June Newsletter (Issue 06-2022)

Voice Messaging App Confide Bullet Proof Against Sunshine Law

Overview:  Sansone v. Governor of Missouri, was a challenge under the Sunshine Law to the alleged use by former Governor Eric Greitens of a voice messaging application known as Confide.  The messaging app Confide deletes the message automatically after it is sent and after it is received, leaving no electronic trace of the message.  It was widely suspected (but not proven) that Greitens used the messaging app Confide while he was in office.  Since no message was retained Sansone, the plaintiff was unable to prove there was a violation of the Sunshine Law.  Confide did not retain any record of an account that was deleted; therefore, Sansone could not even prove that former Governor Greitens ever had a Confide account.

Of course, every politician who does not want his or her opponents, the news media or the public to snoop around will want to have one of these babies.  These apps will proliferate now that there is a case demonstrating that the app can evade the Sunshine Law with a full blue print on how to do set this up. You need to know how it works and why it is full proof.  Description is below.

Facts and Procedure: On December 20, 2017, Sarah Madden, special counsel for the Governor’s Office under Greitens, received an email on behalf of Sansone requesting that Hallford provide records under the Sunshine Law.  The email included these five requests:

  1. Documents or phone records, including logs, that show the date that the governor or anyone     employed by the governor’s office downloaded the phone application Confide on any [of] their mobile phones.
  2. Documents or phone logs that show the date that the governor and anyone employed by the governor’s office downloaded any mobile phone and/or computer application which purpose of the application is to automatically destroy text messages and/or other forms of communication after the communication is sent or received.
  3. Documents or phone records that show the mobile phone numbers used by the governor.
  4. A copy of all SMS messages, text messages, and/or communications sent and/or received by the Governor using the mobile phone application Confide.
  5. A copy of all SMS messages, text messages, and/or communications sent and/or received by anyone employed by the governor’s office using the mobile phone application Confide.”

Madden responded to the email within three business days.  In her response, she stated that the Governor’s Office was reviewing the request and anticipated being able to provide a response or a time and cost estimate, if applicable, for the requested records in no more than twenty business days.

After receiving the Governor’s response, Sansone filed a lawsuit against the Governor’s Office seeking an immediate injunction prohibiting the governor and all Governor’s Office employees from using Confide or any other automatic communication destruction software and alleging violations of the Sunshine Law and the State and Local Records Law.

After some jousting by the parties, it became obvious that the first question was what records if any could be recovered from the Confide App.  The court entered an Order stating that discovery should proceed sequentially to determine whether any messages sent or received over the Confide application could be recovered, either through Confide, Inc., Confide- affiliated third-party servers, or on cell phones that send or receive messages using Confide.  The court ordered Sansone to serve a subpoena on Confide, Inc and that the Governor’s Office produce and pay for a forensic expert to conduct a forensic examination, using exemplar cell phones, to determine whether any messages sent or received using the Confide app could be recovered on those phones after those messages are sent or received.  The Order provided that, after Sansone received the report from this expert, he could depose the expert and, at his discretion and cost, put forth his own expert to conduct his or her own review.  The trial court stayed all other pending discovery until it could determine whether or not messages sent or received using Confide could be recovered, which the court stated “may have a bearing on what records are at issue.”

In response to a Sansone’s subpoena, Confide, Inc.’s co-founder and president, Jon Brod, sent a letter stating:

“As an end-to-end encrypted and ephemeral messenger, all Confide messages and substantially all data disappear after a message is read. The data we retain and are able to provide is principally around account creation – user name, email address and/or phone number used to sign up for the account, and when the account was created. We do not have any data on deleted accounts, including whether or not the account ever existed.”

The Governor’s Office hired forensic expert John Mallery to determine what artifacts, if any, could be recovered from an iPhone that is using the Confide application.  According to Mallery, the difference between an ordinary messaging application and an ephemeral messaging application such as Confide is that, in an ephemeral messaging application, once the messages are sent, they are automatically deleted from the phone that sent them, and once the messages are read, they are automatically deleted from the phone that received them.  In contrast, standard messaging applications require user interaction to delete sent and received messages.

