May Newsletter (Issue 05-2022)

Western District Issues Blockbuster Opinion Holding That Explicit And Implicit Powers Of The Court Override Conflicting State Law

Facts and Procedure: Allsberry v. Ohmer, is a blockbuster opinion by the Western District, that examines the power of the Missouri Supreme Court to control the operation of its courts in the face of conflicting state law.  Due to budget constraints the Missouri Supreme Court had issued Orders mandating that all circuit courts or court administrators that had not previously consolidated the supervision of deputy and division clerks under one appointing authority do so.  Procedures were later established to modify the consolidation plans, provided the modification plan was approved by the circuit budget committee.

On November 6, 2018, Allsberry was elected Clerk of the Circuit Court of Lincoln County, and Judge Patrick S. Flynn (“Judge Flynn”) was elected as sole Circuit Judge (and thereby the Presiding Judge) for the 45th Judicial Circuit, consisting of Pike and Lincoln counties.  The case involved a bitter relationship between Judge Flynn and Clerk Allsberry, which was rife with strife, leading the Eastern District to urge them to put the administration of justice above their own personnel disputes.

“For the good of the administration of justice for the citizens and litigants in Lincoln County, we implore Judge Flynn and Clerk Allsberry to find a middle ground of inclusivity and respect toward one another that will permit them to get out of the business of “stone-throwing” and back into the business of serving others, not self. “

On January 10, 2019, some 10 days after Judge Flynn took office he notified Associate Circuit Judges James Beck, Milan Berry, and Gregory Allsberry (Clerk Allsberry’s husband), and Clerk Allsberry of a January 11 en banc meeting of the 45th Judicial Circuit, the subject of which was a proposed amendment (“2019 Amendment”) to the 2003 Consolidation Agreement for Lincoln and Pike Counties.  The proposed 2019 Amendment would change the appointing authority from the Circuit Clerk to the Presiding Judge of the 45th Judicial Circuit.  At the en banc meeting, Judge Flynn explained the proposed changes to the 2003 Consolidation Agreement, and Clerk Allsberry expressed her views as to why she should remain the appointing authority for the Circuit Clerk’s office.  Judges Flynn, Beck, and Berry voted for the 2019 Amendment, and Judge Allsberry abstained.

The Circuit Court Budget Committee, (CCBC) approved the 2019 Amendment on January 18, 2019.  On April 12, 2019, the CCBC voted to deny Clerk Allsberry’s appeal of the CCBC’s approval of the 2019 Amendment.  Clerk Allsberry then filed suit against the Judicial Appellants on May 18, 2019.

After motions to dismiss and summary judgment were filed, the circuit court conducted a hearing and then entered its judgment declaring that both the 2019 Amendment and CCBC’s approval of the 2019 Amendment were “void, illegal, in excess of the power and authority of defendants, and [] unenforceable” because both actions “violate[] RSMo. §483.245.2 and RSMo. §483.080.” The circuit court declared Clerk Allsberry as the appointing authority and permanently enjoined all of the defendants below (e.g., Judicial Appellants) “from interfering with, or preventing, [Clerk Allsberry’s] exercise of her authority to hire, fire and supervise the deputy clerks as provided by RSMo. §483.245.2 and RSMo. §483.080.  An appeal by the Circuit Court Budget Committee (“CCBC”) to the Western District followed.

Analysis: The Western District defines the question for resolution as follows: Whether statutory provisions relating to the appointing authority for court personnel take precedence over administrative orders issued by our Missouri Supreme Court pursuant to its superintending and supervisory authority under Article V, Section 4 of the Missouri Constitution?

The Court then examines the constitutional framework to answer this question.  First, Article V, Section 1 of the Missouri Constitution confers the judicial power of the state in the Supreme Court and other courts by vesting in the Court the “supervisory authority” and “general superintending control” over all courts. Mo. Const. Art. V, § 4.

The Chief Justice, as chief administrative officer of the judicial system, supervises the administration of all Missouri courts.  This distinct power to exercise supervisory authority to administer the courts is commonly understood (based on case law) to mean that where the Supreme Court acts upon its constitutional authority of superintending control to administer the courts, such administrative acts supersede any statute that interferes or conflicts with such acts of administration of the courts by the Missouri Supreme Court.

