Constitutional Law

Joshua C. Devine, Esquire

Defendant has no First Amendment right to send e-mails for the purpose of attempting to induce a child to engage in a sexual performance. State of Missouri v. Blankenship, No. 93084 (Mo. banc, December 10, 2013), Draper III, J.

Defendant sent a series of 67 e-mails to a police officer posing as Defendant’s underage niece. The e-mails included messages in which Defendant gave the minor victim directions to perform certain sexual conduct. Following these e-mails, Defendant was convicted of one count of attempted use of a child in a sexual performance in violation of § 568.080, RSMo. At trial, Defendant objected, stating that § 568.080, as applied, violates his rights to protected speech as guaranteed by the First Amendment of the United States Constitution. The trial court overruled Defendant’s objection, and this appeal followed.    

Affirmed. The First Amendment prohibits government from restricting expression because of its message, ideas, subject matter, or content. In interpreting the First Amendment, the United States Supreme Court has held that an individual’s right to free speech is not absolute. For example, there are certain well-defined and narrowly limited classes of speech which are not entitled to First Amendment protection, including speech in which the words used do not have a lawful objective. Here, Defendant’s e-mails were an integral part of his attempt to induce a child to engage in a sexual performance. As such, Defendant’s e-mails were not “fantasy” speech, but rather fell within a narrow class of speech that is not entitled to protection by the First Amendment.  


Statute requiring accredited school districts to accept transfer of students residing in unaccredited Kansas City school district does not violate the Hancock Amendment. Blue Springs R-IV School Dist. v. School Dist. Of Kansas City, Missouri, No. 92932 (Mo. banc, December 10, 2013), Stith, J.

In 2011, the Missouri State Board of Education voted to classify the Kansas City Public School (“KCPS”) district as “unaccredited” effective January 1, 2012. This decision left residents within the KCPS district without an accredited school, and thereby triggered the school transfer provision of § 167.131, RSMo., which requires an unaccredited school district to pay the tuition and transportation costs of any pupil who transfers from an unaccredited school district to an accredited school district in the same or adjoining county. Upon the triggering of § 167.131, taxpayers in five school districts sued the KCPS and the State of Missouri alleging that § 167.131 violates the Hancock Amendment, which bars the state from mandating a new activity or service, or mandating an increase in the level of activity or service beyond that required by existing law. The trial court entered a judgment finding that § 167.131 violates the Hancock Amendment as the taxpayers from three school districts (Independence, Lee’s Summit, and North Kansas City) because the reimbursements provided by KCPS would be insufficient to cover the costs of absorbing the estimated volume of transfer students to those school districts. The trial court found the opposite with respect to the remaining two school districts (Blue Springs and Raytown).        

: Affirmed in part; reversed in part. Section 167.131 does not impose a “new” educational activity or service on local school districts and does not mandate an increase in the level of educational activity or service to be engaged in by local school districts. Rather, the statute simply addresses which school districts will educate which students. As such, § 167.131 does not violate the Hancock Amendment. In so ruling, the Court affirmed its holding in Breitenfeld v. School District of Clayton, 399 S.W.3d 816 (Mo. banc. 2013).             

Eastern District finds red light camera ordinance unconstitutional because it is criminal in nature and creates an impermissible rebuttable presumption of guilt. Brunner, et al. v. City of Arnold, et al., No. 99034 (Mo. App. E.D., December 17, 2013), Richter, J.

Appellants received red light camera tickets pursuant to an ordinance passed by the City of Arnold. The ordinance creates a rebuttable presumption that the owner of a vehicle was the driver of the vehicle at the time the ordinance violation was captured by the red light camera. The ordinance provides for an assessment of a fine, but states that no points will be assessed. Appellant Brunner paid the fine; Appellant Moore did not. Subsequently, Appellants filed a seven count amended class action seeking, inter alia, a declaration that the ordinance is invalid because it is unconstitutional in various respects and because it is contrary to numerous Missouri statutes. The trial court dismissed Appellants’ claims, and this appeal followed.    

Reversed in part and remanded.

(1)  The ordinance is void and unenforceable because it conflicts with § 302.225, RSMo., which requires courts to report moving violations to the Department of Revenue so that points can be assessed on a driver’s license. 

(2)  The ordinance, which is criminal in nature, is unconstitutional because it creates a rebuttable presumption of guilt in violation of Article I, § 10 of the Missouri Constitution, which prohibits the deprivation of life, liberty, or property without due process.

(3)  Brunner has standing to pursue his claims that the ordinance conflicts with state law because he was directly affected by the ordinance in paying a fine, and because the terms of § 527.020, RSMo., the Declaratory Judgment Act, give him standing to pursue his claims.

(4)  Appellants have standing to pursue their constitutional challenges of the ordinance even though they did not follow the procedures set forth in the ordinance, which contemplated a municipal court proceeding, because the ordinance is void and unenforceable.   

(5)  Appellants have not waived their constitutional claims by not raising them in a an action in the Arnold municipal court because the ordinance is void and unenforceable, meaning that the Arnold municipal court lacks subject matter jurisdiction to hear the constitutional claims.   

(6)  Brunner is not estopped from pursuing his constitutional claims by virtue of paying the fine because equity is not served by estopping Bruner from bringing his constitutional claims. 

(7)  The ordinance was validly enacted pursuant to the City’s statutory grant of authority prescribed in § 304.120, RSMo., which permits cities to make additional rules of the road.

(8)  Further judicial proceedings are necessary to determine if the ordinance was validly enacted pursuant to the City’s police power, and to determine if the ordinance is invalid because it was enacted solely for the purpose of revenue generation.

(9)  The trial court did not err in dismissing the unjust enrichment claim against the City. However, further discovery is needed to resolve Appellants’ unjust enrichment claim against the company responsible for installing and operating the red light cameras.