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Good News for Government Transparency!

Good News for Government Transparency!

Last year the Freedom Center of Missouri expanded its mission to include not only constitutional litigation, but also litigation under this state’s Sunshine Law, which guarantees citizens the right to obtain open public records and to attend – and record! – open public meetings of government entities.  The Freedom Center’s Director of Litigation, Dave Roland, had already been handling several Sunshine Law cases, and the Freedom Center recently adopted four of those.  That is why we are very pleased to announce that so far this year two Missouri Circuit Courts have issued very positive rulings regarding the Sunshine Law.

In an Audrain County case (handled by Dave), a judge ruled that multi-jurisdictional drug task forces are subject to the Sunshine Law and that the East Central Missouri Task Force committed several violations of that law.  A number of drug task forces statewide have been refusing to produce public records, arguing that they are not “public governmental bodies,” despite the enormous power and financial resources they are given to enforce the state’s drug laws.  If courts had accepted these arguments, task forces would not only have been exempt from citizens’ oversight, courts themselves would have been powerless to review the actions and policies of these powerful law enforcement entities.  We are very hopeful that several other courts will quickly reach the same conclusion that these task forces must be transparent and accountable to the people of this state.

In a St. Louis County case, a judge ruled that county prosecuting attorneys may not simply assume that requested records are exempt from public review without even looking at them, and that if a government entity wants an attorney to review and redact the documents before they are produced that expense must be borne by the government, not the person requesting the documents.  One of the favorite tactics government entities use to thwart the purposes of the Sunshine Law is to tell citizens that the entity will produce documents… but only after the citizen puts up an extraordinary amount of money “to cover the costs of producing the documents.”  Very frequently, those costs include the expense of having an attorney review the requested documents to determine if any of the information in them should be redacted.  As you can imagine, these costs very quickly become too much for an ordinary citizen to afford, so they simply pass up their opportunity to see the documents they had requested.  The decision in this case makes clear that if the government wants an attorney to review requested documents it is the government’s responsibility – not the citizen’s – to cover the cost of that review.

Both of these cases are steps in the right direction and indicate that we are on the right path to ensure that all government entities are transparent and accountable to the people of this state.

The four Sunshine Law cases the Freedom Center has adopted (about which we’ll be posting more in the future) are as follows:

Malin v. Metro Multi-Jurisdictional Undercover Drug Program, et al. – In 2014 the Missouri State Highway Patrol website maintained a map of the state’s operational drug task forces, including contact information for each.  Aaron Malin was interested in learning how these law enforcement agencies were using the extraordinary authority and taxpayer funding that the state had given them, so he began sending Sunshine Law requests to each of them.  In response to the request he sent regarding the St. Louis City Drug Task Force, however, an attorney named Mark Lawson responded that the city did not have such a task force.  Malin pointed out that the task force was listed on the Highway Patrol’s website along with a phone number, and that the person who answered that phone number had given Malin the fax number to which Malin had sent his Sunshine Law request.  Lawson continued to insist not only that St. Louis City had no drug task force, but also that neither he nor Chief of Police Sam Dotson had any idea to what the Highway Patrol website could be referring.  Months later, Malin discovered through documents produced to him by the Missouri Department of Public Safety not only that St. Louis City and its Police Department had sent to DPS scores of documents making reference to “St. Louis City, Drug Task Force.”  What is more, those documents identified Mark Lawson – the very attorney denying the task force’s existence – as the “Authorized Official” who submitted applications for public funding and signed the contracts securing that funding.  Malin’s lawsuit against the task force asserts that it is a particularly heinous violation of the Sunshine Law for an attorney who has been a legal representative of a public governmental body to refuse to produce documents on the basis that the public governmental body doesn’t even exist.

