July Newsletter (Issue 07-2022)

In Case Of First Impression The Missouri Supreme Court Holds That There Is A Private Right To Be Free From Retaliation For Exercising Rights Under The Worker’s Compensation Law

Facts and Procedure: Poke was employed by the Independence School district (District).  Poke was injured while folding a cafeteria table while at work and later aggravated his injury by lifting a full garbage bag.  Poke independently sought medical treatment and was diagnosed with a hernia.  He initiated a workers’ compensation claim with the District.  The District directed Poke to an authorized treatment provider, who diagnosed Poke with inguinal tenderness.  As requested, Poke also provided the authorized treatment provider with a urine sample.

Poke returned to work.  Thereafter, the District discharged Poke because his urine sample tested positive for marijuana, violating the school district’s drug policy.  The District denied Poke’s workers’ compensation claim based upon his positive drug test.

In February 2020, Poke filed suit under Section 287.780 of the Workers’ Compensation Law.  Poke alleged the District’s stated basis for terminating his employment was pretextual and he was actually discharged in retaliation for exercising his workers’ compensation rights.  The District denied Poke’s allegation and asserted it was entitled to sovereign immunity from Poke’s workers’ compensation retaliation claim.

The circuit court sustained the District’s motion, finding the District was “entitled to summary judgment based on binding legal precedent holding that Missouri school districts have sovereign immunity with respect to workers’ compensation retaliation claims.”  Poke appealed to the Missouri Supreme Court.

Analysis: Poke argued the circuit court erred in finding the school district enjoyed sovereign immunity from his workers’ compensation retaliation claim, because the legislature included political subdivisions, such as school districts, as employers for the purposes of the Workers’ Compensation Law, which prohibits retaliation against employees for exercising their rights under Section 287.780:

No employer or agent shall discharge or discriminate against any employee for exercising any of his or her rights under this chapter when the exercising of such rights is the motivating factor in the discharge or discrimination.  Any employee who has been discharged or discriminated against in such manner shall have a civil action for damages against his or her employer.  For purposes of this section, “motivating factor” shall mean that the employee’s exercise of his or her rights under this chapter actually played a role in the discharge or discrimination and had a determinative influence on the discharge or discrimination.

The Test – The court noted that, “in the absence of an express statutory exception to sovereign immunity, or a recognized common law exception …, sovereign immunity is the rule and applies to all suits against public entities.”  Notwithstanding, the general rule of sovereign immunity, this rule may be overcome by showing that the legislature expressly intended to waive sovereign immunity.  The Court noted, that while the most common way to express that intent may be to specifically state that sovereign immunity is waived, the legislature may also express its intent through other language, as shown by the language in the statute.

Here, the legislature (1) created a private right of action that can be brought against any employer who retaliates against an employee for exercising his or her workers’ compensation rights, Section 287.780 and (2) specifically included governmental entities in the Workers’ Compensation Law’s definition of “employer,” Consequently, considered together, Sections 287.780 and 287.030 reflect an express showing of legislative intent to waive the District’s sovereign immunity for Poke’s workers’ compensation retaliation claim.  Case is reversed and remanded.  Poke v. Independence School District, (SC99384, 07/12/22)

Comment Howard: In a case of first impression, the Missouri Supreme Court held that the statutory language created a private right to be free from retaliation for exercising rights under the Worker’s Compensation law. The definition of employer includes municipal corporations and other local government entities.  In a footnote, the Court noted that school boards were specifically included within the definition of employer; therefore, it did not take up the question of whether or not its ruling applied to the state of Missouri, although it’s very clear from the opinion what to expect when this issue later reaches the court.

Detective Did Not Violate A Clearly Established Constitutional Right By Omitting Information About The Race Of The Suspect From A Warrant Application That He Does Not Actually Know, Even If The Reason Is His Own Reckless Investigation

Facts and Procedure: In Hartman v. Bowles, the 8th Circuit considered whether or not a detective violated a clearly established constitutional right by omitting information about the race of the suspect from a warrant application that he does not actually know, even if the reason for his omission is his own reckless investigation.  In this case someone shot a St. Louis fire captain and his passenger.  The fire captain described the shooter three separate times as a “black male,” once on a 911 call right after the shooting and again when the responding officers arrived on the scene, and one more time to an officer at the hospital.