Mallery was able to verify that Confide does not allow the recipient to retain opened messages; sent messages are deleted from the sender’s phone upon the opening of a new message; and the last unopened sent message is no longer on the sender’s phone after 48 hours.  Mallery assumed the recipient of an unopened message would not have access to the message after 48 hours.  In Mallery’s opinion, text messages sent and received using Confide cannot be recovered using forensic methodology, and he was “fairly certain” that fragments from messages sent and received using Confide on an iPhone cannot be recovered.  Mallery believed there was “zero chance” of using forensic methods to reconstruct messages sent or received via Confide.

Mallery opined that he would have reached the same result if he had conducted the same experiment on a different version of the iPhone, on another type of phone such as an Android, with a different version of the Confide application, or if he had used any particular phone that a member of the Governor’s Office might have had.  He admitted, however, there was a “slim possibility” that the results would have been different on a different version of the phone.  Mallery concluded that his findings were consistent with Confide, Inc.’s description of the application and were also expected when using an ephemeral messaging application.

Mallery issued his report stating these conclusions and was deposed by both parties.  During his deposition, Sansone questioned Mallery extensively about his qualifications and the scope of his analysis.  Mallery admitted that he had no other experience with Confide before this case.  Although Mallery’s searches identified several configuration files on the phone for the Confide application, he did not open those files.  He explained that configuration information “allows the application to run.”  Mallery was “not certain” as to whether configuration files contained any personal information about someone’s use of Confide, but he did not believe that they did.

Mallery testified that he could “potentially” or “possibly” determine the dates the Confide application was downloaded on and deleted from a phone; however, he did not perform such an analysis. Additionally, he testified he did not perform any analyses to determine how many messages were sent or received using Confide, who received or sent messages using Confide, whether using the microphone to speak a message into Confide would leave any artifacts or metadata that could be recovered, or whether messages could be recovered if Confide was used on a desktop computer instead of a phone. Mallery explained that the scope of his analysis was very limited in that he was simply trying to determine whether or not he could find artifacts from specific messages that were sent and received, and he “did no other analysis on the application Confide beyond that.” Sansone declined the opportunity to have an expert of his choosing perform a forensic analysis.

The Governor’s Office filed a motion for summary judgment in December 2018 on all counts except Count VI, which concerned the Governor’s Office’s refusal to produce Greitens’s cell phone numbers. In its judgment, the court found that the undisputed facts established that messages sent and received using Confide are not retained on the device or on a server. The court found that, “[t]o the extent that it is a record, it is not much different tha[n] a digital phone call which exists only for the moment.” The court noted that, while Sansone was permitted to engage an expert, he did not do so and, therefore, he could not controvert Mallery’s findings.

Sansone filed a motion for partial summary judgment on Count VI. In his motion, he sought a judgment ordering that Greitens’s cell phone numbers were public records that could not be closed and had to be produced. The Governor’s Office filed a cross-motion for summary judgment arguing that Greitens’s personal cell phone number was a closed record and that, even if it was not a closed record, the court should still grant summary judgment in its favor because the decision to close the record of his cell phone number was made in good faith and was not a knowing and purposeful violation of the Sunshine Law.

On February 22, 2021, the circuit court entered an amended judgment finding that Greitens’s personal cell phone number was an individually identifiable personnel record and, therefore, was exempt from disclosure under Section 610.021(13). The court granted summary judgment in favor of the Governor’s Office on Count VI.


Was there a public record?  – Sansone argued that the circuit court erred in granting summary judgment because it misinterpreted the definition of the term public record since the definition requires retention as “an exclusive definitional element and necessary condition of a public record.” The Western District did not reach this question because the Sunshine Law only requires governmental agencies to “…provide access to records then in existence, and in the agencies’ possession or under their control. Where requesters have asked government agencies to create customized compilations or summaries of their records, we have held that the Sunshine Law was inapplicable, since it only requires agencies to disclose existing records – not to create new ones.” Summary judgment in favor of former Governor Greitens granted on all counts except Count VI.

Personal Number of Governor’s Cell Phone – Sansone contended that the circuit court erred in granting summary judgment in favor of the Governor’s Office on the claim that the Governor’s Office violated the Sunshine Law by failing to produce documents that showed Greitens’s personal cell phone number.