In addition, to the Missouri Constitution’s explicit grant of supervisory authority, as noted above, Missouri recognizes the concept of the inherent power of the court.  These powers necessarily inherent in the court allows it ‘to do all things that are reasonably necessary for the administration of justice’ and in order that it may preserve its existence and function as a court and which powers exist and inhere merely because it is a court, irrespective of legislative or constitutional grant.  The inherent power of the courts is the authority to do all things that are reasonably necessary for the administration of justice.

The Eastern District concluded that it has the explicit and inherent supervisory power to designate the appointing authorities for deputy and division clerks.

“The legislature may assist the judiciary through statutory enactments, but it may not override the Missouri Supreme Court’s inherent power as well as explicit constitutional grant of supervisory authority over lower courts, including its delegation of authority to the lower courts to designate appointing authorities for deputy and division clerks.”

Allsberry v. Ohmer, (WD84992, 05/17/22)

Comment Howard: The opinion in this case is a blockbuster opinion.  Based on its extensive examination of the history involving the power of the Court it is the now the starting point and probably the concluding point for much of your research concerning superintending control by the Missouri Supreme Court over the court system.  It is a loud and clear message to the Missouri legislature that the operations of court system belongs to the Missouri Supreme Court.  The Opinion recognizes that the Missouri Constitution does grant to the legislature the power to amend the Courts rules of practice and procedure but this does not include the power to interfere with the courts superintending control of courts and tribunals.  The Courts explanation of its inherent power was very expansive and interesting.  If I am looking for an argument on inherent power this would be a great source.  No doubt, there will be an appeal to the Missouri Supreme Court.

Comment Ragan: I extremely uncomfortable with this decision.  It isn’t surprising but what I see are some real issues. 1) The Circuit Clerk is an elected position who administers over many of the executive functions in the court system.  Maybe I’m wrong but the court has eliminated the authority of an elected official to select or fire employees that the circuit clerk would need authority over to fulfill the circuit clerk duties.  The conflict of law did not exist until the Supreme Court decided to divest power that the legislature in its wisdom or lack of wisdom created in the circuit clerk.  In theory do we want to vest judicial and executive power in the court.  Maybe the legislature created the circuit clerk so that the court could avoid the conflicts that come with executive and judicial functions.  2) When the court takes on executive functions and the court completely mismanages those functions where do people go for reprieve?  It seems unlikely the court could claim to be impartial.

Missouri Supreme Court Establishes Rules for Modifying Judgments

Introduction: You may think that City of Normandy v. Parsons, involving a challenge to part of SB 5, which placed special limits on taxation-by citation implicates only St. Louis County.  It does not.  The Opinion in City of Normandy, has far reaching implications with respect to the analytical framework for modifying an injunction that has been granted but now needs to be modified, due to changed circumstances.  Local government is a big player in the business of injunctions.  Local government enjoin parties and may be enjoined.  The Normandy case tells us how to modify an injunction, making this case an important part of the tool box for local government attorneys.

Facts and Procedure: In 2015, the General Assembly passed Senate Bill No. 5 (“SB 5”) to address the claim that some local governments were engaging in the practice of “taxation-by citation.”  SB 5 contains multiple provisions that apply statewide, including a statewide 20 percent cap on local government revenues generated from fines.  SB 5 also contains provisions applicable only to St. Louis County by imposing a lower cap of 12.5 percent of revenue generated from fines.  This section of the law applies  in “any county with a charter form of government and with more than nine hundred fifty thousand inhabitants and any city, town, or village with boundaries found within such county,” which currently describes only St. Louis County and municipalities within St. Louis County.  Second, SB 5 requires “municipalities” to meet certain minimum standards, including accounting and policing standards.  As defined in Section 67.287.1(2), a “municipality” is “any city, town, or village located in any county with a charter form of government and with more than nine hundred fifty thousand inhabitants[,]”describes only municipalities in St. Louis County.

