May Close Record After It Has Been Disclosed To Another Party
The Amended Petition filed by Appellants asserted that the Office of Administration for the State of Missouri (Government) knowingly violated the Sunshine Law by refusing to provide the Appellants unredacted copies of lists of active bargaining unit employees that had already been provided to AFSCME. The Government and AFSCME entered into a Master Labor Contract in which the Office of Administration agreed to provide AFSCME a “current list of active bargaining unit employees” once a quarter, which included each employee’s name, employment status, salary information, work address, home address, and mailing address. The Appellants alleged that when Ishmael requested electronic copies of the Unredacted Excel Files for 2016, 2017, and 2018, the Government sent Ishmael redacted versions (“Redacted Excel Files”), explaining that the redactions had been made pursuant to section 610.021(13) and Office of Administration policy B-36. Plaintiffs argued in their Amended Petition that even though Section 610.021(13) authorized closing the redacted information, that because the Government had already provided the redacted information to AFSCME, the Government was required under the Sunshine Law to treat that information as open to other parties. The Amended Petition further alleged that because the Government refused to provide Ishmael with the Unredacted Excel Files, the Government knowingly violated Section 610.023.2’s prohibition against granting an exclusive right to access and disseminate public records.
The Government filed a motion for summary judgment, which the trial court sustained. The Judgment concluded that “the terms of the Master Labor Contract that provide for the provision of information to AFSCME do not constitute an ‘exclusive’ right to access the closed records.” The Judgment further concluded that the Government’s “provision of unredacted records to AFSCME and subsequent refusal to provide [the Appellants] unredacted copies of the same” did not establish that the Government, in contravention of Section 610.023.2, granted AFSCME an exclusive right to access and disseminate the Unredacted Excel Files. The Judgment further concluded that “to hold otherwise would radically alter public governmental bodies’ duties under the Sunshine Law, creating out of whole cloth an eternal and binding waiver out of the discretionary decision governmental bodies are statutorily authorized to make in response to each Sunshine Law request for records.” Finally, the Judgment noted that the Appellants’ position that the Government knowingly violated the Sunshine Law was in direct conflict with the Appellants’ acknowledgment that the case presented an issue of first impression.
The Appellants appealed to the Western District.
Opened but not permanently – Appellants argued that the Judgment is contrary to the policy underlying the Sunshine Law (free and open access to records) because it allowed the Government to withhold the Unredacted Excel Files from Appellants after the same information had been provided to AFSCME. Appellants acknowledged that while the Redacted Excel records were permissibly initially subject to closure pursuant to Section 610.021(13), that information became permanently open (and no longer subject to closure) when it was provided to AFSCME in the Unredacted Excel Files.
The Court started its analysis by noting that Missouri law is intended to foster openness and transparency in government. Furthermore, records are to be available for inspection and copy subject to specific exceptions in the Sunshine law. The statutory exceptions are permissive and there is nothing in the statute that prohibits closing a record that has been disclosed to another person. In this case, the disclosed record made by the Government was made pursuant to a collective bargaining agreement with the union. The Court concluded that it was not the courts responsibility to create a court made exception that required disclosure to all parties once the record has been disclosed to another party, that power belonged to the legislature.
Alleged violation of statutory rule that prohibits granting to any person exclusive right to access and disseminate records – The Appellants’ second point was that the Judgment misapplied the law based on section 610.023.2:
“No public governmental body shall, after [August 28, 1998], grant to any person or entity, whether by contract, license or otherwise, the exclusive right to access and disseminate any public record unless the granting of such right is necessary to facilitate coordination with, or uniformity among, industry regulators having similar authority.” Section 610.023.2
Raising an issue of first impression, Appellants argued that the actions of the Government granted AFSCME the exclusive right to access and disseminate the Unredacted Excel Records. The Court noted that Section 610.023.2 was adopted by the legislature in response to the practice of the Director/Revisor of statutes granting a private party the exclusive right to sell the statutes. Based on its history and rules of statutory construction the Court did not find Appellants argument persuasive. Furthermore, the Court could not find any provision in the Master Labor Contract, which gave the Union the exclusive right to access and disseminate the information requested by the Appellants. Show-Me Institute v. Office of Administration, (WD84562, 03/29/22)
Comment Howard: There was no case law supporting Appellants argument that the Government had granted AFSCME an exclusive right; therefore, there could not be a “knowing” violation. Good point to remember and first question to ask if there is an allegation of a knowing violation is whether or not there is case law supporting the allegation. The ability to open the record for one party and not another may have some limits like equal treatment, discrimination, or some other improper motive.
