission.”

Chief Jenkerson filed the initial submission statement that was not notarized in support of the 15-day suspension.  While Chief Jenkerson included internal emails, request for discipline forms, and memoranda from the paramedic supervisor, EMS deputy chief, and medical officer to support his submission, he provided no sworn statements from these or other witnesses.  Smith submitted her notarized response under the written submission process, raising the issue that the appointing authority statements were not notarized.  Chief Jenkerson then filed his rebuttal, which was not notarized, and finally, Smith filed her reply, again pointing out that the appointing authority’s statements were not notarized.

The Commission found Smith was suspended from her job for good and just cause, and upheld the 15-day suspension.  Smith then filed a petition for judicial review in the Circuit Court of the City of St. Louis.  The circuit court found that “[w]hile not notarized, Chief Jenkerson’s statement was supported by ample evidence” concluding that the Commission’s decision was supported by competent and substantial evidence upon the whole record, and was not made upon unlawful procedure or without a fair trial.  The circuit court affirmed the Commission’s decision suspending Smith for 15 days.  Smith appealed to the eastern District.

Analysis: Smith claimed that the Commission’s decision was made without a fair trial, and is unsupported by competent and substantial evidence because Chief Jenkerson failed to provide a verified statemen of the Appointing Authority nor a verified statement of the evidence as required under the Commission’s written submission process.

First, the Court concluded that Smith’s proceeding before the Commission was a contested case because it was “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.”

“Contested cases provide the parties an opportunity for a formal hearing with the presentation of evidence, including sworn testimony and cross-examination of witnesses, and contested cases require written findings of fact and conclusions of law.”

The Eastern District concluded that the administrative body did not have the discretion to determine whether a proceeding is a contested or non- contested case, because this determination is made as a matter of law.  The Court noted, that the record did not disclose Smith waived her rights to due process; although, she did waive her right to a formal evidentiary hearing before a hearing office.  Nevertheless, Smith was entitled to the procedural safeguards provided by the written submission process, which included “[a] notarized statement from the Appointing Authority or his/her designee setting forth the specific reasons for the action which is the subject matter of the appeal.”  Further, “the Appointing Authority’s submission “should” include copies of pertinent rules, standards, or regulations, including those allegedly violated by the employee, as well as notarized statements from individuals with personal knowledge of the basis of the disciplinary action.  Since there was no sworn statement by the Appointing Authority and there were no sworn statements from the paramedic supervisor, EMS deputy chief, medical officer, or other witnesses as required by the Commission Rules the Commission failed to provide due process as required by its Rules.  Smith vs. City of St. Louis, (ED109423, 09/14/21).

Comment Howard: I have not seen the use of this process before but it seems like it has mutual benefits for the local government authority and the employee.  A simplified procedure may be preferred by the Board or person hearing the appeal.  In addition, the employee may be intimated by the formal rules that go with a fully contested case, allowing the employee to present its case without a lot of difficulty trying to figure out complicated legal questions requiring an attorney.

Missouri’s Anti-Indemnification Law

While installing fiber-optic cable for a nearby building, a third-party contractor drilled into a gas line, which triggered a series of events that led to an explosion.  One person was killed, others were injured, and surrounding buildings sustained significant damage.  Multiple lawsuits were filed against the gas company, Spire Missouri, Inc., and the utility-location service it used, USIC Locating Services, LLC resulting in over 75 million dollars in paid out damages.  Spire’s position was that the parties’ contract put all the financial responsibility for the explosion on USIC, regardless of who was at fault.

Spire and its insurers turned to USIC for full indemnification by bringing a declaratory judgment asking that USIC be liable current payouts and for all future settlements as well, without regard to fault.  On cross-motions for summary judgment, the district court sided with USIC.  USIC argued it was not responsible under the contract for Spire’s negligence, and even if it was, shifting responsibility in this way violated Missouri’s anti-indemnification statute.  Spire appealed to the 8th Circuit.

In a case of first impression, interpreting the Missouri anti-indemnification law, the 8th Circuit, held that the contract could not shift liability to another party for liability that was its own fault.  Spire’s view was that Missouri’s anti-indemnification law does not apply because USIC was not engaged in “construction work because it just marked the location of gas lines for others construction work.  Fortunately, the statute defines what constitutes” construction work,” which includes “the maintenance . . . of any . . . pipeline.”  The Missouri Supreme Court has recognized in another context, that “maintenance” involves “the labor of keeping something in a state of repair or efficiency.”