Twelve municipalities in St. Louis County and two taxpayers filed a lawsuit arguing the provisions in SB 5 that apply only to St. Louis County were special laws in violation of Article III, Section 40 of the Missouri Constitution.  The circuit court agreed and entered a judgment finding Sections 67.287 and 479.359.2 were unconstitutional special laws.  The circuit court permanently enjoined the state from enforcing the provisions in SB 5 that applied only to municipalities in St. Louis County.  In May 2017, the Missouri Supreme Court affirmed the circuit court’s judgment.

In December 2019, the Missouri Supreme Court restored the rational basis analysis for special laws claims that had “served the Court and the language of the constitution well for more than a century.” After the opinion, restoring the rationale basis as the test, the State filed a motion for relief from the permanent injunction in the circuit court’s 2016 judgment.  The state argued it was no longer equitable for the injunction to remain in force because SB 5 was not an unconstitutional special law under the rational basis analysis readopted by Court in 2019.  The circuit court agreed and sustained the state’s motion, lifting the permanent injunction that prohibited enforcement of Sections 67.287 and 479.359.2.  The municipalities appealed to the Missouri Supreme Court.

Analysis: The Court started with an analysis of the importance of the finality of judgments in order to preclude relitigating of an issue previously decided and incorporated into an earlier judgment.  In addition, the law of the case provides that “…a previous holding in a case constitutes the law of the case and precludes relitigation of the issue on remand and subsequent appeal.”  The Court then moved on to note that there are very narrow exceptions to this rule, one of which is embodied in Rule 74.06(b)(5), which allows a court to relieve a party from a final judgment when “it is no longer equitable that the judgment remain in force.”  This narrow exception to the principle of finality is “based on the historic power of a court of equity to modify its decree in light of changed circumstances.”  This rule is particularly important with respect to injunctions, an equitable remedy, which can last a long time where circumstances change.

The Court noted, that the circuit court focused solely on whether, in the first instance,  the municipalities’ claims would have been rejected had the case been decided under the readopted rational basis review. This sounded simple.

Missouri Rule 74.06(b)(5) is practically identical to FRCP 60(b)(5), which allows a court to relieve a party from judgment when “applying it prospectively is no longer equitable.” Consequently, the Missouri Courts interpret and apply the federal case law interpretating FRCP 60(b)(5) the same way when applying Missouri Rule 74.06(b)(5). The United States Supreme Court has held that a change in decisional law may warrant relief from judgment under FRCP 60(b)(5), but only in specific circumstances, citing Rufo v. Inmates of Suffolk Cnty. Jail, which held that relief from judgment must be granted if a change in statutory or decisional law makes “one or more of the obligations placed upon the parties … impermissible under federal law.” On the other hand, relief from judgment “may be warranted when the statutory or decisional law has changed to make legal what the decree [or injunction] was designed to prevent.”  In this situation, the circuit court should apply rules of equity to evaluate a number of potentially competing equitable considerations, to determine whether to modify or vacate an injunction entered by consent or otherwise.

This case was remanded with instructions to proceed in accordance with the opinion, which called for an analysis of the equities relating to modification, if the State insisted on proceeding.  The Court did note there is always the option of a “do over” by the legislature.  It then gifted a ruling to the State, noting that the law as originally adopted would pass the rationale basis test.  City of Normandy v. Parsons, (SC98998, 04/26/22)

Comment Howard: As noted above, this case is much more than just a dispute between cities in St. Louis County and the state legislature. Use of injunctions to obtain equitable relief is an extremely important part of the toolbox for local government attorneys; therefore, the explanation about how to apply the Rule, that allows for equitable modification of a judgment, particularly injunctions, is of more than just passing interest.  This case pretty much writes the book on the law relating to modifications of judgment making it the starting point for your research.

Since the injunction enjoining the enforcement of the law was obtained over six years ago any modification would seem to offer lots of factors not present when the case started. It seems pretty clear that Eric Schmitt, the Attorney General, who brought this lawsuit, simply jumped in not knowing what he was doing and ignoring the origins of Rule 74.06(b)(5). The fatal mistake was making the assumption that this was a simply a matter of law, which prevented the circuit court from properly weighing the equities to determine whether relief from judgment was warranted under Rule 74.06(b)(5).