Creve Coeur Did Not Prove It Had Discretion To Deny CUP When Applicant Met All Of The Conditions For A CUP
Facts and Procedure: BG Olive & Graeser, LLC and Forsyth Investments, LLC (Plaintiffs) are the owners of adjacent properties located on a signalized section of Olive Boulevard in Creve Coeur (the Properties). The Properties are located in an area that is zoned for commercial use by the City. Plaintiffs entered into an agreement to sell the Properties to QuikTrip, which was contingent upon QuikTrip obtaining a CUP from the City to develop a new convenience store and service station on a portion of the Properties.
QuikTrip filed its CUP application, and after meeting with City staff members modified its original proposal to satisfy the six standards in the CUP ordinance. Jaggi, Director of Community Development concluded that the City should issue the CUP to QuikTrip. The Creve Coeur City Council (City Council) then held hearings on QuikTrip’s application, as a non-contested case. After hearing witnesses at the City Council meeting the council voted unanimously to deny QuikTrip’s CUP application.
Plaintiffs filed a petition in the circuit court of St. Louis County seeking de nova judicial review of the City Council’s decision pursuant to Section 536.150 as a non-contested case. Plaintiffs introduced testimony of four witnesses, three of whom were experts in their fields of city planning, real estate appraisal, and traffic engineering, who opined that QuikTrip’s CUP application satisfied all six standards in the City Code. The City presented the testimony of two witnesses: (1) Director Jaggi, as the City’s representative; and (2) Brett Berger, a concerned resident of self-described “luxury homes” located near the proposed development. Neither of the City’s witnesses testified as to the City Council’s basis for denying QuikTrip’s CUP application. Neither of the City’s witnesses testified as to the City Council’s basis for denying QuikTrip’s CUP application.
The circuit court found credible evidence, which established that each CUP standard had been met and that the City’s refusal to issue the CUP was therefore unlawful, unreasonable, arbitrary, capricious, and constituted an abuse of discretion. Consequently, the circuit court entered an Order in Mandamus directing the City to issue a CUP to QuikTrip with the same conditions and terms set forth in the proposed ordinance on or before August 13, 2021. The City appealed to the Eastern District.
Analysis: The City argued that this case should be reviewed as a contested case, instead of a non-contested case. This argument failed because in a prior case identical to this case the Eastern District held that the City Council consideration of a CUP was not a contested case; therefore, circuit court review of any decision by the City Council was required to be reviewed as a non-contested cases pursuant to Section 536.150.
Furthermore, the City argued that that even if this case could be reviewed by the circuit court as a non-contested case the City Council still had discretion under the ordinance to make the decision on whether or not to grant a CUP. Since the Plaintiffs meet all of the conditions of the CUP, the City Council did not have discretion to deny the permit. In addition, the City failed to offer any proof as to why the City Council denied the CUP permit. BG Olive & Graeser and Forsyth investments v. City of Creve Coeur, (ED109879, 04/05/22)
Comment Howard: It is hard to imagine being dealt a worse hand then this case. To make matters worse, the City did not present any evidence or reasons to support the City Council (except the discretion argument), although I must admit, there is no possible way in which the City wins this case. I would put this back on the city council to decide whether they want more control. If they do they need to amend their ordinances to make this a contested case.
MHRA Supersedes Common Law Remedy
Facts and Procedure: On December 25, 2017, Loomis spent 30 minutes to an hour inside of the Ameristar Casino (“Ameristar”) in Kansas City, Missouri. Loomis was approached by Defendants, two on-duty security guards employed by Ameristar. Defendants accused Loomis of being intoxicated and told him to leave Ameristar. Loomis explained that he had not been drinking, but that he suffered a brain injury which partially impaired the use of one side of his body. Despite Loomis’s explanation, Defendants forced him to leave Ameristar. As a result of this interaction, Loomis experiences anxiety and panic attacks when he attempts to visit public places, for fear that his physical impairment will be mistaken for intoxication.
