September Newsletter (Issue 09-2017)

Distribution Of Funds From Commissioners Award In Condemnation Case Must Provide For Way To Resolve Distribution Amounts If Commissioners Award Is Thereafter Reduced Or Increased

Facts And Procedure: The Land Clearance For Redevelopment Authority of the City of St. Louis (LCRA), filed a petition seeking to condemn Parcel 17.  The trial court appointed commissioners to assess damages to Parcel 17 and awarded damages of $80,000 for the fee, plus $20,000 for homestead value.  Reverse Mortgage Solutions (RMS), moved to distribute the award requesting $98,106.16 of the award in payment towards its mortgage debt encumbering the property.

The trial court after assigning specific amounts to the two lienholders (Metropolitan St. Louis Sewer District and the City of St. Louis Collector of Revenue) distributed $924 and $145 to those parties, respectfully and $13,000 to RMS as mortgagor, as well as $20,000 to Mitchell (as one of the four owners who lived on the property) for a Homestead allowance and $2,000 to Mitchell’s attorney.  The trial court divided the remaining funds among the four co-owners, with a greater amount to Mitchell and lesser amounts equally to her three co-owners.  The trial court found that RMS and the owners of the fee had negotiated a settlement of the mortgage debt for $13,000.  RMS appealed the order of distribution to the Eastern District.

Opinion: In order for RMS to appeal the judgment, the trial court was required to determine the percentage of the award for each party, having an interest therein, and was entitled.  The judgment, under Section 523.053.2, was considered a final judgment for purposes of an appeal.  The Eastern District held that the judgment was not final because it offered no guidance, as required by the statute, in the event of a reduction in the Commissioners award.  The judgment left unanswered the distribution of funds should the reduction of the commissioners award exceed the question of how the funds would be distributed to the four co-owners or whether that would include separate distribution of the $20,000 for the Homestead allowance and the $2000 in attorneys fees.  The trial court did not assign an order of priority to any of the determinable interest, and as such, there was no way to resolve how the award would be distributed should it be reduced after a trial of exceptions.  Appeal dismissed because there was no final judgment.  Land Clearance For Redevelopment Authority Of The City Of St. Louis, v. Reverse Mortgage Solutions, Inc., et al., (ED105017, 08/29/17)

 Comment Howard: Normally the local government agency simply pays the award into court, thereby ending its responsibilities, although Section 523.053 .1 does allow the Plaintiff to file a motion for determination and distribution of the award.  If you’re representing the owner of the property being condemned, this case provides a roadmap as to how condemnation awards are to be distributed, when there are multiple interests and liens on the property.  I thought this case was very useful because it provided a rare appellate court glimpse into the details of the distribution process.

Disorderly Conduct Ordinance Not Unconstitutionally Vague Or Overlybroad Nor Did It Violate Free Speech

Facts And Procedure: O’Malley was charged in the Municipal Court of the City of Raymore (City) with disorderly conduct under the City’s Municipal Code: alleging that:

on September 13, 2014, she did then and there assemble or congregate with another or others for the purpose of causing, provoking, or engaging in any fight or brawl, to wit: did recruit and bring onto the scene a number of unknown male parties with the intention of “find[ing] some big guys to throw [Larry D. Wiseman and Warren O. Wiseman] out” of the building in which they were located.

O’Malley was found guilty in municipal court and thereafter filed an application for a trial de novo in the Cass County Circuit Court.  There, she filed a motion to dismiss on three grounds, claiming: (1) the information does not charge a crime; (2) the disorderly conduct ordinance under which she was charged was unconstitutionally vague; and (3) the disorderly conduct ordinance was overbroad and infringed upon the First Amendment right of freedom of expression.  City filed a response to O’Malley’s motion, arguing that the information was sufficient.

The circuit court received arguments on O’Malley’s motion to dismiss, where O’Malley argued that the matter should be dismissed because O’Malley was acting in defense of property when she was engaged in the conduct underlying the disorderly conduct charge; therefore, she was legally justified and could not be prosecuted.  In making this argument, O’Malley referred the circuit court to evidence and transcripts from the municipal court hearing.  The City argued that, because the matter was before the court as a trial de novo, the court was not permitted to consider any of the evidence relied upon by O’Malley.  City also disputed many of the underlying facts as alleged by O’Malley and argued that the court could not rule on O’Malley’s motion without first receiving evidence itself.  Despite City’s representation that the facts were in dispute, O’Malley argued that the court could rely on the evidence because the necessary facts were undisputed.  The court then asked to meet with the parties in chambers.

