February Newsletter (Issue 02-2022)

Two-Way Video Did Not Satisfy Right Of Confrontation

Facts and Procedure: The Jackson County circuit court found J.A.T. committed acts that constituted first-degree assault and armed criminal action if committed by an adult.  Due to Covid the Juvenile office would not transport J.A.T to the hearing from the juvenile detention facility.  Instead, it held the hearing remotely by two-way video.  J.A.T. objected on the grounds that this violated his right of confrontation under the U. S. and Missouri constitutions, which objection was overruled.  After the hearing was held J.A.T.  appealed, arguing the circuit court erred in requiring J.A.T. to participate in the adjudication hearing by the Juvenile Officer via two-way video because it violated J.A.T.’s right to due process and confrontation under the United States Constitution and the Missouri Constitution.

One of the policies of the Family Court was that the juveniles would not be transported to and from court in order to limit the exposure to germs of that particular juvenile as well as additional juveniles in detention.  The circuit court believed that it was reasonable to have a policy and that this policy did not violate J. A. T. right of confrontation.  J. A. T.  appealed the adverse ruling to the Missouri Supreme Court.

Analysis: J.A.T. argued that requiring him to attend the adjudication hearing via two-way live video violated his rights to due process and confrontation under the United States Constitution, U.S. Const. amends. VI, XIV; the Missouri Constitution, Mo. Const. art. I, §§ 10, 18(a); and Supreme Court of Missouri Rule 128.

The Court noted:

A defendant has a “due process right to be present at a proceeding whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.” “[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id. (alteration in original). “The focus is whether, on the whole record, the defendant could have done or gained anything by attending.” (Citations omitted.)

The Court held that by requiring J.A.T. to attend his own adjudication hearing via two-way video, he was denied him the right to be physically present at a stage of the proceedings critical to its outcome, the determination of guilt or innocence.  This exclusion of J.A.T. from being able to be present in person  contributed to the fairness of these proceedings because the adjudication hearing denied J.A.T. an  opportunity to defend in person against the accusations of the Juvenile Officer.  The Court emphasized that this occurred at a critical point because this was his opportunity to defend against the accusations of the Juvenile Officer.  In the Interest of J.A.T. v. Jackson County Juvenile Office, (SC99251, 01/11/22).

Comment Howard: This was a unanimous opinion but there was a concurring opinion by Judge Powell who cautioned that the exclusion should not be a per se violation of due process.  He noted that the circumstances surrounding the adjudication procedure could insure a person could receive a fair and just hearing in certain situations without confrontation.  Judge Powell would use an “as applied” test to determine whether or not the denial of confrontation affected whether or not a person received a fair and just hearing.  I doubt this works.  Much more likely that this will to be treated as a per se violation.  Maybe we will recognize it when we see it.

Transfer Of Student Files That Included Confidential Student Information To Her Personal Goggle Account That She Did Not Create Violated FERPA And School District Policy Was Grounds For Dismissal

Facts and Procedure: Ms. Ferry a teacher at Jefferson City School District (District) copied to her personal Google Drive, records that were assigned to her on the Districts domain.  Although Ferry claimed she intended to copy and transfer only her work files she transferred files created by other District personnel that contained personal and confidential student information.  Some of her files and the files created by others included confidential information.  She transferred these files to her personal Goggle account in order to help build the discrimination lawsuit that Ferry had previously filed against the District.  The files that Ferry copied contained numerous student records that contained confidential student information that she did not create.  She transferred these files to her Goggle Account on advice of her attorney that she could do so.  These files were not disclosed to a third party.

As Ferry transferred District files, District personnel started receiving notices indicating that their files were last modified by Ms. Ferry.  Upon further review, the District learned Ferry was in the process of copying and transferring thousands of the District’s files to her private Goggle Account without permission or authorization.  Some of these files contained confidential student information, created by someone other than herself.  The District stopped the further transfer of the files to Ferry’s account and placed her on administrative leave pending an investigation.

