November Newsletter (Issue 11-2022)

Turkey Dancing

An Apology For The Delay

We work hard to get you information.  We will continue to work hard to provide you information in the future.  We apologize for the delays and we will continue to work hard to keep you updated.


Food Ordinance Applied To Homeless Charity Survives Free Speech And Religious Freedom Test

Facts and Procedure: A St. Louis police officer observed Pastor Redlich and Mr. Ohnimus (Plaintiff’s) distributing bologna sandwiches and issued each a citation for violating a city ordinance requiring a permit for the distribution of “potentially dangerous food.” Although the City declined to prosecute the citations,  Plaintiff’s filed suit, claiming that the City’s enforcement of the St. Louis Food Ordinance (Ordinance), which placed restrictions on the distribution of “potentially hazardous food.” violated their federal and state constitutional rights and Missouri statutes. For example, “[t]he preparation or service of . . . sandwiches containing MEAT, POULTRY, EGGS, or FISH is prohibited” by temporary food establishments. For those seeking to distribute potentially hazardous foods on a temporary basis, a temporary food permit is required, which costs $50 for each day of operation, and must be applied for more than 48 hours before the event. In addition, the operation must have a hand-washing station for employees; several food-grade washtubs; and enough potable water available for food preparation, cleaning of utensils and other equipment, and for hand washing. Plaintiff’s alleged that, as applied, the Ordinance violated their First Amendment rights under the Free Exercise and Free Speech Clauses and sought both declaratory and prospective injunctive relief.

While the litigation was pending in the district court, the City amended the St. Louis Food Code on two occasions. First, a reduced cost, and a Temporary Food Safety Training Program designed for those who wished to help feed the public free of charge. Second, just after the briefing was complete on the parties’ summary judgment motions, the City adopted several chapters of the 2017 Edition of the National Food Code, and retained the Charitable Feeding Temporary Food Permit and Temporary Food Safety Training Program.

The district court granted the City’s motion for summary judgment and declined to exercise supplemental jurisdiction over the state claims. The district court also determined that Plaintiff’s claims were not moot because of the changes to the ordinances, since there was a likelihood that the City might take action in the future. Plaintiff’s appealed to the 8th Circuit.

Analysis: Plaintiff’s claimed that the Ordinance violated their rights under the Free Speech Clause of the First Amendment because the City’s enforcement of the Ordinance against them interfered with their ability to communicate their message about God’s love and concern for those in need. They argued that the First Amendment, applicable to the states through the Fourteenth Amendment, provides that “Congress shall make no law . . . abridging the freedom of speech.”

Strict or Intermediate Scrutiny – In order for the spoken or written word, to fall within the ambit of the Free Speech Clause the conduct must be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” To decide whether conduct is sufficiently imbued with communicative elements to be protected, courts ask “whether ‘[a]n intent to convey a particularized message was present and [whether] the likelihood was great that the message would be understood by those who viewed it.’” A person’s intent to express an idea through conduct cannot alone bring that conduct within the First Amendment’s protection of speech. The Supreme Court has only extended First Amendment protection to conduct that is inherently expressive.

The 8th Circuit explains that a regulation does not violate a person’s freedom of expression under the following circumstances:

“…if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. If the government seeks to neutrally regulate the non-speech element of a person’s conduct, intermediate scrutiny applies under the incidental-burden doctrine.”

Plaintiff’s argued that the Ordinance did not further an important or substantial government interest and that the Ordinance was not sufficiently tailored to the asserted interest. The Court disagreed, noting that common sense tells us that the health-related problems are substantial. “It is an imminently reasonable proposition that a municipality has a substantial interest in preventing the spread of illness or disease among its citizens, including its homeless population.” Furthermore, the City’s data traced the spread of illness amongst the homeless in St Louis from illegally distributed food going back to 2012. In addition, data developed by the CDC shows thousands of illnesses and hundreds of deaths due to food borne related diseases in 2018, including the homeless. Based on the evidence the Court determined that the Ordinance passed the intermediate scrutiny test if it was narrowly tailored, as discussed below.

Narrowly Tailoring of Intermediate Scrutiny – In order to meet the narrowly tailored testthe Ordinance only has to promote a substantial governmental interest. It does not have to be the least restrictive as suggested by the Plaintiff’s. The National Food Code as incorporated into the Ordinance was based on scientific research and was intended to provide municipalities with guidelines and rules to limit risk factors known to cause foodborne illness. The City evidence showed that food contaminated by pathogenic microorganism growth and toxin formation cause foodborne illness. The Ordinance defines “potentially hazardous food,” and, in turn, identifies sandwiches containing meat, poultry, eggs, or fish as among those foods considered to be potentially hazardous. As applied to Plaintiff’s, the Ordinance furthers the City’s important interest in preventing the spread of foodborne illness by regulating the distribution of potentially hazardous food—namely, sandwiches containing bologna.