Under the contract, once Spire received “a request to locate [its] underground facilities within a specified excavation area,” USIC would “locate and mark” them on Spire’s behalf. The entity “engaged in the excavation work” could then move on with its project without damaging Spire’s gas lines or causing an interruption in service.  The work being performed on Spires behalf involved trying to protect gas lines by marking and flagging them keeps them “in a state of repair or efficiency.”

In this case, the statute had an explicit definition (“the maintenance . . . of any . . . pipeline)”, which controls over the general definition; therefor, the statutory definition applies; Spires cannot shift its liability for the work to another party.  Spire Missouri, Inc.; Associated Electric & Gas Insurance Services, Limited; Energy Insurance Mutual Limited v. USIC Locating Services, LLC, (8th Cir., 20-1790, 09/01/21)

Comment Howard:  If you employ a private contractor you may want to examine your contract to determine how liability is handled under your contract.  The opinion is very well written and relies on other Federal Circuit opinions, but offers no new analysis of either one of these principles.

Article Explores Possibility That The Supreme Court May Give Police Officers Greater Protection Under Qualified Immunity

A recent article in suggests that the U. S. Supreme court may expand qualified immunity protections for police officers by giving them greater protection under qualified  immunity.

The article in Vox notes:

“A passage in the Court’s new decision in Rivas-Villegas, however, floats a radical idea: that officers may be entitled to qualified immunity even if they violate clearly established circuit court precedents.”

“Twice, the Rivas-Villegas opinion uses nearly identical language — “even assuming that Circuit precedent can clearly establish law” and “even assuming that controlling Circuit precedent clearly establishes law” — that implies it is uncertain whether a circuit court decision is sufficient to overcome qualified immunity.  These lines open the door to a new regime, where victims of police violence can no longer rely on appellate court decisions to breach an officer’s partial immunity to suit.”

Comment Howard: This seems hard to believe nevertheless we will be watching this development.  In the meantime, if you are involved in a qualified immunity case you may want to keep the door open, to the much broader interpretation, by including this argument as part of your motion, in case the law gets turned on its head.

City Ordinance That Prohibited Taking Of Pictures of Children In City Park Without Permission From Parents Was Unconstitutional

megaphone-clip-art-3Facts and Procedure: In 2011, the Bloomington City Council approved a conditional use permit for the Al Farooq Youth and Family Center (Center) to operate a school, day care, and place of assembly at a property adjacent to a public park called Smith Park.  The City and the Center entered into a joint use agreement that governs the sharing of parking facilities between the City and the Center, and allows the Center to use Smith Park for its programs.

A charter school, Success Academy, opened on the Center’s property in 2017.  The school uses Smith Park for recess.  Ness is a Bloomington resident who lives in the Smith Park neighborhood.  She describes herself as the “point person” for delivering neighborhood concerns to the City about the Center’s alleged violations of its agreements related to use of the park and the parking spaces surrounding the park.  Ness records videos and takes photographs from public sidewalks and streets around the park, the driveways of homes across the street from the park, and within the park itself.  She documents her concerns by posting the photographs and videos on a Facebook page and an internet blog.  In August 2018, someone lodged a formal complaint against Ness for possible state law violations of the harassment statute, based on her recording and photography at Smith Park.  The City did not file charges against Ness at the time.

In August 2019, two Bloomington police officers approached Ness while she was video recording activities relating to alleged violations of the joint use agreement near the Center.  The officers were investigating a harassment complaint filed by the principal of Success Academy and the parent of a student.  The officers warned Ness that she could be arrested for violating the harassment statute if children felt threatened or intimidated by her filming, regardless of her intent.  According to police report, the officer asked Ness to “stop filming.”

In October 2019, the City Council approved an ordinance proscribing the photography and recording of children in city parks.  The ordinance provides that in city parks, “[n]o person shall intentionally take a photograph or otherwise record a child without the consent of the child’s parent or guardian.”  A violation is punished as a petty misdemeanor.

In November 2019, Ness sued the City of Bloomington, the Hennepin County Attorney, two Bloomington police officers under 42 U.S.C. § 1983.  She alleged violations of the First and Fourteenth Amendments.  Ness sought a declaration that Minnesota’s 2019 harassment statute and the Bloomington ordinance are unconstitutional on their face and as applied to her.

