Children Services Sales Tax

The residents of Platte County sought to adopt a quarter-cent local sales tax pursuant to the Children’s Services Protection Act under 67.1775 RSMo and 67.1776 RSMo.  Under Missouri law the funds generated could be used for children-related services such as temporary shelter, mental health treatment, and pregnancies.  Residents of Platte County had requested the sales tax be placed on the ballot, but the Platte County Commissioners declined to place the tax on the ballot. 

Since the commissioners were unwilling to place the tax on the ballot the supporters proceeded with a petition signature and collected signatures and submitted the petition. The board of Election Commissioners then refused to place the measure on the ballot without the measure also being approved by the County Commissioners.  Residents sought a writ of mandamus in Platte County circuit court seeking to compel that the proposal be placed on the ballot. The measure was placed on the ballot and passed. 

After the voters approved the tax, the Commission declined to implement the tax on the grounds that the 67.1775 RSMo did not require that the commission authorize the tax to be levied.  The Department of Revenue declined to implement the tax because the county had not imposed the tax through ordinance and there was not a court order.  Residents then filed a writ of mandamus to order the county commission to notify the Department of Revenue that the tax had been approved.  The trial court after a hearing denied the petition for a writ of mandamus.  The trial court determine that “the plain language of § 67.1775 gives the Commission discretion to levy or not to levy the tax after voter approval. Because the statute confers this discretion, the Court denies the Petition for Writ of Mandamus.” The residents of Platte County appealed.

Under Missouri law a tax-related statute will be strictly construed, and that the authority to impose a tax must clearly appear from a statute’s plain language. Because taxing statutes are strictly and narrowly construed, “‘taxes are not to be assessed unless they are expressly authorized by law.’” St. Louis Cnty. v. Prestige Travel, Inc., 344 S.W.3d 708, 712 (Mo. 2011) (citation omitted).

At issue in this matter is the statutory language which provides that the governing body “may” levy a sales tax for children services and that voters must be asked whether a county’s governing body shall be “authorized” to levy a sales tax.”  The court concluded that based on the plain statutory language the Platte County Commission was not required to levy and implement a children’s service sales tax.  There was nothing in the statute that created a mandatory, ministerial duty to implement the tax.  The trial court’s decision was affirmed. Plumb v. Missouri Department of Revenue; (WD88043, 4/14/2026)

Gender Discrimination Due To Pregnancy

Chelsea Elders (Elders) was employed by Washington University in the department for Patient Billing Services.  Six months after being hired Elders found out she was pregnant with twins, and she was designated as a high-risk pregnancy.  After learning she had a high-risk pregnancy Elders informed her employer.  Three months into her pregnancy Elders was hospitalized and unable to return to work until she was examined by her OB/GYN.  Elders advised her supervisor and kept her supervisor updated on her medical condition.  Elders contacted human resources about short term disability.  She was subsequently informed she would not be eligible for paid FMLA leave because she had been employed less than twelve months.  Elders was eligible for unpaid non-FMLA leave. 

Elders inquired about working from home or other work options.  She was not provided with other options and moved forward with non-FMLA medical leave.  Elders talked to her medical providers about working but the doctor did not release her to work.  Elders was then approved by the university for short-term disability.  Elders would be reevaluated 30 days after being approved. Elders then talked to her supervisors, and she advised her supervisor that she had completed and submitted all the paperwork.  She was advised by her supervisor that she would not need to follow up, and the supervisor would follow up.  Several days later Elders was told by her supervisor that she was only approved for two weeks of leave, and her last day of employment would be the following day.  Elders had not been previously advised that she could be discharged because of complications from her pregnancy, and she advised her supervisor she had been told she was eligible for up to fourteen weeks.  The supervisor advised that due to staffing shortages the department could not hold the position open and that Elders could apply for her position in the future when she was no longer experiencing pregnancy complications.

Elders continued to talk to her supervisor trying to maintain her employment or find other ways to continue to work.  Elders was advised she could apply for positions in other departments.  Elders applied for other open positions which permitted working from home, but she had no response from the university.  After Elders was denied other employment options, she learned that she was still listed as an employee on short-term disability which made it questionable for her to seek unemployment benefits.  Even after Elders had given birth to her children she was left on short-term disability by the university and denied other job opportunities at the university.

Elders filed a complaint with the Missouri Commission on Human Rights. Elders provided that she believed the University had “discriminated against, retaliated against, and ultimately terminated her employment due to her gender (female-pregnancy) and disability (pregnancy complications).”  Elders received a right-to-sue letter from the Missouri Commission on Human Rights, authorizing her to file a civil action in a court of competent jurisdiction within 90 days of issuance of the right-to-sue letter.

Elders raised five claims which included 1) discrimination, 2) hostile work environment, 3) gender discrimination due to pregnancy 4) hostile work environment due to Plaintiff’s gender pregnancy, 5) retaliation.  The university moved to dismiss all counts, and the trial court granted the motion to dismiss on all counts.

