March Newsletter (Issue 03-2023)

No Foundation Is Needed To Introduce Record Of Portable Breathalyzer

Facts and Procedure: Acevedo was arrested upon probable cause for operating a motor vehicle with a blood alcohol concentration in excess of the statutory limit. The Director of Revenue (“the Director”) suspended Acevedo’s driving privileges and he appealed to the circuit court. In answering Acevedo’s petition, the Director affirmatively alleged that the suspension of Acevedo’s driving privileges was proper because Acevedo was arrested upon probable cause for operating a motor vehicle with a blood alcohol concentration in excess of the statutory limit. At trial, the Director attempted to admit certified records into evidence (“Exhibit A”), which included a record purporting to show the numerical results of a pre-arrest portable breathalyzer test (“PBT”) administered to Acevedo by Missouri Highway Patrol Trooper.

Acevedo objected to the admission of Exhibit A on the basis that “no foundation [has] been laid for [the PBT]” because “[t]here’s no evidence it’s been calibrated, maintained, or used in the manner that the manufacturer suggested.” The Director disputed that any such evidence was required, stating, “[f]or the [PBT] there is no foundational requirement for its admission into evidence because it is not an evidentiary test, it is just a tool used to go towards probable cause.” Acevedo offered the following response: “Well, my objection is they put a printout on what they say the PBT showed, which is to be used only to show the presence of alcohol, and my objection is to . . . the figure that they’ve put in the Exhibit A, Judge. There’s no foundation for that.” After further discussion, Acevedo stated, “[s]o if they want to say that there was the mere presence of alcohol, you know, I probably can’t dispute that, but my dispute is with the reading of that.”

The circuit court concluded, “if there is a printout that is attached, based on that, sustain Acevedo’s objection based on the lack of foundation on — any of that device’s information other than the mere presence of alcohol.” The court denied the acceptance of the Director’s Exhibit A and the Director appealed to the Southern District.

Analysis – On appeal, the Director contended that the trial court abused its discretion in excluding Director’s Exhibit A, due to lack of foundation for the portable breath test results because portable breath tests are statutorily exempt from compliance with Department of Health and Senior Services regulations for determining the reliability of evidentiary blood alcohol tests for the purpose of establishing probable cause to arrest a driver on suspicion of driving while intoxicated.

The Southern District noted that Section 577.021, states that such calibration requirements, found in Section 577.020, “shall not apply to a test administered prior to arrest pursuant to this section.” Section 577.021.1. further provides that “[a] test administered pursuant to this section shall be admissible as evidence of probable cause to arrest and as exculpatory evidence, but shall not be admissible as evidence of blood alcohol content.” Citing the holding in Robertson, 328 S.W.3d at 751 the Southern District noted that (holding “proof of calibration of the portable breathalyzer machine was not required for admissibility of the results of the [PBT] under section 577.021”); therefore, a foundation showing that the PBT was “calibrated, maintained, or used in the manner that the manufacturer suggested” was not required to admit the PBT numerical result into evidence as proof of probable cause to arrest. Trial court reversed. Acevedo vs. Director of Revenue, (SD37588,03/16/23).

Individuals With Disabilities Education Act Does Not Preclude Suit For Damages Under ADA

The United States Supreme Court ruled that the Individuals covered by the Disabilities Education Act (IDEA) did not preclude bringing a lawsuit under the American Disabilities Act (ADA) for damages. The School’s argued that the IDEA was the exclusive remedy. In this case, the school provided a deaf student with an unqualified interpreter who was not trained to sign and as a consequence the student was unable to graduate with a diploma and was qualified only for a “certificate of completion.”

The Associated Press reported on January 18, 2023 that “his family responded by pursuing claims under two laws: the broad Americans with Disabilities Act, which prohibits discrimination against disabled people, and the Individuals with Disabilities Education Act. The latter guarantees children with disabilities a free public education that is tailored to their specific needs.”

