Litigation Continues Over Initiative For Reproductive Rights Ballot
NPR for St. Louis reported that the Cole County circuit court will conduct a trial over the language voters will see on September 11, 2023, with a Ruling expected shortly thereafter. No matter the result an appeal is expected by the losing part. Republican office holders (Attorney General and Secretary of State) are determined to run out the clock in order to avoid having this matter submitted to the voters in 2024.
“The proposals would amend the constitution to declare that the “government shall not infringe upon a person’s fundamental right to reproductive freedom. That would include “prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care and respectful birthing conditions.” “Penalties for both patients seeking reproductive-related care and medical providers would be outlawed.”
The Missouri Supreme Court finally resolved the issue on July 20, ruling that Bailey had exceeded his authority by questioning the content of Fitzpatrick’s analysis.
Until the ballot issues are resolved proponents can not begin to collect signatures. The case currently pending is over Ashcroft’s description of the proposals. Ashcroft argues that the language should include the costs of potentially losing federal Medicaid funding, which would make the costs billions of dollars. The Republican office holder, the State Auditor, who is charged with the duty of drafting the ballot language has estimated the costs to be $51,000. There are differences among them and Ashcroft has language that varies depending on the details.
“Proponents are in a position of not knowing which petition to collect signatures on without some guidance as to what it’s going to be,” Rothert said. “Certainly, if this case took 180 days to resolve, that would kill the initiative as a pragmatic matter.”
Obviously, there is a lot at stake for the parties, including the voters, in the outcome. Based on results in other states Republicans are trying to keep the initiative protecting women’s reproductive rights from reaching the voters.
Comment Ragan: I think it is important that when possible we try to let the public decide issues, regardless of the outcome. Our job is to serve our communities and when we serve our community we advise and let the current of public opinion dictate the direction our ship travels. That does not mean that the public is always correct or that we have to agree but I have seen that big projects or issues that are started by the community, built on community approval and community support are far less stressful for the city council, mayors, lawyers, management, and staff.
St Louis Jury Awards 6.14 Million Dollars In A Hostile Work Environment Case Against Public School
The August 2023 Edition of Lawyers Weekly reported that after a new vice-principal was appointed, Employee, started to receive negative reviews leading to the Employee being placed on an improvement plan. Female employees were not treated the same as male employees. Employee complained he was being singled out and the plan doomed him to failure. The School District did not investigate his complaint. He stated he was doing the same thing as everyone else. He requested a transfer that was denied and then he was then fired. Others who were similarly situated were allowed to transfer. The jury returned a 6.14-million-dollar verdict based on a hostile work environment, gender discrimination claim ,and on his retaliation claim. The lawyer representing the Employee stated that he thought the refusal to investigate his complains was a major factor in the jury’s determination.
Discharge For Violation Of Employers Drug Policy Was Not Disability Discrimination Or Retaliation
Facts and Procedure: Ms. Ashby (Employee) began working for Piney Ridge as a case manager on January 2, 2018. Piney Ridge is a Level Four alcohol and substance abuse residential treatment facility for children and adolescents. The patients at Piney Ridge are treated for substance abuse, mental health, and sexual abuse, among other needs. A Level Four residential facility is the highest-level facility designation in terms of safety and security. Piney Ridge has a zero-tolerance Drug and Alcohol-Free Workplace Safety policyprohibiting employees from being under the influence or having drugs or alcohol in one’s system during company time or on company premises. The Policy provides that employees will be subject to drug testing in certain situations, including pre-employment, post-offer, post-accident, reasonable suspicion, random, and upon return to work. Any positive test result will receive a second confirmation test using a different analytical process by a testing lab. A drug test result is deemed “positive” under the Policy if both tests are positive, and any positive test result is deemed a violation of the Policy. Any employee who fails a drug or alcohol test will be removed from work and is subject to disciplinary action, including termination. Piney Ridge’s Policy does not forbid the legal use of prescription and non-prescription drugs but requires employees to disclose such use to Piney Ridge before working: Employee was dismissed for violating employers drug policy.
Ms. Ashby filed a charge with the Missouri Commission on Human Rights (the “Commission”). She claimed, Piney RidgeExplained discriminated against her “because of a disability or a perceived disability” relating to “a false perception” of drug addiction. The Commission granted her a right to sue, and she alleged discrimination claims under the MHRA and Workers’ Compensation Law. The trial court granted summary judgment in favor of Piney Ridge on both of Ms. Ashby’s claims, and she appealed to the Southern District.