The former Governor argued that Section 610.021(14) allowed his cell phone number to be closed under the “from disclosure by law” provision and that section 407.1500.1(9)(b) of the Consumer Protection Act satisfied this requirement.  The trial court rejected this argument because Section 610.021(13), provides that a public governmental body may close “[i]ndividually identifiable personnel records . . . pertaining to employees,” which allowed the Governor’s Office to close records of Greitens’s personal cell phone number.

The Opinion also noted that your personal cell phone number is extremely important in protecting your privacy rights.  Because Section 610.021(13) authorized the Governor’s Office to close records of Greitens’s personal cell phone number, the circuit court did not err in granting summary judgment in favor of the Governor’s Office on Sansone’s Count VI.  Sansone v. Governor of Missouri, (WD 84426, 06/07/22).

Comment Howard:  This case was very simple although it was necessary to extensively go into the facts in order to understand how the Confide app was configured.  Simply put no record retained and not even proof of whether or not Greitens had the Confide application.

You can also expect there will be a tremendous effort for reform, particularly by the news media to prevent what looks like a clear evasion of the Sunshine Law.  Again, local government officials and in particular the MML will be involved in the legislative process in order to protect local government interests.  Certainly, you can expect lots of legislators not wanting their local constituents knowing what they are up to so reform could be up for grabs.

I do not understand how you could try this case without having your own expert examine the Confide app, in order to counter the expert witness hired by the former Governor.  His expert really dictated the outcome of this case from the beginning with a very narrow scope of services.  Consequently, there was no dispute of any material fact with respect to the summary judgment, leaving the trial court no alternative but to rule for the former Governor.  This case would have been a big undertaking for anyone, requiring a substantial commitment of time and money, although I recognize that the way the Confide App is configured it would’ve been a very difficult case.

The right of privacy is alive and well in Missouri, based on a full-throated statement of the right of privacy concerning the closing of personal cell phone numbers.  You can take this to the bank.  Well worth the read and should be bookmarked for future reference.

Substantive Issues Not Ripe Until After Referendum Election Is Held

Facts and Procedure: Elevation Enterprises v. City of Springfield, involved a challenge to the failure of the City of Springfield (City) to hold a referendum on the ordinance rezoning the property in the Galloway Village area (Galloway Property).  The facts in this case are convoluted because when presented with a valid petition calling for a referendum on the rezoning ordinance the City called the election but later had second thoughts about the legality of holding an election on the rezoning.  The City thought the referendum process violated procedures for rezoning property in Chapter 89 RSMo.

Elevation Enterprises, (Developer) the Developer of the Galloway Property, sued in circuit court to enjoin the City from holding a referendum on the rezoning ordinance.  The Galloway Village Neighborhood Association intervened.  The City then took the position that the law supported Elevation’s request for injunctive relief and joined in the Developers request for injunctive relief, creating a very awkward position.  The Developer and the City entered into a joint stipulation of facts and after a trial the trial court enjoined the City from holding the election.  The Galloway Village Neighborhood Association appealed to the Southern District.

Analysis: Section 2.12 of the Springfield City Charter provides in pertinent part:

“An ordinance, when passed by the council, shall be [signed and attested; immediately filed and thereafter preserved]; and, except as otherwise provided herein, shall be subject to the referendum provided in Article XIV of this Charter.  Unless otherwise specified, every ordinance shall become effective thirty (30) days after its final passage.  If an ordinance be submitted at a referendum election or as a result of an initiative petition, it shall become effective upon the declaration by the council, after canvassing the election returns, that it has received the favorable vote of a majority of those voting thereon. “ (Court Emphasis)

Section 14.2 of the City Charter states in part, as relevant to this case:

“The electors shall have the power to approve or reject at the polls any ordinance passed by the council, or submitted by the council to a vote of the electors, excepting [designated ordinances that are not relevant to this case], such power being known as the referendum. Ordinances submitted to the council by initiative petitions and passed by the council shall be subject to the referendum in the same manner as other ordinances. Within thirty (30) days after the enactment by the council . . . of any ordinance which is subject to referendum, a petition signed by qualified electors of the City equal in number to at least ten percent of the total number of persons voting in the last general municipal election in April may be filed with the city clerk, requesting that such ordinance either be repealed or submitted to a vote of the electors.” (Court Emphasis)