 “Perez’s family and the school district ultimately settled the IDEA claims. The district agreed to pay for extra schooling and sign language instruction for Perez and his family, among other things. The family then went to federal court and, under the ADA, sought monetary damages, which are not available under the IDEA.” In an unanimous s opinion the United States Supreme Court held that the IDEA did not bar the Perez family from seeking damages under the ADA. See review of case by Amy Howe.

Hostile Work Environment Case Costs Company 1.75 Million Dollars

Facts and Procedure: LMV, located in Liberty, Missouri, manufactures component parts for automobile manufacturers. On April 13, 2015, LMV hired Weaver, an African-American woman, as a human resources (HR) coordinator and, shortly afterward, promoted her to the position of senior HR coordinator. She reported directly to the HR manager who, during her employment, was Ken McIsaac until October 31, 2016, and Robert Clemens thereafter. During Weaver’s employment, Andy Hrasky was either the assistant general manager or the general manager of LMV.

By early 2016, Weaver noticed things that were “not right” at LMV. She noticed white employees, mostly men but some women, were not responding to her when she greeted them or spoke to them. They would not shake her hand but pulled away as if they did not want her to touch them. Weaver also noted there were T-shirts worn by temporary LMV workers that had Confederate flags on them; a hat with a Confederate flag on it that was worn into a company-wide meeting by a member of LMV’s “fairness committee,” created by LMV to address employee concerns; a truck, driven by an LMV employee and parked in its lot every day, with a large Confederate flag attached to the back on a pole; a swastika emblem inside an employee’s toolbox; and complaints made to her by African-American workers that their training was made more difficult due to racism.

Weaver and her HR colleague Mahasin Pledger, an African-American, met with McIsaac and Hrasky on August 10, 2016  to discuss their concerns of racism, particularly the presence of Confederate flags on an employee’s truck and on clothing. Weaver stated that she had hoped to get the support of LMV senior management to denounce racism but that both men were defensive in the August 10 meeting. Hrasky told Weaver that some of their concerns were not valid and that the Confederate flag “thing” was not “necessarily bad.” Both men later testified that the Confederate flag was offensive to “some people.”

Weaver then sent an email that she had been thinking about for a couple of months. She explaining that the events mentioned in her email were examples of the “types of things we have been dealing with” and that she and Pledger were “discriminated against weekly and lately it’s been daily.”

She expressed her concern about: being questioned about the way she looked, smiled, and greeted by white workers; being expected to work harder, longer, and more frequently on-site (rather than remotely) than white employees with similar responsibilities; she and Pledger being treated with “clear disrespect” and “made to feel less than equal” to white employees, all while having to “make sure we never get upset”; having to contend with employees who display the Confederate flag and KKK emblems on clothing and vehicles, giving the appearance that LMV supported such displays; and bringing complaints of racism to LMV management and either being ignored or told offensive comments were just “dry humor.”

Hrasky labeled Weaver’s email a “diatribe” and admitted he was not sure he even read all of it and that he saw “no reason to change anything.” Weaver testified that nothing changed after the meeting and email, there was no investigation into her complaints, and the problems persisted.

Although Weaver had received an “A” performance evaluation in June 2016, being praised for her job knowledge and dependability, she was downgraded to a “B” in her September 2017 review. Weaver, upset about what she believed to be false statements in the 2017 review, refused to sign it. In October 2017, Weaver was criticized by a white employee for having created a “ghetto” flyer for a Halloween “trunk or treat” company event, which Weaver then reported to Clemens. By that point, Weaver had advised David Worrall, LMV’s vice president of HR, of her concerns about “the hostile bully environment we work in every day.” On October 16, 2017, she told Worrall, “This is really out of control and I need assistance.” In an email to Clemens on November 7, 2017, Weaver stated, “Racism at LMV is heavily present as has been for years. . . . This mindset is what we deal with every day and it’s all around us.”