Analysis: The Southern District noted that Employee never previously informed anyone she had a disability or other medical condition, and she never asked anyone at Piney Ridge for a reasonable accommodation for a disability “because she did not need an accommodation.” When asked if she had a current prescription for opioids and if so, to provide it, Ms. Ashby did not provide one.
Under the MHRA, it is unlawful for an employer to discharge an individual “because of” her disability. Section 213.055.1(1). 3 “[B]ecause of” requires the individual’s disabled status to be “the motivating factor” for an adverse employment decision. Section 213.010(2). Therefore, to survive summary judgment on her disability discrimination claim, Ms. Ashby was required to establish a prima facie case showing that (1) she was disabled, (2) she was discharged, and (3) her disability was the motivating factor in her discharge therefore, Employee failed to prove her claim because she had no evidence of any disability and her drug prescription expired two years ago. ASIA ASHBY, Plaintiff-Appellant vs. WOODRIDGE OF MISSOURI, INC., et al., Defendants-Respondents, (SD37420,07/17/23)
“Observation” Period by Police Officer During Fifteen Minute Waiting Before Administration Of Breath Test Explained
Facts and Procedure: On March 12, 2021, Arresting Officer arrived at a traffic stop at 1:45 a.m., where Kinkead had been pulled over by another officer for failure to use vehicle lights when required by statute. Kinkead exited his vehicle and began speaking with Arresting Officer on the sidewalk. Arresting Officer observed that Kinkead was swaying when he spoke and exhibited a strong odor of intoxicants from his breath. Kinkead stated that he had been drinking a few hours beforehand after finishing his shift at a bar. At Arresting Officer’s request, Kinkead performed several standardized field sobriety tests, including the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test, during each of which Kinkead exhibited signs of impairment. Kinkead also consented to a portable breath test, which produced a positive result for the presence of alcohol. Arresting Officer arrested Kinkead for suspicion of driving while intoxicated.
Arresting Officer placed Kinkead in the back seat of his patrol car and buckled the seatbelt. Kinkead’s hands were handcuffed behind his back. Arresting Officer testified that he observed Kinkead for fifteen minutes before administering the Alco-Sensor IV breath test. During the fifteen-minute observation, Arresting Officer testified that he was sitting in the front driver’s seat and could hear and smell Kinkead in the back seat. Arresting Officer testified that Kinkead did not do anything during the fifteen-minute observation period, including vomiting or throwing up. After the fifteen-minute observation period, Kinkead consented to a breathalyzer test, which produced a blood alcohol content of .208 percent. Kinkead appealed decision to the Western District.
During cross-examination of Arresting Officer, Kinkead introduced the body cam video of Kinkead’s arrest, which the trial court admitted into evidence. In the video, Arresting Officer examines the interior of Kinkead’s mouth and begins the fifteen-minute observation period at 2:05:56 a.m. while Kinkead is seated in the rear passenger seat. Arresting Officer closed the rear passenger door at 2:06:00 and grabs several items from the roof of the patrol vehicle. Arresting Officer then opens the front passenger door at 2:06:11 and has a frontal view of Kinkead in the back seat as Arresting Officer places Kinkead’s property in plastic bags. Arresting Officer then closes the front passenger door at 2:07:53 and walks around the rear of the vehicle for seven seconds until he opens the driver’s door at 2:08:00. Arresting Officer remains in the driver’s seat for the majority of the fifteen-minute observation period, completing paperwork as Kinkead sits in the rear passenger seat. On several occasions, Arresting Officer asks Kinkead questions pertaining to his paperwork, and Kinkead answers. At 2:20:40, Arresting Officer exits the driver’s seat and walks around the front of the vehicle, where he opens the front passenger’s side door at 2:20:50. Arresting Officer then opens the rear passenger’s side door to read Kinkead the implied consent form, and after Kinkead consented to the breath test, Arresting Officer set up the breathalyzer machine in the front passenger seat and administered the test to Kinkead at 2:24:13 a.m.
The trial court issued findings of fact, conclusions of law, and judgment sustaining the Director’s suspension of Kinkead’s driving privileges. The trial court found that Arresting Officer checked Kinkead’s mouth for any foreign objects and subsequently conducted a fifteen-minute observation period. The trial court’s judgment acknowledged Kinkead’s argument that Arresting Officer did not conduct a proper fifteen-minute observation period and ruled that Arresting Officer did follow the applicable regulation, in that Arresting Officer remained close to Kinkead and reasonably ensured that Kinkead did not have any oral intake. An appeal followed to the Western District.
