Missouri Supreme Court Clarifies What Constitutes Advocacy With Respect To Spending Funds To Support Or Oppose A Ballot Issue

Introduction: Local government attorneys are constantly being asked to advise public officials, whether or not they can spend public funds in support of or against ballot elections.  Opponents of a ballot election have used Section 115.646, prohibiting use of public funds as a cudgel, against public officials who are considering supporting or opposing a ballot issue.  Legal advisors, are caught in a no-win situation, the middle of a cross fire between opponents and proponents of ballot issues.  Now, a  recent decision by the Missouri Supreme Court in City of Maryland Heights v. State of Missouri, finally brings clarity to this troublesome issue, what constitutes advocacy when using public funds to advocate for or against a ballot issue?   

Facts and Procedure: The City of Maryland Heights, as well as other political subdivisions in St. Louis County, and officials of political subdivisions, including the mayors of Maryland Heights, Olivette, and Rock Hill and the administrator and clerk of Winchester, (collectively, “Plaintiffs”) initiated a lawsuit seeking a judgment declaring Section 115.646 unconstitutional.  Plaintiff’s argued Section 115.646, which prohibited public officials from directly using public funds to advocate, support, or oppose a ballot measure or candidate for public office, violated the First and Fourteenth Amendments of the United States Constitution.  Plaintiffs argued that the statute infringed on the officials’ free speech rights as guaranteed by the Free Speech Clause of the First Amendment of the United States Constitution.  Plaintiffs also argued Section 115.646 is unconstitutionally vague in violation of the Fourteenth Amendment of the United States Constitution.

Section 115.646 provides:

“No contribution or expenditure of public funds shall be made directly by any officer, employee or agent of any political subdivision to advocate, support, or oppose any ballot measure or candidate for public office. This section shall not be construed to prohibit any public official of a political subdivision from making public appearances or from issuing press releases concerning any such ballot measure.”

Plaintiffs also contended that Section 115.646 was unconstitutionally overbroad in violation of the First Amendment, seeking a declaration of the constitutionality of the statute on the grounds that it violated the free speech rights of Plaintiffs.  They moved for summary judgment, which the circuit court sustained declaring that Section 115.646 violated the public officials’ First Amendment rights because it regulated speech based on its content and was not narrowly tailored to serve a compelling state interest.  The circuit court also found multiple terms and phrases in Section 115.646, including “ballot measure,” “public funds,” and “advocate, support, or oppose,” to be unconstitutionally vague.  The State appealed to the Missouri Supreme Court.

Analysis:

At the outset the Missouri Supreme Court noted that the statute regulates the use of public funds, not speech.  After all, it merely prohibits the use of public funds to facilitate or augment speech.  Government speech is not subject to the First Amendment.

“Plaintiffs do not argue Section 115.646 violates the First Amendment rights of political subdivisions by regulating a political subdivision’s use of public funds to convey its message through its officials, employees, or agents. Such an argument would lack merit because government speech lacks First Amendment protection.”

The Court concluded that the statute merely regulated the use of public funds to subsidize the officials’ speech. The statute does not purport to regulate the speech of officials when they do not use public funds; therefore, there is no violation of the Free speech Clause of the First Amendment.

Void for vagueness argument:  Even though the statute does not define what is a “ballot measure,” the Court reasoned that reference to other statues provided sufficient clarity to allow the term to be understood by a reasonable person.  The words “advocate, support, or oppose” also are commonly understood by a person of ordinary intelligence.  As explained in FN # 6 each of these terms refers to result-oriented language, rather than mere discussion of issues.

 “Plainly, Section 115.646 is intended to prohibit using public funds for what the United States Supreme Court called “express advocacy” in Buckley v. Valeo, 424 U.S. 1 (1976). The Supreme Court explained express advocacy consists of “express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ or ‘reject.’”

