Author Archives: jaybarnes5

Special Session II – Week One

The General Assembly returned for the year’s second special session this week to work on legislation concerning abortion. On Wednesday, while the Senate went through its machinations, I was honored to present House Bill 6 to the House Committee on Children and Families.

House Bill 6

Among other things, this legislation would respond to recent court cases by re-instating the Department of Health and Senior Services’ statutory authority to regulate abortion clinics for the health and safety of patients in a way that is likely to meet requirements the United States Supreme Court outlined last year in the case,Whole Woman’s Health v. Hellerstedt. Examples of these reasonable regulations include requirements that clinics have complication plans to ensure safety; another requirement that abortion facilities be designed such that a patient can be transported from a procedure room to an ambulance; and ensuring that infection control protocols remain in place.

Though not in the current version of the bill, there was also discussion in committee to require every abortion facility to have a written protocol for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital within a reasonable distance of the abortion facility. This language is important for our state because there is evidence that the Planned Parenthood facility in St. Louis has had dozens of emergency room calls for patients suffering dangerous hemorrhages, a known abortion complication. In addition to these requirements, HB 6 would require the facility  provide evidence to DHSS that physician abortion providers in our state are actually licensed physicians and subject to annual inspections. HB 6 would also grant the state attorney general concurrent jurisdiction to prosecute criminal violations of the state’s abortion laws.

The committee hearing featured passionate but respectful debate from both sides – and worked to identify ways to improve the bill.

Protecting Pro-Life Advocates

Another part of Governor Greitens’ call for special session would protect pregnancy resource centers and other pro-life organizations from the St. Louis Board of Aldermen’s radical pro-abortion agenda.  It would pre-empt an ordinance that St. Louis  just passed that requires religiously-affiliated organizations, including schools, to hire or lease office space to people who support abortion and thus violate the leasor’s deeply-held religious beliefs. For example, a pregnancy resource center that exists to encourage women to choose life by providing them care and resources, should not be forced to hire someone who proudly and loudly supports abortion on demand. Nor should they be forced to lease space to Planned Parenthood or any other abortion provider. The bill also pre-empts any local ordinances that would attempt to limit the free speech rights of pregnancy resource centers by prohibiting them from counseling, referring, or communicating with women in crisis situations.

House Bill 9, sponsored by Rep. Hannah Kelly would protect the First Amendment rights of pro-life advocates. Some legislators have asked how this could fit the call for an “extraordinary” situation under our state Constitution. Since at least 1976, the Supreme Court has stated that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury” that is enough to justify the extraordinary judicial remedy of a motion for preliminary injunction. In fact, Planned Parenthood relies on this specific line of cases when it urges federal courts to issue injunctions against state laws that impact abortion. The same logic applies to pro-life advocates. The state should not sit idly by “for even minimal periods of time” when a local government enacts legislation or a regulation that impairs Missourians’ First Amendment rights.

The Cost of Special Session

I was asked in the committee whether this bill was worth the extra money spent for special session. Yes. If every member attends every day of session, the tab is about $20,000 per day. But that’s not how special sessions typically operate. Instead, sometimes the Senate is in session (or near full session) and the House is not – and vice versa. For this week, when the Senate was in session, it likely cost less than $7,000 per day for two days of substantive activity. Next week, when the House convenes, the cost will increase because there are five times as many House members; .  so,  about $15,000 per day. To me, the legislation’s importance justifies the cost.

What Happens Next?

While the House committee meeting went on for seven hours Wednesday, the Senate was working on its own version of the legislation. Sometime around midnight, the Senate passed a bill and sent it to the House. It is too early to determine what the House’s next step will be – that will be answered over the next five days. Regardless, I’m looking forward to the opportunity to debating these measures on the House floor next week.

Why Every Missourian Should Support This Special Session

Article IV, section 9 of the Missouri Constitution grants the governor authority to call a special sessions. It states that, “On extraordinary occasions, he may convene the general assembly by proclamation, wherein he shall state specifically each matter on which action is deemed necessary.”

Over the past month, Capitol insiders have complained about Governor Greitens’ rhetoric and rumors of several special sessions for topics that do not clearly fit within the meaning of “extraordinary.”  One wise former senator opined on Facebook that, “Our constitution has set up a citizen legislature” and that “our founders designed a system of checks and balances designed to move at a snail’s pace to protect the liberty of the people.” While I agree with this sentiment, it is not adequate justification to oppose the calling of special sessions for specific reasons that fit the demands of the state constitution.

So, just what is an “extraordinary occasion?” There’s no court case on point. However, the plain meaning of the word “extraordinary” is that which is “beyond what is usual, ordinary, regular, or established.”

The first special session Gov. Greitens called involved time sensitive legislation regarding a proposed steel mill and aluminum smelting facility that would add hundreds of jobs to our state.  Thus, the topic was certainly consistent with the previous issues and circumstances surrounding special sessions. For example, Gov. Nixon called special sessions relating to jobs proposals from Boeing and Ford – and no one seriously suggested that it failed constitutional muster or longstanding traditions.