Analysis: The Western District starts with the definition of “observation period” in the Departments Regulations, which defines ” Observation period” as: the minimum fifteen- (15) minute continuous period that ends when a breath sample has been provided into the approved breath analyzer, during which time the operator shall remain close enough to a subject to reasonably ensure, using the senses of sight, hearing, or smell, that a test subject does not smoke, vomit, or have any oral intake during the fifteen (15) minute observation period. Direct observation is not necessary to ensure the validity or accuracy of the test result[.]
The Western District concluded that the above provision does not mean eyes-on viewing of the driver without momentary breaks, so the record supports a finding of compliance. In addition, the purpose of the “Observation period” is to make sure the detainee does not smoke, vomit, or have any oral intake. The fact that the detainee hands were tied behind his back also supported the conclusion that nothing was put in his mouth. Carter Andrew Kinkead vs. Director of Revenue, (WD855506, 07/15/23)
Excessive Blood Alcohol Distinguished from Refusal
The Director of Revenue disciplined driver for driving with excessive blood alcohol, as shown by a blood draw pursuant to a judicial warrant, not for refusal under the Implied Consent statutes. On appeal de novo to circuit court, circuit court did the same. On appeal to the Western District Dunbar’s attorney argued that the trial court erred in sustaining the administrative suspension of his driving privileges because the trial court erroneously declared the law by stating in the judgment that Sections 577.041 and 577.037 did not apply to Dunbar’s case. The Western District disagreed concluding that Missouri’s Implied Consent statutes provides that all persons operating motor vehicles on Missouri’s public highways, in addition to other means of transportation not at issue in this case, “shall be deemed to have given consent, subject to the provisions of Sections 577.019 to 577.041, to a chemical test or tests of the person’s breath, blood, saliva, or urine for the purpose of determining the alcohol or drug content of the person’s blood” in certain enumerated circumstances; therefore, the Implied Consent statutes therefore did not apply, including those related to intoxication and time to contact a lawyer, and circuit court did not err in saying so. That the arresting officer read the Implied Consent law does not change that result. “[M]ore than sufficient evidence [supported] the trial court’s judgment.” Joseph Evan Dunbar vs. Director of Revenue, (WD85727, 07/15/23)
No Private Cause of Action To Enforce Statue Prohibiting Public Funds From Being Used To Promote An Election Issue
Facts and Procedure: Citizens filed a suit concerning Proposition F, a ballot measure in University City (City). Citizens requested a temporary restraining order, preliminary injunction, and permanent injunction, which was later amended to request a declaratory judgment. Citizens pled they are taxpayers in University City and the ballot measure, set for a public vote on April 5, 2022, which would have raised the local sales tax by one quarter of one percent. Citizens alleged University City officials used public funds to employ Creative Entourage Agency, LLC to generate support for the proposal. Appellants alleged Creative Entourage agreed to produce promotional materials including “a brochure, slides, postcards, emails, text messages, social media posts, advertisements, a station banner, and videos.” Citizens further alleged “[t]he estimated cost of the work to be performed by Creative Entourage is $41,000” and that the sums paid to Creative Entourage “have been or will be used to advocate or support the passage of Proposition F,” rather than mere informational purposes. Citizens pled any use of public funds to promote Proposition F “would violate Section 115.646,” requesting the trial court enjoin Respondents from paying or reimbursing with public funds Creative Entourage or others to promote Proposition F and to cease using materials already created. After a hearing, the trial court denied Appellants’ relief on all counts, finding they did not demonstrate immediate and irreparable injury, immediate harm, or a sufficient likelihood of success on the merits. The trial court also found the “materials [Appellants] complain of have all been distributed,” the videos and website have been viewed, and “[n]o additional monies will be paid and no additional materials are being prepared.” Citizens appealed to the Western District.
Analysis: The Court starts its analysis with section 115.646:
“No contribution or expenditure of public funds shall be made directly by any officer, employee or agent of any political subdivision . . . . to advocate, support, or oppose the passage or defeat of any ballot measure or the nomination or election of any candidate for public office, or to direct any public funds to, or pay any debts or obligations of, any committee supporting or opposing such ballot measures or candidates. . . . Any purposeful violation of this section shall be punished as a class four election offense.”
Citizens argued that they have a private right of action to sue under Section 115.646 because the section is “not just a criminal statute.”