The defendants moved to dismiss the complaint, and Ness moved for summary judgment.  The district court granted the motions to dismiss, and denied Ness’s motion.  The complaint was dismissed on various grounds and Ness appealed to the 8th Circuit.  The district courts actions were upheld by the 8th Circuit except the challenge to the constitutionality of the city ordinance.

Ness claimed that the ordinance is unconstitutional as applied to her photography and video recording of matters of public controversy for dissemination on the internet.  The City and Ness dispute whether the ordinance prohibited speech or just proscribed conduct.

Speech or Conduct?: The disputed ordinance provides that in city parks, “[n]o person shall intentionally take a photograph or otherwise record a child without the consent of the child’s parent or guardian.”  The 8th Circuit found that while the ordinance proscribes speech, conduct, or both depends on the particular activity in which an actor seeks to engage.  If the act of making a photograph or recording is to facilitate speech that will follow, the act is a step in the “speech process,” and thus qualifies itself as speech protected by the First Amendment.  If the photography or recording is unrelated to an expressive purpose, or if the ordinance prohibits conduct that imposes incidental burdens on speech, then the act of recording may not receive First Amendment protection.  Applying the distinction between speech and conduct to this case, we conclude that Ness’s photography and video recording is speech.  Ness wanted to photograph and record the asserted “noncompliant and overuse of Smith Park” by the Center and Success Academy, and she wants to post those photographs and videos to an internet blog and a Facebook page “in order to inform the public” about the controversy.  Thus, her photography and recording are analogous to news gathering.  The acts of taking photographs and recording videos are entitled to First Amendment protection because they are an important stage of the speech process that ends with the dissemination of information about a public controversy.

Level of Scrutiny: The 8th Circuit notes that content-neutral time, place, and manner restrictions are permitted in traditional public fora if the restrictions must be “… narrowly tailored to serve a significant governmental interest.” Content-based restrictions, however, “are presumptively unconstitutional” and must satisfy strict scrutiny citing Reed v. Town of Gilbert.  Under Reed a content-based restriction, must show that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” Ness maintained that the ordinance is a content-based restriction as applied to her photography and filming, while the City contended that the ordinance operates as a time, place, and manner restriction.  The court agreed with Ness, because city officials must examine the content of the speech to determine whether it is prohibited as noted in Reed.

To determine whether Ness’s photography or recording in a park are proscribed by the ordinance, an official must examine the content of the photograph or video recording to determine whether a child’s image is captured. Therefore, the ordinance is content based as applied to the facts of this case.  Even though the ordinance is content-based, the City may still enforce it against Ness if the restriction furthers a compelling government interest and is narrowly tailored to that end.  The City contended that it has a compelling interest in “protecting children from intimidation or exploitation,” and that the ordinance was narrowly tailored.  The 8th Circuit assumed that a narrowly tailored ordinance aimed at protecting children from intimidation and exploitation could pass strict scrutiny.  However, it concluded that the ordinance, was not narrowly tailored as applied to Ness.  Ness sought to photograph and video record matters of public interest, purported violations of permits issued by the City, and does not intend to harass, intimidate, or exploit children.

Ness also advised the City that it was her practice to “block” out the identities of juveniles when she posts images online, and the City produced no evidence to the contrary. Therefore, her photography and recording are nonetheless proscribed by the ordinance. Because the ordinance is significantly over-inclusive, since it potentially covers other activities, (cones used by the city manager to protect children); therefore, with respect to the City’s asserted interest, it is not narrowly tailored and fails strict scrutiny as applied to Ness’s proposed conduct.

The 8th Circuit concluded that the ordinance, as applied to Ness’s activity was unconstitutional under the First Amendment because it was over-inclusive; therefore, Ness was entitled to judgment with respect to it being unconstitutional.  Ness v. City of Bloomington, (8th Cir., 20-2571, 09/02/21)

Comment Howard: This case attracted a lot of very big hitters due to its potential impact on news gathering.  In addition, this seems like continuation of a very long and difficult dispute over the role of Muslims in the community, although the opinion does hint at that issue.  The public policy of limiting the taking of pictures of children in a city park seemed reasonable, only to fall on the horns of the free speech clause of the First Amendment.  I say “live in peace and give up your hate.”

Vaccine Mandates

The relationship between the exercise of freedom of religion and the establishment clause are in serious play, pitting one off against the other.  The issue comes into play with the Maine case and the opinion denying a writ by Justice Breyer.  

Justice Breyer Allows Maine Vaccine Requirement to Stand