The Southern District held that the issue was not justiciable (not ripe until after the election.)  The question presented must be ready for judicial decision.  If it is not, any judgment is a nullity citing a number of cases and most recently the Missouri Supreme Court in Boeving, and City of Kansas City.  After all, the voters might reject the ballot proposal, leaving nothing to be decided. There was a concurring opinion, which stated that the City adopted positions that were diametrical opposed to each other (calling an election and then opposing its call for the election). These choices were inconsistent and mutually exclusive.  For that reason, Judge Lynch did not consider the arguments made by the City.  Judge Lynch, stated that the City should not call an election and then oppose the election in its arguments without taking action to repeal the ordinance calling the election.  Elevation Enterprises v. City of Springfield, (SD37129, 06/08/22)

Comment Howard: The Missouri Supreme Court in Boeving v Kander, made it very clear that a prelection substantive challenge to a ballot issue is doomed unless it is to the procedure for an initiative or referendum.  The City has now called the referendum election.

Cases Argued but Pending

Sometimes during oral argument we get a glimpse of how the case might be decided or what specific issues are in play. In the future, we will try to include a very brief statement concerning cases like this in order to give you an early heads about up and coming issues.  If you are aware of cases that our members need a heads up, please feel free to let me know and I will try and include that in future summaries.

  • Making All State Employees At-Will And Its Impact On Collectively Bargaining – The Missouri Supreme Court considered the impact of state legislation that made all employees at-will employees on the right to collectively bargain.  Is the issue entirely off the table for bargaining purposes or is the state obligated to bargain over terms and conditions of employment?  This case raises serious constitutional questions since the right to bargain collectively is enshrined in the Missouri Constitution.  American Federation of State County and Municipal Employees v. State of Missouri, SC99179.
  • Does The Kansas City Structure For Funding Of KC Police Violate The Hancock Amendment? A recent challenge to state control of the Kansas City Police Department was allowed to proceed to trial after a Jackson County judge declined to dismiss the lawsuit.  The suit attacks the constitutionality of the framework establishing the Kansas City Police Board of Commissioners as unconstitutional, a violation of the Hancock amendment, a form of taxation without representation and racially discriminatory.  Kansas City is required to pay for the costs to operate the police department but does not control the operations since this is vested in the Kansas City Police Board of Commissioners under state law.  Sounds interesting. https://www.kansascity.com/news/local/article262058987.html
  • Can The State Challenge A 20-Year-Old Ruling On Sovereign Immunity? Some 20 years ago, the City of Harrisonville obtained an $8 million-dollar verdict against the State Petroleum Insurance Fund.  In 2016, the Missouri Supreme Court overturned the punitive damage award because it named the wrong party (the Fund) and remanded the case to the trial court with the suggestion that it name the Board.  On remand, in 2021, the trial court accepted the punitive damage award against the board and the parties again appealed to the Supreme Court.  What caught my eye was a discussion of the argument in Missouri Lawyers Weekly by former solicitor general, Jim Layton, that sovereign immunity can be raised at any time.  I am anxiously awaiting an answer on that one.
  • Does The Refusal To Rehire An employee Who Filed A Worker’s Compensation Claim Constitute Retaliation? The Western District recently transferred a case to the Missouri Supreme Court on a question of first impression concerning whether or not the refusal to hire a former employee who filed a Worker’s Compensation claim was covered by the anti-retaliation provisions in the Worker’s Compensation law.  The Courts 19-page opinion concluded that strict construction of the Worker’s Compensation law precluded it from applying anti-retaliation provisions to a former employee who was not hired. John Lisle (“Lisle”) appealed from the trial court’s entry of summary judgment in favor of Meyer Electric Company, Inc. (“Meyer Electric”). Lisle asserts that the entry of summary judgment was legally erroneous because Section 287.780 protects former employees from retaliatory discrimination by their former employers following an exercise of rights under the Workers’ Compensation Law even when the act of retaliation occurs after the employment relationship has ended.  Lisle v. Meyer Electric Company, (WD84260, 06/07/22)
  • Second Amendment Preservation Act  (Act)  Challenge -A federal lawsuit has been filed challenging provisions of the Second Amendment  Preservation Act  (Act), amongst other things, on grounds of the Supremacy clause and is pending in court.  Under the Act local officials who violate the rights of a person’s Second Amendment rights are subject to a$50,000 fine.  The Act also provides for standards pertaining to School Protection Officers.  The University of Missouri extension service offers a school safety protection officer training program, which appears to be quite comprehensive.  Better to train and have well-orchestrated plans for violence in place then to deal with the aftermath of this carnage.  Missouri is one of the states that leads the county in gun violence and gun ownership.