On Wednesday, Gov. Greitens called the summer’s second special session, requesting the legislature to  pass legislation to protect women’s health by enacting “common-sense health and safety standards in abortion clinics.” Like the first call, Gov. Greitens’ second call clearly meets the extraordinary test: it is a response to a federal court decision handed down in late April that invalidated all of Missouri’s rules and regulations for abortion facilities.

In Comprehensive Health Planned Parenthood Great Plains v. Williams, Judge Howard Sachs of the federal court for Missouri’s Western District struck down the state’s regulations on abortion facilities as unconstitutional, citing a United States Supreme Court opinion from last year that invalidated similar regulations enacted in Texas.

Before handing down his decision in the case, Judge Sachs published a memo which explains the rationale for this special session, citing the state’s argument that a decision could “cause unintended collateral damage by deregulating abortion clinic requirements that are accepted as desirable and outside the concern of the Supreme Court in the Texas case.” In April, the Court suggested it might stay its decision “for a specified period until the General Assembly can take action.” Unfortunately, the Court denied a Motion for Stay in May.

Abortion rights supporters often argue that it must be kept legal in all circumstances so that it can be regulated. Supporters argue that restrictions would lead to “back alley abortions” where women are not safe. President Clinton famously said his position on abortion was that it should be “safe, legal, and rare.” Unfortunately, by striking all abortion facility regulations, the effect of the Order in Planned Parenthood v. Williams puts patient safety at risk if the legislature does not take swift action.

Planned Parenthood will probably argue in the next few weeks that abortion is among the safest of all medical procedures, with miniscule risks of complications for the patient undergoing the procedure. The truth is much different. Here are some basic facts about abortion safety for women in Missouri.

First, the Planned Parenthood facility in St. Louis had to call an ambulance 58 times in seven years (about once every month and a half). At least 23 of those emergency calls were to respond to hemorrhages, a complication of abortion.

Second, and unfortunately, because Planned Parenthood has failed to comply with state law requiring it to report abortion complications, we do not know how many other serious complications have occurred because of procedures at the facility. However, it is reasonable to assume that there are significantly more cases than those 23 worst case scenarios that resulted in an ambulance being called to the facility for hemorrhages.

Third, the St. Louis facility has been cited by the state Department of Health and Senior Services for hundreds of regulatory violations – including failure to perform criminal background checks on employees with patient contacts and failure to maintain a sterile facility. From 2009 to 2016, Planned Parenthood was cited for 111 times for failure to provide a safe and sanitary environment.

Fourth, abortion rights supporters have argued elsewhere that it is no more dangerous than a colonoscopy. Wrong. In support, abortion supporters have cited a 2015 study that found an abortion complication rate of 2.1 percent. But by comparison, a 2010 study of colonoscopy patients found a complication rate of 2.01 per 1,000 exams – or 0.2 percent. Reading these studies together suggests an abortion is 10 times more dangerous than a colonoscopy. Colonoscopies are, of course, required by state regulations to be conducted in facilities that are safe and sterile. But, after the recent ruling, abortions are not.

If the legislature does not act, there will be no facility safety requirements at all for abortion providers – a result that all Missourians should oppose and that cannot wait to be fixed next year. Whether you are pro-life or pro-choice, everyone should agree that medical treatments should be provided in safe and sterile facilities. In response to the court’s decision, the legislature must and will move quickly to enact common sense regulations that protect patient safety.

Garbage In, Garbage Out in Report Claiming Concern Over Expungement Legislation

Garbage-in, garbage-out. Nothing could be truer of government reports. On Tuesday, State Auditor Nicole Galloway released a report suggesting the General Assembly may have passed legislation that will violate the Hancock Amendment’s strict limits on raising revenue through taxes or fees. The potential offending legislation, according to Galloway’s report, was Senate Bill 588, a bill that I carried in the Missouri House, to help Missourians who had turned their lives around to expunge non-violent offenses from their record if they met strict requirements. Of course, creating such a path is not free. Accordingly, to be fiscally responsible, the legislation had to include a filing fee that high enough to cover the costs so that law-abiding Missourians wouldn’t be left paying the tab.

Senate Bill 588 sets an expungement case filing fee of $250 – roughly the median figure compared to the fee other states charge. Unlike taxes or broadly applicable fees, the expungement fee is completely voluntary. If a Missourian has never been convicted of a crime, they pay nothing. If a Missouri has been convicted of a crime and rehabilitated themselves such that they are eligible, they still are not forced to pay anything.

Auditor Galloway’s report suggests that the General Assembly may have violated the Hancock Amendment by protecting taxpayers from having to absorb the costs of expungement filings, even when they’ve never been convicted of a crime. The report’s fatal flaw is that it relies on a bloated fiscal note that dramatically overestimated the number of Missourians who are eligible and likely to apply for an expungement.

The flawed fiscal note on which the Auditor relies estimated the legislation could result in the collection of up to $146 million in expungement filing fees based on assumptions that there would be 617,197 expungements filed each year. To put that in context, there were only 170,362 total criminal cases (excluding traffic citations) filed in Missouri circuit courts. In other words, the data on which Auditor Galloway relied predicts there will be nearly four times as many expungements filed as actual criminal cases.