Based on the above, the Court concluded that the statute does not violate the right of free speech and is sufficiently clear to provide public officials clear guidance; therefore, it was not unconstitutionally vague.  City of Maryland Heights v. State of Missouri, (SC99098, 02/15/22)

Comment Howard: This opinion is extremely helpful because it provides local government attorneys guidelines that seem to remove from doubt whether or not information paid for with government funds constitutes advocacy.  Urging the voters to vote for or against violates constitutes advocacy, while merely providing information about a ballot issue is allowed.  Do not use express words of advocacy, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ or ‘reject.’”  A special thanks to the lawyers who brought this very difficult lawsuit leading to a clarification of the statute regulating expenditure of funds by governmental officials in support of or against ballot issues.

Buchannan County Circuit Judge Refuses To Throw Out Unmarked Election Ballots

The circuit court in Buchanan County upheld city election results for City of St. Joseph involving a case where an unsuccessful city council candidate sought to throw out unmarked election ballots so they would not be counted as part of the total ballots cast.  If this challenge had been successful, it could have had an impact on other municipal elections.

A news article in KO2.com on February 17,2020 reported and explains the background:

The campaign for at-large city council candidate Kenton Randolph was requesting all ballots in his race be reviewed and that any ballot that did not select a candidate selected be thrown out.

Randolph was just eight votes shy of getting more than a 50 percent vote count in his race that included nine candidates vying for four council seats.

His campaign believes that if those ballots are removed, the voter total would drop enough to give him the necessary votes to automatically be elected and bypass April’s general election.

There were seven ballots cast last Tuesday where no candidates were selected in any of the three races that were being decided.

Randolph’s lawyer asserted that if individual races were examined, there would be more blank ballots like the blank ones in the races for mayor and municipal judge.

However, Judge Kate Schaefer ruled that no vote on a ballot cast is still a vote.”

Lawsuits Against Fayette School District And Dunklin County Are Resolved On Standing Questions

The first question in any lawsuit is whether or not there is standing to bring the lawsuit.  Two cases against local government were resolved rather easily on the standing issue.  Courts of Appeals have the power and the duty to determine independently whether or not there is standing even if this issue has not been decided by the lower court.  In Lehmann v. Board of Education of Fayette R3 School District, the Western District noted that generalized interest in constitutional governess does not invoke standing. While the Plaintiff in this case was concerned with the quality of education afforded her students in his community, that fact, alone, is insufficient to the bestow a legally protectable interest sufficient to challenge the school board’s action to have a four-day school week.

“To have standing, a plaintiff must “demonstrate a personal stake in the outcome of the litigation, meaning a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief.”

The Court noted that the harms alleged by Lehmann befell students, their families, and the school district staff, and Lehmann did not assert any connection to these individuals such that he, too, was alleged to be directly impacted by the four-day school week.

In another case involving the vacation of a road by Dunklin County the plaintiffs only alleged that they were residents of the County, which was completely insufficient to have standing.  Even though this issue was never raised in the lower court the Southern District addressed the issue holding there was no standing based on their allegation they were residents of Dunklin County.  

Comment Howard: Local government is the target of many lawsuits brought by residents who are mad as hell about the action taken by local public officials.  Remember, facts must be specific as to the individual and generalized harm to the public alone is not sufficient.  Being mad does not equate to standing, so be ready with your brief to file your motion on standing based on these two cases.

One Year SOL Applies To Retaliation Claim Under Whistleblower Law

Facts and Procedure: B. Richest (“Richest”) appealed from the Circuit Court of Jackson County’s granting of the motion to dismiss for failure to state a claim upon which relief can be granted filed by City of Kansas City, Missouri (“City”) alleging retaliation for being a whistleblower.  Richest filed a petition alleging whistleblower violations pursuant to Section 105.055 against the City.  The City moved to dismiss the claim, solely arguing the one year statute of limitations for retaliation barred Richet’s civil claim, which was granted.  Richest appealed to the Western District.  