The 8th Circuit noted that nothing about the City’s enforcement of the Ordinance against prevented Plaintiff’s from conveying their religious message in other ways, like the expressive act of sharing nonhazardous food with those in need while simultaneously discussing the substance of their message with them or by sharing literature with a passerby, or engaging in other protected speech; therefore; the Ordinance furthered the City’s interest on the spreading of food borne disease and is narrowly tailored.

Hybrid-rights Claim – Appellants claim that because they asserted both a Free Exercise claim and a freedom-of-expression claim, a hybrid-rights claim, which required the district court to apply strict scrutiny. The 8th Circuit rejected this argument noting that Plaintiff’s do not have a viable claim under the Free Exercise Clause, and their expressive-conduct claim because each of the claims making up their hybrid-rights claim “fails on its own.” Armstrong vs. Charity of St. Louis, (ED110325, 10/11/22)  

Comment Howard: Most local governmental agencies have a food ordinance, which includes provisions to protect the public, health and safety from food borne diseases in situations where caring citizens distribute food to the homeless. Most of us have not looked at these ordinances for years, if not ever. Been there, done that.

To the credit of St. Louis, they quickly realized that the existing ordinance would not hold up, so they quickly changed the ordinances several times to be sure it could withstand the lawsuit. I thought the St. Louis Counselor’s Office also did a really outstanding job in finding hard and convincing evidence to support their arguments. 

Besides being a well written guide on how to defend a lawsuit from a free speech claim this case provides a great road map to statutory construction because the Court interprets provisions of the National Food Code, which provides you with a ready source of case law on similar issue. I assume that the National Food Code keep track of these cases providing another good source of case law.

Ten-Year Statute Of Limitations Applies To A Payment Bond Issued Under Section 107.170

In Four Star Enterprises Equipment v. Employers Mutual Casualty, 649 S. W. 3d 31, the Southern District held that the ten-year statute of limitations applied to a payment bond issued under Section 107.170, overruling a trial court decision that held the five-year SOL applied.

Right To Sue Letter In MHRA Cases Required After 180 Days

An article in the October 24, 2022 Edition of Missouri Lawyers Weekly discussed delays by the Missouri Commission on Human Rights in not issuing some right to sue within 180 days as required by statute. The article explains that the delay was caused because the Commission was trying to determine, as required by a 2017 law, if it had jurisdiction before issuing the right to sue letter.  Faced with the quandary of the delay and its potential effect on their clients’ lawsuits, like the two-year SOL for MHRA claims, lawyers sought and obtained a writ of mandamus ordering the Commission to issue the right to sue letter.  Even after the writ was issued the Commission did not respond as quickly as the lawyers wanted, so they sued the Commission.  This seemed to get their attention and results since the Commission then issued a letter stating that if a complaint has been on file more then 180 days the Commission staff was not required to make a jurisdictional decision.

8th Circuit Explains Continuing Violation In Determining How To Apply Statute of Limitations

Facts and Procedure: The City of Springfield City (City) operates a utility service which provides water and other utility services to residents of the City and water beyond its corporate limits under § 91.050.  

Specifically, the City provides water service to six subdivisions (Disputed Subdivisions)” that are outside its city limits.  The City began to provide water service to the Disputed Areas ranging from 1971 to 1994.

PWSD is a public water supply district that provides water service to residents within its legally-defined service area, which include the Disputed Area.  PWSD has an outstanding loan with the United States Department of Agriculture (“USDA”) and has been continuously indebted to the USDA since 1965.

USDA is authorized to issue loans to “associations” for various purposes, including “to provide for . . . the conservation, development, use, and control of water. Section 1926(b) provides:

“The service provided or made available through any such association shall not be curtailed or limited by inclusion of the area served by such association within the boundaries of any municipal corporation or other public body, or by the granting of any private franchise for similar service within such area during the term of such loan; nor shall the happening of any such event be the basis of requiring such association to secure any franchise, license, or permit as a condition to continuing to serve the area served by the association at the time of the occurrence of such event.”