Employee Entitled to Unemployment Compensation For Covid-19

Facts and Procedure: While working a shift at Walmart, in the lawn and garden department Claimant fell ill.  Claimant reported his illness to his direct supervisor, who told Claimant he could go home if he wanted to go home.  After testing positive for COVID-19 the next day, Claimant called and informed his direct supervisor of his illness.  Claimant’s direct supervisor advised him to call Wal-Mart headquarters and request paid leave.  Claimant testified that there was a verbal policy put in place during the pandemic allowing employees who became sick with COVID-19 to contact headquarters to obtain paid leave. Claimant filed for unemployment compensation, which was opposed by Walmart on the grounds Claimant voluntarily quit.  The claim was denied by the Commission and he appealed to the Eastern District.

Analysis: The Eastern District concluded that Claimant made multiple attempts to contact his Employer during the illness and upon his recovery, and Claimant shared a desire to return to work. “It is difficult to apply the phrase ‘left work voluntarily’ where ‘the employee has conscientiously provided notice of the absence, purports to want to be at work, and claims constraint from attendance by circumstances such as sickness or some other difficulty.’”  Chavis v. Wal-Mart, (ED110016, 06/07/22)

Partial Summary Judgment On Liability Not Appealable

Appellate court will not review a partial summary judgment because it did not dispose of all of the issues in the case. The finding by the trial court that the defendants (Boone County and officials) were not entitled to sovereign immunity, not protected by official immunity, nor the public duty doctrine was dismissed by the Western District because it did not dispose of al of the issues. Kelly v. Boone County, (WD84981, 06/21/22)

Flow Control And Disposal Of Solid Waste

The County passed an ordinance requiring all garbage to be deposited at a state-owned plant in Red Wing, Minnesota, which was processed into refuse-derived fuel and sold to Northern States Power Company (Xcel) to be burned for electricity.  PIG and other garbage haulers and processors sued the County and Red Wing, arguing that the Ordinance violated the Commerce Clause by benefitting an in-state company (Xcel) at the expense of out-of-state haulers and processors.  The district court granted summary judgment to the defendants because PIG’s claim did not implicate the Commerce Clause.

The Eighth Circuit, affirmed the district court decision on the grounds that directing the solid waste to the energy facility did not affect interstate commerce.  In this case, the haulers were not able to show there was any impact on interstate commerce.

“Accordingly, the dormant Commerce Clause doesn’t prohibit differential treatment of companies that perform different services, because “any notion of discrimination assumes a comparison of substantially similar entities.” Id. at 298. “Thus, in the absence of actual or prospective competition between the supposedly favored and disfavored entities in a single market there can be no local preference . . . .”

Paul’s Industrial Garage v. Goodhue County, (8th Cir., 21-2614, 05/27/22).

Comment Howard: The City of Springfield has had a solid waste recycling program based upon a tipping fee using flow control to direct solid waste to the Springfield city landfill.  The charges to dispose of solid waste at the city landfill pay for the recycling programs provided by the city.  In my mind it is a model program for how to pay for recycling programs and much appreciated by citizens.   

