Redaction Requirement Found Unconstitutional
The matter of Gross v. Parson was heard by Judge Aaron Martin in Cole County Circuit Court. The issue before the court in Gross was whether the 2023 law which imposed on lawyers a redaction requirement that included but was not limited to redacting the names of victims, witnesses, and identifying information in Missouri court pleadings violated the First and Fourteenth Amendments of the United States Constitution and the Open Courts requirement of Article I, Section 14 of the Missouri constitution. The court held that the redaction requirements under Section 509.520 (4) and (5) RSMo. did violate the First, Fourteenth, and the open records clause which made those section requirements unenforceable. The opinion seems short given the issues. I fully expect there to be more on this matter when the case is heard on appeal. Gross v. Parson, 24AC-CC04658 (03/03/2025)
Comment: The actual issue in this case is that the Missouri Supreme Court changed the manner that court records are available to the public by allowing those court records and the information in them to be available to the public “online”. The online public court records create a significant issue between the rights of the public to have information about a pending case in the court, free press rights, the rights of the defendant charged with a criminal violation, and the privacy rights of the public that could be named in a court document that is now online and available to every person with internet access. The court rules and the legislation tried to remedy this issue by requiring the redaction of certain information in the publicly available documents. There is no question there is an important need for the press to be able to report and inform the public about court cases. The other side of that issue is that there should be no question that publicly available and potentially private information could pose a significant danger in that could aid in identity theft or the physical harm of a witness. In addition to those diametrically opposed interest the online court record system on this issue in my view unfairly burdening lawyers and governmental agencies that file charges. Having dealt with first amendment issues there is a problematic incongruity between what the free press expects to be available to them upon their request and what the free press is willing to make available to others upon it being requested from them. Perhaps there is a middle ground that can be devised such as providing greater access to records for investigative journalists while still limiting the general public to redacted documents.
Judge Rules Kansas City Cannot Enforce Housing Voucher Ordinance During Pendency Of Litigation
Kansas City, Missouri adopted an ordinance that required landlords to accept or not discriminate against people who use housing vouchers to pay rent. The federal court issued an order prohibiting enforcement of the ordinance during the pendency of the litigation. The plaintiffs are arguing that the city’s ordinance violates their clients’ constitutional rights by forcing landlords to participate in the Federal Section 8 Housing Program which under federal law is a voluntary program but to participate in the Federal Section 8 Housing Program the landlords would be required to enter into contractual agreements with the federal government and meet additional federal government housing requirements. At this point the court has not rendered a final decision but there is a preliminary injunction. We will keep you updated we have additional information. Kansas City Voucher
Banning Gun Sales To Adults Under The Age Of Twenty-One Unconstitutional
Federal law prohibits the sale of handguns to individuals under the age of twenty-one under U.S.C. § 922(b)(1) and (c)(1). Caleb Reese, gun-rights advocacy groups, firearm dealers, and other interested parties filed this suit alleging that the federal law prohibiting these sales unconstitutionally infringed on their right to keep and bear arms under the Second Amendment and denied them equal protection under the Due Process Clause of the Fifth Amendment. The case had previously been argued before the Fifth Circuit and the government previously prevailed on a motion to dismiss for summary judgment contending the Appellants lacked Article II standing and failed to state a claim upon which relief could be granted.
The 5th Circuit decided to abate its decision in this matter after a decision from the Supreme Court of the United States (SCOTUS) was rendered in United States v. Rahmi which the 5th Circuit believed further refined the SCOTUS court’s decisions in New York Rifle and Pistol Association v. Bruen.
Under the 5th Circuits analysis Bruen provided the framework for determining when a given statute or regulation unconstitutionally infringes on the 2nd Amendment right. First, courts must determine whether “the Second Amendment’s plain text covers an individual’s conduct.” If the conduct is covered, “the Constitution presumptively protects that conduct,” and “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” If a challenged regulation “does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster.’” At the same time, a law may unconstitutionally infringe on the right when it goes “beyond what was done at the founding,” “even when it regulates arms bearing for a permissible reason.”
In this case the ATF argued that legislatures have long established minimum age requirements for various activities and at the founding of the United States the age of 21 was the legal age of maturity. The ATF showed that twenty-two jurisdictions, including nineteen states, the District of Columbia, and two municipalities, passed laws between 1856 and 1897 that limited the Second Amendment rights of eighteen-to-twenty-year-olds in the same way the current law provided.
The 5th Circuit found that the federal government has presented scant evidence that eighteen-to-twenty-year-olds’ firearm rights during the founding-era were restricted in a similar manner to the contemporary federal handgun purchase ban, and its 19th century evidence “cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.” Therefore, the regulations are unconstitutional in light of our Nation’s historic tradition of firearm regulation.
