Constitutional Law

James D. Jenkins, Esquire

Constitutional challenges to private investigator licensure statute rejected. Gurley v. Missouri Board of Private Investigator Examiners, et al., No. 91741 (Mo. banc, March 6, 2012), Price, J.

Rickey Gurley was a private investigator in Columbia for several years and obtained a license under Columbia’s city ordinance regulating private investigators. In 2007, Missouri enacted a statute regulating private investigators, requiring them to apply for a license from a state licensing board. Gurley applied for a license and was denied. He then filed an appeal with the Administrative Hearing Commission (AHC) and simultaneously filed a lawsuit in Cole County seeking to have the statute declared as unconstitutional, arguing that it violated his procedural due process rights by depriving him of a license he had long held, and further contending that it was overbroad and violated the First Amendment by outlawing protected speech-related activities. The AHC reversed the board’s decision and ordered that Gurley be awarded his license. The circuit court dismissed the procedural due process claim as moot and the First Amendment claim on the basis that the statute was not unconstitutional on its face.

Held: Affirmed.
The trial court correctly dismissed the procedural due process claims as moot, since Gurley obtained the license, and the public interest exception to the mootness doctrine did not apply, since the situation was unlikely to recur. Although the statute could potentially raise significant First Amendment questions if read as Gurley suggested, the Court instead read the statute as only applying to commercial entities (private investigator businesses), rather than individuals who might be “investigating” someone for another reason, and found that under the facts of this case and with the construction adopted by the Court, the statute was not facially unconstitutional.

School district lacked standing to raise Hancock Amendment as a defense to mandamus petition. King-Williams v. Webster Groves School District, No. 92125 (Mo. banc, March 6, 2012), per curiam.

The petitioner, a minor child, filed a petition for a writ of mandamus requiring the Webster Groves school district to enroll her in the district. The school district contested the petition and raised affirmative defenses, including a claimed violation of the Hancock Amendment. Although there were contested factual issues, the trial court granted the petition without an evidentiary hearing.

Held: Reversed and remanded.
Because there were genuine disputed issues of material fact, the trial court erred in entering judgment on the pleadings. On remand, the trial court is directed to reject the school district’s Hancock Amendment defense, as only taxpayers, not political subdivisions, have standing to enforce the amendment. To the extent that Neske v. City of St. Louis, 218 S.W.3d 417 (Mo. banc 2007) suggests otherwise, it is overruled.

Supreme Court lacked jurisdiction to consider appeal challenging validity of unlawful detainer statute where appellant had not first requested a trial de novo. Fannie Mae v. Truong, No. 91880 (Mo. banc, March 6, 2012), Draper, J.

My Truong was in the midst of negotiating a loan modification on his mortgage when he left the United States for Vietnam for a few weeks during the summer of 2010. While he was gone, letters were delivered to his home, including one containing a permanent loan modification offer and one containing a notice of default. He also received a notice of a trustee’s sale of his home. One day after he returned home from Vietnam, his home was sold at a trustee’s auction. Fannie Mae purchased the property and filed an unlawful detainer action against Truong. Fannie Mae moved for summary judgment, and Truong filed an answer and affirmative defenses and demanded a jury trial. The associate circuit judge denied Truong’s constitutional claims and defenses and entered summary judgment in Fannie Mae’s favor. Rather than file for a trial de novo, as permitted by § 512.180.1, Truong filed a direct appeal to the Missouri Supreme Court, challenging the constitutionality of the unlawful detainer statute on various grounds.

Held: Dismissed
Section 512.180.1 provides that a party aggrieved by the judgment of an associate circuit judge in a bench tried case has the right to a trial de novo. Truong had to pursue the trial de novo prior to appealing to the Supreme Court, since the right to appeal is purely statutory, and if the proper statutory procedure is not followed, the appellate court acquires no jurisdiction. This case was somewhat complicated, though, in that, as Judge Teitelman pointed out in his dissent, the statute merely said Truong had a “right” to a trial de novo; it did not expressly state that he had to exercise that right. Meanwhile, the Missouri Constitution states that the Supreme Court has exclusive jurisdiction over challenges to the constitutionality of state statutes, which would seem to suggest that the circuit court in a trial de novo would not have jurisdiction over such claims. Nonetheless, the Court found that the legislative intent was clear to require a trial de novo prior to permitting an appeal, and Truong’s failure to apply for the trial de novo deprived the Court of jurisdiction over the appeal.

Judge Teitelman was alone in dissenting. At oral argument he brought up his experience as a legal services attorney handling unlawful detainer cases, and his practical background in those cases comes through in his dissent. He argued that § 512.580.1 grants a right but does not compel exercise of that right or limit the right to appeal, and would have held that the Court had jurisdiction to consider the merits of the appeal, which he found compelling. As Judge Teitelman points out, Truong received no notice of the foreclosure sale, and if he is required to jump through the hoops of a trial de novo, he will have to post a bond, pay double damages to the plaintiff, incur additional legal fees, and other costs. Further, Judge Teitelman believed the granting of a summary judgment in an already statutorily summary procedure was improper and denied Truong his right to a trial by jury.