The flawed fiscal note makes at least five faulty assumptions:

  1. The note assumes Missourians will pay $250 to expunge speeding tickets after three years. Except that current law already requires points on a person’s license disappear after three years. Automatically. Based on filings from last year, traffic tickets account for 42 percent of the total cases filed by Missouri prosecutors – so shave 42 percent off the fiscal note.
  2. The note assumes five percent of eligible Missourians will apply. It’s apparently a pure guess – and thus not a legitimate route to determine the legislation’s likely fiscal impact. Fortunately, we have at least rough proxy that might make for a more accurate assumption. Under current law, Missourians can expunge a DWI after 10 years if they have no further convictions. In 2016, there were 7,470 applicable DWI convictions in Missouri. Yet there were only 101 petitions for expungement filed – a percentage of 1.3 percent. With this in mind, we can shave approximately 75 percent off the already reduced fiscal note.
  3. The note fails to account for indigent applicants. Section 488.650 of the bill provides that the surcharge may be waived if the petitioner is unable to pay the costs. By some estimates, approximately one in three criminal cases filed is assigned to the public defender’s office. This is a good proxy for the percentage of potential applicants who would be eligible for waiver of the fee. As a result, we can take another 33 percent off the total for indigency.
  4. The note fails to de-duplicate offender data. Under SB 588, a person is only eligible if they have not been found guilty of any other misdemeanor of felony. However, the analysis did not include a thorough de-duping review of all arrest and conviction records. This would preclude considering an unknown, but likely large number of offenses counted as “eligible” for expungement under the fiscal note. (One study by the National Institute of Justice found that just over 75 percent of released felons were re-arrested within five years. We cannot apply that 75 percent factor to the entire bill, however, because it also allows for misdemeanor expungements.)
  5. The note fails to account for the fact that up to two misdemeanors and one felony can be expunged in a single petition. This too would reduce the number of expungements filed, and likely by a significant amount because many single instance events resulting in multiple criminal charges and convictions.

Applying some of these reasonable assumptions to SB 588 yields a dramatically different result. The first three flaws can be readily quantified. Start with the initial estimate of $146 million, then eliminate the 42 percent that represent traffic citations and the estimate is reduced to $84.7 million. Next apply a take-up rate of 1.3 instead of 5 percent and the revised estimate is $22 million. Then set aside approximately one-third of cases for the indigent applicants and the estimated fees collect is reduced to $14.5 million. These calculations do not account for the inability to de-dupe current convictions or to group multiple offenses into a single expungement filing.

In her announcement and press conference on the report, Auditor Galloway was careful to point out that her analysis was of a potential violation. But, to put it plainly, there is absolutely no chance SB 588 would raise voluntary fees beyond the Hancock limit of $94.3 million. It is good legislation that will help Missourians secure the second chance they’ve earned —  consistent with the actions of dozens of other states.

Senate Bill 43 Update

Legislation to weaken Missouri’s zero tolerance ban against discrimination on the basis of religion, age, gender, race, disability, or national origin and provide civil immunity to supervisors who harass their subordinates remains on the House calendar. Over the past week, some supporters of the bill have argued that courts would not interpret the plain language of SB 43 to also eliminate claims for breach of contract and trade secrets between employers and employees.

Those who do not know the past are condemned to repeat it. In 2005, the legislature passed a bill to reform Missouri’s worker’s compensation laws. At the time, some groups warned that it would have an unintended consequence of taking some cases out of the work comp system – to the detriment of Missouri businesses. Their warnings were ignored.

A few years later, Missouri courts ruled that the plain language of the new legislation moved claims for “occupational disease” out of the worker’s compensation system and into regular courts. One such case is called State ex. rel. KCP&L v. Cook, 353 S.W.3d 14 (2011). Three years and tens of millions of dollars in court judgments and settlements against Missouri businesses later, the legislature finally found a way to fix the unintended drafting error that it made in 2005.

Just last year, the Missouri Supreme Court overturned a felony stealing conviction under a plain reading of a statute that contained an unintended error. In State v. Bazell, the Court explained that it “must give effect to the plain and ordinary meaning of the statutory language and, when the meaning is clear, it must not employ canons of construction to achieve a desired result.” For a court to do anything else would be judicial activism. Details matter – and courts interpret statutes by the plain meaning of their words. Passing Senate Bill 43 as its currently drafted isn’t just bad public policy because it weakens standards on religious freedom and discrimination. It’s also bad for Missouri businesses that may seek to enforce employment contracts and protect trade secrets.

Crunch Time for the State Budget

The Missouri Constitution requires the General Assembly pass a state budget by May 5. Meeting this deadline seemed increasingly unlikely for several reasons. First, we started late due to a change in administration and the swearing-in of many new House and Senate members. And second, there’s been robust and healthy debate about priorities and substantive policy.

Three policy areas have dominated budget debate this year. Inside the Capitol, most of the talk centered on shifting all of our state’s Medicaid system to managed care. Under current law and budget appropriations, Missourians on Medicaid who reside in counties within approximately 50 miles of Interstate 70 currently receive their coverage through an insurance company in an arrangement that approximates how people with private health insurance receive care. (Caveat: the current system still does not have sufficient financial incentives for Medicaid recipients to choose their own care.)