Wildwood Wins Against Preliminary Injunction Brought By Monarch Fire Protection District

The Monarch Fire Protection District (District) wanted to construct a new fire house in the city of Wildwood (City) and submitted an application to obtain a conditional use permit (CUP) to the P&Z of the City.  According to a news story the City approved the permit with the condition that the District conduct a traffic study.  The District then signed a contract for the construction of the fire station and obtained a traffic study; however, the city was not satisfied with the traffic study.  The District then sued the City asking for a preliminary injunction. The City, a home rule city, prevailed in the litigation based on the principle that the District as a special purpose district only had the powers it was explicitly granted and no more as set forth in Dillions rule.  See news story

8th Circuit Provides Test To Determine Qualified Immunity And Official Immunity

Facts and Procedure: Kansas City Police Officer William Thompson shot and killed Ryan Stokes during a foot chase.  Despite the tragic circumstances, the district court concluded that Officer Thompson was not entitled to qualified immunity.  On appeal, the Eighth Circuit reversed determining the District Court did not provide the proper analysis to determine qualified immunity.

“…we remanded to allow the district court to “specifically identify[] the plaintiff-friendly version of the disputed facts” and “evaluate whether [Officer] Thompson, in light of all of the information available to him at the moment, violated clearly established law when he shot Stokes.” And then we instructed the court to use those same plaintiff-friendly facts to determine whether he was entitled to official immunity under Missouri law.

Rather than denying qualified immunity, as it had done before, the district court (on the second round) determined that there had been no constitutional violation at all, clearly established or otherwise.  Its conclusion on official immunity was similar.  The district court concluded that Officer Thompson had been negligent at most, meaning that Stokes’s family could not recover for wrongful death.  The plaintiffs now appeal to the 8th Circuit.

Analysis: The plaintiff friendly facts determined by the district court used by the 8th Circuit were as follows:

“Seconds after receiving a police dispatch about a suspected cellphone theft and an ensuing foot chase, Officer Thompson saw Stokes run into a parking lot.  His destination was a red car, and once he reached it, he opened and shut the driver’s side door.  He then turned to face the officer who had been chasing him.  What happened next is hotly disputed, but the family’s side of the story is what matters at this point.  Officer Thompson, who was standing behind Stokes at the time, saw him raise his hands to his waist.  Misinterpreting the gesture as threatening, Officer Thompson fired without warning at Stokes, who was trying to surrender.  Stokes later died from his injuries.”

The Eighth Circuit could not find a clone or a twin to match the facts in this case where a police officer did not have qualified immunity; therefore, the Court concluded that the actions of the officer were negligent for which there is no liability.  In addition, the court concluded that the analysis used to determine qualified immunity was the same for official immunity; therefore, the officer had no liability for official immunity.  In order to prevail. plaintiffs would’ve had to have shown that “the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” “Existing precedent,” in other words, “must have placed the statutory or constitutional question beyond debate.”

Comment Howard: I think it is incredibly difficult to find police officers liable in these situations, unless you can find bad motive or an action by the officer that is outside the bounds of common sense.  I think that all of the hullabaloo about changing the test for qualified immunity is not going anywhere. Nevertheless, there is a problem but it is hard to find a solution that respects the difficulties of being a police officer and the rights of citizens to be free from unreasonable force.

Important Supreme Court’s Decisions Affecting Local Government Practice

Now that the Supreme Court has finished its term, we can look back at the decisions and figure out where we go from here.  There are lots of great reviews on these cases, including our own Lisa Sorenson.  Old rules are out and new rules are in, dramatically changing how to analyze the constitution. 

Abortion – The impact of Dobbs v. Jackson, the abortion case, on local government law practice seems pretty limited because this is regulated by the state.  Others might see this differently.  We might see some efforts to provide educational services or availability of birth control measures, but most of this would seem to be available online or through interstate commerce.  Seems to me like this is ultimately a voter issue and probably will end with a vote on a constitutional amendment in many states.

For a detailed review by the NCSL of Dobbs click here.

For a detailed review by Amy Howe on Dobbs click here

New York Law Limiting the Right to Bear Arms in Public Is Unconstitutional

Facts and Procedure: The State of New York made it a crime to possess a firearm without a license, whether inside or outside the home.  An individual who wants to carry a firearm outside his home may obtain an unrestricted license “ if he can prove that “proper cause exists” for doing so and to “have and carry” a concealed “pistol or revolver applicant satisfies the “proper cause” requirement only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.”