Section 211.447 did not violate mother’s due process rights by requiring only a preponderance of the evidence and not a “clear, cogent, and convincing evidence” standard that termination of parental rights is in the child’s best interests. In the Interest of B.H., No. 91584 (Mo. banc, October 4, 2011), Russell, J.

Section 211.447 details the standard for termination of parental rights. The analysis is in two steps. The court may terminate a parent’s rights to her child if it appears by clear, cogent, and convincing evidence that grounds for termination exist, and if termination would be in the best interest of the child. This case was a constitutional challenge to this section in which the mother alleged that the second part of the analysis – that the requirement that termination be in the best interests of the child need only be shown by a preponderance of the evidence – was violative of due process and that it should also require the same standard of clear, cogent, and convincing evidence that grounds for termination exist.

The mother in this case suffered from mild mental retardation with an I.Q. of 69, and she had had her parental rights to all of her seven other children terminated. She had criminal convictions for statutory rape and statutory sodomy and is a registered sex offender. In 2009, she was arrested for soliciting herself for prostitution on Craigslist, and her son was removed from her custody. The trial court found that at least one ground for termination of parental rights existed by “clear, cogent and convincing evidence” – namely that the mother had abused or neglected her son. It then found by a preponderance of the evidence that termination of her parental rights was in the best interests of her son.

Held: Affirmed.
The Supreme Court unanimously upheld the termination of mother’s rights in this case and rejected her due process challenges. In so doing, the Supreme Court rejected mother’s reliance on what it termed “dicta” in Cannon v. Cannon, 280 S.W.3d 79 (Mo. banc 2009) and In re C.W., 211 S.W.3d 93 (Mo. banc 2007) and stated to the extent those cases could be read to require a “clear, cogent and convincing” evidence standard in finding termination of parental rights is in the best interest of the child, those cases are no longer to be followed.

Association of Realtors had “associational standing” to challenge validity of certain sections of the City of Ferguson’s municipal code. St. Louis Association of Realtors v. City of Ferguson, No. 91640 (Mo. banc, October 25, 2011), Stith, J.

The City of Ferguson enacted a municipal ordinance that set out certain requirements for property owners who rent or lease their property to others. The St. Louis Association of Realtors, a nonprofit corporation representing some 9,000 members, brought suit, challenging the ordinance on constitutional and statutory grounds. The trial court dismissed the petition without addressing the merits, finding that the Association lacked standing to file suit.

Held: Reversed.
The Supreme Court  unanimously  found that the Association had standing to sue. While noting, interestingly, that the Missouri Constitution does not contain the same “case or controversy” requirement as Article III of the United States Constitution, which has given rise to standing litigation in the federal context, the Missouri Supreme Court nonetheless adopted the federal framework for associational standing and found that this Association had standing. Under Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333 (1977), an association must show that: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Applying this test, the Court found that the Association had standing and reversed the trial court’s dismissal.

Sections 573.525 to 573.540, RSMo., which regulate sexually oriented businesses, did not violate the First Amendment, and the General Assembly’s enactment of the legislation without a hearing on a fiscal note did not violate the Missouri Constitution. Ocello, et al. v. Koster, No. 91563 (Mo. banc, November 15, 2011), Stith, J.

In 2010, the General Assembly enacted an act regulating certain aspects of sexually oriented businesses by: (1) banning nude dancers; (2) requiring that semi-nude dancers not touch or come within six feet of customers; (3) prohibiting alcohol in sexually oriented businesses; (4) requiring sexually oriented businesses to close between midnight and 6 a.m.; and (5) requiring viewing booths in sexually oriented businesses to be visible from a central operating station.

The legislature held hearings in which it heard conflicting testimony regarding whether sexually oriented businesses contributed to crime and a decrease in neighboring property values and other negative effects on surrounding communities. After hearing the testimony, the legislature adopted the act. Shortly before its effective date, several businesses filed a two-count petition in Cole County Circuit Court, claiming in Count I that the act was void because the General Assembly failed to hold a hearing regarding the accuracy of a fiscal note assessing the expected cost of the act as required by § 23.140, RSMo., and Article III, § 35 of the Missouri Constitution. In Count II, the businesses alleged the act violated the First Amendment by restricting sexually-oriented speech without sufficient justification.

Held: Affirmed.
The Court unanimously rejected the businesses’ two challenges. First, with regard to the argument under § 23.140, the Court noted that while Article III, § 35 of the Missouri Constitution requires creation of a joint committee on legislative research to act in an advisory role to the General Assembly, the Constitution does not set out any specific requirements for the committee, require hearings, or establish any specific duties for the committee, including the preparation of fiscal notes. Further, the Constitution does not elsewhere provide that a failure to follow procedural requirements in passing legislation automatically voids any bill so enacted. Thus, neither Article III, § 35 nor § 23.140 required the Court to invalidate the act on the basis of a procedural error in regard to the fiscal note.