Christian Flag Was Private Expression That Was Protected By The First Amendment

Facts and Procedure: Just outside the entrance to Boston City Hall, on City Hall Plaza, stand three flagpoles.  Boston flies the American flag from the first pole and the flag of the Commonwealth of Massachusetts from the second.  Boston usually flies the city’s own flag from the third pole.  However, Boston has, for years, allowed groups to hold ceremonies on the plaza during which participants may hoist a flag of their choosing on the third pole in place of the city’s flag.  Between 2005 and 2017, Boston approved the raising of about 50 unique flags for 284 such ceremonies.  Most of these flags were other countries’, but some were associated with groups or causes, such as the Pride Flag, a banner honoring emergency medical service workers, and others.

In 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community; as part of that ceremony, he wished to raise what he described as the “Christian flag.”  The commissioner of Boston’s Property Management Department worried that flying a religious flag at City Hall could violate the Establishment Clause and found no past instance of the city’s having raised such a flag.  He therefore told Shurtleff that the group could hold an event on the plaza but could not raise their flag during it.

Shurtleff and Camp Constitution (petitioners) sued, claiming that Boston’s refusal to let them raise their flag violated, among other things, the First Amendment’s Free Speech Clause. The District Court held that flying private groups’ flags from City Hall’s third flagpole amounted to government speech, so Boston could refuse petitioners’ request without running afoul of the First Amendment.  The First Circuit affirmed. The United States Supreme Court granted certiorari to decide whether the flags Boston allows others to fly express government speech, and whether Boston could, consistent with the Free Speech Clause, deny petitioners’ flag-raising request.

Analysis: All nine Justices agreed that the City of Boston’s flag policy, which prohibited the raising of a Christian flag, on an 83-foot flagpole, in front of City Hall Plaza violated the free speech clause of the United States Constitution.  Justice Breyer, wrote the opinion for the court, which was joined by four other Justices.  Justices Alito, Kavanaugh and Gorsuch wrote separate concurring opinions applying a different test then the majority opinion.

Boston admitted, it had no written policy limiting use of the flagpole based on the content of a flag.

Justice Breyer framed the question before the court:

Did Boston reserve the pole to fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views?  He notes: If the former, Boston is free to choose the flags it flies without the constraints of the First Amendment’s Free Speech Clause.  If the latter, the Free Speech Clause prevents Boston from refusing a flag based on its viewpoint.

To determine the answer to the above question the Opinion takes a holistic view. It looks to past cases to guide the analysis, including: “the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.”

After examining the three factors the Opinion concluded that the first two were not conclusive but that the evidence on the third factor was clear: the City did not actively control the flag raisings or the message the flags sent; therefore, the message was private and not government speech; consequently, the denial of the permit was based on religious viewpoint discrimination thereby violating the Free Speech Clause  Shurtleff v. City of Boston, (USSC20-1800,  05/02/22)

While the Courts opinion was unanimous there were three concurring opinions in which four of the justices would have applied a different test. Justice Cavanaugh, in his concurring opinion stated that:

“On the contrary, a government violates the Constitution when (as here) it excludes religious persons, organizations, or speech because of religion from public programs, benefits, facilities, and the like.”

Justice Alito, in his concurring opinion, which was joined by Justices Thomas and Gorsuch, stated that the test in the majority Opinion obscures the real question in government speech cases: “whether the government is speaking instead of regulating private expression.” Justice Gorsuch, joined by Justice Thomas, noted that the majority opinion fell back on the Lemon, test, which the Court had overruled.   

“Lemon sought to devise a one-size-fits-all test for resolving Establishment Clause disputes. That project bypassed any inquiry into the Clause’s original meaning.  It ignored longstanding precedents.  And instead of bringing clarity to the area, Lemon produced only chaos.  In time, this Court came to recognize these problems, abandoned Lemon, and returned to a more humble jurisprudence centered on the Constitution’s original meaning.  Yet in this case, the city chose to follow Lemon anyway.  It proved a costly decision, and Boston’s travails supply a cautionary tale for other localities and lower courts.”