Citizens reason: “[b]y making a ‘purposeful violation’ of the statute a criminal offense, the legislature draws a distinction between such a violation and one that is not ‘purposeful, ’” citing City of Maryland Heights v. State, which held that express advocacy consists of “express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ … ‘vote against,’ ‘defeat,’ or reject.’” Notwithstanding, Citizens conceded that the promotional material created by Creative Entourage for the City did not constitute advocacy.
The Court noted that the general rule provides: “when a statute includes measures establishing enforcement of its provisions, courts will not recognize a private right of action for the violation of that statute, except where the statute indicates legislative intent to establish a private cause of action.”
The court notes, that Citizens have not demonstrated taxpayers’ interests are not protected adequately by the remedies provided by the legislature in Section 115.642. The statute provides that: “[a]ny person may file a complaint with the secretary of state …” concerning violations of “any provisions” of Section 115.646. If the Secretary of State finds that reasonable grounds appear that the alleged offense was committed” and “may refer the offense to the appropriate prosecuting attorney.” §115.642.2. The Secretary of State is empowered to “aid” any prosecutorial effort commencing or prosecuting election offenses provided in Section 115.646. In addition, the Missouri Ethics Commission has the authority to receive complaints concerning “provisions of the constitution or state statute or order, ordinance or resolution of any political subdivision relating to the official conduct of officials or employees of the state and political subdivisions.” The Missouri Ethics Commission shall determine whether there are reasonable grounds for belief a violation has occurred, §105.961.1(1), and “shall refer the report for prosecutorial review “for recommendation to the court having criminal jurisdiction…” when those reasonable grounds reveal a violation of any criminal law has occurred.
Citizens contend, Section 115.646’s “permissive language” leaves the exclusivity of this method of enforcement in doubt. For example, Appellants argue citizens “may” file complaints with the Secretary of State, who “may” issue a probable cause statement upon reasonable grounds. Because it “appears that there is nothing the secretary can do, other than to issue ‘a probable cause statement’” if the violation is not a crime, Appellants contend that the use of the word “may” implies, “there must be some other method to enforce a non-criminal violation of the statute.” The Court concludes that “our holding one remedy does not preclude another remedy does not mean a taxpayer can claim the existence of an unstated remedy of their own. Here, another remedy exist, filing a complaint with the Secretary of State under Section 115.642.” the court holds that because Appellants’ petition did not demonstrate a clear indication of legislative intent to create a private cause of action under Section 115.646, Appellants’ petition does not give rise to a cognizable cause of action. Sullivan vs. City of University City, Et. al., (ED111084, 07/22/23.)
Comment Howard: The opinion is well written and is the first and last word on when a statute provides a private remedy. Congratulations to John Mulligan, long standing attorney for University City, on this important victory. It is evident from the opinion and to Johns credit that nothing of significance was overlooked.
Rare Case Where Judicial Immunity Defense Not Allowed
Facts and Procedure: Rockett and Kami Ballard divorced each other in Missouri and initially shared custody of their two children. Despite their differences, the whole family packed their bags and moved to California, where they were hoping that the children, who were aspiring stars, would make it big. The parents’ relationship remained rocky, even after the move. Ballard, in particular, did not like sharing custody. Nor did she like how slowly the California courts were dealing with her request for sole custody. So, she filed a second one in Missouri, where it landed on the desk of Judge Eric Eighmy. Judge Eighmy wanted to see the family in person before he ruled. When they arrived at the courthouse, the children waited in the lobby while Ballard and Rockett, along with their attorneys, worked out an agreement. It called for the children to stay with Ballard for about a month before returning to live with Rockett. The children did not want to live with Ballard, even for a short time, so they let her hear about it in the lobby. Judge Eighmy, by this time unrobed, saw what was happening and tried to intervene. But when the children refused to back down, he took them to a conference room. Once there, he told them they needed to leave Hollywood, or else they would not grow up “normal.” When the children continued to protest, Judge Eighmy decided to put them in jail to show “what [he] can do. “He took them there himself. They were ordered to remove their shoes, socks, jackets, and jewelry before entering separate cells.
After approximately an hour, Judge Eighmy returned and asked if they were “ready to listen” and “comply.” They finally agreed to go with Ballard, but only after he threatened to place them in foster care.