Analysis: Richest argued on appeal that the trial court erred in sustaining the City’s motion to dismiss because the petition alleged a violation that occurred within one year of the filing of the claim.  The Court noted that in order to sustain a motion to dismiss the petition must show that the one-year statute of limitations is apparent on the face of the pleadings.  In this case, it was not apparent on the pleadings that the one-year statute had been violated; therefore, the Court reversed and remand for further proceedings.  Richest v. City of Kansas City (WD84464, 02/15/22)

Work Place To Home – Where Are you? Working Remote – Is Home St Louis or New York

Facts and Procedure: Franklin hired Ekres to work as a full-time customer service representative in its St. Louis call center. As a customer service representative, Ekres fielded calls from customers of Ameren Missouri, a client of Franklin’s.  Franklin notified Ekres and other employees working in its St. Louis call center that they would be required to work remotely due to the COVID-19 pandemic.

Ekres began working remotely as instructed by Franklin.  At that time, Ekres lived with her partner in a multi-floor apartment building in St. Louis.  Ekres and her partner are immunocompromised.  Due to health concerns given the COVID-19 pandemic, and because Ekres lived in a very populated apartment building, Ekres felt it was safest to move to New York state to be with her family.

Before moving, Ekres sent an email to her team leader, manager, supervisor, and regional director stating that she “was moving [] to New York, and [she] had arranged the move around [her] work schedule so that it would not affect [her] job.”  Ekres indicated that she wanted to continue working at Franklin, but was moving due to the COVID-19 pandemic and her immunocompromised status.  Ekres requested “to have a response immediately if there was any issue.”  Someone from Franklin replied that they appreciated that Ekres had communicated her concern, and that they would be in touch with her.

Ekres moved to New York state.  She continued to work remotely for a week without any issue.  Ekres did not miss any scheduled work days during or after the move.  However, Ekres’s employment with Franklin ended following a telephone call with two of her supervisors.

Ekres then applied for unemployment benefits.  Franklin protested Ekres’s application for benefits, and claimed that Ekres was ineligible because she voluntarily quit her job.  A deputy of the Division of Employment Security (“Deputy”) concluded that Ekres was disqualified from receiving benefits because she voluntarily quit her employment at Franklin “due to a reason that was not good cause connected to the work” or to Franklin.

Ekres appealed the Deputy’s decision to the Appeals Tribunal (“Tribunal, which heard testimony from Ekres and Linda Trimble (“Trimble”), a human resources representative for Franklin.  Ekres testified that she did not quit, but instead that Franklin terminated her during a call with two of her supervisors.  Ekres said that her supervisors told her she was being let go because she had “moved out of state.”  Ekres testified about the email notifying Franklin that she planned to move to New York.  Ekres also testified that she told her supervisors during the phone call that she wished to continue working at Franklin.

Analysis: The Western District had little trouble finding that the administrative decision was not supported by competent and substantial evidence.  The record in the case clearly supported Ekres statements that she wanted to continue to work for Franklin and that she would move back to St. Louis. Furthermore, Franklin continued to require workers to work from home even at the time of the administrative hearing.  It appeared that Franklin was using the move to New York as a pretext for some sort of earlier misconduct by Ekres; however, Franklin failed to raise the misconduct issue in a timely manner, consequently the only issue before the Western District was whether or not the decision to terminate Ekres was supported by competent and substantial evidence.  Ekres v. Division of Employment Security, (WD84496, 02/15/22)                                                                                                                  

Comment Howard: It was pretty clear that the court was really put off by the after the fact argument that there was some sort of misconduct, which was not raised in time. Also, the argument made by Franklin that it made a difference where she worked was silly since Franklin continued to require work from home for all employees.

Censuring A Board Did Not Violate The Right Of Free Speech

Lisa Soronen, recently summarized the United States Supreme Court decision in Houston Community College v. Wilson, which held that held a verbal censure did not create an actionable free amendment speech claim.  The Court noted that in some circumstances a remand may give rise to a First amendment claim.  For example, censuring others who are not board members, like employees, students or the public. Furthermore, the court did not reach the claim that other actions taken by the Board limiting the holding of other Board positions or reimbursement for certain activities might have been actionable since the Fifth Circuit ruled that these punishments were not actionable.  This case is important for local government officials because it is not uncommon for a city council or other elected body or a board or agency to want to censor a member.  There are some warning signs in this case about overstepping the limits of the opinion.  When censoring limit your actions to censorship of just board members.  This opinion is very narrow. So please, no one else.  If you want to be protected – stay within the narrow confines of this opinion.