Two years ago, the Missouri Senate added language in the budget to transition the rest of the state from a fee-for-service system where taxpayers write checks directly to health care providers in Medicaid to managed care, where a third-party oversees services (and the public fisc). The transition process is not quick. Medicaid is a massive program. A public bidding process is required before a change like this can occur. The Department of Social Services has worked on the transition for the past two years and will complete the shift in just a few months.

With this time frame in their mind, managed care opponents understood that this year’s budget was likely the last good opportunity to prevent its spread outside the I-70 corridor. Led by the indefatigable Sen. Rob Schaaf, the opponents battled. They attempted to amend the budget in Senate committee to ban expansion of managed care, and it narrowly failed. Next they attempt to amend the bills on the Senate floor, but the amendments failed again. As a result, Medicaid managed care will be expanded from its current footprint in the I-70 corridor (which includes Cole County) to every county in the state. I believe this is a positive change for taxpayers over the long-term.

The second major issue is education funding. The House fully funded the elementary and secondary education “foundation formula” for the first time in our state’s history. However, as the bills came out of Senate committee, there had been a reduction of $45 million. It appeared that the House and Senate would have to work out such a large difference in conference committee. On Tuesday, in a surprise move, the Senate voted to fully fund the formula as well. As a result, the item is no longer “conference-able” in Capitol-speak, meaning full funding is almost guaranteed to remain in the budget.

The more interesting thing about the Senate’s foundation formula amendment was that it did not include a corresponding decrease somewhere else in the state budget.  Instead of making a hard choice about priorities, those who voted for the amendment simply added $45 million to the state’s spending total. This creates an interesting issue for budget conference committees because the Senate’s budget is not balanced. Based on this education amendment alone, the Senate budget spends $45 million more than the consensus revenue estimate.

The third major issue is nursing home eligibility. The House restored nursing home funding from Gov. Greitens’ proposed budget because those cuts might have led to short-term savings, but increased long-term costs as persons who would previously have been eligible for nursing homes or in-home care would instead seek more costly care in hospital emergency rooms. The House restored some eligibility by passing legislation to eliminate the circuit-breaker tax credit. The Senate has not passed the circuit-breaker tax credit, but followed the House with restoring some eligibility.

The budget conference committee will meet next week to hash out the differences. With K-12 education funding no longer conference-able, the first and key question will be how to deal with the money the Senate’s budget deficit.  A cynical move by the legislature would be to send the bills to Gov. Greitens out-of-balance. That would force the governor to take the oft unpopular step of choosing which programs to cut through his power of withholding and line-item veto. It also gives away a fundamental power of the legislature: the power of setting government priorities through the appropriation process.

The fact is that when the legislature over-appropriates, it avoids the tough votes, but also essentially gives away its constitutional powers to the executive branch, literally “passing the bucks.” I am confident that the budget conference committees will defend the legislature’s powers and send a balanced budget to Gov. Greitens.

House Should Not Abdicate Its Responsibilities on SB 43

Last week’s column focused on the discrimination aspects of Senate Bill 43. Among other things, this legislation (1) weakens our current zero tolerance standard against discrimination on the basis of religion, age, gender, race, or nationality; (2) provides civil immunity for supervisors who discriminate or sexually harass their workers; and (3) eliminates pro-life protections in Missouri law that protect employees against pressure to have or participate in an abortion.

As if to prove the opponents’ point, SB 43 specifically mentions cases that proponents claim were bad cases. In McBryde v. Ritenour207 S.W.3d 162 (Mo. App. E.D.), a high school basketball coach was fired for which his white counter-part received only a verbal reprimand. In his termination letter, McBryde’s supervisor said he had a tattoo that was a sign of gang-affiliation. Actually, McBryde’s tattoo was a Star of David he had inked while playing professional basketball in Israel.

Another case abrogated by SB 43 is Daugherty v. Maryland Heights231 S.W.3d 814 (Mo. 2007). In this case, Doug Daugherty was a 59 year-old police captain and a 16 year veteran of the City’s police department. After Daugherty learned of his termination, he met with his supervisor, the police chief (who also happened to be his brother-in-law). He taped the conversation, recording the chief stating that “the city administrator wanted to get rid of employees over the age of 55 because their salaries were costly to the City.” Daugherty said he thought this was age discrimination, and the Chief agreed.

Should Daugherty have a claim? Like McBryde, his case is specifically mentioned in SB 43 as creating bad law.

As if this were not enough, SB 43 also eliminates protections for whistle-blowers who refuse to break the law or report illegal activities of government or private businesses to the proper authorities. The genesis for this portion of the bill is a case called Dunn v. Enterprise, 170 S.W.3d 1 (Mo. App. E.D. 2001). The plaintiff Dunn was the corporate comptroller for Enterprise with an excellent performance record. As comptroller, it was his job to certify that the company’s financial records were prepared in accordance with Generally Accepted Accounting Principles (GAAP).

