Federal Government And Social Media Content Moderation

The Supreme Court granted a request from the Biden administration to temporarily block a lower court’s order that limits the ability of government officials to communicate with social media companies about their content moderation policies. The Supreme Court will hear the case during the 2023-2024 term. A confederacy of individual plaintiffs and state attorney generals brought a suit alleging that the states and their residents have been harmed by the social media platform suppression or censorship of their speech due to government pressure on the social media companies. Scotusblog

Sunshine Law Violation, Request For Cost And Fees Is An Affirmative Defense

In a series of cases between Aaron Malin and the Cole County Prosecutor’s office the Western District considered whether the trial court waived fees and cost associated with providing records in response to a Sunshine request and the County moving forward was prohibited from requesting fees and cost for providing records related to the request.

Facts: In 2015, Malin made three separate Sunshine request upon the Cole County Prosecutor’s office and requested to be advised if there would be a fee associated with the search and copying of the records. The Prosecutor responded to the requests, in an (sometimes) untimely manner, stated the request was too burdensome, no search would be performed, and declined to confirm or deny the existence of the records. The Prosecutor never advised the records would be provided on a condition of the fees and associated costs being paid. Malin sought a court order and obtained a judgement in his favor. The judgment found the prosecutor knowingly violated the Sunshine law and ordered the prosecutor to produce all open records which included a) any correspondence or communication between Cole County Prosecutor and MUSTANG drug task force, b) any indictments handed down in Cole County between July 1, 2014, and present, limited to indictments for selling narcotics in public housing, c) any Sunshine Law requests received by Cole County including responses received between January 1, 2015, and present. Cole County was ordered to pay $12,100 civil penalty and ordered to pay attorney fees in the amount of $24,070.00. The original judgment did not condition that Malin pay the cost and fees associated with searching and producing the open records.

The Prosecutor paid the penalties and fees in this matter and provided some of the requested records to Malin but then advised that in order to provide or search for additional records the Prosecutor would need to hire an outside forensic company and the Prosecutor would require the defendant to pay the cost and fees associated with producing those records. Malin requested the trial court enforce its original order which did not require any costs or fees be paid and requested the documents be provided without the requirement that he pay the fees and cost associated with producing the records. The trial court in response declined to enforce the order in a manner that would waive the fees and associated cost now being requested. Malin appealed the trial court’s decision. The Western District found that the court original order did not mandate that Malin to pay the fees and cost associated with records requests. The Western District found the Prosecutor’s office waived its rights to collect cost and fees associated with the records requests. The Prosecutor first failed to assert this right in its initial response to Malin’s Sunshine request. The Prosecutor then failed to assert the right in the original lawsuit where it should have been raised as an affirmative defense. Malin v. Cole County, (WD85703, (09/19/2023)

Permit Application Must Identify All Parties With An Interest In The Land

Nexgen specializes in mining, extracting of industrial silica sand, and other materials. Nexgen sought a permit to operate a surface mining operation in Ste. Genevieve, Missouri. Following the submission of documents and a public hearing the Department of Natural Resources (DNR) issued a permit. When submitting the documents Nexgen did not list all the persons and did not have written consent of all the parties that had an interest in a parcel of land. The issuance of the permit was the challenged by Operation Sand (a local grassroots organization opposed to the mining operation) which alleged that Nexgen had not complied with the statutory requirements to list all persons with interest in the land to be mined. An administrative appeal was filed during which Nexgen amended the documents it submitted adding itself and several other interested parties. A contested case was heard by the administrative hearing commission which recommended the reversal of DNR decision. The Mining Commission subsequently revoked the permit that was issued. On appeal the Western District found the denial of the permit was required because Nexgen had failed to list multiple parties with an interest in the land and had failed to obtain written consent for the mining. Nexgen Silica v. Missouri Department of Natural Resources, (ED111424, 10/17/23)

Day Care Does Not Violate Home Owners Association Declaration Of Restrictions

In August of 2021, Rachel and Scott Zorn (Zorns) purchased a home within a neighborhood subject to the restrictive covenants enforced by the Willow Farm Pool Home Owners Association. Upon purchasing and moving into the home with their children the Zorns began to operate a daycare that provided childcare services during the day. A month after the Zorns purchased the home the HOA made a written demand that the Zorns discontinue the daytime child care services being conducted on the property. The HOA cited Section 2 of the Homes Association Restrictions which stated:

“None of the lots … shall be used or occupied for other than single family
residence purposes. Any residence erected or maintained on any of said
lots shall be designed for occupancy by a single family. No residence shall
be rented or leased for a rental or leasehold term of less than one year.
Short term rental or use of the residence as a Bed and Breakfast … and any
other use, rental or leasing of any residence for a period of less than one
year, is prohibited”

The Zorns requested a variance from the HOA. The Zorns continued to operate the day care after the request for a variance was denied and the HOA sought an injunction to stop the operation of the daycare. The trial court found in favor of the HOA and Zorns filed an appeal.

