St. Louis Prevails In Case Involving Overreaching State Law That Defined Duties Of City Official In Violation Of Article VI,  Section 22, Of The Missouri Constitution 

Facts and Procedure: This case involves Article VI, Section 22 of the Missouri Constitution that prohibits enacting laws that create or fix the powers, duties, or compensation of any municipal office or employment, for any city framing or adopting its own charter. This is the first case that I have seen on this subject in a very long time, which makes it a great case to review.

James Wilson and Charles Lane, two residents of the city of St Louis, sued the state, the City of St. Louis (city), and the city’s treasurer, comptroller, director of streets, director of parking operations, and alderman appointed to serve as chairperson of the board of aldermen’s traffic committee. The plaintiffs sought a judgment declaring the parking statutes constitutionally invalid because they create powers and duties of municipal offices of a charter city in violation of Article VI, Section 22 of the Missouri Constitution.

Alderman Boyd, who was serving as the chairperson of the aldermanic streets, traffic, and refuse committee, intervened in the suit as a plaintiff. The city filed a cross-claim against the state, asserting a constitutional challenge against the parking statutes. The city then filed a motion for summary judgment, arguing the parking statutes violated Article VI, Section 22 because they created a municipal office, a parking commission, and additional duties of existing offices in a charter city, which motion was sustained. The trial court also found that the entire statute was invalid because provisions of the statute were inextricable intertwined and could not be severed. The defendant’s appealed to the Missouri Supreme Court.

Analysis:

Constitution and State Law – Article VI, Section 22 in part provides: “No law shall be enacted creating or fixing the powers, duties or compensation of any municipal office employment, for any city framing or adopting its own charter …”

Section 82.487,RSMo., provides the parking commission shall be composed of five members: the treasurer, as supervisor of parking meters, whose position is to act as the parking commission’s chairperson; the chairperson of the aldermanic traffic committee; the director of streets; the comptroller; and the director of parking operations, a position within the treasurer’s office.

Section 82.485.4 then provides the parking commission “shall approve parking policy as necessary to control public parking, shall set rates and fees to ensure the successful operation of the parking division, and require a detailed accounting of parking division revenues. Sections 82.487, and 82.485 RSMo., are referred to as the Parking Statutes.

Standing – Alderman Boyd, as the chairperson of the aldermanic streets, traffic, and refuse committee, was required to perform allegedly constitutionally invalid duties as a result of the parking statutes. In his capacity as the chairperson of the aldermanic streets, traffic, and refuse committee, Alderman Boyd was required to perform duties the state imposed by the parking statutes. The Missouri Supreme Court held that Alderman Boyd had standing because he had a personal stake in the outcome of the litigation and the remedy sought will alleviate the alleged injury.

The Court also concluded that the City also had a legally protectable interest in preserving its home rule authority and preventing the assignment of unconstitutional duties to its municipal offices and employments and as such had standing.

Was There a Duty that Violated Article VI, Section 22? – The parking statutes required the comptroller, director of streets, and the alderman serving as chair of the aldermanic traffic committee to serve as members of the parking commission with designated duties.

The Court then examines what constitutes a “duty” by applying the ordinary dictionary meaning using Webster’s Third, which defines “duty” to include “obligatory tasks, conduct, service, or functions enjoined by order or usage according to rank, occupation, or profession . . . assigned participation in activity.” The parking statutes require:

“The parking commission of any city not within a county shall be the city’s authority for overseeing public parking[.]” And “[o]n behalf of the city” to approve: (1) Guidelines governing the administrative adjudication, disposition and collection of any parking violations or complaints issued by the city; (2) Budget modifications for the parking fund, also known as the “parking meter fund”; and (3) The acquisition, development, regulation and operation of such parking facilities or spaces owned in whole or in part, leased or managed by the parking division.

Because the parking statutes created duties of the offices of comptroller, director of streets, and the alderman serving as chairperson of the aldermanic traffic committee, the parking statutes violated Article VI, Section 22.