Comment Howard: My take, is that this battle is not over and while the Opinion is useful in guiding local government attorneys there will be gray areas.  I agree with the concurring opinions that the analysis slips back into the Lemon test.  Be careful, since there are pitfalls in applying the three part test used in this case.

For additional analysis see: Recommended Citation: Amy Howe, Boston violated First Amendment when it rejected Christian flag, court unanimously rules, SCOTUSblog (May. 2, 2022, 12:51 PM),

Eastern District Upholds The Right Of Confrontation In Juvenile Proceeding

C.A.M. Jr. appealed from the juvenile court’s judgment dismissing its jurisdiction over him and allowing his case to be transferred to a court of general jurisdiction for prosecution as an adult following a Section 211.071 hearing to the Eastern District.  C.A.M. Jr. argued the juvenile court plainly erred and violated his constitutional rights to confront the witnesses against him, due process, and be present at all “critical stages” by conducting his certification hearing by two-way video instead of permitting him to be physically present in court.  The Eastern District following a Missouri Supreme Court opinion, which held that C.A.M. Jr.’s substantial rights were violated because he was denied, and did not voluntarily, knowingly, and intelligently waive, his constitutional right to be physically present at his “critically important” certification hearing.  In the Interest of: C.A.M., Jr, for a review of the Missouri Supreme Courts, opinion on the right of confrontation click here.

In Order To Appeal An Order – It Must Dispose Of All Issues Or Be Specially Certified

Facts and Procedure: In April 2009, Jefferson County voters voted to replace an existing emergency telephone tax with a sales tax of one-half of one percent for 10 years for the purpose of providing emergency services, including central dispatching for fire protection, law enforcement, and ambulance services.  Ten years later, the voters approved continuing the one-half of one percent sales tax for emergency services.

On July 19, 2019, the Governor signed Senate Bill No. 291 (“SB 291”) into law.  SB 291 amended Section 190.327 by adding a new subsection, which reads as follows:

“An emergency services board originally organized under Section 190.325 operating within a county with a charter form of government and with more than two hundred thousand but fewer than three hundred fifty thousand inhabitants shall not have a sales tax for emergency services or for providing central dispatching for emergency services greater than one-quarter of one percent.  If on July 9, 2019, such tax is greater than one- quarter of one percent, the board shall lower the tax rate. § 190.327.5.

On August 1, 2019, DOR notified the Dispatch of its intent to decrease the existing one-half of one percent sales tax to one-fourth of one percent beginning October 1, 2019.  In response, the Dispatch filed the present action.  The Dispatch arranged its petition in four “counts.” The first Count, sought a declaratory judgment that Section 190.327.5 is unconstitutional because it violates either Article III, Section 40 or Article III, Section 42 of the Missouri Constitution pertaining to local or special laws.  The second Count, sought a declaration that Section 190.327.5 is unconstitutional because it violates Article I, Section 13, which prohibits laws retrospective in operation.  In Count III, the Dispatch requested a writ of mandamus compelling DOR not to follow the unconstitutional statute and, instead, to continue to collect the one-half of one percent emergency services sales tax and pay it to the Dispatch.  In Count IV, the Dispatch requested a preliminary and permanent injunction compelling DOR to continue to collect the one-half of one percent emergency services sales tax and pay it to the Dispatch for the same reason.

On July 31, 2020, the Dispatch moved for summary judgment only with respect to its claim that Section 190.327.5 violated Article III, Section 42, which imposes unique notice and publication requirements prior to the legislature passing any local or special law that is not otherwise prohibited by Article III, Section 40. DOR responded and filed a cross-motion for summary judgment.  On November 30, 2020, the circuit court overruled DOR’s motion, sustained the Dispatch’s motion, and entered judgment for the Dispatch on its claim pertaining to Article III, Section 42.  This judgment did not resolve the Dispatch’s other claims, nor did the Dispatch dismiss them.  They remain pending.