Case # 1 – On November 18, 2019, Loomis served Ameristar with a copy of a summons and his MHRA Petition. On December 16, 2019, Ameristar removed Loomis’s case to the United States District Court for the Western District of Missouri (“Federal Court”). Ameristar then filed a motion to dismiss Loomis’s MHRA Petition. The Federal Court granted Ameristar’s motion to dismiss Loomis’s MHRA Petition for insufficient service of process. The case was dismissed without prejudice. Loomis appealed, and then voluntarily dismissed his appeal. Case # 1 is now barred by statute of limitations.
Case# 2 – On July 23, 2020, Loomis initiated a second lawsuit in the Circuit Court of Clay County asserting common law claims of negligence and of negligent infliction of emotional distress (collectively “common law claims”) against Defendants. The common law claims were based upon the same incident raised in Case # 1 (the dismissed MHRA Petition). Loomis contended that amendments to the MHRA in 2017 eliminated individual liability for discrimination in public accommodation, permitting him to assert the common law claims.
Defendants filed a motion to dismiss Loomis’s petition, which was sustained based on an earlier Missouri Supreme Court case that held:
“The MHRA, therefore, supersedes and displaces [the plaintiff’s] common law claims, and the circuit court abused its discretion by allowing [the plaintiff] to amend her petition against Church to include common law claims preempted by the MHRA.”
Defendants appealed to the Western District.
Analysis – On appeal the Defendant “…without analysis or citation to authority the Defendant argued that when the General Assembly replaced the word “person” in Section 213.075.1 with the phrase “employer, employment agency, labor organization, or place of public accommodation that:
“…it intended to relieve “persons,” (a term that includes individuals within its scope), of liability for discrimination in public accommodation. Loomis thus contends that Section 213.075.1 “does not allow an aggrieved person to file an administrative complaint with the MCHR against another ‘person.'” He extrapolates from this conclusion that he should now be permitted to sue “persons,” (including individuals) at common law for discrimination in public accommodation.
The Eastern District concluded that this novel argument failed because it was in direct conflict with an earlier Missouri Supreme Court decision. In addition, it would lead would lead to absurd results. Loomis v. Bowers, (WD84424, 04/05/22)
Once You Reach The Population Threshold In A Statute You Do Not Lose That Status When The Population Drops Below The Threshold
The City of Maryland Heights (City) filed a petition to void the decision of the 2019 tax increment financing commission of the city of Maryland Heights which denied Maryland Heights proposed TIF. The City argued that the TIF commission membership was improperly constituted. It argued that since the population of St. Louis County dropped below one million, another statute controlled the appointment of the membership, making the TIF Commission unlawful. According to the statute, when an applicable county’s population is more than 900,000 TIF commissions created by municipalities located in that county should consist of six members appointed by the municipalities mayors, three members appointed by the county executive, and three members appointed by the affected school districts.
The County filed a motion for summary judgment against Maryland Heights based on the argument that the TIF Commission was properly constituted at the time of its creation because it was more than 1 million based on the 2000 census data. The trial court held that once a county reaches a population threshold the county is locked into the laws that applied when it reached the threshold regardless of whether the county population drops below the threshold and no longer satisfies the population threshold. Section 1.100.2 provides:
- Any law which is limited in its operation to counties, cities or other political subdivisions having a specified population or a specified assessed valuation shall be deemed to include all counties, cities or political subdivisions which thereafter acquire such population or assessed valuation as well as those in that category at the time the law passed. Once a city, county, or political subdivision has come under the operation of such a law a subsequent change in population shall not remove that city, county, or political subdivision from the operation of that law regardless of whether the city, county, or political subdivision comes under the operation of the law after the law was passed. No person whose compensation is set by a statutory formula, which is based in part on a population factor, shall have his compensation reduced due solely to an increase in the population factor. (Emphasis Added)
Since St. Louis County had reached the one million population threshold, in 2000, only to dip below that threshold in the 2020 census, it still had the power to control the appointment of members to the TIF Commission based on the statute.