On November 14, 2017, Hrasky fired Weaver.  Weaver then sent a certified letter to Hrasky asking for a letter of dismissal under the service letter statute, § 290.140. Clemens testified that he drafted the letter and emailed it to Hrasky for signing on January 25, 2018, then gave the signed letter to “our administrative assistants” to mail on January 26, 2018. Weaver testified that she never received the letter. On February 8, 2018, Weaver filed her charge of discrimination against LMV with the Missouri Commission on Human Rights (MCHR). On October 30, 2018, after receiving a right-to-sue letter, she filed a four-count petition, naming as defendants LMV and Clemens and claiming race discrimination, sex discrimination, retaliation, and violation of the service letter statute. A jury returned a verdict for Weaver in the amount of $50,000 actual damages and $1,000,000 in punitive damages on her racially hostile work environment claim; and $1 in actual damages and $175,000 in punitive damages on her service letter complaint; in addition, the court awarded $516,879 in attorney fees and $10,177 in costs.

LMV appealed to the Western District.


2017 Legislative Amendments on Motivating Factor and Punitive Damages Cap- LMV argued that the trial court erred in not applying the 2017 MHRA statutory amendments to Weaver’s hostile work environment claim, specifically for not applying the heightened “motivating factor” standard to her substantive claim and for not applying the damages cap imposed by the 2017 amendment.  In this case, the 2017 Amendments went into effect after the cause of action accrued.  The Western District noted that the 2017 legislative changes affected the substantive law; therefore, Article 1, § 13 of the Missouri Constitution controls because this section prohibits laws that are “retrospective” in operation. A law is retrospective if it “impairs some vested right or affects past transactions to the substantial prejudice of the parties.” A plaintiff’s right to recovery for an injury is “governed by the statutes in effect at the time of the injury.”  A statute is applied prospectively unless it is “merely procedural or remedial,” rather than substantively or if “the legislature clearly expresses an intent that the amendment be given retroactive application.” Furthermore, the Western District noted that prior case law held that the 2017 Amendments were prospective.  In addition, Section 1.150, RSMo. provides new statutes are presumed to operate only prospectively unless “otherwise expressly provided. LMV loses its arguments that the 2017 Amendments applied retroactively.

When Does a Cause of Action Accrue for a Continuing Violation? LMV argued that Weaver did not timely file her lawsuit. Section 213.075.1 requires that the plaintiff file a charge of discrimination within 180 days of the alleged discriminatory act. Section 213.111.1 requires that MHRA claims “be filed . . . no later than two years after the alleged cause occurred or its reasonable discovery by the alleged injured party.” The Western District noted that with most hostile work environment claims, the discriminatory acts are not themselves “significant events”; it is the cumulative effect of the day-to-day harassment that is significant. The unlawful employment practice “occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.”

The Western District held that under the equitable continuing violation doctrine, the claim is timely and the entire period of the hostile work environment may be considered for the purpose of determining liability “[p]rovided that an act contributing to the claim occurs within the filing period.” The Western District concluded that:

“The cases LMV relies on to urge that “accrual” for a hostile work environment claim occurs only upon the last act relied on to assert the claim do not address when the claim could first have been asserted but, instead, address whether an act contributing to the claim occurred within the filing period, in which case “the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.”  (Mu emphasis).

The Western District concluded that “Weaver had enough evidence to establish that she was injured by the cumulative effect of day-to-day harassment by August 11, 2016, when she described the ongoing racial hostility in explicit detail to LMV management in her email to McIsaac, which he shared with Hrasky.

Service Letter Statute Claim Was Supported by Clear and Convincing Evidence.

“A submissible case for punitive damages requires clear and convincing proof that the defendant intentionally acted either by a wanton, willful or outrageous act, or reckless disregard for an act’s consequences (from which evil motive is inferred).”