Counsel for the District met with Ferry and her counsel to interview her about the alleged data breach. During the interview, Ferry admitted she transferred the Districts files to her personal Google account. She explained she did so on the advice of counsel to preserve them for use in a discrimination suit she had previously filed against the District.  The District’s investigation ultimately resulted in the District issuing a statement of charges against Ferry that alleged she violated three District policies by this transfer.  The Districts investigation ultimately resulted in the District issuing a statement of charges against Ferry alleging Ferry violated three District policies.  The District held an administrative hearing as a contested case and thereafter determined she violated the District policies pertaining to use of records.  The District terminated Ferry for violating FERPA and District policies by unlawfully disclosing confidential student information to herself.

Ferry appealed to the circuit court, which determined that Ferry did not violate District policies.   The District then appealed to the Missouri Supreme Court.

Analysis: Ferry contended that the Districts decision was not authorized by law because her conduct did not constitute a disclosure, as defined in FERPA, in that she did not release confidential student information to any third person, which she did not.  She also claimed that, assuming she violated District policy when she accessed and transferred confidential information, she did not do so willfully and persistently because no policy prohibited transfer of confidential student information to a personal account.

The Districts decision to terminate Ms. Ferry’s contract with the District was based on the Teacher Tenure Act, which authorizes the Board to terminate a permanent teacher’s indefinite contract for “[w]illful or persistent violation of, or failure to obey, the school laws of the state or the published regulations of the board of education of the school district employing him [or her].” The District found Ferry violated FERPA and constituted the violation of three board policies. These District policies govern staff conduct, technology usage, and data governance and security and effectively require compliance FERPA.

FERPA governs the District’s disclosure of confidential student information and denies federal funding to “any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein . . . ) of students without the written consent of their parents to any individual, agency, or organization[.]” Exceptions authorize schools to release student education records without written consent to, among others, “school officials, including teachers within the educational institution or local educational agency, who have been determined by such agency or institution to have legitimate educational interests[.]”

Ferry admitted she had no legitimate educational interest in accessing and transferring the confidential student information and that she copied them so she might use them in her discrimination suit against the District.  Ferry argued that she did not disclose records that contained confidential information. Disclosure” is defined as: “to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records by any means, including oral, written, or electronic means, to any party except the party identified as the party that provided or created the record.”  Consistent with the regulations a school can disclose personally identifiable information from a student’s educational records without prior written consent to school officials who have legitimate educational interests.  The Court found that Ferry was not a person who had a legitimate educational interest.  She had a personal interest in obtaining information for her lawsuit alleging discrimination, which was not an educational purpose.

Ferry argued that she did intentionally violate the policy of the District and that her actions were not willful or persistent.  Furthermore, she argued that others had done the same thing.  The Court concluded that based on the testimony the District had the authority to terminate Ferry’s employment and that her violation was “willful or persistent.”  The Court held that the administrative decision of the District was supported by competent and substantial evidence. Ferry v. The Board of Education of the Jefferson City School District,(SC98959, 01/11/22)

Comment Howard: This case affirms this important principle that improper use of records can constitute a basis for dismissal.  Otherwise, the case is pretty much a classic contested administrative hearing where the evidence showed that the employee violated the policy of the District by using the records for her own personal use.  The administrative decision was supported by competent and substantial evidence.

Missouri Supreme Court Explains Law Pertaining To Dangerous Conditions Relating To Ownership And Exclusive Control

Facts and Procedure: In an earlier newsletter, Allen v. State of Missouri, was reviewed resulting in a remand for another trial involving the historic Courthouse in Cape Girardeau.  The retrial, lays out some very important rules concerning how the use and ownership establishes liability for a dangerous condition.  This case is now the leading Missouri case on how ownership or use affects liability for dangerous conditions.  This opinion deserves close reading and is a classic that should be bookmarked.

Pamela Allen worked for a title company that needed access to the old records in storage in the historic Cape Girardeau Courthouse.  The courthouse was built in 1854, and overlooks from the heights above the majestic Mississippi River and old historic downtown.  The County and the City have held an undivided one-half ownership interest in the Courthouse since 1959.  In 1979, the City and County entered into an agreement whereby the County may occupy the entire space and assumes all responsibility for maintenance and repairs.  The agreement is still valid and preserves for the City the right to inspect the premises and withhold approval for any alterations.  The County then made the entire space available for the State’s use in 1991.  Since then, the State has enjoyed sole occupancy of the Courthouse and uses it for court operations.  Pursuant to statute, however, the County, not the State, bears responsibility for obtaining the Courthouse space for the State and maintaining and repairing the Courthouse when necessary.