The court provided that Bruen cautioned that “when it comes to interpreting the Constitution, not all history is created equal.” Rather, “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or even future judges think that scope too broad.” Reese v Bureau of Alcohol, Tobacco, Firearms, and Explosives, (Fifth Circuit 23-30033, 1/30/2025)
Comment: I was expecting a significantly better opinion on this matter. The manner this opinion is written another court could reach a different conclusion.
Discrimination And Whistleblower Claims Will Not Be Abated Upon Death
Hazel Erby (Erby) filed a petition alleging employment discrimination and raised a whistleblower claims against St. Louis County. She specifically alleged violations of the Missouri Human Rights Act (MHRA) and Public Whistleblower Statute (PEWS). While her case was still pending Erby died. Since there was not a resolution of her claim Erby’s estate sought leave to amend the original petition and file a substitution of parties.
Prior to filing her suit alleging employment discrimination Erby was employed as the Director of the County’s Office of Diversity, Equity, and Inclusion (DEI). Erby was an African American woman, and her responsibilities included ensuring the compliance with the Minority and Women-Owned Business Enterprise Program (MWBE), which provides that the county must use a specific percentage of minority and women-owned contractors for county projects. Erby claimed her office was underfunded and that the County was accepting bids and worked with contractors who did not comply with the MWBE requirements. Erby raised her concerns with the County Executive who indicated he would not deal with this issue and subsequently indicated the MWBE legislation was “flawed” and “no good”.
After raising her concerns with the County Executive, Erby alleged the County Executive told her that he did not see a path forward with her and that he no longer needed her on his staff. Additionally, she was informed that the County Executive believed the job was too stressful for her given her situation. Erby alleged the situation raised by the county executive was her cancer diagnosis in 2018 that she alleged had not been a concern when she was hired or during the tenure of her employment but only became an issue after she raised her concerns about compliance with the MWBE. After her conversations with the County Executive Erby’s employment was subsequently terminated in 2020.
After Erby’s estate moved to amend the claim, the County moved to dismiss Erby’s Amended Petition, arguing that the MHRA and PEWS claims were not tort claims and therefore abated at Erby’s death. Additionally, in its motion, the County alleged that Erby’s Amended Petition should be dismissed pursuant to Rule 55.274 for failure to state a claim upon which relief can be granted. The circuit court ultimately granted the County’s Motion to Dismiss solely on the grounds that Erby’s claims did not qualify as “personal injuries” under § 537.020 and thus abated upon her death. The circuit court expressly declined to rule on the other claims in the County’s Motion to Dismiss. Erby’s estate appealed.
The question presented in this case is whether Erby’s causes of action, brought under the MHRA and PEWS, were personal injury actions that survived her death. The court’s analysis focused on the leading case for interpreting survivorship in Missouri which the court cited as Gray v. Wallace, 319 S.W.2d 582 (Mo. 1958). In Gray, the court interpreted the survivorship statutes as permitting the survival of a wide range of tort actions so long as there is an injury to a person’s clearly established rights. Claims of discrimination and retaliation squarely fit within Gray’s definition, therefore both categories of tort claims do not abate, and the circuit court erred in dismissing the Amended Petition on that basis.
In consider the PEWS claim the court concluded that the legislative purpose of both statutes share a common purpose to protect employees from adverse action when reporting “unlawful acts or misconduct” of others, and the means of recovery are also closely related, the court found no reason to treat a PEWS claim differently from MHRA claims in this case. Therefore, the circuit court erred in dismissing Erby’s PEWS claim on the basis that it did not survive her death. Erby v. St. Louis County, (ED112783, 2/11/2025)
Leaking Roof Owned By City
In November 2011, Earth To Go, Inc (ETG) began to rent a building from the City of Richland (City) for a five-year term. ETG was engaged in the development and manufacturing of environmentally friendly food service products. In 2014, the building being rented developed a leaking roof and the city failed to complete the necessary repairs. Due to these issues ETG halted the production of its product. ETG sought to renew the lease despite the leak issue, but the City declined to renew the lease. The City then sought to eject ETG. ETG filed a counterclaim against the City for breach of contract, negligence, and tortious interference with business relationships.
During the pendency of the litigation the court permitted Biodegradable Food Service (BFS), a sister company of ETG to intervene on behalf of ETG. The jury found in favor of ETG on its breach of contract claim and awarded $620,000 in total damages, which included lost profits. The jury did not itemize the total amount by the types of damage being claimed. The total award was reduced to $560,000 due to a prior settlement with a third party. The jury awarded zero damages for the negligence claim. The court awarded fees and cost with a total judgment of $809,904.35 in favor of ETG.
The primary issue considered by the court was whether ETG was entitled to the lost profits. In this case there was insufficient evidence of ETG’s lost profits. Evidence of expected profits for a new business faces a greater burden of proof because they are too speculative, uncertain, and remote. ETG to establish lost profits must provide reasonable proof of actual facts, with present data for a rational estimate of their amount. The best evidence presented to support the request was limited to three orders from Office Depot with the amount of $3000. A plaintiff seeking damages for lost profits “must provide evidence of the income and expenses of the business for a reasonable time before the interruption caused by a defendant’s actions.” While there was evidence submitted from the similarly situated sister company the court did not consider that evidence to be sufficient given the different nature of the businesses.