Malin v. St. Louis County Multi-Jurisdictional Drug Task Force, et al. – The St. Louis County Multi-Jurisdictional Drug Task Force, on the other hand, is very public about its existence.  Malin asked for copies of the meeting minutes for the task force’s executive board, which the Sunshine Law requires all public governmental bodies to take and retain.  A representative for the task force responded that there were no minutes for meetings held prior to March 2015 – indicating either that the executive board was not providing legally-required oversight for the task force or that it was not keeping the legally-required records regarding those meetings.  The representative for the task force did, however, turn over an electronic document in Microsoft Word format that purported to be minutes for an executive board meeting held on March 19, 2015, but there was something very strange about this document.  Malin submitted his request on July 7, 2015.  The metadata for the electronic document (which did not even include all of the information required of meeting minutes) showed that it had been created on July 8, 2015 – the day after Malin made his request and nearly three months after the meeting had taken place.  Later, the task force produced a very different document that also claimed to be minutes for the March 19, 2015 executive board meeting, and also a document purporting to be minutes for a September 3, 2015 executive board meeting.  Malin’s lawsuit against this task force alleges that it violated the Sunshine Law by failing to maintain records of executive board meetings in accordance with legal requirements, and also that the task force unlawfully fabricated the two sets of “minutes” for the March 29, 2015 executive board meeting long after the meeting took place.

 

Malin v. MUSTANG Task Force, et al. – When Malin first requested records from the Mid-Missouri Unified Strike Team and Narcotics Group (MUSTANG) Task Force, its seemed like the task force might voluntarily comply with the Sunshine Law.  The task force arranged to make certain documents available for Malin’s review, but when Malin began looking at the documents they included a number of redactions not authorized under the law.  He requested from the task force additional documents (including minutes from meetings of the executive board) and, although the task force board’s chairman sent some documents, they were not the documents Malin had requested.  When Malin insisted that the task force must produce the documents Malin had requested, it stopped responding to his requests altogether.  The Freedom Center’s Director of Litigation, Dave Roland, sent a letter to the board chairman, explaining that he had a legal obligation, at a bare minimum, to respond to Malin’s requests and also explaining the legal penalties for refusing to comply with the Sunshine Law.  More than a month later, because the task force still refused to acknowledge several of Malin’s document requests, Malin sued, arguing that the task force had been clearly and fully informed of its legal obligations as well as the penalties for non-compliance, but still refused to comply with the law’s requirements.

 

Malin v. Cole County Prosecuting Attorney – Malin submitted several Sunshine Law requests to Mark Richardson, whom the people of Cole County had elected to serve as their Prosecuting Attorney.  In response to each of Malin’s requests, Richardson sent a letter that said, “The records you requested, even if they existed, would not be categorized. To search, categorize, and compile such records would be unduly burdensome. The costs to find and copy would be hard to calculate. Without confirming or denying the existence of records you requested, any official records of this office would be closed to the public.”  Of course, this statement was not at all true.  While the Prosecuting Attorney’s office might under very limited circumstances be authorized to redact certain information from the records Malin had requested, the Prosecuting Attorney’s office does not enjoy blanket exemption from the Sunshine Law’s requirements.  Dave Roland sent Richardson a letter that carefully explained Richardson’s legal obligation to search for responsive records and, if any were to be withheld, to identify the statutory provisions that Richardson believed to justify the withholdings; Richardson refused either to respond to Roland’s letter or to properly respond to Malin’s Sunshine Law requests.  Malin sued, arguing that Richardson had been clearly and fully informed of his legal obligations aw well as the penalties for non-compliance, but he had still refused to comply with the law’s requirements.  The Freedom Center is partnering with the American Civil Liberties Union of Missouri in this case.

Merry Christmas From the Freedom Center of Missouri

Merry Christmas From the Freedom Center of Missouri

Dear Friend of the Freedom Center,

Christmas is just days away, and here at the Freedom Center we are eager to celebrate the birth of Jesus and the promise of love, peace, and redemption that He brought into the world.  We hope that this season will find you and your family happy, healthy, and hopeful about the potential for the coming New Year!

We are also celebrating an early Christmas gift from St. Louis media in the form of excellent coverage of our constitutional challenge to the Turf Grass Mandate in St. Peters.

