Southern District Examines Which Work Is Privileged

On July 19, 2018, 17 peorprosecution.

The defendants sought the disclosure of all the State’s communications “that relate to the commencement, filing, or prosecution of the charges filed by the Attorney General (AG), which included communications between the Attorney General and the Governor of Missouri.

The Attorney General’s office filed a suggestion in opposition on the grounds that the material was (1) protected by the work-product doctrine, and (2) not subject to disclosure under Rule 25.03(a) or Brady.  The AG disclosed one relevant communication which was the letter from the Governor directing the AG to assist the county prosecutor.

The trial court granted the Defendant’s motion to compel the disclosures, which was appealed by AG’s office.

The Southern District Court of Appeals noted that under Rule 25.10 the following matters shall not be subject to disclosure:

(a) Legal research, or records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of counsel for the state or members of the state’s legal or investigative staff, or of defendant, defense counsel, or members of defendant’s legal or investigative staff

Citing State ex rel. Becker v. Wood, 611 S.W.3d 510 (Mo. banc 2020), the Southern District noted that the Missouri Supreme Court recently held that the “prosecuting attorney’s rationale for seeking a particular punishment based upon the facts of a specific case are necessarily mental impressions and conclusions and are, therefore, intangible work product.” The Court also held that, as intangible work product, the prosecutor’s rationale is privileged, and the State would suffer irreparable harm if compelled to disclose. The Southern district held that similar to the rationale for seeking a particular punishment, the internal communications between the AG, the Prosecutor, and the Governor, “that relate to the commencement, filing, or prosecution of the charges” are necessarily privileged mental impressions and conclusions, and the State would suffer irreparable harm if compelled to disclose.  Bailey v. Johnnie Cox, (SD37749, 4/23/2024).

Social Media And Public Officials

In 2008 James Freed created a private Facebook account. He allowed his account to be a public “page,” meaning that anyone could see and comment on his posts.

In 2014, Freed updated his account to reflect that he was appointed city manager of Port Huron, Michigan.  His description provided that he was “Daddy to Lucy, Husband to Jessie, and the City Manager Chief Administrative Officer for the citizens of Port Huron, MI.”  Freed posted both information about his personal life and posted information related to his job.  At times he communicated with other city officials on his account and solicited feedback from the public on issues of concern.  Freed would delete comments that he considered “derogatory” or “stupid.”  During COVID, Kevin Lindke commented of Freed’s posts and expressed his feeling about the city’s approach toward COVID.  Freed deleted Lindke’s posts and then subsequently blocked Lindke. 

Lindke sued Freed under § 1983, alleging that Freed had violated his First Amendment rights. As Lindke saw it, he had the right to comment on Freed’s Facebook page because it was a public forum. The District Court determined that because Freed managed his Facebook page in his private capacity, and because only state action can give rise to liability under § 1983, Lindke’s claim failed.

The U.S. Supreme Court held a public official who prevents someone from commenting on the official’s social-media page engages in state action under § 1983 only if the official both (1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.

Section 1983’s “under color of” text makes clear that it is a provision designed as a protection against acts attributable to a State, not those of a private person. In the run of-the-mill case, state action is easy to spot. Courts do not ordinarily pause to consider whether § 1983 applies to the actions of police officers, public schools, or prison officials but sometimes the line between private conduct and state action is difficult to draw.

The court found this type of case requires analyzing whether a state official engaged in state action or functioned as a private citizen. Freed’s status as a state employee is not determinative. The distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights, including the First Amendment right to speak about their jobs and exercise editorial control over speech and speakers on their personal platforms.

The court found that Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights but instead, he exercised his own.  A public official’s social-media activity constitutes state action under § 1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first. (1) The test’s first prong is grounded in the bedrock requirement that “the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.” Lindke’s argument before the court which focuses on appearance skips over this critical first step. Unless Freed was “possessed of state authority” to post city updates and register citizen concerns, his conduct is not attributable to the State.

The threshold inquiry to establish state action is not whether making official announcements could fit within a job description but whether making such announcements is actually part of the job that the State entrusted the official to do. For social-media activity to constitute state action, an official must not only have state authority, he must also purport to use it.  If the official does not speak in furtherance of his official responsibilities, he speaks with his own voice. Here, if Freed’s account had carried a label, “this is the personal page of James R. Freed”, he would be entitled to a heavy presumption that all of his posts were personal, but Freed’s page was not designated either “personal” or “official.” The ambiguity surrounding Freed’s page requires a fact-specific undertaking in which posts content and function are the most important considerations. A post that expressly invokes state authority to make an announcement not available elsewhere is official, while a post that merely repeats or shares otherwise available information is more likely personal. Lest any official lose the right to speak about public affairs in his personal capacity, the plaintiff must show that the official purports to exercise state authority in specific posts. The nature of the social media technology matters to this analysis. For example, because Facebook’s blocking tool operates on a page-wide basis, a court would have to consider whether Freed had engaged in state action with respect to any post on which Lindke wished to comment.  The matter was vacated and remanded.  Lindke v. Freed, (SCOTUS 22-611, 10/31/2023); O’Connor-Ratcliff v. Garnier, (SCOTUS 22-324, 10/31/2023)