Detective Bowles, who investigated the case focused his attention on two brothers, James and Ryan Hartman.  Nearby cameras had captured them driving in the area and then stopping shortly before the shooting.  Based on this evidence, Detective Bowles requested multiple search and arrest warrants.  There was just one problem: the brothers are white and the paperwork he submitted left out the fact that the fire captain had described the shooter as black.  The brothers were arrested and held almost a year before being released when it became clear that neither was the shooter.  They sued Detective Bowles, under §1983, alleging he violated their Fourth Amendment rights by leaving out the fire captain’s description.  The district court held that Detective Bowles was entitled to qualified immunity and they appealed to the 8th Circuit. 

Analysis: The 8th Circuit noted that getting a warrant from a “neutral magistrate” is a “clear[] indication that [an] officer[] [has] acted in an objectively reasonable manner” but acting intentionally or recklessly by omitting key facts can also lead to a Fourth Amendment violation.  In order to succeed the Hartman’s had to show that Detective Bowles (1) omitted facts “with the intent to make, or in reckless disregard of whether they make, the affidavit misleading” and (2) that “the affidavit, if supplemented by the omitted information, could not support a finding of probable cause.”  The 8th Circuit concluded that it was undisputed, at least at this point, is that Detective Bowles did not actually know that the fire captain had described the shooter as black; therefore, Detective Bowles was entitled to qualified immunity.

There was a strong dissent, which argued that Detective Bowles did not conduct the most basic investigation before presenting probable cause affidavits to the court, seeking the search and arrest of appellants: he did not listen to the 911 calls made by the fire captain and a witness who described the shooter as being a black male; he did not talk to the officers who responded to the scene or review their reports in which they described the shooter as being a black male; and he did not enhance the surveillance footage from the night of the shooting until two years later, footage which showed that the shooter did not drive an Infiniti.  Hartman v. Bowles, (8th Cir., 21-1365, 07/05/22)

Preservation Of Immunity

In 2005, the General Assembly amended Section 105.711.5 by adding the language in italics to the statute the State Legal Defense Fund (SLEF) statute, so that it read as follows:

“In the case of any claim or judgment against an officer or employee of the state or any agency of the state based upon conduct of such officer or employee arising out of and performed in connection with his or her official duties on behalf of the state or any agency of the state that would give rise to a cause of action under Section 537.600, the state legal expense fund shall be liable, excluding punitive damages . . . . The state legal expense fund shall be the exclusive remedy and shall preclude any other civil actions or proceedings for money damages arising out of or relating to the same subject matter against the state officer or employee, or the officer’s or employee’s estate. No officer or employee of the state or any agency of the state shall be individually liable in his or her personal capacity for conduct of such officer or employee arising out of and performed in connection with his or her official duties on behalf of the state or any agency of the state.”

In a case of first impression, Judge Benton, for the Eighth Circuit construed the new language (above in italics) to not create a new statutory waiver of sovereign immunity but to preserve “…immunities already in place for the State and its employees.” What is particularly interesting about his opinion is that he cites non-action by the legislature as proof of legislative intent.

“Statutory history confirms that the Missouri General Assembly did not adopt a new statutory immunity. The legislature rejected a provision that no employee would be “personally liable in any civil action brought against them in courts . . . for conduct arising out of and in connection with their official duties on behalf of the state, whether or not such acts are ministerial or discretionary.” (Cite omitted.)  Doe v. Eckerson, (8th Cir., 21-2335, 06/28/22)

Comment Howard:  Generally, Sutherland on Statutory Construction has rejected or given little or no weight to actions not taken by the legislature.  The interpretation given by Judge Benton in this case is extremely valuable because it is relatively easy to track changes to legislative bills, as they are processed through the General Assembly with its bill tracking program.  A lot of what local government attorneys do is interpret statutes; therefore, I consider this case a big step in interpreting legislative changes.  Book mark it as one of your rules of statutory interpretation.

Filing Charges Against Wife Who Was Not Involved In Driveway Construction Was Abuse Of Process

Facts and Procedure: In October 2019, Jay Nygard replaced the driveway on a property that he owned with his wife, Kendall Nygard.  On October 25, after he removed the driveway and was about to pour concrete for the new one, an inspector from the City of Orono (City) arrived and told Nygard that he needed a permit to replace the driveway.  Nygard said he would apply for one, the inspector left, and Nygard continued to work on the driveway.  Jay Nygard completed the driveway and then applied for a permit.  The driveway as completed did not meet city code.  The City and Jay Nygard exchanged correspondence leading to the City issuing an ultimatum to Jay stating that that he must agree to the conditions for the driveway construction in the city response by the end of the day, or else “this matter will be turned over to the prosecuting attorney tomorrow for possible legal action.”  Jay Nygard did not respond.  The City then filed charges against Jay and Kendall Nygard for violating the Orono City Code, which states that a “zoning permit application for hardcover and/or land alteration shall be submitted by the individual performing the work prior to conducting any land alteration or hardcover installations on a property.”