On August 26, 2013, Pamela Allen, an employee of United Land Title, visited the Courthouse to retrieve “a couple of judgments” for a work assignment.  These court records were located in the Courthouse basement, commonly referred to as the dungeon.  It was not the first time that Allen gathered records from the Courthouse basement; she had done so on 50 or more occasions during her time at the title company.  The circuit court clerk had the County install a lock on the door, making the staircase to the basement inaccessible without a key.  Allen approached the deputy clerk to request a key; the clerk advised her to “grab the key” and retrieve the documents.  Allen collected the key, unlocked the door to the basement stairway, left the door slightly ajar to allow additional light to illuminate the dark staircase, and began to descend, gripping the single handrail.  A few steps from the bottom landing, Allen’s foot slipped.  She fell, breaking her leg.  Allen crawled back up the stairs to call for help and was eventually transported to a hospital for her injuries.

Allen then developed serious complications from the fall  leading to long term permanent disabilities. Allen and her husband sued the State, the County, and the City in a personal injury action claiming that they kept the Courthouse staircase in a dangerous condition and should have either repaired the staircase or warned her it was hazardous.  Allen sought damages for her injuries, and her husband brought a claim for loss of consortium.

In the retrial, at the close of Allen’s evidence, the City, State, and County separately moved for directed verdicts.  Each argued it should not be liable for Allen’s injuries because it did not have “exclusive control and possession” or “control” of the stairway and were unable to remedy or warn of any alleged defect. Each further contended the stairs were not a dangerous condition, which would have made them liable for Allen’s injuries.  The circuit court sustained the City’s motion to dismiss but overruled the State’s and County’s motions.

Prior to submitting the case to the jury, the parties held a jury instruction conference.  One focus of the conference was on Instruction No. 8, which directed a verdict for the Allen’s if the jury found that the State either “owned or controlled” the Common Pleas Courthouse basement stairway.  The state objected to this instruction arguing that the Instruction did not properly state the law because the law required that it must have “exclusive possession and control” over the property, which was overruled. The Allen’s’ claims then proceeded to the jury against the State and the County.  In response to a question from the jury, the circuit court instructed the jurors they could find fault only for one of the defendants, the State or County, but not both. The jury returned verdicts holding the County zero percent at fault, the State 90 percent at fault, and Allen 10 percent at fault, assessing Allen’s total damages at $475,000.

The State filed a motion for JNOV, which was overruled by the trial court.  The State and the Allen’s appealed to the Missouri Supreme Court.

Analysis: The Supreme Court noted at the outset that it was clear that the stairway was a dangerous condition.  The question was who was responsible between the three defendants?

The Courts focus was on Jury Instruction No. 8, and whether or not it accurately reflected the law.  The Instruction provided in part:

“First, defendant State of Missouri, 32nd Judicial Circuit either owned or controlled the Common Pleas Courthouse basement stairway, and” (Emphasis by the Court)

Since the State did not own the property, the emphasis was on “whether the [defendant] exercised possession and control rising to an ownership interest.]” The classic example was a case involving a  county election authority that established a polling place in a school, where the Court concluded the Election Authority had exclusive control over the place where the election was being held.

“When the public entity does not own the property at issue, the inquiry must focus on whether the public entity had possession and control over the property equal to the possession and control of a property owner.”

Based on this the Court held that:

“Instruction No. 8 directed the jury to determine if the State “owned or controlled the … Courthouse basement stairway[.]” This Court is unpersuaded the use of the word “control” alone and unmodified in the instruction was sufficient to meet the requirement of “possession and control rising to an ownership interest[.]”

The Court concluded that the trial court erred by giving Instruction No. 8 and reversed, directing that the trial court proceed accordingly.