Following the in-chambers meeting, back in open court, the parties indicated they had reached an accord.  The City agreed to a one-year diversion of O’Malley’s case and, so long as there were no further similar incidents, City would dismiss the charge at the end of the one-year period.  But, on August 23, 2016, O’Malley reasserted her right to a jury trial on the charge.  Accordingly, the court set the matter for trial.

O’Malley again argued her motion to dismiss to the court, claiming that, taking all of City’s allegations as true, there was no crime because O’Malley was acting in defense of property.  City again countered that “[w]hether [the statute defining defense of property] applies in this case or not is going to be subject to this Court to decide after the evidence has been presented.” The parties again debated the underlying facts, prompting the court to ask if they had considered instructing the jury on defense of property.  O’Malley indicated that she had prepared an instruction to that point, and when asked if it approved, counsel for City stated: “Well, I’m going to wait till the evidence is in before I can determine whether or not it’s supported by the facts, and that’s what we have a trial for, Judge.”

Following the hearing, the court granted O’Malley’s motion to dismiss by docket entry without any indication as to its rationale.  City appealed to the Western District.

Opinion: O’Malley argued that the allegations in the petition do not charge a crime; therefore, the petition should have been dismissed.  In this case, the information tracked the ordinance verbatim, alleging that O’Malley engaged in disorderly conduct by assembling or congregating with another or others for the purpose of causing, provoking, or engaging in a fight or brawl.

The Western District concluded that when ruling on a motion to dismiss based on a claim that the charging document failed to charge an offense, the court should not examine evidence outside the four corners of the charging document itself.  The test of the sufficiency of information is whether or not it states the essential elements of the offense charged so that the defendant is adequately informed of the charge and the final disposition of the charge will constitute a bar to further prosecution for the same offense.  In this case the petition followed the ordinance thereby stating a claim.

O’Malley also argued that there was a valid justification defense under the facts of this case, in particular defense of property.  Section 563.04 1.1 provides that a person may use physical force upon another person when that person reasonably believed that the person is attempting to steal, damage property or there is an attempted commission of such a crime.  The Western District reasoned that O’Malley failed to understand that the concept of a trial de novo was a new prosecution and that the de novo court does not sit as an appellate court reviewing alleged irregularities in the lower court.  Nothing in the allegations of the ordinance violation suggested that there was an affirmative defense of protection of property; therefore, the petition was improperly struck.

With respect to the allegation that the ordinance was unconstitutionally vague, there is no universal rule that an ordinance, which prohibits assembling or congregating with another or others for the purpose of causing, provoking or engaging in a fight or brawl makes the ordinance unconstitutionally vague nor is the ordinance unconstitutionally overlybroad.  The City’s disorderly conduct ordinance, plainly prohibited conduct designed “to incite an immediate breach of peace” by prohibiting assembly for the purpose of causing, provoking, or encouraging a fight or brawl.  Accordingly, it criminalizes only conduct outside the protection of the First Amendment and, therefore, is not subject to an overbreadth analysis.  City of Raymore v. O’Malley, (WD80152, 08/29/17)

Comment Howard: Even though this case deals with basic fundamentals of Municipal Court prosecution, the opinion provides a readily available source to reign in a   runaway trial court judge who, in this case, clearly wanted to dispose of the case without having a jury trial.  Congratulations to the attorney for the City of Raymore for standing up to the trial court’s injudicious rulings.

Arbitration Clause Fails Because There Was No Mutuality

 Facts and Procedure: Van Alst and Shelton worked at a store operated by Rainbow in Kansas City from February 2013 until the termination of their employment in October 2014.  Van Alst and Shelton filed a lawsuit in the Circuit Court of Jackson County against Rainbow and Thomas, the District Manager.  Their petition alleged employment discrimination on the basis of race and age in violation of the Missouri Human Rights Act.  The petition also alleged violations of the Minimum Wage Law for failing to pay Van Alst and Shelton for all hours worked, and for failing to pay overtime compensation to which they were entitled.

The defendants moved to compel arbitration.  The motion was based on purported arbitration agreements which are entitled “Acknowledgement,” and which were included in Rainbow’s Employee Handbook.  Van Alst and Shelton separately signed the Acknowledgment electronically, which provided in full:

“I have read and understand the policies set forth in the Employee Handbook. I agree to abide by the policies of the Company as reflected in this Handbook, in the Operations Manual, and in other published memoranda.”