At trial, the state court dismissed the charge against Kendall Nygard, (the wife) ruling that she could not be guilty of violating the code as someone who merely owned the property and did not perform or order any unauthorized work.  Jay Nygard was acquitted because the driveway-lip condition was only a “suggestion” and “there was no basis for a zoning permit application for hardcover replacement” where the city had not requested “hardcover calculations.” The City never officially granted or denied Nygard’s permit application.

The Nygards then sued the city in federal court under § 1983, claiming Section 86-66 is void for vagueness and for an abuse-of-process claim, and a malicious-prosecution claim.  The district court dismissed all claims under Federal Rule of Civil Procedure 12(b)(6).  The Nygards appealed the district court’s rulings on vagueness, the abuse-of-process claim, and the malicious-prosecution claim to the 8th Circuit.

Analysis: The ordinance requires an “owner and/or occupant” of property where “work has been done in violation of any building code or zoning requirement” to obtain a permit or remove the violation within thirty days of receiving notice.  The Court noted that in order to state a malicious-prosecution claim in Minnesota, a party must allege that “(1) the suit [was] brought without probable cause and with no reasonable ground on which to base a belief that the plaintiff would prevail on the merits; (2) the suit [was] instituted and prosecuted with malicious intent; and (3) the suit . . . ultimately terminate[d] in favor of the defendant.”

Although a judge reviewed the probable-cause statement and made a finding of probable cause, it was not entirely based on “a full and fair statement of the facts.”  Kendall Nygard was not involved with the driveway replacement.  Barnhart and other city officials knew that Jay Nygard installed the driveway, but they had no knowledge of Kendall’s involvement, and they failed to investigate it; therefore, there was “a want of probable cause for the prosecution.”  All of the above elements of a malicious prosecution claim were therefore satisfied.  Nygard v. City of Orono, (8th Cir., 21-2941, 07/05/22)

Comment Howard: It is been a while since we have reviewed a malicious prosecution case.  Even though this is a Minnesota case the elements of a wrongful prosecution are the same in Missouri.  It is easy to see how this could fall through the cracks because everything seemed to be extremely straightforward.  The City, just failed to cross its i’s and t’s when it filed the ordinance violation against a person who did not violate the ordinance.

Gross Receipts Tax Was Qualified And Did Not Cover All Revenues

Facts and Procedure: Joplin and Columbia (Cities) were members of a putative class action brought against numerous government entities.  The Cities decided to opt out of the class action bringing their own lawsuits against CenturyLink, for failure to pay local gross receipts taxes on certain telephone services.  After extensive discovery and procedural delays, the circuit court granted partial summary judgment to the Cities on liability on all counts, ordered CenturyLink to provide a full accounting of its revenues and tax liability in each city, and assessed attorneys’ fees and expenses.  In addition, the circuit court struck CenturyLink’s pleadings related to damages as a sanction for CenturyLink’s failure to comply with the court’s orders.  The circuit court’s judgment awarded damages, interest, penalties, attorneys’ fees, and expenses of $53,802,060.70 to Columbia, and $1,153,678.23 to Joplin.  Century Link appealed the judgment to the Eastern District.


What was taxed – Century Link argued that the plain language of the license tax ordinances imposed a gross receipts tax on revenue from only “local exchange service” from “telephones located within the city limits” of Columbia, and on receipts from only “exchange telephone service” sold to “consumers” within Joplin, rather than all revenue and receipts received by CenturyLink in the Cities.  The Cities argued that a gross receipts tax covered all of the revenue without exclusions.  The trial court held that the “Defendants must pay a license tax on all of their gross receipts attributable to Defendants’ business in the Cities.”