Severability –The Court noted that Section 1.140 RSMo., governs the issue of severability, requiring the court to sever provisions that are invalid from those that are valid, unless the void language is so inseparably connected with the remaining provisions that the legislature would have enacted the valid provisions with the void language. In this case, the Court found that the provisions requiring city officers to serve as members of the parking commission were not inseparably connected with the remaining provisions creating a parking commission, while other provisions that defined duties of city officials were inextricably intertwined.   Wilson v. City of St. Louis, (SC98907, 03/07/23)

Comment Howard: The Court did not create any new case law but instead applied existing case law to determine if the statute violated the constitution making this case a good refresher course on the law in this area for attorneys who represent home rule cities. If you have an issue like this it could be a great resource because it goes into great detail distinguishing cases on either side of the question,  making it a very useful resource.

Federal District Court Declares Missouri Law To Protect The Rights Of Gun Owners From Enforcement Of Federal Firearm Laws Declared Unconstitutional

Judge Wimes, for the U. S. Western District of Missouri held in U.S. v. State of Missouri, that H.B. 85 (SAPA) adopted by the Missouri legislature in 2021 violated the Supremacy Clause of the United States Constitution, federal principles of preemption, and the intergovernmental immunity doctrine, declaring that the SAPA was null and void in its entirety.

An appeal has been filed with the 8^th Circuit. It is likely that if the State loses in the 8^thCircuit there will be an appeal to the U. S. Supreme Court. There were tons of amicus briefs filed by gun rights advocates, suggesting that SAPA is a likely test case. The statute was structured by putting enforcement in the hands of private citizens, (like a $50,000 bounty) as a way to impact standing of the federal government to block enforcement. We have seen this model before in the Texas abortion law.

Of particular importance to local government officials was the order by the District Court, which allowed local and state government officials to cooperate with federal officials. The order reads:

“State and local law enforcement officials in Missouri may lawfully participate in joint federal task forces, assist in the investigation and enforcement of federal firearm crimes, and fully share information with the Federal Government without fear of H.B. 85’s penalties. The States of Missouri and its officers, agents, and employees and any others in active concert with such individuals are prohibited from any and all implementation and enforcement of H.B. 85.”

This makes it clear that the ability to local officials to cooperate with federal officials, in carrying out important functions in enforcing federal firearm laws, has now been completely restored. Despite the bravado by the newly appointed Missouri Attorney General, that he will win this case , it seems pretty clear that the appellate courts will affirm this decision. After all the trial court found that H.B. 85 violated the Supremacy Clause of the United States Constitution, federal principles of preemption, and the intergovernmental immunity doctrine, making lots of hurdles for the State of Missouri. It looks like the big argument by the State will be standing, which the district court opinion seems to address quite adequately. It will be worth following this argument because of the private remedy in the statue, which seems to be intended to impede the standing argument of the government.   United States v. State of Missouri, (2:22-CV-04022-BCW – 3/6/23

Comment Ragan:    This law is inconsistent with the basic principles I learned in law school.  Sadly, under our legal system legislators can adopt bad laws knowing they are unconstitutional at the expense of the tax payers.  Our political and judicial system is encouraging bad legislation and makes it easier to pander to the rich, powerful political organizations, and even fringe groups or fringe ideas because it is the tax payers who have to pay to defend a bad law in court.  Politicians need to have some real skin in the game and perhaps so should the lobbyists that are writing the laws because right now they are gambling with house money and as long as there are no personal ramifications beyond losing an election they are knowingly going to violate the principles of our constitution and then even defend breaking those principles because it is profitable for them.  Missouri needs to devise a law that strips legislator immunity under circumstances where it is clear a law is inconsistent with the United States Constitution and the legislator should be personally responsible for the legal fees and the cost if the court finds the law was adopted with some type of reckless disregard or gross negligence.

Easement By Necessity

Facts and Procedure: Jared Ford (“Ford”) and Mary Williams (“Williams”), own real estate (“the Ford-Williams property”) in Texas County, Missouri. The Ford-Williams property is surrounded by land owned by the United States Forest Service (“Forest Service”) and appellants Robert D. Giovanelli II (“Robert “) and Kerith A. Giovanelli (collectively, “the Giovanellis”). Ford and Williams filed a petition against the Giovanellis, seeking to establish a private road by strict necessity pursuant to Section 228.342 RSMo., over the Giovanellis’ property, in order to access the Ford-Williams property.