With respect to the County, the Court held that the trial court erred by giving an instruction that was based on exclusive control and possession, noting that if you own the property, you are liable.  Similarly, the trial court erred by sustaining the City’s motion to dismiss based on its claim that it did not have exclusive control and possession.  The City owned a one-half undivided interest in the property with the County; therefore, the trial court erred when it directed a verdict for the City because it has an ownership interest in the property.

In addition, the Allen’s were entitled to a new trial against the City, because the trial court erred in directing a verdict against the City.  Apportionment of fault was not decided in this case but discussed in the opinion.  Allen v. State of Missouri, (SC98929, 01/11/22).

Comment Howard: Enough of the puzzle has been filled in. Now that it has been determined that all three defendants are liable and apportionment of fault goes four ways it would seem that it is time to settle this case.

Attorney General Loses Case Trying To Block St. Louis County Mask Order

St. Louis Circuit court Judge Stewart recently denied a TRO sought by the Attorney General that would have blocked St. Louis County from enforcing its mask order.

“The state legislature limited the authority of a health officer, local health agency, or public health authority to enact such orders indefinitely,” Stewart said in the ruling, “however, it did allow a duly elected legislative body to act when it deemed necessary.  Consequently, even if this Court were to apply §67.265.1(1) RSMo, the January 5 Order would not be prohibited.”

In order to minimize the outfall from his loss the Attorney General called the loss a technical decision. What! For a news article and copy of the court’s order click here.    https://www.ksdk.com/article/news/health/coronavirus/judge-denies-temporary-restraining-order-st-louis-county-mask-mandate-continue/63-8ebd903c-1ed0-4bfd-8c7b-9c7a575871b4

Lesbian Employee Awarded $275,000 Against The Missouri Department Of Corrections Plus $500,000 In Attorney Fees

An article in the January 17, 2022 edition of Missouri Lawyers Weekly discusses a recent jury verdict for a lesbian employee the Missouri Department of Corrections in the amount of $275,000 plus $500,000 in attorney fees.  The Department failed to address coworker actions that discriminated against her.  The facts in the article described a very hostile work environment.  The case is Finney v. Missouri Department Corrections, Buchannan County Circuit Court, case number 18BU-CVO4465/Aug. 31, 2021

Iowa State Law That Prohibited Face Masks From Being Worn In School Violated The ADA And Section 504 Of The Rehabilitation Act

Facts and Procedure: In early 2020, many schools and school districts in Iowa moved to remote learning in response to the COVID-19 pandemic.  When they later reopened for in- person classes, the Iowa Department of Education recommended mask-wearing at schools, and many districts imposed broad mask mandates.  On May 20, 2021, Iowa Governor Kim Reynolds signed a law that prohibited schools and school districts from requiring anyone to wear masks on school grounds, unless otherwise required by law.  In response, all Iowa schools and school districts with mask mandates ended them.

Where some parents with children who have disabilities previously sent their children to schools with mask mandates, many withdrew their children due to the health risks, or were forced to send their children despite the risks due to no viable alternative.  One district expressly stated it would have maintained mask requirements but for Section 280.31.

Plaintiffs, the Arc of Iowa and Iowa parents whose children have serious disabilities that place them at heightened risk of severe injury or death from COVID19, sued to enjoin enforcement of Iowa’s law prohibiting mask requirements in schools. Plaintiffs sued, under the Americans with Disabilities Act of 1990 (“ADA”) and the American Rescue Plan Act of 2021 (“ARPA”).

The federal district court ruled that the lowa State law violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act and granted a preliminary injunction completely enjoining the law from enforcement against persons with disabilities.  The State appealed to the 8th Circuit.

Analysis: Plaintiffs have standing because they suffered an injury in fact, “fairly traceable to the challenged conduct of the defendant,” and “likely to be redressed by a favorable judicial decision.”  “Parents have standing to sue when practices and policies of a school threaten their rights and interests and those of their children.”