CenturyLink argued that the partial summary judgment on liability ignores the plain language of the license tax ordinances and erroneously expanded the Cities’ tax base.  CenturyLink further argued that the circuit court’s order conflicts with Supreme Court precedent in Aurora, an earlier decision, by disregarding qualifying language in both ordinances that limits taxable revenue and receipts.  In Aurora, the Supreme Court concluded that the trial court properly accounted for the qualifying language, heard evidence as to where the revenue was derived, and determined certain revenue sources were not taxable. The Aurora case was brought in 2012, and culminated in a published opinion of the Supreme Court of Missouri in 2019.  The Aurora decision was published after the circuit court, in the instant case, granted partial summary judgment to the Cities.  In light of Aurora, CenturyLink moved to set aside the partial summary judgment and for reconsideration of discovery sanctions, which was denied.  At trial but reversed in part, by the Eastern district holding that Aurora controlled with respect to the scope of the ordinance.

Sanctions – Despite being correct in its assertion that the basis for calculating the tax base was not correct.  The Eastern District concluded that CenturyLink’s failures to comply with the circuit court’s discovery orders were not excused by “our conclusions that the circuit courts’ interpretation of the ordinances was overbroad and that, as a consequence, its discovery orders required CenturyLink to disclose revenue and receipts not taxable.”  

“It should go without saying that a party may not refuse to comply with a circuit court’s discovery order because it is convinced the order is objectionable, even if upon later review the order proves to have been objectionable.”

Therefore, even though the sanctions were harsh the “…striking CenturyLink’s previous pleadings, including affirmative defenses, related to damages and prohibiting CenturyLink from offering evidence at the damages hearing was affirmed.”

The Eastern District did find however that the portion of the award of attorneys’ fees, costs, and expenses in the circuit court’s final judgment was not directed at any additional, distinct discovery violation for a late stage, as additional sanctions were not required to accomplish the purposes of discovery.  That part, only “late stage,” goes away.  City of Columbia v. Spectra Communications Group, (ED109769, 07/19/22)

Comment Howard: In this case, the good guys won.  Since CenturyLink jerked everyone around, including the court, CenturyLink did not get a free pass and remained in default because of its hostile and uncooperative attitude.  While the ultimate award may be reduced, due to a shrinking base the Eastern District makes it clear that prior bad acts by CenturyLink were not forgiven and they remained in default.

Due to the uncooperative attitude of CenturyLink the trial court had to appoint a special master, the Honorable Stephen Limbaugh.  His report set the stage for further action in this case.  One of the complications was that the common definition of gross receipts as generally understood, particularly by municipal attorney’s, is that its scope reached the “whole thing,” with no exceptions.

At this point, it would seem that all that is left to do is add up the bill.  Is that too much to hope for?  Probably!

One point that the Eastern District noted is that the tax collection system relies on self-reporting.  Maybe there is a better way like certification from CPA’s, in order to make the reporting more reliable.  Surely there is a better way, then self-reporting.

8th Circuit Holds That Accommodation Would Have Caused An Undue Hardship And No Adverse Employment Decision

Facts and Procedure: LeBlanc worked for the Department of Veterans Affairs Police Department (VAPD).  Under the VAPD’s “Panama Schedule,” officers work either only day shifts from 8:00 a.m. to 8:00 p.m., or night shifts from 8:00 p.m. to 8:00 a.m.  Every two weeks, officers switch between days and nights.

Six years after starting his job with the VAPD, LeBlanc was diagnosed with vestibular dysfunction, which causes dizziness and blurred vision.  LeBlanc realized that his irregular hours were exacerbating his symptoms, and requested accommodations from the VAPD, mainly that he “work [a] schedule with a stable pattern.” LeBlanc clarified in an email that working exclusively day shifts was the “main accommodation” he was seeking.  The VAPD temporarily let LeBlanc work days while it considered his request.  LeBlanc reported that his symptoms improved during that time and that he had “never felt better.”

A few months after LeBlanc was put on day shifts, Eric Blumke, the acting Chief of Police of the VAPD, expressed concerns about the arrangement.  He told Dr. Charity Hovre, a VAPD Accommodation Coordinator, that LeBlanc’s accommodation caused gaps in police coverage and required other officers to cover extra nights.  The VAPD’s legal team later advised Chief Blumke and Dr. Hovre to deny LeBlanc’s request.  The lawyers believed that giving LeBlanc exclusively day shifts would violate the VAPD’s collective bargaining agreement, which dictates that “[s]cheduled off-tours shall be rotated fairly and equitably among affected employees, i.e., day/evening, day/night.”  They worried that LeBlanc’s requested accommodations would continue to force other employees to cover his nights, potentially in breach of the collective bargaining agreement.  So, the VAPD provided LeBlanc with an alternative accommodation, reassignment to another position.  Chief Blumke told LeBlanc that this accommodation would meet his needs, without violating the VAPD’s collective bargaining agreement.