The trial court found that the Ford-Williams Property does not adjoin a public roadway; and no public road goes through or alongside it. Furthermore, any use of a U.S. Forest Road requires a permit authorizing use by the Forest Service.  Based on these facts the trial court determined Ford and Williams had a strict necessity for the establishment of a private road over the Giovanellis’ property.  The Giovanellis appealed to the Southern District.

Analysis: The Giovanellis, argued that the trial courts finding was not supported by substantial evidence and was against the weight of the evidence because no evidence was presented that the so called “Green Road” (Forest Road 159) was a public road and did not require a permit to use it. In other words, they argued that the Green Road was an alternative way to access the Ford-Williams property.

Before deciding whether or not the green Road was a public road and did not require a permit to use, the Court established the legal framework for proving strict necessity under Section 228.342. An owner of a landlocked piece of property may establish a private road over the property of another if the private road sought to be established “is a way of strict necessity.” “‘Strict necessity’ has been interpreted to mean the absence of a reasonably practical way to and from a plaintiff’s land that the plaintiff has a legally enforceable right to use.” In other words, “if property has no physical access to a public road and no other legally enforceable right to use a practicable way to a public road (such as an express easement, for example), then strict necessity for a private roadway has been established.”

Since the trial court found the Ford-Williams property did not adjoin a public roadway and no public road goes through or alongside it the Giovanellis argued that the “‘Green Road’ provided an alternative way to access the Ford-Williams property because it is a public road and no permit was required to use it. The Southern District, noted that the Green Road, is only a proposed road and has not been constructed. Furthermore, even if the Green Road is considered a public road, which the Southern District did not decide, it provides no physical access to the Ford-Williams property because it is too short. It ends in a field owned by the Forest Service and would require Ford and Williams to drive through a field owned by the Forest Service to reach their property.

Nor is the Green Road a reasonably practical way to and from the Ford-Williams property. Mayhew, a professional land surveyor and engineer, testified Forest Road 1539 was a fire trail—not a road. He was reluctant to drive a four-wheel drive vehicle down the trail due to its condition. Likewise, the Giovanellis’ own surveyor testified that he had only driven up part of the way and walked the rest. While the trail could be brought up to normal road standards, Mayhew conservatively estimated such construction would cost over $300,000.

The Southern District found that the Green Road did not constitute a reasonably practical way to access the Ford-Williams property. The Green Road, in its current condition was impractical, and does not provide a dependable means of access for Ford-Williams. To convert the trail to a standard road would require an unreasonable amount of money; therefore, the Southern District held that even if the Green Road were public and required no permit to use, it provided neither physical access nor reasonably practical access to the Ford-Williams property. Williams v. Giovanellis, (SD37271, 01/19/23)

Comment Howard: I have not seen in recent years a case on easements of necessity so this case is very helpful.

Police Pursuit Liability Analysis

The March-April Edition of the Journal of the Missouri Bar has an excellent article on Police Pursuit Liability in Missouri, by Robert Plunkert, a lawyer in St. Louis, which examines the leading cases on this topic. Obviously, this will be a leading resource on this important topic. Even if not faced with a lawsuit this article could be good to incorporate into training sessions for law enforcement.

“Me Too” Evidence Is Admissible And The Award of Attorney Fees Using A Multiplier Of 1.5 Was Acceptable

A Callaway County jury awarded a female correctional officer $140,000 in damages, in a hostile work environment case and attorney fees in the amount of $672,000 against the Department of Corrections (DOC). The DOC appealed, challenging the admission of the “me too” evidence and the award of attorney fees. The DOC did not appeal the hostile work environment award.

Me Too Evidence – The DOC argued that the me too evidence was not similar because it allegedly took place at an entirely different facility, involving different employees, in a different geographic region of Missouri hundreds of miles away and over a different time period.

The Western District, first established the legal framework for examining whether or not the  “me too” evidence should have been admitted. Me too evidence must be:

“…both logically and legally relevant to be admissible. Evidence is logically relevant if it tends to make the existence of any consequential fact more probable or less probable than it would be without the evidence, or if it tends to corroborate evidence that is relevant and bears on the principle issue of the case. Evidence is legally relevant when its probative value outweighs its prejudicial effect.” (Cites Omitted)

DOC argued that the “me too” evidence should not have been admitted, because it had “little to nothing in common except that they both worked for the [DOC] and made allegations of harassment.” DOC argued that Bergeron did not know Alhalabi or anyone who worked with her and was unfamiliar with anyone involved in investigating her allegation and that his alleged harassment took place at a different facility, involving different people, in a different geographic region of Missouri hundreds of miles away, and over a different time period.