In May 1998, Enterprise began preparing to become a publicly traded company for an IPO. As a part of that process, Dunn began to take a closer look at Enterprise’s financial statements and business practices. He discovered that some accounting measures which were acceptable for a private company would violate GAAP for a publicly-traded company. In June 1999, outside investment bankers advising Enterprise agreed with Dunn’s concerns. Soon after, Dunn was placed on probation and told he could stay with the company “as long as he behaved.” Dunn continued to encourage Enterprise to follow GAAP requirements in its IPO. In December 2000, the outside advisor again agreed with Dunn. On January 4, 2011, Dunn was fired. Enterprise ultimately postponed its IPO – avoiding violating the law in the way Dunn feared.

Should Dunn’s insistence that his employer not violate public securities laws designed to protect the honesty of our financial markets be protected under Missouri law? I think most reasonable people believe it should be protected. However, Senate Bill 43 would ensure that future Dunns have no legal recourse. It specifically excludes supervisors, managers, and executives from legal protection: the very persons most likely to know about and be able to stop illegal activity.

The bill also eliminates punitive damages for these cases, and, like the discrimination section, it states that it is the “exclusive remedy” for “any and all claims of unlawful employment practices.” By doing so, SB 43 would eliminate statutory protections for state employees in §105.055 that prohibit state employee supervisors from punishing, in any fashion, a state employee who discloses information the employee reasonably believes evidence a violation of law, rule, or regulation, mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health or safety. The current law also prohibits supervisors from prohibiting state employees from discussing the agency’s operations with legislators, the state auditor or attorney general.

Senate Bill 43 will likely come up for debate next week. While I believe it should be rejected completely, that likely will not happen. At the very least, the provisions eliminating pro-life protections, state employee protections, and ordinary contract claims should be taken out of the bill. Details matter. If the House refuses to fix clear drafting problems with the bill after it came out of the Senate, the House will be abdicating its responsibilities as a co-equal chamber in the General Assembly.

Budget Reconciliation Process Looms

 The General Assembly has very few responsibilities that it must accomplish every year. Passing a balanced budget is one of them. This week, the Senate Budget Committee worked its way through Missouri’s $27 billion budget. The focus next week on the Senate floor will likely be the state budget, and it appears there will be several significant areas of disagreement that will have to be worked out in a conference committee.

SB 43 Weakens Standards Against Discrimination and Pre-empts Pro-Life Protections

Should Missouri maintain its current zero tolerance policy against discrimination on the basis of religion, age, gender, race, or nationality? Should an employee who is sexually harassed by a supervisor be able to hold her harasser personally responsible? Should Missouri law protect state employees’ jobs who report their reasonable beliefs about waste of taxpayer funds or illegal activity in state government to elected officials? These are a few of the questions Senate Bill 43 raises, which would dramatically change the Missouri Human Rights Act.

The first change concerns the level of discrimination that Missouri law permits. Currently, Missouri has the strongest law in the country. Our zero-tolerance policy prohibits discriminatory actions against a person where religion, age, gender, race, or nationality is a contributing factor to the decision. Under Senate Bill 43, the person discriminated against must prove that religion, age, gender, race, or nationality was the motivating factor. In practice, this means the person who has been discriminated against will need smoking gun evidence to prevail in many cases.

I oppose this change. If SB 43 becomes law, Missouri would become the first state, I believe in in American history, to backslide on legal protections for people of faith, age, gender, race, and nationality. Even so, there are far worse parts of SB 43.

For example, in December, The Pitch magazine reported on a series of lawsuits involving brazen sexual harassment in the Department of Corrections, including “repeated and overt sexual comments, groping, and pressure from supervisors and co-workers to have sex.” When those advances were denied or reported to higher authorities, “retaliation and even physical assaults sometimes followed.”

In response, Gov. Greitens brought in a new leader of the Department, noting, “Our corrections officers struggle in a culture of harassment and neglect” and have “low morale and shockingly high turnover.”

Under current law, a supervisor who gropes and pressures an employee to have sex can be held personally responsible for their actions. But SB 43 grants immunity to the sexually harassing supervisor. SB 43 tosses the tough talk about fixing “a culture of harassment” aside and replaces it with free passes for harassers. Not surprisingly, this would make Missouri an outlier. Of the 44 states with anti-discrimination statutes, only three grant such immunity, and none do so explicitly in their state statutes.[1] No ”culture of harassment” will ever be changed by granting legal immunity to harassers.

The next embarrassing part of SB 43 is its shocking breadth. On page 12 of the bill, it declares, “This chapter, in addition to chapter 285 and chapter 287, shall provide the exclusive remedy for any and all claims for injury or damages arising out of an employment relationship.” Chapter 285 contains protections for employee retirement plans, and Chapter 287 contains workers’ compensation laws.

So what other types of claims for injury or damages arise out of an employment relationship? Here’s the list I could think of: breach of contract – including an employee’s violation of a non-compete agreement and an employer’s failure to pay agreed wages to an employee, tortious interference with a business relationship – where an employee takes actions detrimental to their employer, misappropriation of trade secrets – where an employee steals confidential business information of their employer.

The bill’s proponents argue that courts will not interpret the bill this way. This is a convenient conclusion, but unlikely since courts are bound by the plain language where there’s no ambiguity. It says that it is “the exclusive remedy” for “any and all claims … arising out of an employment relationship.” All of the above are claims that arise out of an employment relationship.

