Twenty-Four Hour Waiting Period Before Abortion is Not Unconstitutional for Vagueness
W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
Section 188.039, RSMo, contains an informed consent requirement, including a 24-hour waiting period before elective abortions may be performed in Missouri. Planned Parenthood filed suit alleging that the statute was unconstitutional under the Missouri Constitution for vagueness. The statute also contains a criminal penalty by providing that any person who knowingly performs an abortion without complying with the waiting period is guilty of a misdemeanor. The Circuit Court granted summary judgment against Planned Parenthood and the Supreme Court of Missouri affirmed in
Reproductive Health Services v. Nixon, No. SC 86768 (Mo. banc 2006).
Statutes are presumed to be constitutional; the burden to prove a statute unconstitutional rests upon the party bringing the challenge. If a constitutional provision can be interpreted in two ways, one constitutional and the other not, the constitutional construction shall be adopted. A statute is unconstitutionally vague if it does not give a person of ordinary intelligence sufficient warning as to the prohibited behavior. The vagueness doctrine is designed to help protect against arbitrary and discriminatory application of laws. If the terms or words used in the statute are of common usage and are understandable by persons of ordinary intelligence, they satisfy the constitutional requirements as to definiteness and certainty.
The statute requires that, 24 hours prior to any abortion, the physician must discuss with the patient, and document the indicators and contra-indicators, and risk factors including physical, psychological or situational factors, for the proposed procedure. This imposes no duty regarding the extent of consultation between a physician and a patient seeking an abortion that is additional to the common law duty to obtain informed consent – a duty that has been recognized under law for almost 100 years. The statute is not vague because, aside from the 24-hour waiting requirement, it places no further duty upon Missouri physicians than was already imposed at common law. The statute merely codifies the physician’s duty to obtain informed consent from a patient prior to an abortion and creates liability if the physician knowingly fails to fulfill that duty. There is no meaningful difference between the requirements of the statute and the traditional duty of a physician to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the medical profession. The Supreme Court of the United States has held that a 24-hour waiting period does not violate the U.S. Constitution. There is no reason to construe the language from the Missouri Constitution more broadly than the language used in the United States Constitution.
Denial of Subdivision Plat By City Was Both Arbitrary and Truly Irrational
Furlong Companies owned 2.76 acres in Kansas City, located in an area zoned for intermediate business. It submitted to the city an application for approval of a preliminary plat, by which it subdivided the property into three lots, one to be used for a car wash and the other two for fast food restaurants. Furlong had purchased the property because the zoning for it allowed these uses. Although the city staff recommended that the city plan commission approve the plat, the city plan commission denied it. city staff refused to discuss the denial with Furlong out of “fear of litigation.” Furlong then requested that the plat application be submitted to the city council. During the course of four public hearings on the preliminary plat, the city requested a traffic study and then a more comprehensive study. Both studies concluded that Furlong’s plat would have little impact on traffic. The city then deferred the application for more than a month before voting on it. At the time of voting, it was stated that the city’s attorney advised, in closed session, there was no legal basis for rejecting Furlong’s application. By a vote of 9-4, the city council denied the application. Furlong filed suit against the city seeking an order of mandamus and damages under 42 U.S.C. §1983. The trial court granted mandamus and also awarded Furlong actual damages of $224,871 and attorney’s fees in the amount of $148,435. This judgment was affirmed in Furlong Companies v. City of Kansas City, No. SC86741 (Mo. banc 2006), but the damages were reduced to $174,871.
Zoning and plat approval represent different types of authority in political subdivisions. Zoning is the exercise of legislative authority as to what land uses are in the interest of the public for particular areas within the political subdivision. The governmental body has great latitude in this regard. Plat approval is the ministerial application of zoning requirements, uniformly, to all particular parcels within the zoned area. Far less latitude exists in this regard. The law does not permit administrative bodies to exercise an arbitrary and subjective authority over the granting or denying of subdivision plats. The exercise of discretion and judgment vested in the administrative body is to determine whether a plan meets the zoning or subdivision requirements. There is no authority to deny a subdivision plat that complies with the subdivision ordinance. If the plat complies, then it is the ministerial duty of the city to approve it and there is no discretion to deny it. The approval of a preliminary plat that meets the subdivision and zoning requirements is a ministerial act, and mandamus is the proper remedy in seeking to review the denial of such a plat. If a subdivision plat complies with the requirements of the subdivision ordinance, mandamus may compel approval of the plat.
Here, there was substantial evidence for the trial court to find that the city's denial of Furlong’s preliminary plat was unlawful, unreasonable, arbitrary and capricious. The traffic studies concluded that the proposed development would have little or no impact on existing traffic patterns. There was also evidence that Furlong had agreed to satisfy conditions proposed by the city staff, but was not allowed to do so. Moreover, the city’s attorney advised, in closed session, that the city could not legally deny Furlong’s preliminary plat.