Analysis: The Court begins its analysis by noting that the right to appeal is purely statutory and if there is no statute, no right exists.  Section 512.020(5) provides that a “final judgment” is appealable.  A judgment is a “final judgment” for purposes of the statute if it disposes of all claims in a lawsuit or if the circuit court has certified the judgment is a final judgment for purposes of appeal.  In this case, the circuit court did not certify the judgment as final for purposes of appeal.  The circuit court simply ruled on the motion with respect to whether or not the state statute violated the special laws provision in the Missouri Constitution. It did not dispose of the other count, which claimed that the statute was retrospective in operation.  At oral argument, the Dispatch conceded that if the Court ruled that the circuit court erred in sustaining its motion that they would then pursue the other count (claiming that the statute was retrospective) and again appeal to the Missouri Supreme Court.  Therefore, the Court held in a 5 to 2 decision that it did not have jurisdiction, because there was no “final judgment.” Jefferson County v. Director of Revenue, (SC98904, 04/26/22)

Comment Howard: I was a little surprised by the dissent, which argued that there was a final judgment because the ruling disposed of all other issues in the case.  It seems to me that if the plaintiffs in this case wanted to get rid of all of the other issues, they could have asked the trial court to certify its order as a final for purposes of appeal or they could have disposed of their other counts by dismissing the remaining Counts.  The question of whether or not the statue was retrospective is a very live issue and extremely interesting.  After the voters approve a tax can the legislature prohibit the tax?  Of course, if bonds have been issued the answer is they cannot impair the debt.  But as in this case, where there is an ongoing activity, like the running of a 911 emergency dispatch office, can the state take away the funding source retrospectively?  What if the tax passed but there had not been any implementation? I don’t know the answers to these questions but I am very intrigued and would like to get an answer.  My gut tells me the statute was retrospective and unconstitutional, but that’s just a guess.

Prohibition Does Not Lie Against The Sheriff Because He Took Executive Action – He Is Not A Judicial Or Quasi-Judicial Officer

Facts and Procedure: A grand jury indicted Doe on 17 counts alleging multiple instances of sodomy and child molestation involving his daughters, H.C. and R.C, and one count of statutory rape involving H.C.. Eventually, the state reached a plea agreement with Doe in which he agreed to plead guilty to four counts of endangering the welfare of a child in the first degree, and the state agreed to dismiss all other counts.  In the four counts of endangering the welfare of a child, the state alleged Doe struck H.C. on two instances, struck R.C. on one instance, and exposed R.C. to the cold with inadequate clothing for an extended period of time.

The circuit court held a plea hearing suspending imposition of Doe’s sentence and placed him on probation for five years.  Doe’s probation officer, then notified him that he must register under Missouri’s Sex Offender Registration Act (“SORA”) and under the federal Sex Offender Registration and Notification Act (“SORNA”) based on a determination from Sheriff Frisz, who had consulted with the County Counselor’s office.  Two days after Doe was notified that he needed to register as a sex offender, Doe filed a petition for writ of prohibition in the St. Charles County Circuit Court.  In his petition, Doe requested the circuit court “prohibit the Chief Law Enforcement Officer from determining that Relator is required to register under either SORA or SORNA[.]”  The circuit court issued a preliminary writ of prohibition.  After holding a hearing, the circuit court concluded Doe was required to register as a sex offender and denied Doe’s request for a permanent writ.  Doe appealed to the Missouri Supreme Court.


Error in Considering Abandoned Charges – The court begins its opinion by first. laying out the statutory framework.  Under Section 589.400.1(7) of SORA, a person must register as a sex offender if that person is required to register under SORNA.  SORNA requires a “sex offender” to register. 34 U.S.C. § 20913(a) (2018).  SORNA broadly defines “sex offender” as “an individual who was convicted of a sex offense.” 34 U.S.C. § 20911(1) (2018).  A “sex offense” includes “a criminal offense that is a specified offense against a minor.” 34 U.S.C. § 20911(5)(A)(ii) (2018).  Finally, the definition of “specified offense against a minor” contains a catchall provision that includes “[a]ny conduct that by its nature is a sex offense against a minor.”

The Court then explains that Missouri has applied a non-categorical approach when determining whether an offense included conduct that by its nature was a sex offense against a minor.  That is you look beyond the guilty plea to the underlying facts of the offense to determine if the offense is a sex offense.  For example, a charge of endangering the welfare of a child, which in and of itself is not a sex offense but in making its decision the court should look to the charging document.  The court had found that the underlying facts were a qualifying offense because the alleged the offender endangered a child by exposing himself and masturbating.  However, the facts in this case are different.