The Eastern District, broke down the dismissal into three categories.  First the Eastern District considered if the gender discrimination claim should have been dismissed because Elders had failed to exhaust her administrative remedies.  The university argued that Elders had not exhausted all of her administrative remedies prior to bringing her claims because she had still been employed when she filed her complaint with the Missouri Human Rights Commission. 

The Eastern District concluded the trial court had been incorrect and that while the university had maintained Elders as an employee she was advised by her supervisor (1) that her last day of employment with the University would be the next day (April 6, 2023); (2) that she could not hold the job any longer; and (3) that Plaintiff could re-apply for her position with the University at a later time when Elders was no longer experiencing pregnancy complications. Provided with those facts, only a former employee would need to re-apply for employment.  The Eastern District explained that Elders’ claims based on her employment being terminated because of disability and gender discrimination have a factual relationship in that they are based on the same set of facts set forth in her charge.  On this issue the court remanded Elders claims of gender discrimination.

The Eastern District then considered the disability discrimination and retaliation claims which had been dismissed.  The trial court had found that Elders had not pleaded sufficient facts to support her disability claim.  The Eastern District provided that to assert a claim of disability discrimination under section 213.111 of the MHRA, Plaintiff must plead that: (1) she is legally disabled; (2) she was discharged or otherwise subjected to an adverse employment action; and (3) her disability was the motivating

factor. Emile v. Triumph Foods, LLC, 713 S.W.3d 197, 210 (Mo. App. W.D. 2025). The issue for the court was whether the Plaintiff adequately pled that she was legally disabled.  

A qualifying “disability” under the MHRA means: “a physical or mental impairment which substantially limits one or more of a person’s major life activities, being regarded as having such an impairment, or a record of having such an impairment, which with or without reasonable accommodation does not interfere with performing the

job.” Section 213.010(5); Moore v. Southwestern Bell Tel. Co., 684 S.W.3d 187, 205 (Mo. App. E.D. 2023). Establishing the first, “disabled,” element of a disability discrimination claim under the MHRA is a two-part showing. The party raising the claim must show she actually has, is regarded as having, or has a record of having, an impairment that substantially limits a major life activity. Ashby v. Woodridge of Missouri, Inc., 673 S.W.3d 537, 544 (Mo. App. S.D. 2023). Secondly, Plaintiff must show that, with or

without reasonable accommodation, the impairment does not interfere with performing the essential functions of her job. Id.

Elders did not plead a major life activity that was substantially limited.   Elders did not provide restrictions on ambulation or allege facts to show that her pregnancy and pregnancy related complication limited ambulation “An impairment that disqualifies a person from only a narrow range of jobs is not considered a substantially limiting one.” Id.  It is clear from Plaintiff’s petition that she was only precluded from performing her single, particular job as a patient billing services representative. Plaintiff pleaded that her physician had approved her to work remotely. Additionally, the Missouri Commission on Human Rights interpreting the MHRA expressly provide that “disabilities caused or contributed to by pregnancy … childbirth and recovery are, for all job-related purposes, temporary disabilities and should be treated as such.” 8 CSR 60-3.040(16)(A) (emphasis added). Temporary medical conditions are not considered physical or mental impairments that result in a disability. 8 C.S.R. 60-3.060(1)(B)(1); Feldman, 674 S.W.3d at 64. “Temporary [conditions] are not actionable due to their transitory nature in that the [condition] does not significantly limit the individual permanently.” Cook v. Atoma Int’l of Am., Inc., 930 S.W.2d 43, 47 (Mo. App. E.D. 1996). The court affirmed the trial court’s decision as to disability.

Finally, the third major point the court considered was the retaliatory and hostile work environment claims based on her disability.  The retaliatory and hostile work environment claims failed because Elder failed to plead sufficient facts to support that she was in fact part of a protected class.  As the court determined that Elders did not qualify as part of a protected class the claims failed.  Elder v. Washington University, (ED113610, 3/31/26)

Third Party Subpoena

Print Zutavern (Zutavern) had long history of serious mental illness which eventually led to his tragic death.  On February 23, 2020, he had manic episode which resulted in several family members calling 911 and the Custer County Sheriff’s Office and the Nebraska State Patrol (NSP) being dispatched to provide assistance.  Law enforcement officers’ attempt to intervene resulted tried in a standoff.  Officers were unable to de-escalate the situation and Zutavern fled from officers in an electric vehicle called a RAZR.  Officers rammed the RAZR off the roadway and approached the vehicle with the weapons drawn and issuing commands to Zutavern.  Zutavern failed to obey the commands and as he was approaching officers he was shot three times.  He died from his injuries.