Plaintiffs documented that the ban on mask requirements forced them to forgo critical educational opportunities, including in-person learning with their peers. For example, one Plaintiff’s child, “S.V.,” “has a brain injury, cerebral palsy, and a history of strokes and epilepsy.”  His doctors warned that contracting COVID-19 would create a “risk of severe complications,” including “more severe seizures and further brain damage.”  Experts testified that that because of his conditions and cognitive limitations, “he is nonverbal” and “cannot follow instructions easily” which makes it “much more difficult for him to adhere to . . . wearing a mask . . . so it is even more important that others wear a mask . . . around him.” The Court concluded that Plaintiffs showed there was injury in fact and that it was fairly traceable to the ban on not wearing masks.  Furthermore, the granting of a preliminary injunction will likely be redressed by a favorable decision.

The 8th Circuit concluded that Plaintiffs had standing because “…they established injuries that are fairly traceable to Defendants’ conduct and likely to be redressed by a favorable judicial decision.”

Exhaustion –The key remaining issue was whether or not the Plaintiffs were required to exhaust their administrative remedies under the Individuals with Disabilities Education Act.  The Court outlines the test to determine if exhaustion is required. The test to determine if exhaustion is required is a two part test: (1) could “the plaintiff have brought essentially the same claim” if the conduct occurred at “a public facility that was not a school,” such as a public theater or library; and (2) could an adult at the school, such as an employee, “have pressed essentially the same grievance?” If the answer to both questions is yes, then “a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject.” In the yes  situation exhaustion is not required.  If the answer is “no” to both questions exhaustion of administrative remedies under IDEA is required.

The Court in applying the test noted that face masks, like wheelchair ramps, render school buildings accessible to a part of the public, students and adults alike, that otherwise could not access them as the rest of the public does.  Thus, face masks are a public health feature with “educational consequences,” and although suit could have been brought under the IDEA because Plaintiffs may not be able to “receive instruction” at their schools.  The facts in this case do not trigger the IDEA’s exhaustion requirements, just as they did not for Fry’s “architectural feature” of missing wheelchair ramps.  Arc of Iowa v. Kim Reynolds, (8th Circle, 21-3268, 1/25/22).

Comment Howard: The opinion in this case was written by Judge Benton and as usual it is a super opinion, meticulously crafted.  It covers every possible issue, written with the eye that it can withstand further scrutiny.  You can bet the house on Judge Benton. Magnificent!

State Law That Required Preapproval Of Ballot In State Referendum Is Unconstitutional

Facts and Procedure: Amidst a ballot referendum campaign, Sara Baker, the ACLU of Missouri, and No Bans on Choice (collectively, “Challengers”) filed suit against the Missouri Secretary of State (Secretary). The lawsuit challenged the constitutional validity of Sections 116.180 and 116.334.2,1 which prohibits the collection of referendum petition signatures before the Secretary has certified the referendum’s “official ballot title” and affixed it to the petition.  The circuit court issued a declaratory judgment invalidating Sections 116.180 and 116.334.2 because those provisions “interfere with and impede” the right of referendum and, therefore, conflict with Article III, Sections 49 and 52(a) of the Missouri Constitution.  The Secretary appealed the decision to the Missouri Supreme Court.

I – Background Referendum Process

The voters of Missouri first adopted a constitutional amendment establishing the right of referendum more than 100 years ago in 1908.  The right of referendum is now contained in Article III, Sections 49 and 52(a) of the Missouri Constitution.  Article III, Section 49 states:

“The people reserve power to propose and enact or reject laws and amendments to the constitution by the initiative, independent of the general assembly, and also reserve power to approve or reject by referendum any act of the general assembly, except as hereinafter provided.”

Article III, section 52(a) further provides:

“A referendum may be ordered … by petitions signed by five percent of the legal voters in each of two-thirds of the congressional districts in the state …. Referendum petitions shall be filed with the secretary of state not more than ninety days after the final adjournment of the session of the general assembly which passed the bill on which the referendum is demanded. (Emphasis added).”

The General Assembly is permitted to enact “reasonable implementations” of the referendum process.  A framework for exercising the right of referendum was enacted by the legislature in Chapter 116.