Proponents may also argue that eliminating these causes-of-action would be unconstitutional for common law claims, and they would be correct. But even if a court ignores the plain language of SB 43 as it relates to these common law claims, there are still other claims that arise “out of an employment relationship” that are not common law.

For example, Section 197.032 of Missouri law prohibits employment discrimination against medical professionals and any other person who refuses “to undergo an abortion” or “to advise, consent to, assist in or perform an abortion.” Because SB 43 specifically lists statutory claims which survive its passage, and 197.032 is not included in the surviving list, a plain reading of the bill eliminates this important pro-life protection.

Chapter 168 of the Missouri Revised Statutes creates tenure rules for teachers around the state that, if violated, would ultimately lead to a claim arising out of an employment relationship. Because SB 43 specifically makes exceptions for claims arising out of Chapters 285 and 287, a plain reading of the statute should lead a court to dismiss any purported claim arising out of an employment relationship under Chapter 168.

Section 290.110 requires employers to pay unpaid wages of a discharged employee, and creates a cause of action if they cheat those who have been discharged. Section 290.130 creates a statutory cause of action for employees for wrongful discharge in breach of contract. Section 290.527 creates a cause of action to enforce minimum wage requirements. Section 294.121 creates a cause of action to enforce child labor laws.

In my seven years in the legislature, this may be the most poorly drafted section of a bill that I’ve ever seen. But courts don’t get to re-write statues. Instead, they interpret statutes by their plain language, not by guessing at what legislative proponents might have actually meant. To do anything else would be judicial activism. And, by its plain language, Senate Bill 43 pre-empts all of these statutory causes of action.

Senate Bill 43 currently sits on the House calendar ready for action sending it to the Governor. Unfortunately, this is not the complete list of problems with the bill. I will cover more in next week’s column.

[1] The six states without anti-discrimination statutes include Oklahoma, Wisconsin, South Carolina, Alabama, Georgia, and Mississippi. The three that grant immunity to harassers despite a state statute are Delaware, Louisiana, and Nevada – but those have been by court decision.

Mo Hospital Bill Shortchanges Victims and Disowns Doctors

Everything seemed right with Crystal Jefferson’s life.  She was living the American dream – a happy family, a good job, and a love for life. On October 27, 2005, she had her first child. While she was in the hospital at Missouri Baptist Medical Center in St. Louis, she experienced abdominal pain and underwent a CT scan that revealed a soft tissue mass in her stomach and fluid collection in her pelvis. Her attending radiologist recommended a follow-up study.

Crystal followed those orders and underwent a follow-up scan at Missouri Baptist on December 9, 2005. The second scan showed the same things. And again, her attending radiologist recommended a follow-up study. Crystal followed those orders and underwent a third scan – again at Missouri Baptist on January 19, 2006. This time, the radiologist gave her a clean bill of health.

Three years later, in the spring of 2008, Crystal noticed pressure in her abdominal pain. By this time, she had two young children. Tragically, testing soon revealed that the soft tissue mass first identified in 2005 was not only still present, but was in fact inoperable stage IV colon cancer – that could and should have been diagnosed at any one of the three times she was treated at Missouri Baptist in 2005. If the last Missouri Baptist doctor who saw her in January 2006 had taken appropriate action, Crystal could have easily beat her cancer. But by 2008 it was too late. She battled but passed away in 2011.

This week, the Missouri House debated whether Missouri Baptist Medical Center should be responsible for the harms and losses its doctors caused Crystal and her family?

Under the common law of agency, employers in the position of Missouri Baptist Medical Center have long been held responsible for the wrong-doing of their employees. In fact, the roots for this legal rule can be traced all the way back to Roman law – where the master was responsible for harm caused by his servant.

For an employer to be liable under the common law of agency, the central question is one of control: Does the employer set the terms of employment? Does the employer provide the facility where the work is done or the instruments through which the work is carried out? Does the employer generally set the hours worked? Is the work part of the regular business of the employer? Is the alleged employee engaged in an occupation that is identifiably distinct from that of the alleged employer?

In Crystal Jefferson’s case, Missouri Baptist said it could not be held legally responsible for the actions of its own doctors solely because it did not pay its doctors directly and that it provided a separate insurance policy for those doctors. The lawyers for Crystal’s family argued that the well-settled common law principles applied. Crystal prevailed. The Eastern District Court of Appeals allowed the claim against Missouri Baptist to proceed if Crystal could prove agency. Having lost in court, Missouri Baptist and other hospitals in Missouri decided to exercise their First Amendment rights to petition government.

The result is House Bill 452 and its Senate counterpart, both of which would eliminate the common law of agency for Missouri hospitals by stating that a hospital is only responsible for the actions of its agents that it compensates directly. Forget the factors set forth above, it’s now a one-part test. If the hospital pays its doctors through a third-party entity, then HB 452 permits the hospital to disclaim responsibility for its own physicians.