Zutavern’s estate filed suit alleging a violation of 42 U.S.C. § 1983 by Custer County Sheriff’s Office, the Sheriff, two Sheriff’s deputies, seven NSP officer, and NSP training supervisor.  The estate alleged that NSP officers “acted with deliberate indifference to Print’s known and recognized constitutional and legal rights,” and that training supervisor unconstitutionally failed to train its employees.

As the case proceeded the estate served a deposition subpoena on non-party NSP (which was not a party at this time).  NSP moved to quash the subpoena, arguing that its state sovereign immunity shielded it from Mick’s third-party discovery demand. The district court rejected the sovereign immunity argument and denied NSP’s motion to quash, concluding that the issue is governed by In re Missouri Department of Natural Resources (Missouri DNR), and that “governmental units are subject to the same discovery rules as other persons and entities having contact with the federal courts and that there is simply no authority for the position that the Eleventh Amendment shields government entities from discovery in federal court.” 105 F.3d 434, 436 (8th Cir. 1997).

NSP appealed the ruling arguing the statement was dicta and is not binding authority on the sovereign immunity issue. NSP further argued that state sovereign immunity does bar enforcement of the deposition subpoena on third parties and that the deposition request would be a substantial burden on NSP which at this time was a non-party. NSP made a strong showing that complying with the deposition subpoena infringed on the State’s autonomy and threatened its treasury.  The Eighth circuit court concluded that while in some cases a state maybe subject to responding to a non-disruptive third party subpoena the 11^th Amendment will bar any request where there is a showing that the discovery response would expend public treasury and interfere with public administration.  Estate of Zutavern v. Nebraska State Patrol, (Eighth Circuit, 24-1610, 4/1/26)

Nolle Prosequi

Jacob Byler (Byler) was charged with stealing in June 2023.  Two months after Byler was charged the trial court held a preliminary hearing.  The stealing charge was nolle prosequi by the prosecutor at the preliminary hearing.  A new charge was then subsequently filed alleging the same fact but included four additional counts of forgery.  After the case was refiled, several judges recused, and the case was assigned to a senior judge.  After the new judge was assigned, a pre-trial hearing was held and the prosecutor indicated at that hearing they intended to dismiss the case.  In response to prosecutor’s statement, Byler filed a motion opposing the case being dismissed without prejudice and filed a motion for a speedy trial and motion to dismiss for failure to prosecute. Even though the prosecutor had filed the Nolle Prosequi the court conducted a hearing and concluded that the nolle prosequi did not immediately terminate the jurisdiction of the court as there was a pending motion requesting a speedy trial.  The court concluded that Byler’s constitutional and statutory rights to a speedy trial were violated and the court dismissed the case.  The prosecutor appealed the decision.

The Southern District provided a simple and clean analysis of this issue. “A nolle prosequi is a prosecutor’s formal entry on the record indicating that a pending criminal charge will no longer be prosecuted, and results in a dismissal without prejudice unless jeopardy had attached. State v. Dozler, 455 S.W.3d 471, 473 (Mo. App. S.D. 2015) (quoting State v. Keightley, 147 S.W.3d 179, 184 (Mo. App. S.D. 2004)). Because a prosecutor has broad discretion to determine when, if, and how criminal laws are to be enforced, the prosecutor has unfettered discretion to enter a nolle prosequi, and the circuit court may not interfere with the exercise of that discretion. Id.

“Once a prosecutor enters a nolle prosequi, the trial court is without jurisdiction to take any further action in the case.” Id. “Any orders entered after a trial court loses jurisdiction in a case are nullities.” Id. “Unless double jeopardy has attached, a dismissal by the prosecutor will be without prejudice, meaning the prosecutor ‘has complete discretion to refile the case, as long as it is refiled within the time specified by the applicable statute of limitations.’” Sisco, 458 S.W.3d at 310 (quoting § 56.087.3).  Once the nolle prosequi has been filed the trial court’s jurisdiction has been terminated. 

The Southern District noted and explained that Byler can still assert his constitutional rights to a speedy trial in a subsequent proceeding if the matter is refiled.  Missouri v. Byler, (SD38929, 4/28/26)

Unlawful Towing The City of Calverton Park recently settled a class action lawsuit for unlawfully towing motor vehicles parked on private property.  The Plaintiffs alleged that the City was entering onto private property and towing vehicles that lack current registration or license plates despite the vehicles not posing a safety or health concern.  The City did not provide notice or opportunity to be heard.  In addition to the vehicle owning having to pay the towing and storage fees associated with the vehicle being removed from the property the City assessed a Special Tax Bill that imposed additional costs, but the City was unable to demonstrate there existed any relationship between the tax being imposed and the cost incurred by the City.  The City agreed to pay a $465,000.00 settlement, limit the special tax to $200.00, and removed language in city code which provided for the removal of vehicles not properly licensed or registered.   Reise v City of Calverton Park; (Case No. 4:23-cv-01335-SEP, 10/6/26)