The Western District did extensive analysis of the case law on this issue. The Western District started by analyzing enforceability of restrictive covenants. The court found that case law disfavored restrictive covenants, that restrictive covenants are not open to judicial construction, and if there is substantial doubt in the meaning of a term doubt should be resolved in favor of the free use of the property.

The Western District then was unable to find any Missouri case law on this issue so it reviewed case law from other states. The key issue for the court was whether the language in the restrictive covenant was sufficient to prohibit business activity on the property. In reviewing cases from other states the court found cases where the restrictive covenants were enforced and cases where the covenants were not enforced. The common issue was that when the covenant was found not to be enforceable there existed no language prohibiting business activity but when the covenants used language that clearly prohibited business or limited business activity on the property that language was enforceable. The Western District made a clear distinction that language that established a property shall be used for single family purposes is not sufficient to restrict usage and the language will need to explicitly identify any limitations such as prohibiting the operation of a home business. The Western District reversed the trial courts ruling based on its finding that the restrictive covenant language was not sufficient to prohibit business activity. Willow Farm Pool And Homes Association v. Zorn, (WD85837, 10/10/23).

Indemnity Clause Cannot Shift Cost Associated An Employment Discrimination

Kansas City sought to shift the cost associated with an employment discrimination claim to Concentra who was a contractor performing work for the city.

Concentra performed drug and alcohol testing on City employees. Hazziez was an employee who worked for the City who upon request was unable to provide a urine sample. At the time that Hazziez was requested to provide a sample she was unable to provide a sample and became concerned she needed to seek medical attention for a bladder infection. She left the testing facility to seek medical assistance before providing the sample. The City upon being notified of the failure of Hazziez to provide a sample fired Hazziez. Hazziez sued the City, Concentra, and Concentra affiliated entities. Hazziez alleged her termination was retaliation and alleged discrimination based on sex, gender, race, and perceived or actual disability status. During the trial Concentra affiliated entities settled out of the case. Hazziez case against the City proceeded and the jury found in favor of Hazziez and awarded compensatory damages.

Prior to the trial the City filed a third party petition against Concentra for indemnification under the theory that the contract between the parties required Concentra to indemnify the city. The court engaged in an extensive discussion related to what terms in the contract between the City and Concentra were adopted in the contract. The court found that City’s contracting procedure created a process that when Concentra submitted a proposal that modified the terms of the original contract and the City accepted that proposal and the City did not object to the modification those terms became part of the contract, even though those modified terms were not included in the contract signed by the parties and were not included in the City’s original contract. (Do not ignore this contract issue if you are working on a contract!!!!)

The court affirmed the lower courts decision because it was clear the jury found the City liable for only the City’s conduct. The trial court found that Hazziez’s claims against the city were not based on Concentra’s actions but solely on the City’s own actions and there existed no indemnification obligation under these circumstances. During the discrimination trial the City requested and the jury was provided an instruction that specifically required the jury could only find the City liable for the City’s own conduct and not any conduct associated with the actions of Concentra. The Western District affirmed the lower courts decision because it was clear the jury found the City liable for only the City’s conduct. Kansas City v. Occupational Health Center Of The Southwest, (WD85602, 9/12/2023)

Injunction Of Missouri Law Preempting  Federal Gun Law  Remains In Place

Recently, the United States Supreme Court upheld a U. S. District Court decision in Missouri that ruled a Missouri law, which attempted to preempt federal laws gun laws was unconstitutional.  Justice Clarence Thomas was the only member of the court to side with Missouri. The law would have imposed a fine of $50,000 on an officer who knowingly enforces federal gun laws that don’t match up with state restrictions. See AoL article

Stay Of North Carolina Law Prohibiting Undercover Recording Or Video Is Denied

Stay of North Carolina law prohibiting undercover recording  or video is denied. See Amy Howe, Court will not hear PETA undercover recording case, 

Comment Howard:  You can bet the house on courts enjoining laws that prohibit free speech.

Hot Case

Homeless Advocacy Group Sues Over Changes In State Law

In 2022 the Missouri legislature adopted new laws regarding the non-permissive use of state property, parking areas, camping facilities, and shelters for homeless individuals. Those provisions were attached into a bill that was originally titled an act relating to “county financial statements” and stated the provisions sought to reduce the amount of financial information certain counties were required to publish. However, when the final bill was adopted with the provisions related to state property the bill’s title was changed to relating to “political subdivisions” and it repealed a significant number of state laws and enacted 50 new laws.

The Gathering Tree, an advocacy group serving homeless individuals sough declaratory relief and injunctive relief. The Gathering Tree argued that the bill violated the requirement of a single subject and clear title. The trial court sustained the state’s motion and concluded the bill was constitutionally valid.

The Missouri Supreme Court heard the appeal in this matter. The court reviewed to consider if HB1606 violates the single subject requirement, clear title requirement, or the original purpose requirement. Jonathan Byrd, et al., The Gathering Tree d/b/a Eden Village v. State of Missouri, et al. (SC100045) Listen to the oral argument: SC100045 MP3 file