The trial court sustained the motion for summary judgment by the county and the city of Maryland Heights appeal to the Eastern District. The trial court’s decision was affirmed by the Eastern District based upon existing caselaw citing State ex rel. McNeal v. Roach. Maryland Heights v. Mike James, (ED109544, 04/12/22)
Comment Howard: The case is also a case of first impression. It is of note for jurisdictions in St. Louis County as well as all local government entities, which are affected by Section 1.100. RSM0. This section provides that once you reach the population threshold you do not lose that status even if your population changes so you no longer met the population threshold.
United States Supreme Court Upholds City Of Austin Sign Ordinance Against Free Speech Challenge
Facts: Local government can breathe a lot easier with a very favorable, 5 to 3 opinion by the United States Supreme Court in City of Austin v. Reagan National Advertising, in which the Court upheld the City of Austin, Texas sign ordinance against a free speech challenge that allowed on premise signs to be digital while prohibiting off premise digital signs. The question presented to the Supreme Court was the whether the Courts precedent in Reed v. Town of Gilbert, required the application of strict scrutiny to the sign ordinance. This case is of import to local government because it narrows the troublesome Supreme Court opinion in Reed.
Reagan Advertising Company wanted to convert a number of its existing off premise signs to digital signs. Under the City ordinance only on premise signs could be digital while off premise signs could not be digital. Reagan argued that the sign ordinance violated the First Amendment free-speech clause because it was content based requiring the reader to read the sign to determine if the sign was an on premise or off premise sign. The trial court upheld the City sign ordinance, while the 5th Circuit determined that the ordinance was unconstitutional because you had to read the sign, making it “content based,” requiring the application of strict scrutiny.
The Opinion by Justice Sotomayor, begins its analysis by looking at the history of off premise sign regulations. Anchoring the analysis is the history of the Highway Beautification Law of 1966 that made the distinction between on and off premise signs. This distinction was carried into many state laws and tens of thousands of local sign ordinances. The distinction between on and off premise signs was based on protecting aesthetic values and public safety, which continues to this day as the primary justification for on/off premise sign. distinction.
The Opinion distinguished the on/off digital signs in this case with the issue in Reed.
“Unlike the sign code at issue in Reed, however, the City’s provisions at issue here do not single out any topic or subject matter for differential treatment. A sign’s substantive message itself is irrelevant to the application of the provisions; there are no content discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events, including those sponsored by religious and non- profit organizations. Rather, the City’s provisions distinguish based on location: A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not.”
The Court applied intermediate scrutiny noting that the “…on-/off-premises distinction is therefore similar to ordinary time, place, or manner restrictions.” Under the Austin City ordinance, a given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not. The cases cited by the Court – picketing a particular residence, limiting solicitations at a fair to a specific location, and distribution of literature in parts of an airport are similar time, place and manner limitations on speech that pass intermediate scrutiny because they do not discriminate on the basis of “the topic discussed or the idea expressed therein.”
The Court remanded the case for further proceedings. City of Austin v. Reagan National Advertising, (US20-1029, 04/21/22)
Comment Howard: Congratulations to Lisa Soronen and her team for a job well done. They made a difference as noted by the frequent references to the SLLC amicus brief in the opinions. For Lisa’s summary click here. I thought the examples of time, place and manner cases cited in the Opinion provide good guideposts in analyzing whether or not a restriction or sign meets intermediate scrutiny is particularly useful.
CDC Public Transportation Mask Mandate Invalidated
On April 18, 2022 US District Judge Kathryn Mizelle issued a 59 page opinion, holding that the CDC did not have authority to issue its transportation mask mandate (Mask Mandate) requiring passengers using public transportation to wear masks. Her Order vacated the CDC Mask Mandate, took effect immediately and applied nationwide. Initially, there was a question as to whether or not the Biden administration would appeal the Order since the CDC was in the process of reviewing whether or not to continue the Mask Mandate. Local governments, who operate in the front lines of public health, need to be concerned about this decision. A recent article by Lawrence Gostin and Duncan Hosie in the April 25, 2022 edition of the New York times explains. Mr. Gostin is a professor of global health law at Georgetown Law and the faculty director of the O’Neill Institute for National and Global Health Law. Mr. Hosie is a writer and civil rights lawyer.