Missouri Supreme Court Affirms Circuit Court Opinion That Enjoined The Enforcement Of Sexual Abuse Victims Right Law That Required Defense Attorneys To Give Counseling Services To Victims Of Sexual Abuse 

In 2020, the General Assembly passed SB 569, relating to victims of sexual assault offenses.  This law was challenged by defense attorneys on the grounds that it violated free speech rights of defense attorneys by compelling speech in requiring defense attorneys to provide counseling services to victims of sexual abuse (compelled speech).  The Circuit Court enjoined the law and the State appealed to the Missouri Supreme Court.  The Court found that compelling defense attorneys to provide counseling services violated the free speech rights of defense attorneys.  Fox v .State of Missouri, (03/15/22)

Plaintiff’s Allegation In Petition That The City Would “Receive Income” When It Sought To Recover Its Demolition Costs Was Sufficient To State A Claim That The Actions Of The City Were Proprietary Resulting In The Loss Of Sovereign Immunity

Introduction: In KITC Homes v. City of Richmond Heights, the Eastern District held that the City was not protected by sovereign immunity when it tried to recover its demolition costs related to the condemnation of a building.  The idea that the mere allegation in a petition that the City would “receive income” by issuing a tax bill for its demolition cost would result in the loss of sovereign immunity may make it much more difficult to abate nuisances or condemn blighted property.  There is a lot of uncertainty in my mind about what this case means.

Facts and Procedure: KITC’s petition alleged that in April 2017, the City of Richmond Heights tore down the improvements on real property located at 7068 Mitchell Avenue (“the Property”) at a cost of $26,990.00.  KITC alleged that the City demolished the improvements on the Property to “receive income.” The City purportedly did not submit any special assessment for the cost of the demolition to St. Louis County until September 2018, some 18 months after it demolished the property and one month after KITC was the successful bidder on the property at a tax sale.

The St. Louis County Collector of Revenue in August of 2017 conducted a tax foreclosure sale of the Property, and the Collector’s opening bid was $12,811.00.  KITC bid $12,811.00, was the highest bidder, and acquired a tax sale certificate of purchase for the Property.

The August 2018 tax sale certificate states KITC purchased the Property for $12,811.00, which purportedly represented “the total amount of taxes, special assessments, interests, penalties and costs” “due and unpaid thereon for the years 2014, 2015, 2016, and 2017[.]” At the time of KITC’s purchase of the Property in August 2018, KITC had no notice the City had incurred a cost of $26,990.00 for the demolition on the Property in April 2017.

Then, in September 2018, approximately seventeen months after the cost for demolition was incurred by the City and one month after KITC believed it was purchasing the Property for $12,811.00, the City submitted a special assessment for demolition to St. Louis County in the amount of $26,990.00. KITC alleges the City submitted the special assessment to the County to “receive income.”

Subsequently, St. Louis County returned KITC’s $12,811.00 winning bid on the Property to KITC, and KITC no longer had a tax sale certificate of purchase for the Property. KITC then filed the petition at issue in this case, raising claims against the City for tortious interference (Count I), negligence (Count II), and impairment of contract under the Contracts Clause (Count III).  The City, filed a motion to dismiss KITC petition for failure to state a cause of action.  The trial court sustained the City’s motion to dismiss.  An appeal followed to the Eastern District. 

Analysis: Since this case involved a motion to dismiss for failure to state a cause of action the analysis was limited to looking at Plaintiff’s pleadings to determine if on its face it stated a cause of action.

Tortious interference and negligence: The Eastern District, first examines the law relating to sovereign  immunity, noting that the legislature preserved the distinction between governmental and proprietary functions in its legislation on sovereign immunity.  Under this rule, the corporate entity is liable only when it is engaged in a proprietary function.  To explain the difference the Opinion uses as its sole example the situation where the city is providing water services.  When the city is using water to fight fires it is engaged in a governmental function but when it is selling water to the public it is engaged in a proprietary function and has liability (not protected by sovereign immunity).  In the instance case, the City demolished the property and issued a tax bill to recover its costs.