“MANDATORY ARBITRATION OF CLAIMS: I agree that any claim related to my employment, including wage and compensation claims, and including claims related to the termination of my employment, shall be resolved through arbitration as the exclusive forum, and I hereby waive any right to pursue such claim in court or in a trial by jury, either as a plaintiff or a collective class member.  Claims may be brought before the American Arbitration Association, the National Arbitration Forum, or JAMS/Endispute, at the election of the party bringing the claim.  Any appropriate remedies available under statutory law may be awarded in arbitration, and the decision of the arbitrator shall be final and binding on all parties.  I also understand that my employment is at will, and that either the Company or I may end my employment at any time and for any reason.  I agree that there is no right to participate in a representative capacity, or as a member of any class or collective group, in any claim brought to arbitration, and that there is no right or authority for any claims to be arbitrated on a class action or collection action basis, nor may claims be joined or consolidated in the arbitration unless the individual and the Company jointly agree in writing.”

Van Alst and Shelton responded to the motion to compel arbitration by arguing that the Acknowledgement was not a valid agreement to arbitrate because it lacked mutuality, and was not supported by adequate consideration.

The circuit court granted the defendants’ motion to compel arbitration on October 31, 2016.  Van Alst and Shelton filed a petition for a writ of mandamus or prohibition in the Western District, asking that the circuit court be ordered to rescind its order compelling arbitration, and to instead deny the motion.  The Western District issued a preliminary writ.

Opinion: Van Alst and Shelton argued that the Acknowledgment was not a valid agreement to arbitrate, because it is not supported by valid consideration.

 The parties agreed that continued at-will employment couldn’t constitute adequate consideration to sustain an arbitration agreement under Missouri law based on an earlier Missouri Supreme Court decision that rejected a provision compelling arbitration with respect to an at-will employee.  The defendants argued instead that the consideration for the Acknowledgment is the parties’ mutual agreement to arbitrate disputes, and their mutual waiver of the right to pursue claims through the court system.  The Western District notes: “Generally speaking, if a contract contains mutual promises, such that a legal duty or liability is imposed on each party as a promisor to the other party as a promise, the contract is a bilateral contract supported by sufficient consideration.”  While this is good law it does not apply in this case because the language of the Acknowledgment shows that there was no mutuality or consideration sufficient to support the agreement to arbitrate.

 Specifically, the Acknowledgment shown above uses the first-person singular pronoun “I” seven times; it does not use the first-person plural pronoun “we” even once.  As Van Alst and Shelton aptly note, “There is no ‘I’ in ‘mutual.’ ” The Acknowledgment ends by specifying that employees must “acknowledge their agreement” to the Acknowledgment; there is no suggestion that the employer must agree, or document its agreement in any particular fashion.  There was nothing in the Acknowledgment to show that the Defendants were bound by the agreement to arbitrate; therefore, the Acknowledgment did not contain mutually binding promises nor was it supported by adequate consideration.  State of Missouri ex rel. Shelton v. Harrell, (WD80421, 08/29/17).

 Comment Howard: The opinion discusses whether or not mandamus or prohibition is the proper remedy concluding that either remedy could be used to obtain the relief sought by the Relator’s.  If you are puzzled, like I am about which remedy to use, this case is well worth the read.  Seems like the court favored prohibition although either would work.  Also, if you have used arbitration clauses in your contracts you may want to review these in light of this case or in the earlier Kansas City Chiefs case.  I puzzled by holdings that allow private parties to take away rights given by the legislature.  I know, arbitration reduces litigation but in my mind and may be more appropriate when you’re dealing with the city manager who is under contract versus employment of other employees.

Westborough Baptist Church Redux                            

The Eighth Circuit Court of Appeals recently upheld a Nebraska law prohibiting protest activities within 500 feet from a cemetery, mortuary, church, or other place of worship during a funeral that also restricted the time for such protest activities from one hour prior to two hours following the commencement of a funeral.  This case closely follows the precedent and the reasoning in an earlier decision of the Eighth Circuit in 2011 upholding an ordinance of the City of Manchester, Missouri, which restricted such protest activities within 300 feet and one hour prior and one hour after the funeral service.  The Eighth Circuit concluded that the state statute was a reasonable time, place, and/or manner restriction that did not violate the rights of the protesters.  Phelps–Roper v. Rickets, (Fed 8th Cir., 16–1902, 08/11/17)

Comment Howard: You can find my Post about the Manchester case by clicking here. https://momunicipallaw.com/2012/10/28/westboro-baptist-church-loses-challenge-to-ordinance-prohibiting-picketing-of-funeral-service/

Admissibility Of Records To Prove Prior Convictions

Facts And Procedure: Pylypczuk was charged in the Circuit Court of Clay County, as a persistent offender, with driving while intoxicated in violation of § 577.010.  A persistent offender is “a person who has pleaded guilty to or has been found guilty of two or more intoxication-related offenses.” § 577.023.1(5)(a).  Generally, driving while intoxicated is a class B misdemeanor, but if a defendant is found to be a persistent offender, the offense is enhanced to a class D felony. §§ 577.010.2, 577.023.3.