Bergeron and Alhalabi, however, held the same positions at the DOC (corrections officer) during the same general time period. They both were Muslim and were born in another country. Both officers were targeted by co-workers or supervisors based on their religion and country of origin. They were both subject to the DOC’s anti-discrimination policy, which was enforced by the same HR office.

Furthermore, and importantly, the complaints of discriminatory harassment made by Bergeron and Alhalabi were brought to the attention of the DOC’s central HR office, which failed to act in each case. Part of Alhalabi’s theory of the case was that the DOC’s HR office condoned the hostile worker environment she experienced by failing to investigate it and doing nothing to stop it. Based on the above analysis the Western District held that the me too evidence was admissible.

Attorney Fees – The DOC contended that the trial court erred in awarding $672,979 in attorney’s fees based on a lodestar amount of $448,653and a multiplier of 1.5. It argued that the trial court erred in applying the multiplier, and that the lodestar should have been reduced by at least 50% because Alhalabi had limited success, she prevailed on only one of her two claims, was not awarded punitive damages, and was awarded only a fraction of the damages sought.

The Western District reasoned that the MHRA “recognizes the public purpose served by litigation, that vindicates the rights of those who are discriminated against” and that “[t]he Missouri legislature, followed the lead of Congress in the choice of authorizing fees to private attorneys for enforcement of human rights claims, rather than relying principally upon government agencies for such enforcement.”

The Western District noted, that while a court might consider the extent to which a plaintiff prevailed on some claims and not on others, “[t]he efforts of the prevailing attorneys…should not be discounted where the effort and proof were the same for the claims on which [the plaintiff] prevailed and those on which [s]he did not.” “[I]f the claims are so intertwined, with the legal work overlapping by the claims’ shared legal theory and facts, then the attorney fees awarded should reflect the work expended on all the claims.” Therefore, the Western District affirmed the trial courts award of attorney fees. Ahalabi v. Department of Corrections, (WD85012, 03/07/23)

Comment Howard: Me too evidence can be very devastating, making the analysis by this Court, very important in understanding whether or not this evidence can or cannot be admitted. Unfortunately, there is no bright line, making your persuasive abilities extremely important, particularly before the trial court.  Considering the analysis of the Court, on attorney fees, it seems very hard to attack, if there are interconnected. The Opinion covers the facts surrounding the hostile workplace environment (which are terrible) and while it was not an issue because DOC did not appeal this ruling it shows DOC has a lot of work to do. Probably, the killer as far as evidence, in my opinion, was the lack of follow up by the DOC HR officials after complaints were made, showing that they did not take seriously the complaints. I am bewildered why the Opinion sets out 10 pages of the hostile work environment facts against the State even though the State did not appeal the hostile work environment ruling, although in my mind it serves a useful purpose by exposing to the world the failure of the State to provide a decent work environment.

2.1 Million Dollars In Punitive Damages Awarded In Sex Harassment Case Against The DOC

The April 2023 Edition of Missouri Lawyers Weekly, reported that a Cole County jury awarded 2.15 million dollars in punitive damages in a sex harassment case, to a nurse who worked for the Missouri Department of Corrections (DOC). A corrections officer told her that he was going to put her in his “capture room” to torture, bind, and rape her. The supervisor who heard this comment laughed. After she reported this, other corrections officers subjected her to daily rape jokes. The officer who made the joke was allowed to return, although he was eventually fired.  The plaintiff was awarded $150,000 in actual damages. The DOC offered $50,000 prior to trial and Plaintiff offered one million dollars to settle making you wonder what DOC officials were thinking. This is the latest case with more to come against the DOC, according to the article. This is an outrage that boggles the mind not only by the comments but by the cavalier attitude of DOC officials. Those who participated in making the low-ball offer also need to be held accountable. On top of this gigantic award there will be attorney fees.  Seems like the DOC from top to bottom has real issues and the taxpayers are paying. See, Cole County case number/date 17AC-CC00364/Nov. 18, 2022.