Firefighter Requirements

Plaintiff Catherine Erdman applied to work as a firefighter for the city of Madison, Wisconsin. She was eliminated from the fire department’s 2014 recruitment class after failing to achieve a minimum qualifying score in the final event of the department’s Physical Abilities Test (which we call “the Madison test”). Erdman filed this civil action against the city claiming that the Madison test has a disparate impact on women in violation of Title VII. After a bench trial, the district court found that Erdman had failed to prove her claim that the department’s physical abilities test violated Title VII. The district court found that Erdman had shown the Madison test had a prima facie disparate impact on women. The court also found, however, that the Madison test was job related and served the city’s legitimate needs. The court also found that Erdman had failed to prove that her proposed alternative hiring practice would serve the city’s legitimate needs. The use of the Madison physical abilities test to disqualify Erdman thus did not violate Title VII. Erdman v. City of Madison (7^th Circuit 22-2433, 01/22/2024)

Gaming Raffle Machines Declaratory Judgment

Tritium is a distributor of gaming raffle machines.  It provided raffle machines to the Fraternal Order of Eagles Club located in Linn County Missouri, which is a charitable organization.  On September 12, 2019, the Brookfield Police Department removed six machines from the Eagles Club.  The Linn County Prosecuting Attorney, Shiante McMahon, filed a criminal complaint alleging that Tritium violated Missouri law by promoting gambling. Tritium requested a preliminary injunction which was subsequently denied.  In 2023, a new prosecutor was elected in Linn County and the criminal case was subsequently dismissed.  The Tritium’s machines were returned.  In the pending civil case Tritium requested a declaratory judgment and requested replevin.

Declaratory Judgment   

Tritium declaratory judgment had two requests from the court.  First, Tritium requested the court declare that 1) the machines fall within the scope of Article III, Section 39(f) of the Missouri Constitution; 2) the use is not prohibited under Chapter 572 RSMo; and 3) it is not prohibited by the law of Missouri that a portion of the revenue from the charitable organization go to Tritium for the use, care and maintenance of the machines.  Second, Tritium requested a permanent injunction enjoining Linn County Prosecuting Attorney from taking any adverse action against any religious or charitable organization which is using the machines and enjoin the prosecuting attorney from claiming the machine is an illegal gambling device when it is used by religious or charitable organizations. 

Under Missouri law 527.020 RSMo provides that a declaratory judgment providing guidance to the parties declaring their rights and obligation or otherwise governing their relationship may be granted when a court is presented with (1) a justiciable controversy that present a real substantial, presently existing controversy admitting of specific relief, as distinguished from an advisory decree upon a purely hypothetical situation (2) a plaintiff with a legally protectable interest at stake, constating of a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief; (3) a controversy ripe for judicial determination; and (4) an inadequate remedy at law.

The court found multiple issues related to the request being sought by Tritium.  First, the court found that Tritium is not a named beneficiary of the constitutional protection afforded in Article III, Section 39(f).  Tritium is seeking the benefit of a constitutional protection that might exist for the Eagles Club, but the Eagles Club is not a party in the action.  Tritium, a for-profit corporation, is not an express beneficiary of the constitutional protections, a justiciable controversy wherein Tritium has a legally protectable interest does not exist.  Additionally, Tritium did not challenge the validity of any statute or constitutional provision. The Court was unable to find a Missouri case that indicates a declaratory judgment action is proper when the statute or constitutional provision is not being directly challenged as invalid, vague, or unconstitutional.  Tritium was instead seeking constitutional protection under the existing law.  The court found that Tritium had an adequate remedy at law in the criminal proceedings to raise whether it had constitutional protection.  Since Tritium was unable to prove the critical elements existed to obtain a declaratory judgment the court would not grant the declaratory judgment.