As to the act’s constitutionality under the First Amendment, the Court, applying Supreme Court precedent, concluded that the act is content-neutral rather than content-based, and therefore only intermediate scrutiny applied. Because the act only dealt with time, place, and manner restrictions, and because they were designed to serve a substantial government interest, it passed muster under intermediate scrutiny and was thus not violative of the First Amendment. 

“Fruit of the poisonous tree” doctrine did not require reversal of criminal conviction where defendant admitted to the allegations against him at trial. State v. Norfolk, No. 95468 (Mo. App. E.D., November 15, 2011), Draper, J.

The defendant in this case, Elton Norfolk, was convicted of unlawful use of a weapon and possession of a controlled substance. On appeal, he claimed the trial court clearly erred in overruling his motion to suppress evidence seized during the search because the officer lacked reasonable suspicion to detain him. On August 19, 2009, Officer Reynolds was on routine patrol, when she observed Mr. Norfolk, a black male in a high crime area, standing on a corner. Officer Reynolds saw him pull up his pants, but testified that she saw no bulge or weapon hidden in his pants when he “adjusted” them. After observing Mr. Norfolk “adjusting” his pants and walking into a convenience store, Officer Reynolds., parked in front of the store, went inside, and accosted Mr. Norfolk. He replied, “I don’t need to speak to you.”  The officer then responded, “If you’re not doing anything wrong, then you’ll come outside and you’ll speak to me.”  Mr. Norfolk willingly exited the store with the officer. At that point, she ordered him to place his hands on the wall, and she searched him. In so doing, she found a handgun and marijuana. Mr. Norfolk moved to suppress all the evidence seized as having been taken in violation of his Fourth Amendment rights. The trial court denied the motion to suppress, and he was found guilty.

On appeal, the Eastern District found no way to distinguish this case from United States v. Jones, 606 F.3d 964 (8th Cir. 2010). In that case, the defendant was wearing a hooded sweatshirt and “clutching …. his hoodie pocket with his right hand.”  The Eighth Circuit found the search violated the defendant’s Fourth Amendment rights. The Eastern District in this case, while noting it was not bound by the Eighth Circuit’s decision, found it “persuasive,” and held that the search of Norfolk violated his Fourth Amendment rights. It noted that the “record is clear Officer Reynolds did not see any bulge or shape of a gun before searching Norfolk, she had no knowledge of Norfolk engaging in any criminal activity, and there was no immediate crime reported in the area […] Moreover, she acknowledged she had been on the police force only two years and conceded Norfolk could have been merely pulling up his pants at the time she observed him.”

Held: Affirmed.
The court of appeals, relying on a rule established in the ancient case of Motes v. United States, 178 U.S. 458 (1900) affirmed, stating that, “While we believe the trial court clearly erred in denying Norfolk’s motion to suppress, we find this error was harmless […] because […] Norfolk voluntarily stated under oath at trial that he possessed the gun and the drugs found after the search.”  Appellant asserts that the search should never have been conducted, the gun and the drugs should never have been found, there never should have been a trial, and thus Norfolk’s testimony at trial should never have occurred. This case has been transferred to the Missouri Supreme Court. In an amicus brief, the National Association of Criminal Defense Lawyers has urged the Supreme Court to abandon the Motes rule, which the NACDL argues does not make any sense, and is still followed only by three other states and the Eighth Circuit Court of Appeals. According to NACDL, even the U.S. Supreme Court has apparently abandoned the Motes rule since the 1960s. (See also summary under Criminal Law, December 2011 Courts Bulletin.)

City’s “red light violation” ordinance upheld against constitutional challenge. City of Creve Coeur v. Nottebrok, No. 96396 (Mo. App. E.D., October 25, 2011), per curiam.

Nottebrok received a $100 ticket for violation of the City of Creve Coeur’s red light ordinance when a vehicle owned by her was photographed running a red light. Nottebrok did not dispute that she was driving the vehicle, but merely argued the ordinance violated the due process clause since it penalized the owner of the vehicle without regard to who was actually driving it at the time of the violation. The municipal court and the circuit court rejected Nottebrok’s arguments, and she appealed.

The Eastern District panel focused on the fact that violation of a municipal ordinance is a civil matter, with only a quasi-criminal nature. Here, since there were no criminal consequences and no points assessed to the defendant’s license, but merely a $100 fine, the court was skeptical of the defendant’s arguments. The court relied heavily on an old Missouri Supreme Court case, City of Kansas City v. Hertz Corp., 499 S.W.2d 449 (Mo. 1973), which upheld a municipal ordinance imposing parking tickets on owners of vehicles even absent proof that it was the owner himself who had illegally parked the vehicle.

Held: Affirmed.
The Circuit Court’s $100 fine against Ms. Nottebrok for running the red light was affirmed. The Supreme Court denied transfer on January 31, 2012.