Liability under 42 U.S.C. §1983 requires evidence that the city’s conduct exceeds an arbitrary and capricious standard and rises to the “truly irrational” level. There was sufficient evidence to support this. The city subjected Furlong to numerous delays and Furlong’s attempts to learn the reasons for the denial of its plat were rebuffed. It was never afforded an opportunity to amend or correct the preliminary plat. The city council voted to deny approval to the plat, even though the city attorney advised the city it could not legally do so. In 10 years prior to Furlong’s plat application, the city had approved 196 of 197 plat applications, typically within one week of submission. Only Furlong’s preliminary plat was denied during that 10-year time period. Such a deviation both from the standard treatment of preliminary plats over a 10- year period and from the advice of staff and legal counsel leaves no question as to the sufficiency of evidence on which the trial court based its decision. The facts of this case go beyond mistaken, arbitrary or capricious application of the law. When government acts with intentional disregard of its own valid law, knowing that its actions deprive individuals of their property rights, such action is truly irrational.
Official Immunity Protects Public Officials
Two deputies from the Stone County Sheriff’s Office responded to an emergency 911 call. They entered the home, without consent, and then shot and killed an occupant of the home, who allegedly had a rifle. The Stone County Sheriff, Richard Hill, was not present at, or aware of, the incident. The mother of the deceased filed a wrongful death suit against the deputy and against Hill. The suit alleged that Hill was vicariously responsible for the negligence of the deputy. Hill sought summary judgment on the basis of official immunity. The trial court denied that motion, but the Supreme Court issued a peremptory writ of mandamus in State ex rel Hill v. Baldridge, No. SC 86761 (Mo. banc 2006).
It is well-settled law that public officers are not responsible for acts of subordinate officials: (1) if such subordinates are themselves employees of the government; (2) if there is no negligence on the part of such public officials in employing them; and (3) the superior officer has not directed or encouraged or ratified such acts or has personally cooperated in them. Public officers acting within the scope of their authority are not liable for injuries arising from their discretionary acts or omissions, but they may be held liable for torts committed when acting in a ministerial capacity. A “ministerial function” is one of a clerical nature that a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed. Although invited to do so, the Court declines to abolish or modify the official immunity doctrine. Courts and legal commentators have long agreed that society’s compelling interest in vigorous and effective administration of public affairs requires that the law protect those individuals who, in the face of imperfect information and limited resources, must daily exercise their best judgment in conducting the public’s business.
Personal Jurisdiction Requires Sufficient Minimum Contacts With the State
Consolidated Electrical & Mechanicals filed suit against Marilyn Schuerman, alleging that she breached an oral contract to provide Consolidated with the right to purchase her St. Louis Cardinals playoff tickets for the 2004 baseball season. Schuerman was a California resident who had not been to Missouri since 1999. For many years, Schuerman purchased St. Louis Cardinals season tickets through the mail and sold some of the tickets to others, including Consolidated. Schuerman filed a motion to dismiss for lack of personal jurisdiction, which the circuit court granted. The Court of Appeals affirmed in Consolidated Electrical & Mechanicals v. Schuerman, No. ED 86492 (Mo. App. E.D. 2006).
The due process clause of the Fourteenth Amendment requires that a non-resident defendant have sufficient minimum contacts with the forum state so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. The defendant’s contacts with the forum state must be purposeful and such that the defendant should reasonably anticipate being haled into court in the forum state. To determine whether sufficient minimum contacts exist, five factors are considered: (1) the nature and quality of the contacts, (2) the quantity of those contacts, (3) the relationship of the cause of action to those contacts, (4) the interest of Missouri in providing a forum for its residents, and (5) the convenience to the parties. The first three factors are of primary importance and the last two are of secondary importance.
The “minimum contacts” test is not susceptible of mechanical applications; rather, the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present. Here, Schuerman did not have sufficient minimum contacts with Missouri to satisfy due process requirements. To compel her to appear in court in Missouri would offend the notion of fair play and substantial justice. Numerous Missouri cases have held that the nature and number of contacts were insufficient to meet due process requirements, even though they were far greater than present here. Faxes, mailings and telephone calls are secondary factors and not sufficient to provide the minimum contacts required by due process.