This issue with the lost profits was compounded because the jury did not identify or distinguish the breach-of-contract damages from the lost-profit damages in its award to ETG. Since the damages were not itemized, the court was required to vacate the damages determination in the judgment, as well as the related award of attorney fees and costs, and remand the case for a new trial on damages. Earth To Go v City Of Richland, (SD38086, 2/07/2025)
Property Abatement
In 2015, Danny Fox (Fox) purchased a home in Norfolk, Virginia. In 2016, Fox was deployed by the United States Navy. While Fox was deployed the City of Norfolk (City) conducted an inspection of Fox’s home where it observed building code violations which rendered the property unsafe or unfit for human habitation. The City mailed notices to the address on file with the tax assessor. The notices were returned. The City posted the property. In 2017, the City determined the issue with the property had not been sufficiently corrected and the City prepared another round of notices, and the City sent letters and posted the property.
In 2017, Fox had returned from deployment, and he worked on the property. He mowed the lawn, picked up trash, and performed exterior maintenance. However, he never contacted the City or sufficiently corrected the issues with the property. The property was still an ongoing nuisance.
While Fox was rehabbing the property in 2018 someone drove a car into a portion of the house. Fox was then deployed for 30 days, and the previous issues had not been corrected and the damage from the car was left uncorrected. Fox did perform some repairs after returning from a 30-day deployment. While Fox was working on the property Fox observed a posting from the city and contacted Inspector Jackson about the issues with the property. Inspector Jackson agreed to provide Fox with time to correct the issues on the condition that Fox provided a timeline on when all the repairs would be completed and when the home would be sold. Fox failed to respond and there was no subsequent communication from him.
After the issues failed to be addressed and Fox failed to respond, the City posted the house and provided that the house must be repaired or demolished within 30 days of the date of the notice. Fox was provided with an opportunity to appeal the order within fourteen days of the notice. Fox did not appeal or respond to the notice. The City demolished the house at the end of 2018.
In 2021, three years after the demolition, Fox sued the City. Fox alleged (1) a claim for due process violations of the Fifth and Fourteenth Amendments, (2) a claim for relief under the Servicemembers Civil Relief Act, (3) a claim for violation of the Fourth Amendment protection against unreasonable searches and seizures, (4) a Fifth Amendment takings claim for just compensation, (5) a state law takings claim for just compensation under an inverse condemnation theory. The district court granted summary judgment for the city.
On appeal the defendant failed to preserve any claims other than his Virgina inverse condemnation claim. The Fourth Circuit only considered the inverse condemnation claim. Under Virgina law when the government takes property without a condemnation proceeding or just compensation, a property owner can bring an “inverse condemnation” action for just compensation. To succeed, a claimant must establish that (1) he owns private property; (2) a condemning authority has taken or damaged the property; (3) “the taking or damaging was for ‘public use’”; and (4) “[t]he . . . condemning authority failed to pay just compensation.” Just as in a regular condemnation action, an inverse condemnation action “permits recovery only when property is taken or damaged for public use.” There are different elements that can be established to prove an inverse condemnation. The element at issue in this case to establish an inverse condemnation claim would be showing the taking for the public use was to eliminate blighted property.
While there exist strong constitutional rights protecting private property, a state may restrain property rights under its police power. “Property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community, and the Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it.” Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 491–92 (1987). Nuisance abatement under the police power does not trigger a constitutional right to just compensation.
In this matter Fox failed to appeal the city’s determination that the house constituted a nuisance. That failure to exhaust administrative remedies bars Fox from challenging the nuisance determination thereafter. The City prevails on this issue and the nuisance does not trigger the right to just compensation.
Even if there was not a determination that Fox’s property was a nuisance there existed a significant problem. Fox’s claim before the court relies on his claim that the property was not a nuisance. To sustain an inverse condemnation claim under Virgina law the public taking would need to be for the purpose eliminating blight but Fox’s argument is the property was not blighted or a nuisance. Fox’s inverse condemnation failed on the basis that he has failed to allege sufficient facts to support his inverse condemnation claim.
Any other claims raised by Fox failed because he failed to timely pursue the available remedies. D.A. Realestate Investment v. City of Norfolk, (4th Circuit 23-1863, 1/16/2025)
Important Events
Missouri Municipal Attorney Association Summer Seminar is schedule for July 11-July 13, 2025, at Margaritaville Lake Resort in Osage Beach, Missouri. For additional information follow this link about the event. MMAA Summer Seminar
IMLA Events: IMLA has several upcoming events. I have provided links to those events below.
IMLA Mid-Year Seminar April 25-April 28, 2025
IMLA Annual Conference In New Orleans October 17- October 21, 2025
MMAA Newsletter 