Petitioners Brandon Koch and Robert Nash are adult, law-abiding New York residents who both applied for unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense. The State denied both of their applications for unrestricted licenses, allegedly because Koch and Nash failed to satisfy the “proper cause” requirement.  Petitioners then sued respondents, state officials who oversee the processing of licensing applications, for declaratory and injunctive relief, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications for failure to demonstrate a unique need for self-defense.  The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed.  Both courts relied on the Second Circuit’s prior decision in which it sustained New York’s proper-cause standard, holding that the requirement was “substantially related to the achievement of an important governmental interest.”

Analysis: First the Court looks at the status of existing law.  In Heller and McDonald, the Supreme Court held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense.  In doing so, the Court held unconstitutional two laws that prohibited the possession and use of handguns in the home.  In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.

Justice Thomas, the author of the opinion explains:

“Today, we decline to adopt that two-part approach.  In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  To justify its regulation, the government may not simply posit that the regulation promotes an important interest.  Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.  Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”  Intermediate scrutiny is abolished.”

Justice Thomas, in a 6 to 3 decision, could not find anything in the historical record that would suggest that American citizens did not have a right to bear arms in public without restriction.  There was no historical precedent that would support requiring a special need to bear arms in public.  No longer will the court be concerned with whether or not the law reduces gun violence.  There was a vigorous dissent by Justice Breyer, joined in by Justice Kagan and Sotomayor.  Justice Breyer, provided a historical record showing that in his opinion there was strong historical support that limited the right to bear arms in public.  He regretted that there was no record in this case.

Justice Kavanaugh, filed a concurring opinion joined in by Chief Justice Roberts stressing that the Opinion will not bar states from imposing other licensing requirements in the 43 states, because these laws are objective rather than granting “open discretion to licensing officials” and requiring “a showing of some special need apart from self-defense.”  New York State Rifle and Pistol Association Inc. v. Bruen, (USSC 20-842), 06/23/22)

Comment Howard: Since the State of Missouri has preempted local regulation of firearms with the adoption of the Second Amendment Protection Act (Act).  There will be no impact by the U. S. Supreme Court opinion on your practice. 

Free Public Education In Non-Secular Schools

Facts and Procedure: Maine’s constitution and statutes require that students receive a free public education.  Fewer than half of Maine’s school administrative units (SAUs) operate their own public secondary schools.  If those SAUs don’t contract with a particular public or private school, they must “pay the tuition . . . at the public school or the approved private school of the parent’s choice.”  To be approved a private school must be “nonsectarian.”

Analysis: In Carson v. Makin the U.S. Supreme Court held 6-3 that Maine’s refusal to provide tuition assistance payments to “sectarian” schools violated the First Amendment’s Free Exercise Clause, relying heavily on Trinity Lutheran, a earlier Missouri case:

“Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here.  And like the daycare center in Trinity Lutheran, [the religious schools at issue in this case] are disqualified from this generally available benefit “solely because of their religious character.”

Justices Breyer, Kagan, and Sotomayor dissented.  Justice Breyer began his analysis writing: “The First Amendment begins by forbidding the government from ‘mak[ing] [any] law respecting an establishment of religion.’  It next forbids them to make any law ‘prohibiting the free exercise thereof.’  The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second.”  Justice Breyer noted that: But, “[w]e have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.”  Carson v. Martin, (USSC 20-1088, 06/21/22)

Comment Howard: There is not much of a change in our local government practice since we should have already adjusted our practices to this case when Trinity Lutheran a Missouri case was handed down, although direct aid to churches is now legal.  Consider grants for historic preservation as a potential issue.  If a church applies seems pretty clear they are eligible if you make historic grants.  One thing that Maine did was pass a poison pill law, which prohibited discrimination against gays as a condition of an educational grant.  In Missouri, at the state level, this is another story because you can expect that religious schools will want their share of the money going to public education.  Missouri is a notoriously low tax state with little support for public education so yes this will make it difficult to provide additional revenues to support religious education.

For a review of this case by NCSL blog click here.

