State Funds Can Not Be Used To Pay For Education In Private Religious School

A recent opinion by the Oklahoma Attorney General, held that the state cannot use state funds to pay for a religious charter school. The Oklahoma constitution provides that a charter school “shall be nonsectarian in its programs, admission policies, employment practices, and all other operations,” Furthermore, the  Oklahoma constitution declares Public schools “shall be open to all the children of the state and free from sectarian control,” The state attorney general stated that the funding of a catholic school violated the state constitution and he would sue board members for violating the oath of office. See Washington Post or KOCO5

Order By The Police Not To Release Towed Vehicle Until The Owner Reported To Police In Order To Get Vehicle Released Was A Custom Under The Civil Rights Act That Violated Due Process

Facts: In December 2015, St Louis Metropolitan Police Department (SLMPD) responded to a hit an run accident. They believed Mary Meir’s truck was involved in the accident and they entered a “wanted” report for the truck in the regional justice information system. The truck was subsequently observed on March 17, 2016, in a parking lot in Maryland Heights, and the vehicle was seized and was to be held by the tow company until the release was authorized by the SLMPD. Meir went to the tow company to retrieve her vehicle but was unable to get her truck released. Meir received no notice from the City that her truck was being held and there was no communication on how she could get her truck released. Additionally, she contacted the tow company every day for a week to see if her truck was released. SLMPD was then contacted by Meir’s son. SLMPD informed Meir’s son the only way the vehicle would be released is if he came to SLMPD headquarters and answered questions about the accident.

The 8^th Circuit held that use of a hold in order to detain the vehicle in order to get the owner of the towed vehicle to report to the City police before the vehicle released was a “custom,” that violated due process under the Civil Rights Act and was a violation of Section 1983. Under this practice the city routinely held vehicles without a warrant, the vehicle would not be released until the driver reported to police officers, who were investigating the potential of criminal activity. In other words, no notice or opportunity to be heard, was provided to the owner of the vehicle while the police detained the vehicle.  Meir v. City of St. Louis, (22-2206 and 2332, 08/28/23).

Comment Ragan: This case provided good recitation of case law related to a custom that can result in liability. At the time the car was seized it is unlikely there would have been any evidence to justify the seizure. As noted in the opinion: “A municipality like the City can be held liable under § 1983 if an “action pursuant to official municipal policy of some nature caused a constitutional tort.” When the municipal policy is an unwritten custom, the plaintiff must prove (1) “the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct” by the municipality’s employees; (2) “deliberate indifference to or tacit authorization of such conduct” by the municipality’s “policymaking officials after notice to the officials of that misconduct”; and (3) that the plaintiff “was injured by acts pursuant to the [municipality’s] custom, i.e., that the custom was a moving force behind the
constitutional violation.””

Wrongful Death Of Nursing Home Patient Due To Covid Can Proceed In State Court  

The 8th Circuit ruled that COVID wrongful death case, against a nursing home, can proceed in state court. Federal Law of preemption prevented the case from proceeding in federal court, but there was a state cause of action. The court provides a nice review on the case law related to when a case can be removed to federal court. Two of the issues the court addressed in this matter included diversity of defendants and federal questions.  As the court explained under 28 U.S.C. § 1441(a), a defendant may remove a civil action from state court to federal court when the action could originally have been brought in a federal district court. To establish federal jurisdiction, the parties must be completely diverse: no plaintiff can be a citizen of the same State as any defendant. The court also explained that under federal question rule
federal jurisdiction over a state law claim will lie if a federal issue is (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. A state law claim “necessarily raises” a federal issue when the question of federal law is a “necessary element of one of the well pleaded state claims.” The defendant failed to meet any of the criteria for removal. Cagle v.  NHC Healthcare-Maryland Heights, LLC, 22-2757, 08/28/23.

St Louis And Jackson County Can Intervene In state Case To Protect Their Interest In Right To Regulate

The Missouri Supreme Court held that Jackson and St. Louis Counties could bring suit to intervene in an action challenging the authority of St. Louis and Jackson counties to enact regulations related to masking and limitations on large gatherings. The ruling was limited to the right to intervene and did not reach the issue concerning the validity of the regulations. Robinson v. Missouri Department of Health and Senior Services, (SC99864 08/15/23). 

Parent Of Students Can Be Criminally Prosecuted Under Compulsory Student Attendance Law

Parents of students can be criminally prosecuted for failure to send their children to school under compulsory attendance law. State v. Williams, (SC99719, 08/15/23). 

Accommodation Rules For Pregnant Employees

There is a very good article in the October 23 edition of Missouri Lawyers Weekly discussing new accommodation Rules for pregnant women. Bill Martucci noted that final regulations have been published and should become effective by the end of the year. Martucci stated that there is a duty of reasonable accommodation that is broad and that employers have the burden of proof to show that they made a “reasonable accommodation.” It was suggested that rules for accommodation of disabilities under the ADA might be helpful in determining how to proceed until case law fills in the unknowns. Time to alert HR. MLW Article.  EEOC Facts Related To Rights And Enforcement  

New Redaction Requirements Imposed By State Law Add Additional Budens For Local Officials  

The September 2023 edition of Missouri Lawyers Weekly, noted that a new state law, effective August 28, 2023, adds a new layer to redaction requirements, with respect to the filing court records that contain personal identifiable information. Nathan Nickolaus, provided some insight into the burden of requiring local communities to produce two versions of the same document for the municipal court by forcing cities to purchase of new software and use of precious employee resources to comply with the rule. 