Weaver offered evidence that she properly submitted her request for the service letter to LMV, and LMV acknowledges that it received the request. But Weaver testified that she never received the letter. In response, LMV offered evidence that Hrasky signed a service letter addressed to Weaver, that Hrasky emailed the letter to Clemens on January 25, 2018, and that Clemens gave it to unnamed assistants to mail. LMV offered no proof that the letter was in fact mailed or why it would not have been received by Weaver. The Western District held that since the facts concerning whether or not the service letter was mailed by LMV or received by Weaver was disputed the jury had the discretion to conclude that it was never sent or was not sent in time.

Indirect Evidence of Malice to Support Punitive Damages – Proof of malice can come in the form of evidence, including inferences, used to support the employee’s substantive MHRA claim. Weaver points to sufficient facts and inferences, covering many months of her employment, that logically support the jury’s finding that LMV recklessly disregarded her rights under § 290.140 in failing to issue the service letter. By November 2017, when Weaver was fired, LMV management had sparred with her for well over a year about racial incidents and the racist atmosphere at LMV. Hrasky called her August 2017 email a “diatribe” that was too long to bother reading. Nothing changed at LMV, in spite of Weaver’s complaints to Hrasky, McIsaac, and Clemens. The Western District held that the above evidence was sufficient to prove malice. Weaver v. LMV Automotive Services, (WD85078, 12/13/22).

Comment Howard: Confronting a hostile work environment is like getting killed with a thousand cuts. The detailed statement of facts shows how insignificant one paper cut is but the sum total is overwhelming. Seems like a major failure of management to have not figured this out before trial. Imagine the actual damages were only $50,000 but when you total up the punitive damages and attorney fees the grand total was about 1.75 million dollars. The opinion is loaded with very good legal analysis of key issues like when is a statute prospective, when does an action accrue, and when is the evidence sufficient to prove actual malice.

Comment Ragan:I think the employer is fortunate the monetary damages are not more significant.  Employees showing up to the place of employment with Confederate Flags, KKK symbols, and swastikas is inexcusable and there is no question that would create a hostile work environment for anyone who does not share that ideology.    

Modification Of An Injunction Requires Proof It Is No Longer Equitable

Comment – This case has a long 51-year history with three appeals going to the appellate courts, and it is not over yet. The case is of great interest to local government lawyers, even though it is a private nuisance case because case law relied on by the Courts in resolving legal issues are almost exclusively government law cases. Public nuisance law is something that is part of our local government law tool kit. In addition, injunctions by their nature may extend far into the future that may need to be modified, bringing up the central issue in this case.  What is the test for modification of an injunction?

Facts and Procedure: In 1967, Raymond and Veronica Racine acquired approximately 78 acres of property in Franklin County that included a home and outbuildings. In 1976, Glendale acquired approximately 107 acres immediately adjacent to the Racines’ property. Glendale acquired this property for use as a gun club and firing range. In 1983, the Racines filed a petition in the circuit court seeking injunctive relief against Glendale. The Racines’ petition claimed Glendale utilized its land “for target practice, local, regional and national shooting matches conducted with automatic weapons, handguns, shotguns and high powered rifles” and that noise from Glendale’s property “on a daily basis at all hours of the day and night” could be “plainly and loudly heard at [the Racines’] residence, even when the doors and windows to said residence are fully closed.” Accordingly, the Racines asked the circuit court to permanently enjoin Glendale from conducting target practice and shooting matches on its property.

In 1987, the circuit court entered injunctive relief limiting operation of the firing range. The court found,

“at the date of the filing of the Petition and for a period of at least five years then preceding and up to the date of trial, the use of [Glendale’s] land as described by the evidence constituted an abatable continuing temporary nuisance and that such use was unreasonable and unusual to the extent that it substantially impaired the right of the [Racines] to peacefully enjoy their own adjoining land.”

The court found stray bullets or ricochets on several occasions either hit the Racines’ land or violated their land’s airspace. The court further found “[t]he evidence presented did convince the court that the sustained noise found by the court to be a nuisance did cause actual inconvenience and physical discomfort to the [Racines.]” Accordingly, the court “permanently enjoined [Glendale] from using or permitting the use of its land and facilities … in such a manner as to constitute a nuisance.”