For a review of this case by Amy Howe on Scotus Blog click here.

High School Football Prevails In Team Prayers

Facts and Procedure: Petitioner Joseph Kennedy lost his job as a high school football coach in the Bremerton School District after he knelt at midfield after games to offer a quiet personal prayer.  Mr. Kennedy sued in federal court, alleging that the District’s actions violated the First Amendment’s Free Speech and Free Exercise Clauses.

After the parties engaged in discovery, they filed cross-motions for summary judgment.  The District Court found that the “‘sole reason’” for the District’s decision to suspend Mr. Kennedy was its perceived “risk of constitutional liability” under the Establishment Clause for his “religious conduct” after three games in October 2015.  The District Court granted summary judgment to the District and the Ninth Circuit affirmed.  The Ninth Circuit denied a petition to rehear the case en banc over the dissent of some of the judges and the Supreme Court granted cert.

Analysis: Justice Gorsuch, writing for a 6 to 3 majority overruled the Lemon test, which was based on “excessive entanglement with religion.” The opinion noted that he the coach’s prayers were not part of his duties as a coach, the players and other coaches, and players from opposing teams could join in freely. The audience was not a captive audience and the prayers were not publicly broadcast or recited to others, who were not required or expected to participate.

The school district’s actions “rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech,” Gorsuch concluded. “The Constitution neither mandates nor tolerates that kind of discrimination.”

There was a vigorous dissent written by Justice Breyer, joined in by Justices Kagan and Sotomayor.  Justice Sonia Sotomayor criticized that Gorsuch had “misconstrue[d] the facts” of the case, depicting Kennedy’s prayers as “private and quiet” when the prayers had actually caused “severe disruption to school events.” The dissent saw the facts completely different then Gorsuch and made a strong case that the prayers violated the separation of church and state.  Kennedy v. Bremerton School District, (USSC 21-418, 6/30/22)




Major Questions Doctrine Derails Clean Air Regulations

Facts and Procedure: In 2015, the EPA, under Obama administration, promulgated regulations under the Clean Air Act to deal with the climate crisis.  Litigation in the courts tied up the ability to implement these regulations, which were then replaced by Trump regulations.  The Biden Administration, when it came to power replaced the Trump Administration regulations with their own EPA climate control proposal.

Current Regulatory System: The Environmental Protection Agency (EPA) promulgated the Clean Power Plan rule, which addressed carbon dioxide emissions from existing coal and natural-gas-fired power plants.  Prior to the Clean Power Plan, EPA had used Section 111(d) only a handful of times since its enactment in 1970.  Under that provision, although the States set the actual enforceable rules governing existing sources (such as power plants), EPA determines the emissions limit with which they will have to comply.

The Agency derived that limit by determining the “best system of emission reduction . . . that has been adequately demonstrated,” or the BSER, for the kind of existing source at issue. §7411(a)(1).  The limit then reflects the amount of pollution reduction “achievable through the application of” that system.  After Biden won at the 9th Circuit the Supreme Court granted cert.

Analysis: EPA claimed to have discovered an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler.  That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself.  Given these circumstances, there is every reason to “hesitate before concluding that Congress” meant to confer on EPA the authority it claims under Section 111(d).

Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan.  In devising emissions limits for power plants, EPA “determines” the BSER taking into account cost, health, and other factors it finds “has been adequately demonstrated,” and then quantifies “the degree of emission limitation achievable” if that best system were applied to the covered source.

Need for clear congressional authority: The issue here is whether restructuring the Nation’s overall mix of electricity generation, to transition from 38% to 27% coal by 2030, can be the BSER within the meaning of Section 111.  Precedent teaches that there are “extraordinary cases” in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority.  Under this body of law, known as the “major questions doctrine,” given both separation of powers principles and a practical understanding of legislative intent, the agency must point to “clear congressional authorization” for the authority it claims.  This is a major questions case and since there is no clear Congressional authority the regulations are invalid.  West Virginia v. EPA, (USSC 20-1530, 6/30/22)

Additional Comments Howard: For more on EPA authority see Amy Howe’s, excellent scotusblog review as well as our own Lisa Soronen for the NLC. See links below.