The first couple of rounds of this legal battle kind of flew under the media radar, but thanks to the immense goodwill we built with St. Louis news outlets this summer, round three of this case is making a huge splash. Two days ago KSDK made the filing of this federal lawsuit its lead story on the 5:00 news, and today the St. Louis Post-Dispatch ran its own story about our case on the front page.  This kind of coverage is invaluable in helping to show people why it is so important to keep the government within constitutional boundaries.

As we noted in last month’s email, the Freedom Center is once again a 501(c)(3) organization; donations to support our work are tax-exempt.  There has never been a better time to give, and I want to lay out, specifically, the value the Freedom Center offers.

We are currently litigating eight cases – two property rights cases and a free speech case in federal courts, and one economic liberty case and four government transparency cases in state courts.  This does not include the four election-related cases (three victories, one 4-3 loss in the Missouri Supreme Court) and the Right of Self-Defense case (a 5-2 loss in the Missouri Supreme Court) that we wrapped up earlier this year.  I am not exaggerating when I say that no other similar organization – even one double or triple our size – could dream of doing so much, even with a budget ten times larger than ours.

Every dollar you give to the Freedom Center goes directly to support our efforts at the state capital, in the courts, and in the court of public opinion.  No one else in Missouri is doing the kind of work we do, nor advancing liberty in such a concrete way.  For people who love liberty, there simply is no bigger bang for your buck.  If you would like to support us, please go to mofreedom.org/donate – which, I believe, is finally working the way it should.  And perhaps as importantly, please pass this message to your freedom-minded friends and encourage them to give as well.  With your support, we will continue to do work you can be proud of.

Wishing a Very Merry Christmas and a Free and Prosperous New Year to All,

Dave Roland

Director of Litigation
Freedom Center of Missouri
Invest in Liberty!
P.O. Box 693
Mexico, Missouri 65265
Phone: (573) 567-0307

New Cases to Report!

Several months ago the Freedom Center expanded its mission to include “government transparency.”  We did this because a self-governing people must be able to inform themselves as to what their officials are doing with the power they have been given.  We have now adopted four Sunshine Law cases.

Three of these cases involve drug task forces that, despite having been given millions of dollars of taxpayer funding and extraordinary, statewide powers of arrest, assert that they are completely exempt from Missouri’s Sunshine Law.

The St. Louis City task force for months denied its own existence… until our client, Aaron Malin, found out that the person issuing those denials was actually responsible for signing contracts on behalf of the task force.

The MUSTANG Task Force initially produced documents, but they unlawfully redacted them and then, even after being informed of their legal obligations and the potential consequences, simply stopped responding to open records requests.

The St. Louis County task force did not announce its meetings and did not keep minutes of those meetings, despite statutes explicitly imposing these requirements, then tried to cover-up its violations by fabricating “minutes” after Malin requested them, trying to pass the fabricated documents as legitimate.

In the fourth case, Cole County Prosecuting Attorney, Mark Richardson, could not argue that the Sunshine Law did not apply to his office.  But even so, he responded to every request for records with a form letter stating that his office did not “categorize” its records and that, therefore, he considered any public records request too burdensome for him to make any effort to locate the requested records.

The Freedom Center is fighting to ensure that those responsible for enforcing our state’s laws do so with the transparency that the Sunshine Law demands, and that they will be held accountable when they, themselves, break the law.

Blooming Ridiculous, Phase Three: The Duffners’ Challenge to the Turf Grass Mandate Moves to Federal Court

Blooming Ridiculous, Phase Three: The Duffners’ Challenge to the Turf Grass Mandate Moves to Federal Court

On Monday December 19, 2016, the Freedom Center of Missouri began Round Three of its battle to end the unconstitutional Turf Grass Mandate in the City of St. Peters, re-filing the case in federal court. The move was necessitated because, even after the Missouri Court of Appeals admonished St. Charles County Circuit Judge Daniel Pelikan for improperly dismissing Carl and Janice Duffner’s constitutional challenge, Judge Pelikan refused to let the Duffners present their claims under the Eighth and Fourteenth Amendments to the U.S. Constitution. Rather than take another trip to the Missouri Court of Appeals – which would have taken significant time and resources and, even if successful, simply would have put the Duffners back in front of Judge Pelikan again – the Freedom Center decided that a move into the federal courts would likely offer a quicker, more direct path to addressing their constitutional arguments.