The court’s permanent injunction did not completely ban the operation of the firing range as the Racines requested but limited Glendale’s shooting operations to abate the trespass and nuisance. Pursuant to the injunction, Glendale was limited to holding only 10 shooting matches per year. Shooting or discharging firearms was restricted to certain times during the day and certain days of the week. There were also limitations on the number of persons shooting handguns or rifles at any given time. Both Glendale and the Racines appealed, and the court of appeals affirmed the circuit court’s judgment entering injunctive relief (hereinafter referred to as Glendale I).

In 1988, the General Assembly enacted Section 537.294, granting firearm ranges immunity from nuisance and trespass actions and prohibiting courts from enjoining the use or operation of firearm ranges on the basis of noise or sound emission. In 1989, the Racines sold their property to the Landolts. In 1998, Glendale moved to dissolve the permanent injunction claiming that the injunction had been rendered absurd and unjust due to the enactment of Section 537.294, and that were material modifications made to the shooting range for noise abatement purposes. The circuit court dismissed Glendale’s motion to dissolve the permanent injunction and Glendale appealed. The court of appeals reversed the circuit court’s judgment (Glendale II) but did not reach the merits of Glendale’s motion to set aside the injunction. Rather, the court of appeals reversed the judgment because the circuit court erred in finding Section 537.294 inapplicable because the judgment had already been entered directing the circuit court to consider the effect of Section 537.294.2, and the modifications to the gun range by Glendale. 

Section 537.294.2 provides:

All owners and authorized users of firearm ranges shall be immune from any criminal and civil liability arising out of or as a consequence of noise or sound emission resulting from the use of any such firearm range. Owners and users of such firearm ranges shall not be subject to any civil action in tort or subject to any action for public or private nuisance or trespass and no court in this state shall enjoin the use or operation of such firearm ranges on the basis of noise or sound emission resulting from the use of any such firearm range. Any actions by a court in this state to enjoin the use or operation of such firearm ranges and any damages awarded or imposed by a court, or assessed by a jury, in this state against any owner or user of such firearm ranges for nuisance or trespass are null and void.

Following remand, Glendale and the Landolts entered a settlement agreement precluding further litigation over the injunction for a period of not less than 20 years.

After the 20-year period expired, Glendale again petitioned the circuit court to dissolve the permanent injunction pursuant to Section 537.294. The Landolts opposed the dissolution of the injunction and also argued that Section 537.294.2 was unconstitutional as it effectuated a taking of their property rights. Both parties moved for summary judgment. The circuit court sustained Glendale’s summary judgment motion and overruled the Landolts’ counter-motion for partial summary judgment. Thereby, the circuit court entered judgment in Glendale’s favor, setting aside the permanent injunction. The Landolts appealed, raising a constitutional challenge to the validity of Section 537.294.2.

Analysis: The Supreme Court started with a review of the law by noting that the overall guiding principle with respect to the modification of injunctions is: “the finality of judgments and will not casually allow a final judgment to be set aside.” This principle protects litigants from retrying identical cases and issues, ensuring uniformity of decisions, and promoting judicial economy. There must be an end of litigation in order to protect the dignity and respect for judicial determinations.

However, is a narrow exception to the above principle – set forth in Rule 74.06(b)(5), that allows a court to relieve a party from a final judgment when “it is no longer equitable that the judgment remain in force.” There are multiple relevant considerations that go into determining whether a court should grant a motion to modify a judgment. A court of equity cannot rely on a simple formula, like a change in law or facts, but must evaluate a number of potentially competing equitable considerations to determine whether to modify or vacate an injunction entered by consent or otherwise. There must also be a showing of inequity demonstrating the necessity of vacating or modifying a permanent injunction.