In this case, Doe pled guilty to four offenses in which he struck his daughters on three occasions and exposed R. C. to cold weather with inadequate clothing for an extended period of time.  There is no mention of anything sexual in nature in the charges; therefore, he did not plead to a sexual offense, even if you apply the non-categorical approach.  In addition, Sheriff Frisz’s argument conflicts with the plain language of SORNA, which defines “sex offense” broadly, as an offender only if that person “was convicted of a sex offense.”

Sheriff Is Not a Judicial Or Quasi-Judicial Officer Therefore, Prohibition Was Inappropriate – The Court starts with the basics.  Prohibition lies “to prevent or control judicial or quasi-judicial action.” The sheriff was not a judicial or quasi-judicial official.  The St. Charles County Charter gives the County’s sheriff “supervision, management and control of and responsibility for the efficient and effective administration and performance of the duties, powers and functions of suppression of crime and other appropriate law enforcement[.]”  In this case the Sheriff “…took, at most, executive action, not judicial or quasi-judicial action.”

In addition, the statute does not require the Sheriff to “maintain, for all offenders registered in such county, a complete list of the names, addresses and crimes for which such offenders are registered.” Sheriff Frisz’s only has a ministerial duty to keep Doe’s name on the list once Doe registers.  The statute cannot be read to imply some sort of authority to determine sex offender status.  The Sheriff in only a ministerial officer who keeps the records of the sex registry with no authority to determine if a person should be added to the list.  Doe v. Frisz, (SC99310, 04/26/22).

Comment Howard: It seems to me that many sheriffs have an outsize sense of their importance.  Like I am running the show and I can put anyone on the sex offender list who appears to be guilty, but was not convicted.  In this case the sheriff gets cut done to size.  He is just a mere clerk keeping a list and nothing more.

Anti-Vaxer Challenges To Compulsory School Vaccination Fails:

Facts and Procedure: Baker v. Crossroads Academy-Central Street, involves a challenge by Audrey Baker, who opposes vaccines, to Section 167.181.2, which requires all students to be immunized and provide proof of such immunizations.  Exemptions based on religious beliefs are given if a parent or guardian objects in writing to the school administrator.  The Department of Health & Senior Services (“DHSS”) promulgated rules and regulations governing the required immunization program and supervised and secured its enforcement.  To assert a religious exemption from the school children vaccination requirement, a parent’s exemption statement “must be provided on an original, Department of Health and Senior Services’ Form 11.

The Bakers’ 20-count petition asserted a variety of state and federal statutory and constitutional claims, based on alleged violations of the Bakers’ rights to (1) free exercise of religion, (2) first amendment speech, (3) a child’s bodily integrity and autonomy, (4) the parental right to consent, to make medical decisions, and to direct the upbringing according to religious conviction, and (5) equal protection.

The Western District ruled against the Baker’s on all of the above allegations and she appealed to the Western District.

Analysis: Case law from the United States Supreme Court, the 8th Circuit and Missouri support the principle that requiring school children to get vaccinated is constitutional and is not limited.  Consider:

On compulsory vaccinations- Long ago, the United States Supreme Court upheld the constitutionality of state compulsory vaccination laws.  Jacobson v. Massachusetts, 197 U.S. 11, 26-27 (1905).

“[A] community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27.

On the free exercise of religion and compulsory vaccinations- A parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds.  The right to practice religion freely does not include the liberty to expose the community or the child to communicable disease or the latter to ill health or death.” Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944).

On state and local health department regulations as related to Missouri RFRA- Missouri’s school children immunization statute and the DHSS’s regulations and practices are in service of a compelling government interest in the health and safety of Missouri’s students and the people with whom they interact and are not unduly restrictive.

On DHSS’s regulations and practices relating to Form 11 exceeding the scope of section 167.181.3. – DHSS has not plainly exceeded its statutory authority by requiring the use of Form 11.  Baker waived other claims by failing to preserve those issues.  Baker v. Crossroads Academy-Central Street, (WD84941,05/17/22)

Comment Howard: Baker’s arguments were an amalgamation of her complaints, which were sorely lacking in legal substance without a coherent analysis.  I decided to use this format since these issues come up and merit a response; therefore, I briefly state the Court’s conclusions making it clear that these issues have been resolved a long time ago by the courts.

