MMAA Summer Seminar
The Missouri Municipal Attorneys Association (MMAA) will meet for a summer seminar July 12-14, 2024, at Margaritaville Lake Resort in Osage Beach, Missouri. Follow the link to register for the seminar. Summer Seminar
Taking Clause
Richard DeVillier and 120 other petitioners own property between Houston and Beaumont north of and along I-10 highway in Texas. The state of Texas created a barrier system to protect the I-10 highway so in an emergency the highway could be used as a flood evacuation route. The barrier system in this case became the issue because after the state of Texas installed a roughly 3- foot-tall barrier along the highway median to act as a dam the barrier altered the drainage of the water in the area. When subsequent hurricanes and storms brought heavy rainfall, the median barrier performed as intended, keeping the south side of the highway open but it flooded the petitioner’s land and caused significant damage.
DeVillier and other similarly affected property owners filed a suit in Texas state court, and he alleged that by building the median barrier and using his property to store stormwater, Texas had effected a taking of his property for which the State must pay just compensation under both the Texas Constitution and Takings Clause of the Fifth Amendment. Texas removed the cases to federal court and then Texas moved to dismiss the federal inverse-condemnation claim, arguing that a plaintiff has no cause of action arising directly under the Takings Clause. Texas argued that only Section 42 U.S.C. 1983 provides the ability to assert constitutional violations and Section 1983 does not authorize claims against a State. DeVillier argued that the Takings Clause is “self-executing”, and the Clause by itself provides a cause of action for just compensation.
The trial court denied Texas’ motion, but the 5th Circuit Court of Appeals reversed finding the Fifth Amendment applied to the states through the Fourteenth Amendment does not provide a right of action for the takings claims against the State. The Supreme Court vacated and remanded the 5th Circuits holding but declined to address if the Takings Clause provided a cause of action for private enforcement in courts because the property owners could pursue a cause of action under Texas state law which provided an inverse condemnation cause of action against the State based on both the Texas Constitution and the Takings Clause therefore the property owners may proceed through a cause of action available under Texas law. DeVillier v. Texas, (SCOTUS 22-913, 1/16/2024)
Comment Ragan: The court seemed to strongly indicate if needed it would find the Takings Clause self-executing.
Camping Public Property
Five years ago, the Ninth Circuit in Martin v. Boise held that the Eighth Amendment’s Cruel and Unusual Punishment Clause barred cities from enforcing public camping ordinances against homeless individuals who lacked access to alternative shelter. Under Martin, if a city wanted to prohibit public camping the city would need to prove that the number of homeless individuals did not exceed the number of practically available shelter beds. If a city had insufficient beds for homeless individual any enforcement action for public camping would violate the Eighth Amendment.
It should not have taken five years for the Supreme Court to overrule Martin v. Boise but in a 6-3 decision the Supreme Court created clarity on the issue and affirmed the power of local government to address issues that are harming the quality of life in many communities.
Grants Pass, Oregon, had public camping laws which restrict encampments on public property such as camping or parking overnight in city parks. An initial violation could result in a fine and subsequent violations could result in jail time. A class action lawsuit was filed against the city on behalf of homeless people living in Grants Pass, claiming the city’s ordinance violated the Eighth Amendment. The district court found that the city was violating the Eighth Amendment because the homeless population outnumbered the “practically available” shelter beds (charity-run beds were excluded from being considered because those shelters required residents to abstain from smoking and religious service). The Ninth Circuit affirmed the district court’s judgment.
The United States Supreme Court held that the enforcement of generally applicable laws regulating camping on public property does not constitute “cruel and unusual punishment” prohibited by the Eighth Amendment.
The Supreme Court stated that the Eighth Amendment’s Cruel and Unusual Punishments Clause “has always been considered, and properly so, to be directed at the method or kind of punishment” a government may “impose for the violation of criminal statutes.” It was adopted to ensure that the new Nation would never resort to certain “formerly tolerated” punishments considered “cruel”. The purpose of the Cruel and Unusual Punishments Clause is to restrain the “method or kind of punishment” a government may impose after a criminal conviction, not prohibit the government from criminalizing a particular behavior in the first place.
Grants Pass’s punishment does not qualify as cruel and unusual. The city imposes only limited fines for first-time offenders, an order temporarily barring an individual from camping in a public park for repeat offenders, and a maximum sentence of 30 days in jail for those who later violate an order. Such punishments do not qualify as cruel because they are not designed invoke terror, pain, or disgrace and a jail term is a common practice of punishing criminal behavior throughout the country. Grants Pass, Oregon v. Johnson, (SCOTUS 23-175, 6/28/2024)
Electronic Gaming Devices Injunction And Request For Declaratory Judgment Dismissed
Torch Electronics was operating electronic gaming devices in convenience stores pursuant to a license agreement. The Missouri State Highway Patrol seized the devices, deeming them to be illegal gambling devices. Torch sought an injunction and a declaration that the devices are not “gambling devices” as defined in Section 572.010 RSMo.. The Missouri Gaming Association intervened and filed a counterclaim against Torch Electronics seeking a declaration that the devices are illegal and an injunction prohibiting Plaintiffs from operating them. The Circuit Court of Cole County dismissed all claims with prejudice. The Western District Court of Appeals affirmed the dismissal on the grounds that the parties sought declaratory judgments and injunctive relief relating to a criminal law, in Missouri courts do not provide equitable relief relating to a criminal statute absent a challenge to the statute’s constitutionality or validity. Torch Electronics v. Missouri Department of Public Safety, (WD86610, 5/28/2024)
Lawsuit Over Redaction Rules
In 2023, Missouri changed the rules mandating the redaction of information in documents filed in Missouri courts. The first step in this change began on June 28, 2022, when the Missouri Supreme Court adopted changes to Rule 19, which went into effect on July 1, 2023. After the changes were adopted in the court rule there was a subsequent bill passed by the Missouri legislature, which also required the redaction of certain information in court documents.