Taking KITC’s allegations in its petition as true and viewing all reasonable inferences therefrom in its favor, KITC’s petition avers it was indirectly injured by the City’s demolition of the improvements on the Property and was directly injured by the City’s delayed submission of the special assessment for the cost of the demolition.

The Eastern District concluded that: “…the City’s demolition of the improvements was not because it was necessary to do so due to an emergency or a public danger, but only because it benefitted the City in its corporate capacity.”

The Court noted that KITC alleged the City submitted the special assessment for the cost of the demolition to “receive income.” Taking this allegation as true and viewing all reasonable inferences in favor of KITC, the Eastern District held that KITC sufficiently alleged the nature of the City’s submission of the special assessment for the cost of demolition was proprietary because recovering the demolition costs was a benefit the City.

Impairment of Contract Under the Contracts Clause: In order to allege an impairment of contract claim a plaintiff must allege: (1) a contractual relationship; (2) a change in state law that impairs the alleged contractual relationship; and (3) the impairment is substantial.

In this case there was no pleading that there was a change in state law for purposes of the Contracts Clause; therefore, the trial court was correct in sustaining the City’s motion.  KITC Homes v. City of Richmond Heights, (ED109814, 03/08/22)

Comment Howard: This opinion raises lots of questions in my mind.  The principle that the corporate body is protected by sovereign immunity only if the demolition is due to an emergency or a public danger puts at question how to avoid putting at risk your tax bill.  Merriam-Webster defines a “public danger” as “a risk or threat to safety or other public interests that is serious and imminent.” This definition requires that the threat must be “serious and imminent” meaning that there is a sense of emergency.  If that is the test for what constitutes a public danger there is a lot of risk and uncertainty.  Even though this case did not provide a remedy for damages other than the loss of money used to demolish and abate the nuisance.  In this case there was a delay of some 18 months in issuing the tax bill, resulting in the tax sale prior to the issuance of the tax bill.  Tax bills should be issued promptly to avoid the risk of not being on the record when a tax sale is taking place. .

Contention That Mercy Was Not an Employer Under the MHRA Because It Was a Religious Organization Insufficient To Deny Right To Sue Letter

Mercy contended that it was not an employer under the MHRA because it was a religious organization. The Missouri Human Rights Commission did not issue a right to sue letter within 180 days as required by the MHRA, contending that it did not have to issue a right to sue letter until it determined whether or not Mercy was an Employer under the Act.  The trial court granted a writ of mandamus ordering the Commission issue a right to sue letter.  On appeal, the Western District affirmed the holding that the Commission had a ministerial duty to issue a right to sue letter within 180 days.  Issuance of right to sue letter by the Missouri Commission on Human Rights is a ministerial act because it has no discretion in deciding if it should issue the right to sue letter.  Najib v. Missouri Commission on Human Rights, (WD84344, 03/08/22)

Employees Of Department Of Social Services Not Liable For Failure To Remove Child From Abusive Home                                                                                                                                                             

Facts and Procedure: This case involved the tragic death of A.J., a little boy who died as a result of severe abuse from his father (“Father”) and his stepmother (“Stepmother”).  They had been reported to the Department of Social Services some nine times for suspected child abuse.  Despite clear signs of child abuse the Department did not remove the child from the home.

After A.J. died a lawsuit was filed seeking damages against the employees of the Department.  A motion to dismiss on the pleadings was filed and sustained by the trial court because it could be determined from the pleadings that the decision to remove a juvenile from home by the Department of Health and Social Services was discretionary not ministerial.

Official immunity, however, only “protects public employees from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts.” “The official immunity doctrine does not protect public employees for alleged acts of negligence for the performance of ministerial duties.”

“Whether an act can be characterized as discretionary depends on the degree of reason and judgment required.” “A discretionary act requires the exercise of reason in the adaptation of means to an end and discretion in determining how or whether an act should be done or course pursued.”