Missouri Harassment Statute Upheld Against First Amendment Free Speech Challenge 

The Missouri Supreme Court upheld a second-degree harassment statute against a first amendment free-speech challenge in State of Missouri v. Collins.  Collins was on supervised parole for a fourth-degree assault charge where his parole officer (A. G.) monitored his daily activities, particularly with respect to his dating and use of alcohol.

Collins, after being contacted by A. G., his parole officer, concerning his use of alcohol threatened A. G., claiming that he had hired a private investigator to look into her personal life and that he had found her sons were selling drugs and her daughter was performing sex acts.  He left several messages to this effect on A. G. Facebook account.  A. G. contacted the police and charges were filed against Collins for tampering with a judicial officer and second-degree harassment.

He was convicted by a jury and now asserts that the statute was unconstitutional because it violated its first amendment free-speech rights.  The Missouri Supreme Court held that because Collins acted without good cause and with a purpose that his actions were wholly outside of the First Amendment protection; therefore, the statute was not overly broad.  State of Missouri v. Collins, (SC99211, 05/17/22)


Congrats to Richard Sheets and the MML for a highly successful legislative session and limiting the potential damage of terrible legislation.

Holding the legislature back is like holding the KC Chiefs to 3 points for the entire game.

Some of the MML successes included allocation of more funds for mental health, changes to the financial statements, condemnation of heritage property, broadband expansion and Sunshine Law revisions.

The legislature did pass one particularly bad bill, HB 1662, which MML officials will be lobbying to urge Governor Parsons to veto.

See comments below on SB No. 1662, which pertains to zoning:

Truly Agreed To And Perfected Senate Substitute For House Committee Substitute For HB No. 1662 Prohibits Local Government From Enacting Ordinances That Prohibit Home Based –

“Mail order or telephone sales for home-based work; service by appointment within the home or accessory structure; structural modifications to the home or accessory structure; hours of operation for home-based work; or storage or the use of equipment that does not produce effects outside the home or accessory structure.”

This is a particularly bad bill.  It’s not hard to imagine a residential home or a structure on residential property where a mail order business is conducted with an unlimited number of employees, at all hours of the day or night.  The city cannot even require modifications to the structure to accommodate this use.  What is so striking about this bill is the lack of any limitations like the number of persons who use the property or limitations on hours to prevent late night activities.

In the event, you or your city contact Governor Parsons concerning a veto of this bill please keep Richard Sheets, the Executive Director of the MML or other MML officials informed.

Reminder Of Summer Seminars

The SLLC is holding its FREE annual Supreme Court Review webinar on July 14.  This event features amazing speakers who will cover all the big cases of the term which are of interest to state and local government officials.  It will also be recorded.  This webinar is designed for lawyers and non-lawyers alike.  No continuing legal education (CLE) is offered (but if your state allows you to apply on your own you can get documentation).  The SLLC is also co-sponsoring another SCOTUS webinar on July 19 covering environmental cases.  This event is also free and open to everyone.

SLLC Supreme Court Review Webinar

From guns to abortion to countless First Amendment cases to a potentially big police case this U.S. Supreme Court term will long be remembered.  Join Dan Bromberg, Pillsbury, who wrote the SLLC amicus brief in the Boston flag case, Roman Martinez, Latham & Watkins, who argued the police case, and Luke McCloud, Williams & Connolly, who also argued a case this term, in a discussion of the most interesting and important cases for states and local governments decided this term.  July 14, 2-3:15 Eastern.  Register here

Supreme Court 2021 Term Roundup: Environmental Law and the States

Join appellate advocates and State Solicitors General on Tuesday, July 19 from 12:30pm – 1:45pm ET for a conversation about the term’s cases and the impact that those cases could have on states and environmental law.  This program is co-hosted by the State Energy & Environmental Impact Center and the State and Local Legal Center.  Register for the webinar here