At this time, no decision has been made by the CDC on the renewal of the Mask Mandate. The Justice Department put out a statement on the Mask Mandate Ruling indicating that they will appeal, subject to the CDC conclusion that the order remains necessary for public health. It would seem unlikely that there will be any effort to stay the Order, if there is an appeal the primary focus of the effort of the Administration would appear to focus on preserving the power to enact future transportation mask mandates if necessary for the public health.
The opinion by Judge Kathryn Mizelle, a recent Trump appointee, has been soundly criticized by Steven Lubet, Williams Memorial Professor at the Northwestern University Pritzker School of Law, for her strained interpretation of the word “sanitation.”
“Treating the two cherry-picked definitions as though they are mutually exclusive, Mizelle then performed a series of linguistic gymnastics to reach the conclusion that only the first one — “active cleaning” — was encompassed by the statute. Because “wearing a mask cleans nothing” but at most “traps virus droplets,” the mandate turned out to be beyond the CDC’s statutory remit.”
If there is an appeal it seems unlikely that the Biden Administration would seek a stay of the Order. Consequently, it could be a while before we get a final decision on the merits by the 5th Circuit or by Supreme Court.
It is important to remember that the mask mandate ruling in Health Freedom Defense Fund is based upon lack of power by the CDC; therefore, local and state mask mandates may still be enforced if you have been granted the authority to impose public health mandates. Since millions of people use public transportation the lack of a mask mandate is of considerable concern to persons who are immuno compromised. I am diabetic making me immuno comprised. Forty percent of people in the United States who have died from COVID-19 had Type 1 or Type 2 diabetes. Lack of a mask mandate on public transportation facilities is a major concern to those who are immuno compromised.
Stun Gun Liability
The use of a stun gun (taser) has been billed as a much safer alternative to more violent force. It is thought that this reduces police liability, while protecting individuals who has been tasered. This may be but use of stun guns are not without their risks. My sense after watching case after case where police have been held liable for using excessive force when using a taser suggests to me that local police officers need to be much better trained on how to use a taser.
Recently, a jury verdict in federal district court where a victim of a taser incident was awarded $1.3 million dollars in St louis which included $150,000 thousand in actual damages and $500,000 in punitive damages plus attorney’s fees. Gerling v. Waite, 4:17-cv2702. What caught my eye was the award of $500,000 in punitive damages strongly suggesting that the jury was very unhappy with the police officers’ actions in this case. In another case a jury awarded a 6.5-million-dollar verdict in 2018 against an ex Independence police officer that included $5 million in actual damages and $1.5 million in punitive damages, including $500,000 for prolonged use of the Taser and $1,000,000 for a pavement drop. The best article I could find on the need for better training was a 2011 report by the New York Civil Liberties Union titled “Taking Taser Seriously.” Obviously since this Report is 11 years old it needs to be updated.
No Reasonable Expectation Of Privacy In Hospital Room For Person Who Had Been Wounded
Facts and Procedure: Police officers responded to a 911 call about gunshots at an apartment complex in St. Paul, Minnesota. The officers followed a fresh blood trail and found a loaded Desert Eagle .50-caliber semi-automatic pistol with blood on it and the hammer cocked back in the firing position. The officers learned that a man had been shot in his face and right foot and had been taken to the hospital.
An officer went to the emergency room at the hospital and entered the man’s room. The man’s bloody clothes were on the floor, and at the officer’s request, a nurse took the identification from the clothes. The identification showed the defendant’s name, Marcus Mattox. The officer took the clothes, and the next day, an officer went to the hospital and executed a warrant for a DNA swab from Mattox and asked him some questions for a few minutes. Mattox admitted that he was at the scene of the crime and stated that he did not know who shot him. He declined to answer more questions.
The police compared Mattox’s DNA sample to gun swabs that tested positive for blood. The swabs matched Mattox’s DNA sample. The police also obtained video surveillance footage of the shooting. The video shows Mattox exit the apartment building, approach a male and a female at the back of an SUV in the parking lot, appear to draw a firearm, and take a shooting stance. After Mattox drew his gun, the male appeared to shoot at Mattox.