The bill negatively impacts two groups of Missourians. The first are patients. If a hospital attempted to have you sign a form document stating that, in exchange for services, you agreed that the hospital would not accept legal responsibility for the wrongdoing of any person not directly compensated by the hospital, Missouri courts — and most states — would reject that “contract” as being void against public policy. Yet HB 452 strips patients of the right to recover losses caused by substandard health care. It provides by legislative fiat that hospitals have no responsibility for the actions of any person it does not pay directly. All that’s necessary to avoid responsibility is to funnel compensation through a shell company.

Physicians are also harmed here. The attorney for Crystal’s family has a duty to help recover the full amount of the harm they suffered. If the hospital is immune, then the doctor is left to pay the entire damages. At the same time, if the hospital can be held legally responsible, there are no added damages to the case. Crystal’s children do not get to present any different evidence of the harm. They are entitled to be made whole for what has been taken from them – nothing more, nothing less.

Like many other bills in this area, it’s important to consider them in a real-world context – to put aside the talking points and Ivory Tower theorizing. For this bill, that’s really easy to do. After all, HB 452 was designed specifically to “fix” the result in Crystal Jefferson’s case.

Proponents of the bill argue that hospitals should not be liable where they have nothing to do with the actions at issue in a case. But the facts of Crystal Jefferson’s case belie this argument. Does a hospital have anything to do with the health care delivered on its premises? Crystal Jefferson believed that it did – and so too does every Missourian who goes to a hospital expecting adequate medical care. By design, HB 452 short-changes victims and permits hospitals to disown their own doctors – and that is why I voted no.

House Passes Bill to Increase Litigation, Take Away the Rights of Ordinary People

Out-of-state plaintiffs who suffer out-of-state injuries due to the actions of out-of-state defendants do not belong in Missouri courtrooms. Nevertheless, in the past few years, creative lawyers in St. Louis figured out a way around this common-sense idea. Using an old and useful legal doctrine known as joinder, these lawyers would file suit on behalf of a single Missourian who was harmed by a defendant, and join that lone Missourian’s claim together with the claims of dozens or up to 98 other people from different states.

In November, the Eastern District Court of Appeals explained this was the result of the language of current statutes – and one judge advised, “To the extent that this practice is seen as a problem, it is within the power of the Legislature to ‘fix it.’” Accordingly, several bills have been filed this session with the stated goal of ending the “out-of-state plaintiff” problem.

Of course, nothing can be so simple. In 2008, Rahm Emanuel infamously said, “You should never let a good crisis go to waste.” Rather than simply fixing the out-of-state plaintiff problem, narrow special interests crafted legislation that overreached. Here’s how:

Fact Pattern One – Paul is hurt in a car collision in Osage County where the other driver crossed into his lane of traffic and hit him head-on. Paul is taken to a Cole County hospital. He has symptoms consistent with a closed head injury, but they go undiagnosed and he is sent home, where he collapses the next morning from a cerebral hemorrhage. 

Paul’s family hires a lawyer. Should Paul be required to file two separate lawsuits – one in Osage County against the driver of the other vehicle and another in Cole County against the hospital? What if Paul decides to only file suit against the hospital – should the hospital be allowed to bring the driver into the case to argue that the driver is the one really at fault?

Under current law in Missouri and every other state in the country, Paul only needs to file a single lawsuit against both defendants. He is not forced to waste taxpayer money on two judges, two court reporters, and two juries. The defendants are not at risk of inconsistent judgments in two different cases.

Fact Pattern Two – A major corn seed producer sells a product to farmers containing a genetic trait that is not approved for sale in foreign countries, even though the seller states that it is. Corn growers in 42 Missouri countries purchase the defective product and suffer economic losses. Should the corn growers be allowed to file a single lawsuit (with each individual plaintiff responsible for proving their own individual damages, but able to prove the defendant’s responsibility on a common basis)? Or should the corn growers be forced to file 42 different lawsuits in 42 different Missouri counties, occupying the time of 42 judges, 42 court-reporters, 42 juries and very likely requiring the defendant’s executives to give 42 separate depositions?

Under current law in Missouri and every other state in the country, the corn growers can join together to file a single lawsuit. Under the concept of joinder, taxpayer resources are conserved, the defendant is not subject to interminable litigation in multiple counties, and the parties are not subject to inconsistent judgments.

As it originally made it to the floor this week, House Bill 460 would have eliminated all in-state cross-county joinder in Missouri. In our not-so hypothetical situations, Paul’s situation would require two separate lawsuits and the corn grower case would require 42 separate cases.

On Tuesday, I filed an amendment to HB 460 to fix these two problems with the bill – and narrow its focus to the out-of-state plaintiff problem only. After a lengthy debate, it was obvious that my amendment was going to be adopted. The bill – with my amendment pending – was laid over, i.e. postponed for the day. On Wednesday morning, another member offered a substitute amendment. To that member’s credit, the substitute amendment fixed the defendant joinder problem in HB 460. As amended, Paul’s claims can still be heard as a single case. But the amendment did not fix the problem with joinder of plaintiffs.

To be fair, the other side claims it is too easy for the plaintiffs to join in St. Louis City court – that the effect of the joinder rule is that every similar case will be filed in large, liberal locations. But the rational fix for that problem is not to purposefully make our legal system less efficient. Instead, it is to create a system that is fair to all litigants and responsible to taxpayers – a system that allows cases to be joined together, but does not skew the location. Reform like that would not be difficult to enact, but the bill’s special interest proponents are not interested in an efficient or fair legal system. Instead, they seek to eviscerate the rights of ordinary Missourians by making our system less efficient and more expensive.