The Supreme Court concluded that the trial court erred in this case because it relied entirely on a change in state law that made gun ranges immune from any criminal and civil liability arising out of or as a consequence of noise or sound emission resulting from the use of any such firearm range, without considering the equities and the failure to demonstrate the change in statutory law rendered its continued enforcement inequitable.

Citing Normandy, a recent Supreme Court opinion, that addressed the standard for relieving a party from a final judgment imposing permanent injunctive relief, the Supreme Court noted that a multitude of factors go into weighing the equities. For example, in Normandy, the trial court decision failed to consider the impact it had on local government when faced with the question of whether or not local government in St. Louis County must comply immediately with state law based on its reversal of an earlier opinion that found the legislative act adopting Section 67.287.2 was a special law. Since the trial court in this case failed to consider the equities in  applying the law as set forth in Normandy, it erred.

Taking Issue – In a footnote the Court noted that the change of law asserted in this case, enactment of Section 537.294, is the same change of law asserted in earlier decision in this case, but there was no challenge to the constitutional validity of the statute in the earlier cases. Consequently, the taking issue was still a viable because if the circuit court found against the Landolts it could then  consider arguments that Section 537.294.2 effectuates an unconstitutional taking of their property rights.

The case was remanded, directing the trial court to proceed in accordance with the opinion. Glendale Shooting Club v. Landolt, (SC99701, 03/21/23)

Comment Howard: If you have to to modify a judgment this is clearly the leading case.

Waiver Of Right To Jury Trial

The constitutions of the United States and Missouri both guarantee a defendant in a criminal case the right to a jury trial. While a defendant may waive the right to a jury trial with the consent of the court, “such waiver by the defendant shall be made in open court and entered of record.” To satisfy this standard, the waiver “must be knowing, voluntary, and intelligent.”

In Hilbert, the defendant did not sign a waiver. In asking that the sentencing be set aside Hilbert argued that there no waiver that satisfied the “knowing, voluntary, and intelligent standard.” The Missouri Supreme Court held in this case that when viewed collectively, several other factors also establish Hilbert’s waiver was “knowing, voluntary, and intelligent”.

The Supreme Court noted that Hilbert was present for the jury selection process and the jury panel’s dismissal in his first trial setting. In other words, Hilbert possessed firsthand knowledge of when and how a jury would be selected. Given Hilbert’s participation in the previous jury selection process, he necessarily understood and acquiesced to his second trial setting being conducted without a jury particularly by his silence. Moreover, Hilbert’s mother’s statement provides some additional support for the notion that Hilbert knew of and discussed his right to a jury trial with his counsel. State of Missouri v. Hilbert, (SC99747, 03/21/23).

Big Business Wins CAFO Suit Since Cedar County Regulation Were Preempted

Facts and Procedure: In May 2016, Cedar County Commission (“Cedar County”) adopted a public health ordinance regulating CAFOs. It enacted this ordinance pursuant to Section 192.300, which authorized counties to enact public health ordinances, so long as those ordinances were not “in conflict with any rules or regulations authorized and made by the department of health and senior services … or by the department of social services.”

In May 2019, the General Assembly amended Section 192.300. This amendment reorganized and added multiple subsections to Section 192.300. Among the changes was the addition of Section 192.300.1(2), which prevented counties from enacting public health ordinances that “impose standards or requirements on an agricultural operation and its appurtenances … that are inconsistent with or more stringent than any provision of [Chapter 192] or Chapters 260, 640, 643, and 644, or any rule or regulation promulgated under such chapters.”

On August 13, 2019, two weeks before SB 391’s effective date, Appellant Cooper County Public Health Center (“Public Health Center”) enacted Public Health Center Regulation 2019-6 (“Regulation 6”), which imposed air and water quality standards on CAFOs within Cooper County. Six days later, Appellants filed the present action in the circuit court, seeking an injunction preventing the enforcement of Section 192.300.1(2) to the extent it would invalidate Regulation 6.