Replevin

Replevin is a procedure where seized goods may be restored to their owner pending the outcome of an action to determine the rights of the parties concerned.   Replevin is only available if the property has not been seized pursuant to a legal process and the party a right to immediate possession. The court found it could not grant the replevin request because under the facts presented the Linn County Prosecuting Attorney never had actual possession of the machines.  The City of Brookfield police department took possession of the machines as possible evidence in a criminal investigation, which is a legal process.   The Prosecuting attorney then filed criminal charges against Tritium based on the machines, which made them evidence in the alleged crime.  Additionally, the action is moot because after the matter was dismissed the machines were returned to Tritium.  Tritium International v Linn County, (19LI-CC00033 3/33/2024)

Odor Ordinance

South Saint Paul was the regional center of the livestock and meatpacking trade.  It was located in an Industrial zoning district along the Mississippi River.  Over time there was a significant decline in the meat packing industry and many businesses closed, which left numerous properties vacant and in disrepair.  The City formulated a redevelopment plan that stimulated economic growth in the area.  The redevelopment resulted in the establishment of light industrial jobs and offices opening in the area, however the new development and the remaining old industrial businesses were not entirely compatible.  During the redevelopment process the City adopted the 2030 Comprehensive Plan setting forth future land use policies.  The Comprehensive Plan identified that there was an ongoing issue with nuisance odors from older remaining industrial plants that was impairing development.

Sanimax was an older remaining industrial plant that processes animal carcasses and organic byproducts.  Sanimax’s manufacturing processes emit pungent, foul odors that drift beyond the property lines.  Sanimax had invested in odor mitigation technology but there continued to be complaints about the smell the facility was producing. 

The City enacted an ordinance regulating odor pollution in 2014.

• “Create odors or smells which are offensive or obnoxious to another person within the City”; (2) “Create a detrimental effect on the property of another person in the City”; or (3) “Unreasonably interfere with the enjoyment of life, health, safety, peace, comfort, or property of another person in the City.”

The Ordinance also empowered the City Engineer, pursuant to the results of the odor testing, to designate a property as a “Significant Odor Generator” and require it to develop an odor management plan in consultation with the City detailing proposed operational changes, technologies, and monitoring efforts intended to mitigate future emissions.

In 2019 the city adjusted the zoning in the area in and around Sanimax property.  The 2019 Zoning Ordinance rendered Sanimax’s business a legal nonconforming use, pursuant to which Sanimax could continue to operate but could not expand its business.

Due to ongoing issues with nuisance odors the City opted to adopt additional regulations which would be more punitive for businesses that declined to work with the city on mitigating the odor nuisances.  After adopting the changes, the City received numerous complaints regarding “burnt, dead, rotting” odors emanating from Sanimax’s property. Sanimax received 20 administrative citations for violating the nuisance ordinance and accrued $35,000 in fines.

Sanimax filed an action under 42 U.S.C. § 1983, alleging that the City retaliated against Sanimax for engaging in conduct protected by the First Amendment. It alleged the 2019 Zoning Ordinance violated the Equal Protection Clause of the Fourteenth Amendment by excluding similarly situated businesses.  Sanimax then filed a second § 1983 action against the City alleging that the 2020 Odor Ordinance was unconstitutionally vague, in violation of the Due Process Clause of the Fourteenth Amendment. It also alleged a First Amendment retaliation claim based on the same protected conduct raised in the first action.

First Amendment Violation

The First Amendment prohibits government officials from subjecting an individual to retaliatory actions’ for engaging in protected speech. To prevail, Sanimax must show that: (1) it engaged in a protected activity, (2) the City took adverse action against it that would chill a person of ordinary firmness from continuing in the activity, and (3) the adverse action was motivated at least in part by the exercise of the protected activity.

At issue in this matter is the third element.  Sanimax would need to show that an official acted with a retaliatory motive and the motive caused the injury. Sanimax “must show the protected activity was a ‘“but-for cause” of the adverse action,’” in that it “would not have been taken absent a retaliatory motive.

The court found that the record demonstrated that Sanimax’s unremitting odor problem, rather than its protected First Amendment conduct, served as the impetus for the 2020 Odor Ordinance. The multitude of odor complaints lodged with the City regarding Sanimax’s facility, in which residents vividly described “eye-watering,” “putrid” odors that reeked of “death” and smelled like “manure” and “burning flesh,” further reflected the public’s discontent. Some residents complained of headaches and remarked that the presence of odors prevented them from relaxing in their yards or opening the windows to their homes. Others pleaded with the City to “stop the madness,” with some questioning their continued residence in South Saint Paul. Moreover, a nearby business remarked that Sanimax’s odors were “impacting the ability of several employees to perform their job functions.”

An additional factual issue addressed by the court was that to support the First Amendment claim Sanimax had submitted emails from city officials it purported showed that the city’s action harbored retaliatory animus when it adopted the 2019 Zoning Ordinance.  However, the court found that those comments made by city officials do not show that the legislative collective body acted with retaliatory intent when the city council voted to enact the 2019 Zoning Ordinance.  Sanimax had the burden to show that the City Council acted with retaliatory intent.  The court found the evidence insufficient to overcome the rigorous but-for causation standard.