Director Has No Duty To Personally Investigate If Agents Are Already Investigating  

Facts: Prisoners accused a guard at the Chillicothe Correctional Center of sexual assault, the Missouri Department of Corrections launched an investigation. It led to sanctions against the guard, including an order prohibiting him from having contact with prisoners. He retired a few weeks later.

Anne Precythe, the Director of the Missouri Department of Corrections, learned about the allegations while the investigation was ongoing. Believing that others had the situation under control, she “didn’t personally take any action” to address them. As she put it, she “trusted her staff to tell her if there was something she needed to know.” Teri Dean, one of the victims, thought Precythe did not do enough and showed deliberate indifference. She sued multiple people, including Precythe, whom she alleges was “deliberately indifferent” to her safety. 

At summary judgment, Precythe asserted the defense of  qualified immunity. The district court concluded that a reasonable jury could find that she knew prisoners faced “a substantial risk of sexual assault.” She had, after all, received an email from a lawyer urging her to “follow the ․ investigation” and was aware of similar lawsuits against the same guard. Under those circumstances, the court explained, “waiting for her staff” to address the problem may have “amounted to deliberate indifference.” The State appealed to the 8^thCircuit. 

Analysis: The 8^th Circuit concluded that second-guessing is all the Plaintiffs were trying to do. The 8^thCircuit concluded that this argument was beyond the scope of the Court’s jurisdiction. The 8^th Circuit, however, did, address one “purely legal issue.” Did clearly established Eighth Amendment law require her to personally intervene after learning about the sexual-assault allegations?

Dean’s position is that Precythe’s failure to “take any action” after learning about the sexual-assault allegations was deliberately indifferent. Deans argued that Precythe should have dealt with the situation personally, not simply relied on “staff to tell her if there was something she needed to know.”

The 8^th Circuit noted held that “Overseeing investigations into inmate claims” about prison conditions falls to the Office of Professional Standards, a unit of the Missouri Department of Corrections. One of its managers “oversees and supervises” sexual-assault investigations, which gave someone other than Precythe the lead role in handling the complaints. Consequently, Plaintiffs failed to show that this violated “established policy and process”. They asserted that Precythe had an obligation to do something more than allow the existing investigation to play out. Plaintiffs failed to show any obligation that there was a violation of the 8^th Amendment; therefore, the 8^th Circuit reversed.  Dean v. Precythe, 21-3093, 08/23/23.

Beware Of Rounded Off Time At The Beginning And End Of Shifts

Time clocks are not required, but [i]n those situations where time clocks are used, employees who voluntarily come in before their regular starting time or remain after their closing time, do not have to be paid for such periods provided, of course, that they do not engage in any work. Early or late clock punching may be disregarded. The Regulations note that minor differences between the clock records and actual hours worked cannot ordinarily be avoided, but major discrepancies should be discouraged, since they raise a doubt as to the accuracy of the records of the hours actually worked.

The parties stipulated that the employees engaged in compensable work at all times “on the clock.” Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes, this practice of computing working time will be accepted, provided that it is used in a manner that it will not result, over a period of time, failure to compensate the employees properly for all the time they have actually worked.

The rounding policy is facially neutral; however, the parties disagree on whether, as applied, it fails “over a period of time” to compensate employees “for all the time they have actually worked. The practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked. Houston raised a genuine dispute that the rounding policy did not average out over time. No matter how one slices the data, most employees as a whole faired worse under the rounding policy than if they had been paid according to their exact time worked. The district court found that there was no violation of the FLSA and the employees appealed to the 8^th Circuit.

Analysis: The 8^th Circuit concluded that, the losses accrued with sufficient regularity to show a clear trend of undercompensation. Across all employees, on average, St. Luke’s benefited one free hour of labor per year per employee.  If confined to only those employees who were net losers, St. Luke’s benefited nearly two hours per year per employee; therefor, the employees were undercompensated in violation of the FLSA.  Houston v. Saint Luke’s Health System, 22-1862, 08/11/23. 

Comment Howard: You are well advised, if you are using an averaging system, to have your accountant’s or HR check to be sure that employees are not undercompensated.  If you don’t do this someone else may check and surprise you with a class action lawsuit mirroring this case. 

Hot Court Case To Ponder

Testing Civil Rights Under ADA:

Facts: Deborah Laufer resides in Florida and she has multiple sclerosis and vision impairment. She sued the Coast Village Inn in Maine for violating the reservation rule that requires hotels to describe accessibility of their facilities when they have a website to enable individual’s with disabilities to determine if the accommodation will meet their needs. Ms. Laufer has sued over 600 hotels on similar grounds.

The case was dismissed on the grounds that Ms. Laufer did not intend to reserve a room. The First Circuit Court of Appeals reversed the trial courts decision on the ground that Ms. Laufer was entitled to the information that should be provided on the website. After requesting the Supreme Court to hear the cases and resolve conflicting decisions among the court of appeals Ms. Laufer requested the court to dismiss the case due to allegations against an attorney that represented her in other cases. The Supreme Court declined to dismiss the matter but spent significant time debating whether the case is moot or whether the court should consider the issue of standing due to other similar cases. Acheson Hotel v. Laufer.

Comment Ragan: I think this is a case that needs to be resolved. The facts don’t really change and there is an issue that needs to be resolved at some point. There is the importance of accessibility for individuals that are disabled but then we have to consider the harm that is incurred to a business that is just being sued by a person who never intended to utilize the business. I don’t think our legal system wants to promote lawsuit mills that pull at threads and potentially fails to address actual harms. The implications of a decision go beyond this case.