Unhappy with his reassignment, LeBlanc asked the VAPD to reconsider.  He argued that he and his doctors never said that he couldn’t work night shifts; rather, they said that a day shift schedule might improve his symptoms.  He also offered to get notes from four doctors saying that he could work night shifts, and said that he interpreted his prior doctors’ notes as conveying only that it “would be nice to have [day shifts].”  The Associate Director of the Medical Center considered the relevant evidence and denied LeBlanc’s request for reconsideration, concluding that reassignment to a position with stable day shifts was “appropriate and justified.” LeBlanc accepted the offer of reassignment and was hired as a transportation assistant at the VA.

He then applied for jobs as a detective and as a training instructor with the VAPD.  LeBlanc did not get these positions.  LeBlanc sued Secretary McDonough in his official capacity, alleging that: (1) the VAPD failed to provide him a reasonable accommodation for his disability; (2) the VAPD discriminated against him on the basis of his disability when it didn’t hire him as a training instructor; and (3) the VAPD’s decision not to hire him was retaliation for his accommodation request.

The district court granted summary judgment to Secretary McDonough on all claims.  It reasoned that the VAPD provided a legitimate, non-discriminatory reason for not hiring LeBlanc, that he wasn’t the best applicant based on his recommendations, second round scores, and alleged comments at the first interview.  It concluded that LeBlanc had not shown that the VAPD’s proffered reason was pretextual, so there was no genuine dispute of material fact sufficient to survive summary judgment.  LeBlanc appealed to the 8th Circuit, arguing that the district court erred by granting summary judgment on his failure to accommodate and failure to hire claims.

Analysis: The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability . . . be subjected to discrimination . . . under any program or activity conducted by any Executive agency.”  Therefore, the 8th Circuit reasoned that VAPD requires reasonable accommodations for employees with a disability unless it “can demonstrate that the accommodation would impose an undue hardship.”

The 8th Circuit held that LeBlanc’s requested accommodation was not required under the Rehabilitation Act because it would impose an undue hardship on the VAPD requiring adjusting of work schedules for other employees and would have violated its collective bargaining agreement.  His request was primarily for exemptions from the VAPD’s Panama Schedule.  LeBlanc asked for “[a] work schedule with a stable pattern” rather than rotating between night and day shifts.  He also asked for “[l]imited night shifts,” “[l]imited overtime,” “[l]imited weekend shifts,” and the “[a]bility to call in for sick leave on short notice, if needed.”  But those accommodations would have violated the VAPD’s collective bargaining agreement, which requires that “[s]cheduled off- tours shall be rotated fairly and equitably among affected employees, i.e., day/evening, day/night.”  LeBlanc’s requested accommodations were therefore presumptively unreasonable.  In addition, these accommodations would also require LeBlanc’s colleagues to work more nights, more weekends, and more irregular hours, which is also an undue hardship.  The VAPD was therefore not obligated to provide LeBlanc routine day shifts.

LeBlanc also argued that that his reassignment constituted an adverse employment action, not a reasonable accommodation.  Even though a reassignment to another position can constitute an adverse employment action in some circumstances it does not do this all the time.  A reassignment can be a reasonable accommodation “when the employee cannot be accommodated in his existing position.”  The VAPD provided the only available reasonable accommodation, which was reassignment; therefore, the reassignment was not an adverse employment action.  Leblanc v. McDonough, (8th Cir., 21-2965, 07/14/22)

Proof City Is Not Self-Insured; What Is A Seizure; And Application Of 1985 Conspiracy Claims

Facts and Procedure: In Torres v. City of St. Louis, an 8th Circuit case there were three issues of interest to local government attorneys.  There was the question of what constitutes a seizure; whether or not a conspiracy claim under Section 42 U. S. C. 1985 are available; and how do you show that the City is not self-insured in order to challenge the claimed defense of sovereign immunity.