PWSD filed an action in Federal District Court in October 2020, alleging several claims and seeking declaratory, injunctive, and monetary relief under section 1983. Specifically, PWSD asserted 1983 claims against the City on grounds that the City deprived PWSD of its right under 7 U.S.C. § 1926(b) to be protected from curtailment or limitation of its provision of water service within its service area. Both parties filed motions for summary judgment. The district court granted the City’s motion but did not rule on the statute of limitations defense asserted by the City. PSWD appealed to the 8th Circuit.

Analysis: Even though the district court did not rule on the City’s alternative motion based on the statute of limitations (SOL) the 8th Circuit decided the case on the SOL argument. It held that the SOL for 1983 actions was five years and that the claim accrued “when the plaintiff has a complete and present cause of action,” that is, “when ‘the plaintiff can file suit and obtain relief.’” PWSD asserted its claims were timely under the continuing violations doctrine because the City continued to provide water to customers within the Disputed Subdivisions. Under the continuing violations doctrine, each overt act that is a part of a continuing violation “starts the statutory period running again, regardless of the plaintiff’s knowledge of the alleged illegality at much earlier times.” This argument failed because there was a discrete act (providing water to the subdivision). After all the water lines went in as part of the infrastructure when the subdivision was developed. The reoccurring payments were just the effect of the installation of the sewer system, which occurred when the subdivision was platted.  Water Supply District No. 1 of Greene County v. City of Springfield, (8th Cir., 21-3618, 10/24/22)

Comment Howard: There is a good discussion of the continuing violation doctrine in the context of how to apply to SOL.

Houdini Like Feats Get City of St. Peters Out Of Self-inflicted Wounds In Appealing Maintenance Code Prosecution

Facts and Procedure: Between December 2020 and June 2021, the City of St. Peters (City) issued 31 municipal Code citations to Lienemann for violations of the City Code relating to property maintenance and nuisance ordinances.  The municipal division of the St. Charles County Circuit Court found Lienemann guilty of all ordinance violations and sentenced her to pay fines and court costs totaling over $10,000.

Lienemann filed an application for trial de novo in the circuit court. She subsequently filed a motion to dismiss the citations against her, arguing that, because she was not the owner or resident of the Property; therefore,  she was not the proper party to be cited for the ordinance violations.  Lienemann attached two deeds to the memorandum in support of her motion to dismiss showing ownership of the Property by the Norman F. Lienemann Family Limited Partnership and the Virginia L. Lienemann Family Limited Partnership (collectively, the Family Partnerships).

Lienemann motion to dismiss all 31 citations against her was granted by the trial court on January 19, 2022.  The City then filed a motion to reconsider or to vacate, which the trial court denied on February 15, 2022 and the City.  Thereafter, the City filed a notice of appeal on February 25, 2022, to the Eastern District.

Analysis: There were three key issues in this case.  The timeliness of the appeal; the failure to introduce at trial the ordinances on which the charges were brought; and whether or not Lienemann was responsible for the violations.

Timeliness of the Appeal –  The City filed its notices of appeal on February 25, 2022. Lienemann challenged the timeliness of the City’s notices of appeal and argued the appeal must be dismissed for lack of appellate jurisdiction because the notice of appeal was out of time.  

The Eastern District noted that Civil Rule 81.04 provides that no appeal “shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment, decree, or order appealed from becomes final.” The judgment was final 10 days after it became final, which was January 31, 2022, when days for the weekend were added.  The City did not file its appeal until February 25, 2022, which was out of time.  However, the City apparently anticipating a problem filed a motion to file its appeal out of time, which was sustained by the Court.  

Failure to Introduce Ordinances at Trial –  Lienemann also filed a motion with the Eastern District to strike several Exhibits to the record, which showed the City ordinances for which she was charged were not properly in the record.  The Eastern District resolved this issue by overruling Lienemann motion based on the fact that the ordinances at issue were sufficiently in the record because the Lienemann filed copies with motion to strike Exhibits and the city did the same when it responded to the motion and both parties referred to these exhibits extensively in their briefs, which constituted the basis for the Court’s ruling on this issue.

Was LienemannA Proper Defendant – The City contended that the trial court erred in granting Lienemann’s motion to dismiss because Lienemann was the proper defendant liable for the violations because she was the person in control of the corporate entities that owned the Property.  Specifically, the City argued that because the Property was owned by the Family Partnerships; the general partner of each Family Partnership is Harvester Farms, LLC; and Lienemann is the registered agent for each Family Partnership and is the sole member of Harvester Farms, LLC, she was a proper defendant.