Claim for "Money Had and Received" Against a Public Entity Does Not Require A Written Contract
In 1995, the St. Louis County Recorder of Deeds advised Investors Title Company that it could record numerous documents each day in the recorder’s office without paying the filing fee for each transaction. Instead, Investor’s was told that it could deliver multiple documents to the recorder each day for recording, along with a signed check made payable to the recorder, but with the amount of the check left blank so that someone in the recorder’s office could fill in the total amount due at the end of each day. Investors followed this procedure from 1995 to September 2001. During that time, Margaret King was a cashier in the recorder’s office. She used her position to fill in the blank checks left by investors for amounts that exceeded the actual sum due the recorder for the recording of Investors documents. She then removed cash from the cash drawer and concealed this theft by attaching an adding machine tape to the receipts given to Investors, where the figures on the tape added up to the amount that she filled in on the blank check each day. During this period, King misappropriated hundreds of thousands of dollars by filling in inflated amounts on the blank checks provided by Investors. She pled guilty to theft and Investors requested a refund from the recorder of the amounts that were in excess of what it actually owed for the recording fees during the period of King’s illegal activities. When the recorder refused, Investors filed suit, asserting numerous claims, including for money had and received. The jury awarded Investors $499,391 and the recorder appealed. The Court of Appeals affirmed in Investors Title Company v. Hammonds, No. ED 85951 (Mo. App. E.D. 2006).
The recorder contends that Investors' claim is barred because it had no written contract with St. Louis County and could not recover without such a contract because of the mandate set by §432.070, RSMo. An action for money had and received is proper where the defendant received money from the plaintiff under circumstances that in equity and good conscience call for defendant to pay it to plaintiff. This theory of recovery is based on “quasi-contract” or “contract implied at law.” There is no need for a written contract. To hold otherwise would require anyone paying money to a public entity for services rendered by that entity to enter into a written contract, no matter how trivial or great the amount or how rare or frequent such transactions might be, in order to insure that any overpayment or payment made in error or under protest be recoverable.
The general rule in cases of mistaken payments is that restitution will be granted when such payments are made under mistake of fact, but not under a mistake of law. Restitution ought to be granted whenever a person or entity has received money that in equity and conscience belongs to and should be repaid to another. In determining whether restitution is proper in a given case, the payor’s lack of care or negligence does not diminish his rights to recover mistaken payments or overpayments and is not a sufficient reason to deny recovery. The “mistake” that resulted in overpayments by Investors was in leaving blank checks with employees of the recorder’s office, which it had been told to do by the holder of that office in 1995. Although Investors could have determined the amount of the overpayments had it periodically checked the amount written on its checks against the actual number of documents recorded on a particular day, such carelessness does not diminish Investors’ right to recovery. The recorder could have discovered the theft by King had it followed its own policies of having the cashier and lead cashier check each other’s work.
Dismissal For Failure to Prosecute is Not Favored
The State of Missouri filed suit against Summit Investment Company, alleging that it violated the Missouri Clean Water Act by not providing adequate waste-water treatment systems for the residential subdivisions that it constructed. A preliminary injunction was entered, ordering Summit to comply with all applicable requirements of the Missouri Clean Water Law. As a result of settlement negotiations, Summit signed a consent judgment, acknowledging that it had violated the Clean Water Law in the construction of six subdivisions and agreeing to pay $64,000 in penalties with three installments. The state requested a hearing date for approval of the consent judgment, but the hearing was postponed at the request of the parties. Approximately one year later, Summit filed a motion to dismiss the suit under § 510.140, RSMo. for failure to prosecute. In response, the state filed a request for a trial setting. The trial court granted Summit’s motion and dismissed the case, without prejudice, for failure to prosecute. The Court of Appeals reversed, however, in State of Missouri v. Summit Investment Company, No. 27274 (Mo. App. S.D. 2006).
Generally, if a cause is dismissed without prejudice, it is not a final, appealable judgment. An exception to this general rule, however, is that an appeal can be taken where the dismissal has the practical effect of terminating the litigation in the form presented by the plaintiff. Further, an action is otherwise barred when the dismissal without prejudice operates to preclude a party from bringing another action for the same cause and may also be res judicata of what the judgment had actually decided. Dismissals without prejudice have been held appealable in such cases where the dismissal was based on statutes of limitation issues. Here, the state filed suit against Summit in 2001 for actions that occurred in 1999 and 2000. The applicable statute of limitations for such actions is two years. Thus, following the dismissal without prejudice by the trial court, the state would have been precluded from bringing another action for the same cause against Summit. Thus, the trial court’s judgment is appealable.
The courts of this state have a dislike for dismissals for failure to prosecute and prefer dispositions on the merits. The trial courts must be able to control and expedite their dockets. But, it is of greater importance that the court’s work should be done with care and discernment and that the court should be ever diligent and zealous in its unremitting efforts to retain the ends of justice. The court’s discretion to dismiss a case for failure to prosecute is not a mental discretion, but a legal discretion to be exercised in conformity with the spirit of the law, and in a manner to serve the ends of substantial justice. As a matter of policy, Missouri law favors the disposition of cases upon the merits, when possible. This is because the purpose of all courts is to do justice, and justice is best served when all litigants have a chance to be heard. To dismiss a case for prior inactivity while it is being pursued could cause many cases to be dismissed which should not be. Only in an unusual situation should a case be dismissed for prior inactivity at a time when it is being prosecuted toward trial. The trial court abused its discretion in dismissing this matter for failure to prosecute. The record shows that while neither party had been exceedingly diligent in bringing this matter to trial, steps were being taken toward a resolution. Negotiations had been ongoing and agreements had been reached; nothing in the record suggests the trial court had warned the parties about a possible dismissal.