Sovereign Immunity Defense – The district court denied the motion for summary judgment by the City of St. Louis (City) with respect to its claim that it was entitled to sovereign immunity on the grounds that there was a factual dispute.  The City appealed to the 8th Circuit, which reversed holding that in Hendrix v. City of St. Louis, an almost identical factual situation with similar affidavits the Missouri Courts of Appeals held that the city was not self-insured and did not waive sovereign immunity. 

“Specifically, the court considered the same statements from Kistler, Flowers, and Bush as detailed above, along with “the PFPC’s articles of incorporation, its bylaws, a document entitled ‘City of St. Louis Risk Management Program,’ [and] a screenshot from the City’s website referring to the PFPC as ‘the city’s self-insurance program.’”

It goes without saying, that you might want to clone the affidavits in the St. Louis case, if there is a question of whether or not your city has a self-insurance program.

What Constitutes a Seizure – A St. Louis Metropolitan Police Department SWAT team (SLMPD) executed a search warrant for Dennis’s home, which authorized officers to seize “Marijuana, Heroin, or any other Illegal Narcotic, U.S. Currency, Drug Transaction Records, Firearms, and any other instrument of the crime.” At the time the SLMPD officers executed the search warrant, Dennis and Hammett were the only two individuals inside the home. Officer Boyce used a “battering ram” to breach the front door of the home, and officers detonated a noise diversion device commonly known as a “flash bang.” SLMPD officers then entered the home and discharged their weapons, a collective 93 times, shooting Hammett 24 times and killing him.  At some point during the incident, Dennis, who was non ambulatory and on the floor in another room called 911 and stated that someone was shooting into his home and that he did not see anyone.

“Dennis stated in his deposition that he was asleep in his bedroom when he was awakened by the sound of gunfire.  Dennis testified that Hammett came into his bedroom, picked him up, and placed him on the floor before going into the dining room.  He claimed that Hammett did not have anything in his hands when he went into the dining room and that he did not see a gun next to Hammett’s body when he later crawled into his wheelchair and went into the dining room.  Dennis further testified that he did not hear an AK-47 fire during the incident and would have noticed the sound because he had heard it “thousands” of times during his military service in Vietnam.”  

Dennis asserted that the defendant officers violated his Fourth Amendment right to be free from unreasonable seizure and excessive force.  The district court found a genuine dispute of material fact existed where appellees alleged that, while Dennis was still in the bedroom and after Hammett was already down.  Appellants argue that the district court erred in denying the defendant officers qualified immunity on this basis because Dennis was not seized or subjected to force in violation of the Fourth Amendment.  With this background the 8th Circuit discusses what constitutes a seizure.

“[A] person is seized within the meaning of the Fourth Amendment ‘when the officer, by means of physical force or show of authority, terminates or restrains [the person’s] freedom of movement.’”

It is undisputed that Dennis was not shot or otherwise injured, at the time that he claims the defendant officers opened fire on him.  Thus, there was no application of physical force.  Further, there was no acquiescence with a show of authority.) (“[O]ne becomes seized when the officer’s show of authority has the effect of stopping his movement.”).  As he stated during his deposition, Dennis did not know who was shooting at him and after “everything stopped,” he got into his wheelchair and went into the living room. It was only at that point that he heard someone tell him to come outside with his hands up and he acquiesced.  Therefore, because there was no application of physical force or acquiescence to a show of authority, Dennis was not seized for purposes of the Fourth Amendment; therefore, the 8th circuit reversed the district court’s denial of qualified immunity to the defendant officers as to Dennis’s excessive force and unlawful seizure claims.

Section 1985 Conspiracy –The City argued that the district court erred in denying the defendant officers qualified immunity on appellees’ §§ 1983 and 1985 conspiracy claims (Counts 2 and 6) because these claims are barred by the intracorporate conspiracy doctrine and the law on § 1983 intracorporate conspiracy claims is not clearly established.  The 8th Circuit noted, that though appellees allege improprieties in the defendant officers’ execution of their duties, “this fact alone is insufficient to evade the intracorporate conspiracy doctrine.” In a case of first impression the 8th circuit held that the City, could not have conspired with itself through its agents because the agents and the city are a single person in the eyes of the law, and a corporation cannot conspire with itself’ to violate 42 U.S.C. § 1985.” Torres v. City of St. Louis, (8th Cir., 21-1761, 07/01/22)

Maries County Violated Notice Provisions Of Sunshine Law When It Held An Emergency Meeting To Issue An Emergency Covid Stay-At-home Order

Facts and Procedure: On April 3. 2020 Governor Parsons issued a Stay-At-Home-Home Order that stated that individuals currently residing in the state of Missouri “shall” avoid leaving their homes or places of residence unless necessary.”