The City property maintenance code provides that an “owner” may be held liable for a violation of that code.  An “owner” is defined as:

“Any person, agent, operator, firm or corporation having legal or equitable interest in the property; or recorded in the official records of the state, county or municipality as holding title to the property; or otherwise having control of the property, including the guardian of the estate of any such person, and the executor or administrator of the estate of such person if ordered to take possession of real property by a court.”

The Eastern District held that the Family Partnerships, which held legal title to the Property, clearly fell within the definition of who may be held liable for and be charged with a violation.

However, the Court noted that whether Lienemann may be cited and held liable for a violation of the property maintenance was a different matter.  The only portion of the above definition of “owner” which Lienemann might fall was: “Any person … otherwise having control of the property.”  In this case, the City did not produce any evidence regarding “control.” Notwithstanding, the Eastern District held the trial court erred in dismissing Lienemann as a defendant at this early stage, where further factual determinations were required to determine her potential liability.  Case was remanded to the trial court for further proceeding consistent with the opinion.  City of St. Peters v. Lienemann, (ED110353, 10/25/22)

Comment Howard: As noted, the City had three issues, anyone of which could have been fatal, although it managed to avoid the consequences with a Houdini like legal feat by the City.  

I question, the Court’s Opinion on the introduction of ordinances into evidence based on the inclusion in the record and referring to the exhibits in the briefs. Under Civil Rule 84.04(f) it seems that Lienemann, as the Respondent, should have objected to the statement of facts by the City and could have submitted her own alternative statement in Respondent’s brief, pointing out that the City never introduced the ordinances into evidence.  Having failed to raise this issue in accordance with the Rules it seems that Lienemann waived her objection

Comment Ragan: I have lots of questions about this case.  It is not clear that the court actually held a trial where the ordinances and all the facts would have been submitted.  It appears that there was a limited hearing on a motion filed by the defendant in which the trial court dismissed the matter. 

Sheriff Not Liable For Negligent Retention

Our legal system seems to function as two separate and distinct ecosystems that coexist in the same place and time.  The first is a system in which everything we know is built on a rock solid foundation of history and tradition.  The other system is one in which everything is built upon shifting sands.

IMLA recently discussed the case of Christmas v. Harris County, and it caught my eye because of how things will shift in the next decade.  In Christmas v. Harris County, a Georgia deputy stopped a woman for a traffic violation and forced her to have oral sex.  The woman traveled to the next county and reported the offense.  The deputy subsequently confessed and was fired from his job.  The Sheriff conducted an additional investigation and determined that the deputy had been involved in other abuses of his power and assaulted other women sexually.  The victim sued the Sheriff on the grounds that the Sheriff and the county was liable for retaining the deputy.  In this case there had been prior complaints about the deputy regarding use of force by kneeling on a person’s neck which resulted in that person’s death and a complaint by the deputy’s ex-wife. The court concluded that neither of these past lapses sufficiently alerted the Sheriff to the likelihood that Pierson would commit sexual assaults on women he stopped.  As I see it body camera footage will change the entire nature of these type of complaints.  I feel like with body cams the next stage will be not if a supervisor was alerted but whether or not the supervisor was diligent or negligent in monitoring the employee when there exists indicators there should be some supervision to ensure the public safety.  I don’t think there is the evidence in this case to support that the Sheriff could have anticipated what happened but there is evidence the Sheriff might have wanted to have dedicated some resources to ensure the deputy was not a danger to the public.  Christmas v. Harris County,   (11th Cir, 22-11187, 10/28/22).

Colorado Web Designer First Amendment Challenge

Scotusblog had a great article about a case before the SCOTUS.  The matter before the Supreme Court is another challenge to Colorado’s anti-discrimination laws.  In this instance a Colorado website designer challenged the state law that bars businesses that are open to the public from discriminating against individuals who are gay.  The website designer is arguing that the law violates her free speech rights.  The website designer had previously raised that the Colorado law violated her free speech rights and free exercise of religion but the Supreme Court is only hearing her claim on free speech.  Colorado is arguing that the CADA merely requires that Smith sell whatever products or services she decides to offer to anyone who wants to buy them. For more information about the case please read the great article on Scotusblog.  Colorado Web Designer’s First Amendment Challenge.

IMLA Newsletter

I’m a big fan of IMLA.  I’ve attached a copy of the IMLA journal.  It has two interesting articles, one about attorney client relationships and the other is about Native American law.  IMLA Journal.