At trial, the State offered into evidence Exhibit 2, which purported to be a record taken from the Missouri Uniform Law Enforcement System’s Driving While Intoxicated Tracking System (DWITS).  Exhibit 2 was neither certified nor accompanied by any kind of business record affidavit, and the State offered no witnesses to testify as to the exhibit’s origin or authenticity.  The only indication of the exhibit’s origin was the prosecutor’s representation to the court and web addresses on the face of the exhibit suggesting it was pulled by the prosecutor’s office from a Department of Public Safety webpage.

Pylypczuk argued that Exhibit 2 was inadmissible because it lacked authentication insofar as there was no witness testifying to its authenticity, it bore no signature or seal, and it did not appear to be either an original document or a copy of an original document.  The circuit court allowed the exhibit into evidence and found “beyond a reasonable doubt that [Pylypczuk] has two prior convictions.”

The jury found Pylypczuk guilty of driving while intoxicated.  The court then held a sentencing hearing on May 18, 2016, wherein Pylypczuk was sentenced under the class D felony range of punishment.  Pylypczuk appealed his conviction to the Western District on the grounds that the trial court erred in admitting Exhibit 2, because the evidence was not properly authenticated and therefore his offense was improperly classified as a class D felony.

Opinion: The State argues that § 577.023.16 eliminated the need for the State to authenticate the document prior to admission.  Documents may be authenticated by direct proof (either by testimony or attesting witness); by proof that the signature on a document is in the handwriting of the purported author; and compliance with the terms of applicable statute, which illuminates the inconvenience and expense of live but generally uncontested foundation testimony.  If a statute is intended to eliminate foundational testimony for the admission of a document the statute usually includes a statement reflecting this intent by a statement like the phrase “shall be admissible as evidence in all courts of the state” or other similar language.

Section 577.023.16 states, in part:

Evidence of a prior conviction . . . shall include but not be limited to evidence received by a search of the records of the Missouri uniform law enforcement system, including criminal history records from the central repository or records from the driving while intoxicated tracking system (DWITS) maintained by the Missouri [S]tate [H]ighway [P]atrol, or the certified driving record maintained by the Missouri [D]epartment of [R]evenue [(DOR)].

The court noted that nothing in § 577.023.16 states that records identified in the statute “shall be admissible.”  Instead the statute fails to address admissibility in any way while identifying specific evidence “sufficient to prove [the defendant’s] prior convictions.”

The Western District reason that the language in § 577.023.16 suggests that the legislative intent behind was to clarify that compilations, such as DWITS records maintained by the Missouri State Highway Patrol and driving records maintained by the DOR, can be used as evidence of prior convictions thus eliminating the need for prosecutors to obtain a record of each individual conviction from various courts. “Eliminating foundational requirements is not necessary to accomplish this purpose and thus should not be read into the statute absent language addressing admissibility.” State Of Missouri v. Pylypczuk, (WD79819, 08/15/17)

 Comment Howard: This is a great primer for authentication of records.

City Attorney Entitled To Qualified Immunity In Free Speech Retaliation Case Involving Enforcement Of City Code

Facts And Procedure: Scott was the lessor and operator of the Villa Motel, a two-building motel located in Beatrice, Nebraska.  During his tenure, Scott engaged in a long-running dispute with the City and Tempelmeyer, the City Attorney, regarding the Motel’s failure to pay lodging taxes.  Tempelmeyer warned Scott and Schulz by letter that if they did not remit the unpaid lodging taxes by January 8, 2010, the City would take legal action to collect the taxes or prosecute them for zoning violations.

In November 2010, Tempelmeyer received photographs of the Motel’s interior and basement from the lessee of an adjacent commercial building.  After reviewing the photographs, Tempelmeyer directed Dennis Mitchell, the chief building inspector for the City, to inspect the property for safety issues with Sean Lindgren, the deputy state fire marshal.  Mitchell obtained a search warrant from a local judge and inspected the Motel with Lindgren and another city employee.