This would not be the last time the kids saw the inside of a jail cell ordered by Judge Eighmy. Several months later, Ballard filed a contempt motion that prompted Judge Eighmy to schedule another hearing. This time, neither Rockett nor the children, who were by then living in Louisiana, showed up. Their absence did not sit well with Judge Eighmy, who issued a writ of bodily attachment for Rockett and a pick-up order for the children. In executing it, Louisiana officers came to their door, gave the children Miranda warnings, and placed them both in solitary confinement in a juvenile-detention center. These orders set off a flurry of activity. First, the Missouri Supreme Court issued a writ of prohibition that required Judge Eighmy to vacate his orders. Second, Rockett brought the Missouri Supreme Court order to a Louisiana judge, who released the children.
Rockett filed a civil-rights action against Judge Eighmy in federal district court. The complaint alleged that placing his children in jail, and then later in a juvenile-detention facility, violated their First, Fourth, and Fourteenth Amendment rights. Judge Eighmy argued that as a judge he was entitled to absolute immunity. The district court ruled that the case could proceed and Judge Eighmy, filed an appeal to the 8th Circuit.
Analysis: First the 8th Circuit started with the history of judicial immunity reviewing this from its outset at common law when it was used to protect the King’s courts from their rivals to today. As Lord Edward Coke put it, a judge could not be liable for what “a Judge doth as Judge” with two exceptions. The first was that judges could still be prosecuted for out-of-court “ conspirac[ies].” The second was that, when judges “exceeded their authority” by considering a matter “not within their jurisdiction,” their actions were “coram non judice.” Acting without “power and authority” eliminated the shield of judicial immunity. These exceptions remain largely the same today. Judicial immunity can be “overcome in only two sets of circumstances”: (1) when a judge takes “nonjudicial actions”; and (2) when the action is judicial, but is done “in the complete absence of all jurisdiction.”
Applying this framework to Judge Eighmy the case in chief the 8th Circuit concluded that, Judge Eighmy’s action to personally escort the kids to jail went too far. Judges have the authority to order an officer or a bailiff to escort an unruly litigant to jail or to pull the parties into a conference room to discuss what happened in court, but not the authority to personally escort the kids and put them in jail.
“’For one thing, the children were not even present in the courtroom, so he could not hold them in contempt for “[d]isorderly, contemptuous or insolent behavior. For another, judges do not do double duty as jailers. So even assuming Judge Eighmy could have ordered someone else to take the kids to jail, he could not put them there himself.’”
Therefore, judicial immunity did not apply because he was acting in a non-judicial capacity. He was no longer acting in a judicial capacity when he took the kids to jail.
With respect to the second action by Judge Eighmy’s (issuing a writ of bodily attachment for Rockett and a pick-up order for the children in Louisiana) the 8th Circuit defines the issue “…is whether at the time he took the challenged action he had jurisdiction over the subject matter before him.” Subject-matter jurisdiction is what counts in these situations.
Therefore, even though Judge Eighmy had no “express authority” to issue the pick-up order, he is immune because he had jurisdiction to issue the order even if he issued it erroneously. Therefore, Judge Eighmy cannot be sued, for his second act because no matter how erroneous his interpretation of the Uniform Child Custody Jurisdiction and Enforcement Act was, he had subject matter jurisdiction to issue the order and is protected by judicial immunity. Rockett v. Eighmy, (8th Cir., 21-3903, 06/22/23).
Comment Howard: This case is a rare as a hen’s tooth. This is the first case during my 59-year career where judicial immunity has been breached. First, we get a world class review of judicial immunity from the King’s court to today. This is an interesting case about Taney County a world where outside lawyers need to tread carefully. Imagine a Judge who considered Hollywood to dangerous for aspiring young comedians. Guess they should have stayed home in Branson. I was once threated by a Taney County Judge that if I showed up in his court I would be jailed.
Wet Land Regulations Are Published, Oklahoma First Amendment, Homelessness
EPA Rule
As you may recall, the U. S. Supreme Court held that what constituted a navigable river was invalid. Consequently, the EPA has now promulgated new regulations defining what constitutes “waters of the United States. The new rule takes effect immediately; consequently you will need to update your guidelines for projects that may be affected by the new rules. A Washington Post article dated August 29, 2023 may be accessed here. Over half of what was previously considered to be “wetlands” are no longer subject to the EPA regulations. Bad for the environment but makes our job as local government lawyers easier.
Oklahoma
A recent article in the Washington Post takes note of an Oklahoma case holding that the Oklahoma constitution prohibits funding of a Catholic school run by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa, with a curriculum determined by the Catholic Church cannot receive state funding.
Homelessness
Sometimes you wonder what drives homelessness. A good article in VOX explains a “little noticed decision” that changed homelessness in America.
MMAA Newsletter 