Trial Court Did Not Err in Denying Class Certification
Lani Meyer filed suit, through her next friend, against several companies that operated the Doe Run Lead Smelter near Herculaneum. Meyer alleged that she suffered injuries from exposure to toxins produced by the smelter and from by-products of the smelter operation. She sought monetary damages to establish and operate a medical monitoring program for all children who were exposed to the lead and other chemical by-products of the smelting operation. The trial court denied her motion for class certification and the Court of Appeals affirmed in Meyer v. Fluor Corporation, No. ED 86616 (Mo. App. E.D. 2006).
The determination of class certification under Rule 52.08 is within the sound discretion of the trial court. The appellate court reviews an order denying or granting class certification solely for abuse of discretion. Rule 52.08 is a procedural rule, rather than a substantive one. The party that seeks class action certification bears the burden of proof. Class actions are designed to promote judicial economy by permitting the litigation of common questions of law and fact of numerous individuals in a single proceeding. Rule 52.08, at a bare minimum, requires that: (1) the class be so numerous that joinder of all members is impracticable, (2) questions of law or fact common to the class exist, (3) the claims of the representative parties are typical of the claims of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. The prerequisites are mandatory for a class action, and class certification is proper only if each listed element is met.
Here, the trial court considered what would be relevant to determining how significant the probability was that each individual member of the purported class would incur future injuries as a result of operation of the Doe Run Smelter. Other cases have considered the individual variance relating to possible exposure to a toxic substance to be a significant factor in denying class certification in cases involving medical monitoring, holding that the common questions did not predominate. The trial court followed the principle that, in determining whether individualized issues predominate over common class issues, if individualized evidence about class members is necessary to prove that class members suffered a legal harm, which is what a medical monitoring claim for a class is, then it is highly likely that common questions are subordinate to individual issues. Class certification may be denied where there is not a reasonable certainty that there would be a harm from all potential levels and types of exposure for the entire class, and that causation for individual class members is tied to the individual’s exposure. To allow class certification under these circumstances would allow generic causation to be determined without regard to those characteristics and the individual’s exposure. Here, the trial court did not err in finding that individual issues predominate over common ones.
City Charter That Prohibits Initiative or Referendeum on Zoning Ordinance is Valid
Several residents of the City of Florissant filed a mandamus and declaratory judgment action against the city clerk, requesting an order that the clerk be directed to submit a referendum petition to the board of election commissioners for certification. The plaintiffs had obtained the required signatures on a referendum petition challenging an ordinance that changed the zoning of certain property from single family to commercial for the benefit of a TIF development project known as the “Shoppes at Koch Park.” The Florissant City Charter stated that the people shall have the power to approve or reject any ordinance of a legislative character, except ordinances appropriating money, authorizing the levy of taxes, calling an election, or amending the zoning ordinance. The city contended that the referendum petition was not the proper subject of referendum under the charter because it constituted an amendment of the zoning ordinance. The trial court dismissed the petition and the Court of Appeals affirmed in State ex rel. Petti v. Goodwin-Raftery, No. ED 86886 (Mo. App. E.D. 2006).
Plaintiff’s claim for a declaratory judgment is refuted by the plain language of the city charter, which forbids a referendum to “approve or reject any ordinance…amending the zoning ordinance.” Municipal charters are adopted by a vote of the citizens of a municipality. The authority granted to municipalities by the Missouri Constitution to adopt and amend a charter reflects a city’s “broad authority to tailor a form of government that its citizens believe will best serve their interest.” The only limitation of that authority is that charter provisions must be consistent with Missouri’s Constitution and laws. If consistent with and subject to the Constitution and laws of the state, charter provisions have the force and effect of enactments of the legislature.
The Missouri Constitution does not grant an unlimited right to referendum. The Missouri Supreme Court has held that a charter provision prohibiting zoning from being the subject of initiative or referendum is valid and enforceable. The Florissant City Charter prohibits the use of referendum for an amendment to the zoning ordinance. This prohibition complies with the Missouri Constitution and state laws, and therefore is valid and enforceable. The people of Florissant voted for a charter that prohibited the use of referendum for amendments to the zoning ordinance. There is no unlimited right to use the initiative or referendum process. The people of Florissant expressed limitation on the use of the referendum process in rezoning matters, and this limitation is not unconstitutional.