II – Referendum Process

To initiate the process, the referendum proponent must first submit the proposed petition “in the form in which it will be circulated” to the Secretary, who must then send it to the Attorney General to conduct an independent review of its form and provide comments within 10 days.  The Secretary has the ultimate authority to approve or reject the form of the petition and must do so within 15 days after the petition was first submitted and following the Attorney General’s review.  If the petition is approved, the Secretary is given 23 days to prepare a “summary statement” of the measure, and the State Auditor must prepare a “fiscal note” and “fiscal note summary.” The Attorney General must then issue an opinion about the form and content of the summary statement and fiscal note summary.  Within three days of receiving the Attorney General’s approval for both summaries, the Secretary must combine those summaries to create the “official ballot title,” which must be placed on the ballot measure if it is put before the voters. The Court noted that it may take up to 51 days from the time the proponent first submits the proposed petition until the official ballot title is certified.

III – 2020 Referendum Effort

The General Assembly passed House Bill No. 126 on May 17, 2019, the last day to pass legislation during the 2019 session, and the bill was signed by Governor Parson on May 24.  Four days later, Baker, on behalf of the ACLU, submitted a proposed referendum petition on HB 126 to Secretary of State Ashcroft, seeking to place it on the ballot for the 2020 general election.  On June 6, 2019, the Secretary notified Baker and the ACLU he was rejecting the proposed referendum petition because HB 126 contained an emergency clause, requiring some of its provisions to become effective immediately.

State officials ultimately used all 36 days to complete the official ballot title certification.  The Secretary did not certify the official ballot title and approve the petition for signature circulation until August 14, 2019.  As a result, Baker and the ACLU were left with 14 days to circulate the petition and submit 107,510 signatures to the Secretary in accordance with Article III, Section 52(a).6

On August 22, Challengers filed suit in the circuit court against the Secretary, arguing Sections 116.180 and 116.334.2 violated the Missouri Constitution in that they conflicted with the right of referendum under article III, sections 49 and 52(a). Baker and the ACLU ultimately failed to collect the requisite signatures within the 14-day timeframe, and the referendum was not placed on the ballot.

The circuit court ultimately issued a declaratory judgment that Sections 116.180 and 116.334.2 were unconstitutional because they conflicted with Article III, Sections 49 and 52(a) in that they “interfere with and impede” the right of referendum.  The circuit court concluded Sections 116.180 and 116.334.2 unconstitutionally “interfere with and impede” the right of referendum.  It determined that, by prohibiting proponents from circulating a petition before the official ballot title is certified and affixed to the petition, the challenged statues “dramatically reduce the time available for the circulation of a referendum petition, both in theory and in practice.”  The State appealed to the Missouri Supreme Court.

Analysis: The Court first reviewed the cases cited by the circuit court concluding that prior decisions by the Court supported the circuit courts decision.

“… previous decisions “discussed the importance of the initiative and referendum, emphasizing that procedures designed to effectuate these democratic concepts should be liberally construed to avail the voters with every opportunity to exercise these rights.”

“The ability of the voters to get before their fellow voters issues they deem significant should not be thwarted in preference for technical formalities.”

The Court held that:

Together, these cases suggest that an official ballot title is not necessary to prevent individuals from being deceived at the petition-signing stage and that the ability to exercise the constitutional right of referendum should not be “interfered with or impeded” by a pre-circulation ballot title requirement.

Furthermore, the delay in getting ballot titles approved was a very significant factor in the Courts decision.

Therefore, the collection of signatures could proceed without the Secretary of State  approving the ballot title.  No Bans On Choice v. Ashcroft, (SC98879, 2/8/22).

Comment Howard: The Court respected the right of voters to have referendums on laws they did not agree with.  Two of the seven Judges dissented.  It was encouraging to see the that the majority of the Judges valued the history behind the purpose of referendum laws.  If you have local laws that protect the right of voter referendums or initiatives you can take get solace in this opinion.  Lots of good language in this case supporting the importance of the right of referendum.

It was also pretty obvious, from the facts in this case, that the General Assembly and the Secretary of State did not respect the right of the voters to patriciate in the referendum process.  Since the addition of the preapproval process by the General Assembly not one referendum was able to get the matter referred to the voters except the right to work referendum, which was approved early in a legislative session, leaving a significant amount of time to collect signatures.