In response to the COVID-19 pandemic, on April 6, 2020, the Maries County Commission entered an order (the “Commission’s Emergency Order”), declaring a state of emergency and ordering all individuals residing in the county to abide by a stay-at-home order issued by Governor Parson on April 3, 2020. Following the entry of the Commission’s Emergency Order, the Commission met in person on April 9, April 13, April 16, and April 20, 2020, at the Maries County courthouse but prohibited members of the public from attending those sessions in person.  In lieu of in-person attendance, the Commission created a phone line for the public to access the meetings but failed to post any notice in a place visible to the public of the meeting dates, times, place, the tentative agenda, nor did they post the phone number that gave access to the meetings.

On April 20, 2020, the Calzones sued the Commission in a five-count petition, alleging various violations of Missouri’s Sunshine Law, including Count 3, the No Reasonable Notice Count.  The Calzones filed a motion for summary judgment on all counts of their amended petition.  The Commission admitted that before the Calzones filed their suit, it did not post a notice or a tentative agenda for its meetings in an area reasonably accessible to the general public.  In its Order on Motion for Summary Judgment, the trial court found the following facts.

“Before the Commission’s meeting on April 6, the Commission decided to close the courthouse to the public.  The notice posted on the exterior doors to the courthouse stated the courthouse was closed to the public and listed phone numbers for the various offices as well as the Presiding Commissioner’s cell phone number.  Nothing on the notice mentioned Commission meetings, the availability of a phone line to listen to the meetings or a phone number to call in order to participate in meetings.  There was no notice to the general public of a call-in phone number to access the Commission meetings before the Calzones’ lawsuit was filed.  From March 25, 2020, through April 20, 2020, the Commission did not post notice of its public meetings in an area reasonably accessible to the general public.”

The trial court granted the motion for summary judgment by Maries County on the No Reasonable Notice Count, of the Calzones’ amended petition.  The Calzones appealed to the Southern District.


No Reasonable Notice – The Calzones argued that the trial court misapplied Section 610.020.1, RSMo., because the Commission did not notify the public of the public meetings occurring between April 7, 2020 and April 20, 2020, in a place visible to the public because the sign on the court house door did not identify the time, date, place, tentative agenda, or a mode by which the public could observe and attend the meetings. The Southern district held that:

“Absent such information, members of the public had no notice of the meetings, depriving them of an opportunity to observe and participate in local government.

“The free exchange of ideas between citizens and government is a hallmark of democracy.” Moreover, “[t]he overarching purpose of the Sunshine Law is one of open government and transparency.”  (Cite omitted)

Calzone v. Maries County, (SD37342, 07/25/22)  

City Of Winchester, Missouri, And 123 Other Missouri Jurisdictions Class Action For Unpaid Telephone License Taxes In The Amount Of $39,048,386 Affirmed By Eastern District

The City of Winchester, Missouri, and 123 other Missouri jurisdictions brought a class action to collect business license taxes each jurisdiction imposed, on telephone service providers doing business in their jurisdictions.  After 10 years of litigation the trial court entered judgment in favor of the Class and ordered Charter to pay a total of $39,048,386 in damages consisting of the unpaid taxes from July 9, 2005 to December 22, 2020, pre-judgment interest, post-judgment interest, attorney’s fees, and legal expenses. Charter appealed to the Eastern district, which affirmed on all 6 Counts.  Congratulations to the attorneys who captured these lost tax dollars.   City of Winchester v. Charter Communications, (ED10951, 07/26/22)

Judgment Finding That City Of Arnold Zoning Was Unreasonable Is Reversed

Facts and Procedure: Dickhaner owns a 1.6-acre parcel (the property) in the City Arnold, (Arnold).  The property is currently zoned for residential use.  In January 2021, Dickhaner formally requested that Arnold rezone the parcel for commercial use.  Arnold denied Dickhaner’s request.  Dickhaner then filed this action in circuit court, seeking administrative review and declaratory judgment invalidating the current zoning and requiring Arnold to rezone the property for commercial use.