Lindgren noted several fire code violations and safety hazards; he concluded that the Motel was unfit for occupancy.  Lindgren ordered that the Motel correct the deficiencies, or submit and secure approval of a plan of correction, before the Motel could be reoccupied.  After the inspection, city building inspector Mitchell sent Scott and Schulz a letter at Tempelmeyer’s direction, identifying the “fire and life safety issues” found during the inspection.

Meanwhile, Mitchell told Tempelmeyer that he did not think the issues were life-threatening or that the Motel should be condemned—i.e., adjudged unfit for occupancy. According to Mitchell, he had never been ordered to condemn a property after he concluded that it did not present life-threatening issues.  Tempelmeyer nonetheless told Mitchell to condemn the Motel.  The City Code of Beatrice incorporates the International Property Maintenance Code, which provides that an official may give notice of condemnation if he “determines” or “has grounds to believe” that a violation has occurred.

Scott sued the City of Beatrice, Mayor Schuster, and the City Attorney, Tempelmeyer under § 1983, claiming that the inspection and condemnation were conducted in retaliation for his disputing whether a certain tax was applicable to his business, in violation of the First Amendment.  The district court granted summary judgment for the City and Mayor Schuster.  The district court denied Tempelmeyer’s motion on the First Amendment retaliation claim because there was evidence that Tempelmeyer retaliated against Scott for exercising his First Amendment rights by ordering an inspection and condemnation.  Tempelmeyer appealed to the Eighth Circuit.

Opinion: Scott argued that Tempelmeyer, the City Attorney, ordered Mitchell, the code inspector, to inspect the Villa Motel in retaliation for disputing the tax claim between the City and the Motel, thereby interfering with Scott’s exercise of his First Amendment right of free speech.

Generally, the First Amendment prohibits government officials from retaliating against a citizen for exercising his or her right of free speech.  In order to establish a First Amendment retaliation claim, a plaintiff must show that he engaged in a protected activity; that the defendant’s actions caused an injury to the plaintiffs that would chill a person of ordinary firmness from continuing to engage in the activity; and that a causal connection exists between the retaliatory animus and the injury.

The Eighth Circuit held, in Osborne, an earlier case, that a plaintiff may prove the causal connection by showing that Plaintiff had been singled out for prosecution, while others similarly situated have not been prosecuted and that the government’s discriminatory selection for prosecution was based upon the exercise of the First Amendment right to free speech.  The Eighth Circuit differentiated between factual situations where the government agent, harboring the amicus, is also the individual allegedly taking the adverse action compared to situations where the person with the alleged retaliatory amicus induces someone else to bring the charges against the plaintiff.  In situations where the person harboring the retaliatory amicus induces someone else to bring the charges, there is a requirement that the casual connection between the amicus of one person and action of another is provided by the absence of probable cause for prosecution.

In this case, Scott could not show a clearly established right to be free from regulatory enforcement when the action is otherwise supported by probable cause.  There was no First Amendment right to be free from regulatory enforcement when the action taken was supported by probable cause.  Scott v. Tempelmeyer, (8th Cir., 16–2404, 08/16/17).

Comment Howard: Finally one for city attorneys. 

No Qualified Immunity If Facts Are In Dispute

Facts and Procedure:  Kansas City police officers Megan Gates and Kevin Colhour responded to a call from the police dispatch requesting service relating to a disturbance at Waylen Wealots’ residence.  When the officers arrived at Waylen’s residence, the residents suggested the caller was probably one of the Lees, their neighbors up the block.  Officers Gates and Colhour got into their patrol car and drove around the corner to the Levi Lee’s residence, which was approximately 300 feet away from the Wealot residence.

Meanwhile, Levi Lee, driving a gold minivan carrying a group of people, pulled up near Waylen’s residence, stopping at the intersection of 11th and Myrtle.  Levi and Holmes, Fred’s ex-girlfriend, exited the minivan and began shouting at Waylen, Fred, and Rosewicz, who again were standing outside of Waylen’s house.  Levi got back inside the minivan and drove it toward Rosewicz, jumping the curb.  Waylen went inside his house to get a gun.  When Waylen came back outside, he fired multiple shots in the direction of the minivan before taking off running toward his backyard.  Waylen threw his gun along the west side of his house as he ran.