Equal Protection

Under an equal protection claim the Court’s only ascertain whether there has been a transgression upon the property owner’s constitutional rights.  Sanimax must provide a specific and detailed account of the nature of the preferred treatment of the favored class.  The persons alleged to have been treated more favorably must be identical or directly comparable to the plaintiff in all material respects.  Sanimax argued that it was being treated differently than similarly situated businesses which were not included in the 2019 Zoning Ordinance.  The court found that Sanimax was not similarly situated given the disproportionate number of verified odor complaints attributed to Sanimax. Sanimax generated 79 complaints in 6 years while the other businesses together generated only 7 complaints. 

Unconstitutionally Vague

Under the void-for-vagueness doctrine, the regulated parties should know what is required of them so they may act; accordingly, and precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. The statute must pass a two-part test: provide adequate notice of the proscribed conduct and not lend itself to arbitrary enforcement.

The ordinance deemed unlawful the emission of “odors or smells which are offensive or obnoxious to another person within the City”.  The language used tracked with traditional language used for public nuisances and was sufficient to put Sanimax on notice.  In addition, Sanimax received warning letters notifying it of the violation and provided instructions on what was needed to bring the property into compliance to avoid administrative citations. These extra-statutory communications were also sufficient to provide Sanimax “fair warning” that it was emitting odors in violation of the ordinance.

Arbitrary Enforcement

Sanimax argued that the enforcement actions taken was arbitrary and it contended that three administrative citations were issued without adhering to the verification process. The court disagreed and found the city promulgated operating procedures which provided explicit standards to apply the law to prevent arbitrary enforcement or discriminatory enforcement.  The operating procedures included conducting additional monitoring upwind and downwind at each of the five potential odor generators when the odor was not detected near the complaint location.  Sanimax argued that there existed a two-track enforcement system and that created a discretionary mechanism for enforcement that proscribed different penalties for the same crime.  The court held that providing multiple tracks for enforcement to remedy violations does not violate the requirements of due process.  Sanimax v. City of South St. Paul, (8^th Circuit 23-1579, 3/01/2024)

Kansas City Prevails On Fiscal Note Summary Which Was Not Fair Or Accurate Summary Of Fiscal Note

The Missouri Supreme Court wrote an incredibly detailed decision and conducted a lengthy examination of the legal issues before it in Lucas v. Ashcroft.  It is easy to forget that even simple cases can be a battle of inches over the legal minutiae.  I would advise reviewing it if you have an election related issue.   

Kansas City does not have direct control over its police department.  Instead, Kansas City police department is managed by the Board of Police Commissioners, which is a state agency.  Kansas City is required to fund that police department agency by state statute and the mandatory funding since 1958 was capped at 20 percent of the city budget (the city has a history of providing funding that would exceed the cap). On November 8, 2022, Amendment 4 was passed by Missouri voters.  Amendment 4 was an amendment to the Missouri constitution that was proposed by the state legislature because it was unhappy with how Kansas City was allocating funding.  The amendment would alter the amount Kansas City is required to fund its police department from 20 percent of the City’s general revenue to 25 percent. After the amendment passed Mayor Quinton Lucas brought an election contest before the Missouri Supreme Court and sought new elections.

In its decision the court examined the obligations of the state auditor in preparing the fiscal note and the fiscal note summary. The purpose of a fiscal note is to assess the fiscal impact of a ballot proposition, including any governmental cost or savings. The auditor shall assess the fiscal impact of the proposed measure; providing the fiscal note shall state the measure’s estimated cost or savings, if any, to state or local governmental entities. In fulfilling this duty, the auditor “may consult with the state departments, local government entities, the general assembly and others with knowledge pertinent to the cost of the proposal. When the fiscal note is finished, the auditor is then to prepare a brief summary that adequately and without bias, prejudice, or favoritism synopsizes the fiscal note. Brown v. Carnahan, 370 S.W.3d 637, 654 (Mo. banc 2012).

In this case the auditor contacted various state and local governmental entities to gather information regarding its fiscal impact. The City was one of the governmental entities contacted, and it responded that the Amendment would have a “negative fiscal impact” on the City. The City provided that it would increase the City’s maximum funding obligation from 20 percent of its general revenue to 25 percent every year and it estimated the added expenses would be $38,743,646 per year.  The auditor’s fiscal note included that the city anticipated an additional $38,743,464 but the summary which appeared on the ballot stated that “state and local entities estimate no additional costs or savings related to this proposal.”  The court found this to be an inaccurate and misleading summary.  Had the fiscal note included information that the auditor rejected or did not agree with Kansas City’s fiscal outlook then the summary could have been accurate or not misleading.  However, the auditor did not provide in the fiscal note a rejection or rebuttal of Kansas City’s financial impact.  Quinton Lucas v. John Ashcroft, (SC99931, 4/30/24)