Shortly after initiating this matter, Dickhaner filed a motion for summary judgment.  Dickhaner based its summary judgment motion primarily on an affidavit by a land surveyor, Dan Govero.  As foundation for his testimony, the affidavit states that Govero is a land surveyor and president of a firm that regularly represents real estate owners seeking to develop properties.  Govero states that he is familiar with the local costs for excavation and extending water, sewer, gas and electrical services, and that he is familiar with the property involved in the zoning dispute.

Govero’s affidavit asserts that the development of the property was economically unfeasible because the costs for development would exceed the value of the resulting residential parcels.  Further, the property could accommodate only three residential parcels with a market value of about $30,000 each, according to his affidavit.  In order for Dickhaner to effectively develop the property, Govero further concluded six foot tall concrete culverts will need to be installed to address the drainage issue at a cost of $80,000, two overhead electric lines will have to be relocated at an expense of $100,000 and additional water and sewer issues require attention and at further expense.  Due to the development costs exceeding the value of the resulting parcels, developing the property for residential use was unfeasible, according to Govero.  The affidavit concluded that for these collective reasons, the economic viability of the property requires a commercial zoning classification.  Pursuant to Rule 74.04(c)(1), Dickhaner requested summary judgment restating the cost analysis contained in Govero’s affidavit.

Prior to responding to summary judgment, Arnold deposed Govero.  In his deposition, Govero acknowledged that his cost projections were estimates and that the exact costs for development should be obtained from those performing the work.  Govero stated, however, that he regularly advised property owners about property development feasibility by using a similar estimate procedure.  Based on Govero acknowledging that his cost numbers were estimates, Arnold denied each of the summary judgment facts rooted in the Govero affidavit.

Arnold did not submit its own competing costs analysis.  However, it did present an affidavit authored by an Arnold engineer and did submit other discovery documents and records.  Based on these materials, Arnold proffered its own additional material facts that remain in dispute, pursuant to Rule 74.04(c)(2). Arnold provided evidence that Dickhaner’s property is surrounded on all sides by residential properties and zoning, coupled with the fact that Dickhaner purchased the property for $2,879.15. Arnold’s engineer concluded in her affidavit that the zoning change was not “shown to be in the best interests for the health, safety, and welfare of the citizens of the City of Arnold.” Further, the evidence demonstrated that several residents in the surrounding area objected to the change because it would, in their view, negatively affect the safety, traffic congestion, and the character of the residential neighborhood, among other issues.  Dickhaner did not respond to Arnold’s statement of additional facts.

On October 13, 2021, the circuit court entered an “Order of Partial Summary Judgment.” The order directed Arnold to rezone the property to commercial use within 60 days while the trial court retained jurisdiction to review that process.  Acting in what it described as “an abundance of caution,” Arnold appealed this partial order.  Dickhaner moved to dismiss the appeal because the trial court order was not a final judgment.  On December 16, 2021, this court denied Dickhaner’s motion, concluding that the “partial” judgment provided all the relief requested in the petition and was in fact a final judgment for purposes of appeal.  The matter is now fully briefed, argued and prepared for our decision.

Analysis: The Eastern District noted that in order to demonstrate a private detriment, the moving party must present persuasive evidence showing the difference in value between the property as zoned and another use.  For example, in another case the challenger “presented uncontroverted expert testimony that under the existing zoning the property was worth $450,000 and that if rezoned according to Lenette’s proposal, it would be worth $2,450,000.  Other cases show that the evidence showed zoning decision would “significantly damage the property value of [challengers’] property” and “cause the value of [one challenger’s] property to decrease [from $350,000] to $60,000”). The Court concluded that absence of such evidence reduced the force of Dickhaner’s “private detriment” evidence.  The demonstration of private detriment in this record is therefore attenuated.  Judgment is reversed and remanded for further proceedings consistent with this opinion.  City of Arnold v. Dickhaner, (ED110103,07/26/22)

Comment Howard: The circuit court decision was sorely lacking in analysis as to how you value property.  Looks like you should have a full scale before and after appraisal by a person who engages in appraising property is what is needed.  Fortunately, the Eastern District kyboshed this all too easy game to get property rezoned with a very good analysis.  Not sure what is going on in Arnold, which is located in Jefferson County,  but looks like they had a quick easy way to defeat reasonable zoning laws.  If this case is going to proceed, the developer is going to have to do some serious work.  I have not seen a case like this recently, as most cases challenging the reasonableness of zoning laws are based on a taking, which diminishes the value to close to zero.  In order to have context, I did a quick internet search and came up a good short article on the law in this area.  Well worth the read.