A ministerial act is merely clerical.  It is a task of such a routine and mundane nature that it is likely to be delegated to subordinate officials.  Removal of a child from a home for child abuse is clearly a discretionary act because it requires because it requires the exercise of judgment.  Conway v. Caldwell, (WD84487, 03/15/22).

Note: Comments on the above case have been combined with the next case

Failure To Show Up As A Security Guard And Failure Of Supervisors To Have A Plan To Deal With Fights At A Girls Soccer Game Was Protected By Official Immunity

Facts and Procedure:  Isabella Gray-Ross (Appellant) was a member of the McKinley High School girls’ soccer team.  McKinley played a match hosted by Northwest Academy of Law.  Both schools are part of St. Louis Public Schools (“SLPS”).  Appellant claims she was attacked during the match by members of the Northwest team, who punched and kicked her and caused a traumatic brain injury and an orbital blowout fracture.

Appellant petition alleged three counts of negligence.  In Count I, Appellant alleged SLPS breached its duty to ensure student athletes are safe from assault and the Northwest soccer field was a dangerous condition of public property due to a lack of security present.  In Count II, Appellant alleged LaPrade breached her duties as a security guard because she failed to be at the soccer field at the time of the match.  In Count III, Appellant alleged the Supervisory Respondents were negligent for failing to have a plan or policy in place to prevent and manage violence at school sporting events.

SLPS moved to dismiss based on sovereign immunity.  The Individual Respondents moved to dismiss arguing liability was barred by official immunity, the Coverdell Act, and the public duty doctrine.  The trial court granted both motions, finding SLPS was entitled to sovereign immunity and the Individual Respondents were entitled to official immunity.  Finding official immunity dispositive regarding the Individual Respondents’ motions, the trial court did not rule on their Coverdell Act and public duty doctrine arguments.  An appeal followed to the Eastern District.

Analysis:

Liability of Security Guard: Since the trial court sustained the motion to dismiss it begins its analysis by examining the pleadings.  The pleadings allege that LaPrade’s, (the no show security guard)  had a duty to be at the soccer field.  Also, the Appellant alleged that she had an interest in “being protected” by a security guard during the match and had LaPrade been at the soccer field “she would have deterred and/or stopped” the attack after it began. (Court Emphasis) The Court reasoned that LaPrade would have needed to intervene in a spontaneous attack and determine the most effective means to do so in a rapidly developing situation.  The Eastern District, stated that Appellant had pled a “quintessential discretionary duty” (breaking up a fight); therefore, the facts as pled demonstrated LaPrade’s duty was discretionary.

Liability of Supervisory Employees: Again, the Appellant failed to allege facts in its pleading to state a cause of action. From the face of the pleadings, it was clear that the supervisory employees were engaged in discretionary duties, because creating a policy for the possibility of unknown future violence (at the soccer game) necessarily requires discretion and the exercise of judgment.  It is therefore a discretionary act as a matter of law. Tshe trial courts judgment dismissing the petition is affirmed.  Gray-Ross v. St. Louis Public Schools, (ED109775, 03/22/22)

Comment Howard: In Conway v. Caldwell, the next to last case, there was a concurring opinion lamenting the tragic loss of a 2 ½ year old child due to repeated child abuse in the home.  It makes you sick to read about this kind of tragedy.  The concurring opinion, of course, follows the clear dictates of the law by holding that the decision to remove a child from a home due to child abuse was a quintessential example of an act requiring the exercise of judgment.

In the last case, Gray-Ross v. St. Louis Public School, the Court again was right on target with respect to the law since failure of a security guard to show up was not the proximate cause because the breakup up of a fight between two teams again requires the exercise of judgment.

The theory behind the public duty and official immunity doctrine is based on the concept that it would be difficult to get officials and employees to engage in public service if they were liable for their actions while performing discretionary acts requiring judgment.  My concern is whether or not this is really working? I would say no.

Comment Ragan: While these situations are tragic I don’t believe that holding the government liable for the independent criminal actions of third parties is a solution to these issues.  The government institutions are not being sued in these cases because the victim seeks accountability or changes in policy but instead because the government institutions have the money.  I would argue that this type of suit should be strongly discouraged by law.