The officers were talking with a neighbor of 1022 Myrtle when they heard gunshots and observed Waylen fire two or three rounds at the gold minivan.  With her firearm drawn, Officer Gates began to pursue Waylen on foot, crossing Myrtle Street to cut through the empty lot on the corner, directly west of Waylen’s house.  Running ahead of Officer Colhour, who was following behind, Officer Gates cut through the empty lot to catch Waylen as he ran north along the west side of his house toward the backyard.  Officer Gates was about four to six feet behind Waylen when, as Waylen turned, she began to shoot.  Officer Gates shot Waylen eight times, continuing to shoot as Waylen collapsed to the ground.  Officer Gates stood only three to four feet away from Waylen’s body as she fired her last shot.  Officer Colhour, standing a few feet behind Gates, shot twice. Waylen’s gun was recovered five to seven feet away from his body.  The chase and shooting took place in 10 seconds.

Anna Wealot (Wealot), mother and heir of Waylen, brought a 1983 action alleging excessive force in violation of the Fourth Amendment and wrongful death under state law.  The defendants moved for summary judgment.  The district court held the officers were entitled to qualified immunity and summary judgment because “no rational jury could find the officers’ actions unreasonable based on the “rapidly-evolving circumstances with which [the officers] were presented.”  Plaintiff appealed to the Eighth Circuit.

Opinion: The Court, initially raised on its own the status of claims that can lie against the officers because they were not sued in their individual capacity. Because the Plaintiff only sued the officers in their official capacity prior Eighth Circuit opinions limited the claims against the officers to their official capacity.  The Eighth Circuit remanded to the trial court leaving it to determine if the Plaintiff should be allowed to amend its petition by suing the officers individually.  Therefore, review of this case was limited to questions involving the actions of the officers in their official capacity.

The focus of the opinion was on whether or not the officer saw Waylan throw his gun away before he was shot, making him unarmed, and whether Waylan was turning around to surrender.  According to other accounts, by third party witnesses at the scene, Waylan was unarmed at the time of the shooting and was trying to surrender.  The Eighth Circuit determined that there was a genuine factual dispute as to whether the officers could have seen or actually saw Waylan throw down his gun as they pursued him and whether his hands were up in the air as he turned to face the officers. Consequently this case was remanded to the district court for further proceedings.

The Court dismissed the state claims because the doctrine of official immunity protects public employees from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary act.  This is particularly true in this case because the chase of a person who had displayed and shot his firearm occurred in 10 seconds.  This required judgment by the officers and was therefore a discretionary act, not a ministerial act.  Wealot v. Kansas City Board of Police Commissioners, (Fed 8th Cir., 16-1192, 08/04/17).  

Comment Howard: There is an extensive discussion in FN #4 concerning the opinion of the Eighth Circuit on the effect of not suing officials in their individual capacity. Eighth Circuit precedent has held that complaints, which do not allege that officials were acting in their individual capacity, are limited to questions as to whether or not they were acting in their official capacity.  This is one of the longest footnotes I have ever read and well worth the read if a petition fails to allege that the officials were acting in their individual capacity.  The opinion in this case is particularly difficult for the officers considering that they were acting in a very challenging situation in good faith during a timeframe that was 10 seconds.  A recent United States Supreme Court decision predicates qualified immunity on the basis of what the officer knew at the time.  I cannot imagine the amount of information the officers were processing, the reaction time and the stress that they were undergoing during this 10-second interval.

Annotated Model Panhandling Ordinance

The September–October 2017 issue of Municipal Lawyer has an article describing in detail an annotated model panhandling ordinance, which can be reviewed by clicking here.  Judith Wegner, Burton Craige Professor of Law Emerita, and Dean Emerita, University of North Carolina School of Law, Chapel Hill, North Carolina wrote this article.  If you are dealing with panhandling or a similar issue this would be the go to place.  Thank you and congratulations to the authors of this excellent article.

http://files.constantcontact.com/96235a6b201/38558013-afb2-4d1c-a011-eebcb7fe5782.pdf

Eighth Circuit Upholds Minnesota Law Prohibiting Robocalls

It is hard to find anything more despised than robocalls.  Recently the Eighth Circuit in Gresham v. Swanson upheld a Minnesota law prohibiting robocalls against a free speech challenge.  Of course, there is no possibility that the Missouri legislature would ever adopt such a law.  Seems to me like a constitutional amendment prohibiting robocalls identical to the Minnesota statute would easily pass.  My guess is that 80% of the voters would favor the Amendment.  Gresham v. Swanson, (Fed 8th Cir, 16-3219, 08/02/17)