In May 2021, while this matter was still pending in the circuit court, the
General Assembly passed House Bill No. 271 (2021) (“HB 271”), which once again amended the language of Section 192.3001(2) by adding language  to prevent counties from enacting public health ordinances that “impose standards or requirements on an agricultural operation and its appurtenances … that are inconsistent with, in addition to, different from, or more stringent than any provision of [Chapter 192] or Chapters 260, 640, 643, or 644, or any rule or regulation promulgated under such Chapters.” § 192.300.1(2).

After the passage of HB 271, Cedar County filed its Third Amended Petition in the present action, seeking: (1) a declaration that HB 271’s amendments to Section 192.300 are unconstitutional; (2) a permanent injunction prohibiting the implementation and enforcement of HB 271’s amendments to Section 192.300; and (3) an award of Cedar County reasonable attorney fees and costs. The parties filed competing motions for summary judgment and, in December 2021, the circuit court sustained Respondents’ motion and entered judgment in Respondents’ favor. Cedar County appealed the circuit court’s judgment to the Missouri Supreme Court.

Analysis: Cedar County argued that amended 192.300 (1) conflicted with Article I, Section 35 of the Missouri Constitution (i.e., the “Right-to-Farm Amendment”); (2) does not apply to Cedar County or the Public Health Center’s ordinances because it contains no language evidencing a clear legislative intent to apply retroactively; and (3) does not preempt Regulation 6. Additionally, Appellants argued that HB 271 – which added the “in addition to, different from” language to Section 192.300.1(2) – is unconstitutional because it violated various provisions of Article III of the Missouri Constitution was rejected.  Cedar County v. Parson, (SC99488, 03/21/23).

Comment Howard: All of the above arguments were rejected out-of-hand. It was a total complete smackdown of local government efforts to protect its citizens from environmental degradation of   concentrated animal feeding operations not by the courts but by the unending g effort of the legislature to fix the laws against citizens who are trying to protect their property form environmental degradation caused by big farm business. The most interesting argument by Cedar County was that the change in law applied only prospectively not retroactively. Since injunctions also apply to future actions the court rejected this argument.  I was also interested in how the addition of the language to prohibit local laws that were “or different from” relevant state law would be applied. Seems pretty clear to me that the phrase “or different from” is total preemption of the field.

With the legislature in the pocket of big business and farm interests the efforts to protect the rights of citizens from the adverse effect of CAFO’s was a losing proposition. We also just saw a case where the legislature preempted the ability to deal with the impact of gun ranges and in the last session the total caving into the ability of local government to regulate home occupations. There has to be a way to elect legislators who are more moderate and will consider the concerns of those who are impacted by degradation of their property from nuisances. It is time to consider adopting a constitutional amendment to elect legislators using ranked choice voting which could be on the ballot in 2024 for voter consideration. See Ballotpedia.  This has bipartisan support. 

Juvenile Sentencing Requirement Applies Only Prospectively

In Henry v. State of Missouri, (WD84685,02/14/23), the Western District held that, provisions of Sections 565.020, and 565.033 and Section 558.047 cannot be applied retroactively to authorize constitutionally permissible sentencing for juvenile offenders who have already committed first-degree murder.

Open Water Meter Box Results In One Million Dollar Verdict

Jury delivered a One Million Dollar verdict for plaintiff, a tenant who was walking in the front yard and injured her left leg when she fell over a water meter that was left open by the water company. Smith v. Raytown Water Company, 2016-CV17885/Dec. 7, 2022.

Jury Returns 1.3 Million Dollar Verdict Against Bus Company For Delivering Student On the Wrong Side Of The Street

St. Louis jury awards 1.3-million-dollar verdict against bus company, whose substitute driver delivered student on the wrong side of the street, requiring the student to cross the intersection. The jury found that the intersection, where the student was hit, was not dangerous but the jury found the bus company negligent because its substitute driver was not familiar with the correct route.  Jackson v. First Student, 1922-CC11968/Dec.1,2022.