Comment Ragan: We are not doing enough to ensure accountability.  To me this seems like another case where people are gambling with house money.  We are living in complicated times with complex issues but direct hostile threatening statements toward another coworker is a very simple issue.

A.I. Arrives For Lawyers

There has been a flurry of articles about the arrival of A.1. with differing views of its impact ranging from comments like “is the most effective freaking tool I’ve seen in my life” to “I don’t think it will have much impact.” Others, suggest it will lead to economies of scale by getting rid of a lot of the grunt work, allowing the profession to get more efficient. For myself, I do not know since I have not stuck my toe in this electronic pool (after all I am 83 years of age), but my sense is it will have a big impact and lawyers will quickly adapt. I have promised myself to give it a whirl, as soon as I get up the courage. Imagine telling A.I. here are the cases and write the newsletter and presto in seconds you have a product. College professors have given their students a topic and students have turned to A.I., with professors commenting that it produces a pretty good paper, but suggesting that the students would do well to use the A.I. paper as a first draft and edit it to produce a better final product.  The best article I have read was in the New York Times. It is well worth the read. The April 2023, edition of Missouri Lawyers Weekly, also had a good article with comments by Missouri attorneys. https://www.nytimes.com/2021/09/10/us/politics/texas-abortion-law-facts.htmlhttps://www.govinfo.gov/content/pkg/USCOURTS-mowd-2_22-cv-04022/pdf/USCOURTS-mowd-2_22-cv-04022-0.pdf

Kansas City Establishes Domestic Violence Program

Kansas City municipal court has established a domestic violence program in an effort to reduce recidivism. According to an article in the April 2023 Edition of Missouri Layers Weekly, the program is apparently successful. In case your city has an interest in this type of program the KC model would be a good place to start.

Bellefonte Neighbors Loses Back Pay Lawsuit

Bellefonte Neighbors withheld pay from city councilman who missed meetings and were sued for back pay. While missing meetings without an excuse might seem like a dereliction of duties, there was no ordinance that authorized the refusal to pay; therefore, the city lost. Plus, the city had to hire an attorney to defend their actions.  As usual when the government made a mistake there was lots of bad publicity.  Of course, the city could have made their actions legal by adopting an ordinance providing that failure to attend a meeting without a valid excuse would result in the deduction of pay. https://www.kmov.com/2022/09/20/2-more-former-bellefontaine-neighbors-alderpersons-sue-city-over-unpaid-wages-city-facing-four-lawsuits/

 Whistleblower Protections

Factual and Procedural Background: Spurlock began working for the City of Columbia as a management fellow. Spurlock’s domestic partner also worked for the City. A city council meeting was held where the council was expected to consider an amendment to a city ordinance that capped raises for city employees at ten percent per year. Spurlock attended the meeting as part of her job duties. Her partner and several employees from the City’s IT and finance departments also attended the meeting in support of amending the pay raise ordinance. One of the IT employees spoke at the meeting in favor of changing the ordinance, but no amendment to the ordinance was proposed. It had been Spurlock’s understanding that a proposed amendment had been drafted and was ready for presentation so, following the meeting, Spurlock inquired of the assistant city manager why the proposed amendment had not been offered at the meeting. The assistant city manager indicated that the city manager did not wish to move forward with the amendment at that time.

City Manager John Glascock (“City Manager”), who was on vacation when the council meeting occurred, discovered upon his return that the employees had attended the meeting in support of changing the ordinance. He viewed the employees’ attendance at the meeting as a betrayal of his leadership. In response, City Manager sent a message to the city finance director criticizing the employees’ actions and rescinding his prior approval.

In the same time frame, City Manager denied Spurlock’s partner permission to attend a conference in Portland, Oregon, with several other city employees, including Spurlock, citing a city policy prohibiting romantic partners from traveling together on city business. Spurlock reported to the human resources director that City Manager had denied her partner’s request to attend the conference relying on the aforementioned city policy. The human resources director informed Spurlock that the city had no such policy. Two days later, City Manager placed Spurlock on indefinite administrative leave.