The redaction rules that were imposed relate back to the Missouri Supreme Court’s desire to have all the state and municipal courts operating in Missouri and all of the court cases in those Missouri courts managed on a single statewide system which is managed, operated, and controlled by the state. The court also wanted this state managed statewide system to be online and it would have all the documents filed in those cases online and available to the public. We know this statewide system as Show-Me Courts or Missouri Casenet.
One of the issues with a statewide system that is online and available to everyone in the public is that in many court cases the parties are filing documents which contain required, necessary, and important information but that information is also private and confidential information which should not be disclosed or available to the public. To achieve the court’s goal of having everything available to the public online that private and confidential information in certain documents must be redacted. The court rules placed the responsibility of redactions solely on the party which is filing the documents. There are essentially two ways a party can manage the issues related to redactions. Either way the redaction process can be time consuming and has very real financial consequences for governmental agencies, plaintiffs, defendants, and attorneys representing parties.
In response to the redaction rule a lawsuit has been filed by the Missouri Broadcasters Association and two practicing attorneys. The parties are arguing the law violates the Missouri Constitution’s requirement for open courts and imposes steep new costs on litigants.
Aside from bringing to light some issues related to the statewide court system, it is unlikely this case will result in any meaningful change. There does not appear to be an easy answer to protecting the private information of citizens while at the same time making court documents available to the public. This certainly will not resolve the most basic problem with Casenet/Show Me Court system which is that the people who are responsible for it do not listen to the users. Frankly, there is not enough space to discuss the problems with it. Redaction Rule Lawsuit
Official Immunity Bars Claims Against Employees
Kaitlyn Anderson was employed by the Missouri Department of Transportation as a maintenance worker in the St Louis District which is under the authority of Missouri Highways and Transportation Commission (MHTC). MHTC has rules, policies and procedures mandating a protective vehicle be provided and placed in advance of the workspace when workers are physically present within traffic lanes. On several occasions, Anderson, who was pregnant, had requested a safer position, to reduce her risk of injury when she was pregnant. On November 18, 2021, Anderson was working on an intersection without a protective vehicle when she and the child she was carrying was struck and killed by a motor vehicle. Family members and the child’s father (Plaintiff) brought a wrongful death action against the driver, MHTC, and Missouri Department of Transportation employees (Employees) for the death of Anderson and her child. Plaintiff alleged that Employees “blatantly, maliciously, and intentionally refused to provide the required ongoing training or safety plan and approved an order for Anderson to work in an open traffic lane without a protective vehicle and this was willfully wrong, done with malice, and done in bad faith and they failed to adhere to a non-discretionary rule. The Employees moved for judgment on the pleadings and asserted the right to a judgment as a matter of law on their official immunity affirmative defense. After the circuit court decision, the Employees sought writ of prohibition from the court of appeals, which denied the motion. The Missouri Supreme Court then subsequently issued preliminary writs of prohibition and then subsequently heard this matter.
The court provided a useful analysis of immunity claims which we will briefly recite. Sovereign immunity protects governmental entities from tort liability and can be invoked when a governmental official is sued only in his or her official capacity. Official immunity protects public officials sued in their individual capacity from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts. Official immunity is intended to provide protection for individual government actors who must exercise judgment in the performance of their duties. When a public official asserts the affirmative defense of official immunity, they should be afforded such immunity so long as they were acting within the scope of their authority and without malice. To be held personally liable for the damages the official caused the plaintiff must show the official (1) failed to perform a ministerial duty required by official law (2) or the public official acted in bad faith or with malice.
A ministerial duty is clerical, such a routine and mundane task and performed without the regard to the public official’s judgment or opinion concerning the propriety or impropriety of the act to be performed and there does not exist any discretion in completing an act. When slight discretion exists, the duty is not ministerial.
The court concluded that the training and safety plans are not clerical or ministerial acts. Training policies and safety plans are inherently discretionary acts that are the kind of acts official immunity is intended to protect.
Bad faith or malice in this context ordinarily contains a requirement of actual intent to cause injury. To act with malice a defendant wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another person. In this matter there is no factual allegation that the employees intended to cause injury or death to Anderson or her unborn child. While the defendant may be able to show gross negligence in this matter, Missouri does not recognize a cause of action for gross negligence and official immunity applies to recklessness to the same extent as negligence. The Employees are entitled to official immunity. Love v. Cunningham, (SC100197. 06/04/2024)
St. Louis Earnings Tax Ordinance
St. Louis Earnings Tax Ordinance imposes a one percent tax on salaries, wages, commissions, and other compensation earned after July 31, 1959, by nonresident individuals of the City for work done or services performed or rendered in the City. The parties contest whether the earning tax should be assessed when nonresidents who work remotely outside of the City for their City-based employers. The City appealed from the final judgment in which the court granted in part the Respondents summary judgment motion.
The City raised two points on appeal, arguing that 1) the trial court erred in interpreting the Ordinance because its reading violates the rules of statutory construction and 2) the trial court erred because the City is entitled to a judgment as a matter of law in that the undisputed facts show Employees rendered services in City.
The Eastern District found that the language is clear and unambiguous, and the remote work done or services at issue were not performed or rendered in the City. Thus, Employees were not liable for the earnings tax for the days they worked remotely outside of the City and are entitled to refunds. Boles v. City of St. Louis, (ED111495, 5/28/2024)
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