It’s quite the irony: tort “reformers” always claim they want to reduce litigation. But if passed in its current state, HB 460 will increase the number of lawsuits, resulting in more depositions, more motions, more hearings, more experts, more trials, and more costs for everyone. There’s nothing conservative at all about that.

House Bill 460 is a scam. Like a shady car dealer trying to sell you a lemon, the proponents are relying on the fact that some buyers won’t look into the details – and hope you’re one of them. They say one thing, but their true goal is something else – it’s take away the rights of ordinary citizens just like you.  

(To complicate matters even further, just last week the Missouri Supreme Court ruled that an out-of-state plaintiff who suffered an out-of-state injury as a result of the conduct of an out-of-state defendant could file an individual claim in Missouri courts.)

The Missouri Plan Picks a Strong Panel for the Next Supreme Court Justice

Missouri has a model system of selecting judges. Known as the “Missouri Plan,” Supreme Court and other appellate judges in our state must go through a two-part process. First, a seven-member commission nominates a panel of three applicants. Second, the governor appoints from the three.

The Missouri Plan was created in 1940 through constitutional amendment. After decades of corruption and judges chosen by a single powerful political patron (and mobster) from Kansas City named Tom Pendergast, a group of citizens led by Rush Limbaugh, Sr. removed judicial selection from politics and corruption.

The Appellate Judicial Commission is composed of the Chief Justice of the Supreme Court, three governor-appointed citizen members from different regions of the state, and three attorneys chosen via election by the Missouri Bar.

On Wednesday, the commission sent Gov. Greitens a panel of three exceptionally qualified nominees:

Judge Lisa White Hardwick is a Harvard-trained lawyer who worked for Gov. Kit Bond, as a partner at some of the state’s best business law firms, and as a Circuit Court judge in Kansas City. She has served on the Missouri Western District Court of Appeals for the past 16 years.

Judge Brent Powell graduated from the University of Missouri who has worked at one of Missouri’s best business law firms. He also worked as a local prosecutor and as a top lawyer in the United States Attorney’s office for the Western District of Missouri. In 2008, Gov. Matt Blunt appointed him Circuit Court Judge in Jackson County – where he has served the past eight years.

Finally, Ben Lipman is a partner at another great law firm and a law professor at Washington University School of Law in St. Louis. He has an outstanding reputation and decades of experience litigating First Amendment cases and a wide variety of other areas of law.

After not making the panel, many people asked how I was feeling and what I thought of the panel. To the first question, I feel great. Life is still very good – just as it was before this process began. It was an honor just to participate in the process. To a person, the Commissioners were great and thorough in their vetting.

To the second question, as it has for nearly 80 years, the Missouri Plan worked again to select a panel of three talented, deserving nominees. It is critically important to have judges who are free from the fickle winds of politics, and who will decide cases based on legal merits, not political ideology or million-dollar campaign donations.

As I navigated this process, each Commissioner asked me to compare the approach I take as a legislator with what I would do as a judge. Legislators are free to opine on what the law “ought” to be. Judges have the duty to interpret what the law “is” without regard to politics or the relative power of the parties to a case. As a legislator, I never have to vote for a bill that I believe is bad public policy. But judges are obliged to make those kinds of decisions all the time.

A case decided just this week is a perfect example. On Tuesday, the Supreme Court invalidated the effects of a bill the General Assembly passed two years ago that prohibited cities from setting a local minimum wage higher than the state minimum wage. The decision left many legislators and special interest groups gnashing their teeth with accusations of “liberal judicial activism.”

Those critics could not be more wrong. While the result of the Court’s decision aligned with liberal policy interests, the decision itself was as conservative as it gets. In fact, the question before the Court had nothing to do with the minimum wage.

Instead, Article III, section 23 of the Missouri Constitution prohibits the General Assembly from passing bills that contain more than one subject. The single subject rule exists to prevent legislative log-rolling where a provision that most legislators would oppose is attached to a completely unrelated but popular provision. It is a well-designed limit on legislative power.

The test for whether a bill violates the single subject rule is whether all of its provisions “fairly relate to, have a natural connection with, or are a means to accomplish the subject of the bill as expressed in its title.” In this case, the bill in question started as a matter “relating to community improvement districts” and ended with an amendment on minimum wage. No reasonable person can make a straight-faced argument that there’s a natural connection or any relationship at all between community improvement districts and local minimum wage ordinances. As a result, the Court struck the statute.

Critics of this opinion would prefer that the Missouri Supreme Court pretend that Article III, section 23 did not exist in our Constitution. Those critics are the judicial activists, not the Court. As I’ve written in other contexts, our Constitution is not a cheap buffet where we get to pick the parts we like and ignore the parts we don’t.


The answer to the single subject prohibition cases is not to curse the Court, but instead to abide by the Constitution.  Accordingly, my committee will be hearing a bill on Monday to do this the constitutional way: a single subject bill that prohibits local government from enacting minimum wage ordinances that conflict with state law.