Spurlock also learned that her partner and the other employees who had attended the city council meeting had been placed on administrative leave as well. Spurlock’s partner was told by City Manager that the suspension was based on insubordination for attending the June 21 council meeting. On July 22, Spurlock met with City Manager about her suspension. City Manager stated that she was on administrative leave because she had criticized the assistant city manager for not presenting an amendment to the pay-raise ordinance at the June 21 council meeting and because she had “inserted [herself] into a decision [City Manager] made about sending [her partner] to Portland and you all went over to see [the human resources director] about it together[.]” Spurlock explained to City Manager that there existed no city policy prohibiting romantically involved employees from traveling together, to which City Manager stated “[t]hat is not your decision. I approve all travel.” Spurlock responded by telling City Manager, “[t]hat is an abuse of power if it is not in the administrative policies.” At that point, City Manager offered Spurlock “two choices: you can either voluntarily resign with two weeks’ salary or I’m releasing you Friday at 5:00 p.m.” Spurlock submitted her resignation the following morning.

Spurlock brought the present action against the City seeking relief under Missouri’s public-employee whistleblower statute, Section 105.055, RSMo. The City filed a Motion to Dismiss, alleging that Spurlock failed to state a claim under the statute, arguing that she did not make a “disclosure” within the meaning of the statute; she did not report a covered action under the statute; and she did not suffer a “disciplinary action.” The City also alleged that the whistleblower statute is unconstitutionally vague, arguing that it “does not sufficiently place defendants on notice of what conduct is statutorily prohibited.” The trial court dismissed the suit with prejudice without specifying which of the asserted grounds provided the basis for the dismissal. Spurlock appealed to the Western District.

Analysis:

Spurlock raised a single point on appeal alleging the trial court erred in dismissing her claim, arguing that she pleaded facts sufficient to state a claim under Section 105.055, RSMo, and that the statute is not unconstitutionally vague

Whistleblower Law – Statute Section 105.055, “protects public employees by prohibiting any supervisor . . . of any public employer from taking ‘any disciplinary action whatsoever against a public employee for the disclosure of . . . information which the employee reasonably believes evidences’ a violation of any law, rule, or regulation, or other wrongful activity’” such as mismanagement or abuse of authority

“Simply put, a public employer cannot retaliate against a public employee for reporting certain types of wrongdoing.” In order to prove a claim under Section 105.055, RSMo, “[a] public employee shall show by clear and convincing evidence that he or she or a person acting on his or her behalf has reported or was about to report, verbally or in writing, a prohibited activity or a suspected prohibited activity.”

City’s Constitutional Challenge to Section 105.055 – The City claims that Section 105.055, RSMo, is unconstitutionally vague. Spurlock argues that the City lacks standing to bring such a challenge. The doctrine of vagueness stems from the due process clause. Since the City is not a person under the due process clause it had no standing to raise this claim; therefore, the City cannot challenge the statute on the grounds of vagueness.

Failure to State a Claim – Spurlock alleged in her petition that the City violated the whistleblower statute by suspending and constructively discharging her after she informed the human resources director and City Manager that City Manager had denied her partner the ability to travel with her and other employees to a conference, citing an allegedly non-existent policy, which Spurlock reasonably believed constituted an abuse of authority by City Manager.

The City argued that Spurlock’s petition failed to allege that she made a “disclosure” under Section 105.055, RSMo. The term is not defined in the statute; but this Court has previously held that “disclosure” means “the exposure or revelation of something previously unknown.” The Court concluded that the disclosure made to the city manager fell within the reach of section. The City’s argument ignores that Spurlock asserted that she reported City Manager’s alleged misconduct to the City’s human resources director. In the petition, she specifically alleged that “[o]n July 7, 2021, Plaintiff reported to [the] City HR Director . . . that City Manager . . . had denied [Spurlock’s partner’s] request to attend a Conference in Portland with several other City employees, including Plaintiff, purportedly because City policy prohibited romantically involved employees from traveling together.”

The City, also argued that the actions by the city manager “resign with two weeks pay or I will fire you on Friday” and her acceptance of this by resigning did not constitute discipline within the statute. First there was discipline because she was suspended after she reported the city manager actions to the HR Director. Second, the option by the city manager to either resign or be fired was tantamount to a constructive discharge and thereby synonymous with a “dismissal.” This ultimatum plainly falls within the phrase “warning of possible dismissal.” Spurlock v. City of Columbia, (WD 85580, 04/18/23)