A federal grand jury indicted Mattox on one count of possessing a firearm as a convicted felon. Mattox moved to suppress the evidence seized from his hospital room and the statements he made to the police while hospitalized. The district court denied the motions, adopting the magistrate judge’s conclusions that (1) the plain-view exception to the warrant requirement applied to the seizure of Mattox’s clothes, and (2) the questioning of Mattox was not a custodial interrogation and his statements were voluntary.
At trial, the jury heard expert testimony that the Desert Eagle handgun found in the parking lot was manufactured in Israel. The jury convicted Mattox of being a felon in possession of a firearm. After sentencing Mattox appealed to the 8th Circuit.
Analysis: Was Mattox’s clothing taken in violation of his Fourth Amendment rights? Mattox argued that he had a objectively reasonable expectation of privacy in his hospital room. The Eighth Circuit noted that overnight guests in hotel rooms homes and in homes have a reasonable expectation of privacy. This is because hosting overnight guests in homes or in hotel rooms “is a longstanding social custom that serves functions recognized as valuable by society.” However, a person being admitted to the hospital for gunshot wound does not serve the same valuable societal function. In addition, Minnesota law requires hospitals to report gunshot wounds to law-enforcement. Therefore, the police officer entered the room fulfilling his duty to investigate a reported shooting and a person who may have been seeking medical services. “Because the officer lawfully entered his hospital room and his clothes were in plain view, Mattox’s Fourth Amendment rights were not violated.”
Were Mattox’s statements to the police officer while in the hospital voluntary? Mattox argued that the statements were involuntary because he was in the hospital recovering from gunshot wounds, he had taken pain medication, the police executed a warrant to obtain a DNA sample, and he was not read Miranda rights. The trial court found that:
“…the officer testified “that Mattox answered questions in an appropriate context and manner; Mattox spoke in a normal cadence and pace; Mattox did not slur his words; and that [the officer] was able to totally understand Mattox’s answers.” Mattox also refused to answer some of the officer’s questions, which suggests that the pain medication did not impair his ability to resist police pressure.”
In addition, there were no threats or promises by the officer to Mannix. Furthermore, the interview lasted only a few minutes and Miranda warnings were not required because Mannix was not in custody; therefore, based on the totality of the circumstances the Eighth Circuit concluded that Maddox statements were voluntary. United States of America v. Mattox, (8th Cir., 20-3065, 03/04/22)
Reassignment Is Not An Adverse Employment Action
An employee’s reassignment, absent proof of harm resulting from that reassignment, is insufficient to constitute an adverse employment action. City’s motion for summary judgment granted. Muldrow v. City of St. Louis, (8th Cir., 20-2975, 04/04/22)
Missouri Supreme Court Finds City And Counties Did Not Have An Adequate Remedy At Law And Remands Challenge To HB 85 For Further Proceedings
Facts: In 2021, the legislature passed two bills collectively known as the “Second Amendment Preservation Act.” (HB 85). The act declares that certain federal gun laws are considered infringements on the people’s right to keep and bear arms in Missouri and that all federal gun laws infringing on such rights will not be enforced in Missouri. The act further imposes civil liability on law enforcement agencies attempting to enforce such federal gun laws. Subsequently, St. Louis city, St. Louis County and Jackson County (collectively, the challengers) sued the state seeking a declaration that the act is constitutionally invalid and an injunction to prohibit its enforcement. The state moved for judgment on the pleadings, asserting the challengers had an adequate remedy at law because they could raise their constitutional arguments as affirmative defenses in any enforcement action, some of which already were pending. The circuit court sustained the state’s motion, finding the challengers had an adequate remedy at law. The challengers appeal. The Missouri Supreme Court found that the challengers did not have an adequate remedy at law and reversed for further proceedings. City of St. Louis; St. Louis County; and Jackson County v. State of Missouri; and Eric Schmitt, Attorney General of Missouri, (SC99290, 04/26/22)
Comment Howard: The reversal and remand of the above case is an important step in getting HB 85 declared unconstitutional. The sooner the better in matters of great import. In this effort we note comment made by Kansas City:
“Municipalities and law enforcement groups across Missouri are coming together to challenge HB 85, which takes away critical tools we need to protect communities from gun violence. St. Louis City, St. Louis County, and Jackson County are pleased with today’s decision and look forward to a ruling that overturns this dangerous, blatantly unconstitutional legislation.”