As of the date the Freedom Center filed this new complaint, the Duffners were facing a minimum criminal penalty of nearly $8,000 and a maximum penalty of more than $180,000 and 20 years in prison… simply because they have chosen to plant harmless, lawful flowers on their property rather than the government-mandated turf grass, which makes Janice sick. The complaint argues not only that the Turf Grass Mandate violates the Duffners’ fundamental right to put their private property to harmless, lawful uses of their own choosing, but also that the penalties violate the Excessive Fines and Cruel and Unusual Punishment Clauses of the Eighth Amendment. You can read a copy of the new complaint below:

1 - Filestamped Duffner E.D. Mo. Federal Complaint

Appellate Brief Filed To End Suspicionless Vehicle Stops

Appellate Brief Filed To End Suspicionless Vehicle Stops

Today the Freedom Center filed a brief at the Eighth Circuit Court of Appeals in our Suspicionless Stops case.

The judgment we are appealing ruled that because professional commercial truckers are subject to extensive regulation, the Fourth Amendment allows law enforcement officers to randomly pull over and inspect almost any vehicle driving on Missouri’s highways and interstates – even if the drivers and vehicles are not involved in the professional commercial trucking industry, and even if the officer has no reason to suspect that the driver or vehicle are in violation of any law.  This was a truly terrible ruling, and we are confident that the Eighth Circuit will reverse it, holding that the Fourth Amendment does not allow law enforcement officers to pull over drivers unless there is a reasonable suspicion that a law has been violated.

You can read our brief here:

Calzone v. Koster - Appellant's Initial Brief
Federal Judge: Fourth Amendment Does Not Protect Drivers From Suspicionless Stops

Federal Judge: Fourth Amendment Does Not Protect Drivers From Suspicionless Stops

On July 28, 2016, Judge Stephen Limbaugh ruled that the Fourth Amendment does not prevent Missouri Highway Patrol officers from pulling over any vehicle, at any time, and at any place in the state, even if the officer has no reason to believe the driver or vehicle are in violation of any laws.

“The U.S. Supreme Court has never authorized law enforcement officials to conduct roving, suspicionless stops of drivers,” explained Dave Roland, director of litigation for the Freedom Center of Missouri. “We will appeal this decision to the Eighth Circuit.”

The case involved a 2013 traffic stop in which a Missouri Highway Patrol officer pulled over Ron Calzone, a Missouri rancher driving an empty dump truck to pick up gravel for his daughter’s chicken coop, and demanded to inspect the vehicle simply because the officer did not recognize the markings on it.  After the officer confirmed that he had no basis for suspecting that either Calzone or the vehicle were in violation of any laws, Calzone refused to allow the inspection because he believed that the officer lacked any constitutional authority to make such a demand.  The officer responded that Missouri law specifically permitted him to pull over vehicles “with or without probable cause” to believe that any law was being violated.

The officer cited Calzone for a misdemeanor offense of “opposing a member of the Missouri Highway Patrol in the proper discharge of his duties,” although the prosecutors dropped the criminal charges when Calzone (representing himself) seemed likely to win an acquittal.  Calzone then teamed up with the Freedom Center of Missouri to go on offense and to have the practice of suspicionless traffic stops ruled unconstitutional.

“The law at issue here is just a modern echo of the writs of assistance and general warrants that the British used against American colonists,” Calzone said. “The Founding generation despised being subject to warrantless, suspicionless government seizures and searches, which is why the Fourth Amendment generally prohibits them.”

A copy of Judge Limbaugh’s opinion is included below. The Freedom Center expects the Eighth Circuit to address this appeal in early 2017.

27-Memorandum-and-Order
Missouri Supreme Court: Voters’ Rights Not Burdened By Limiting Their Choice To Only One Candidate

Missouri Supreme Court: Voters’ Rights Not Burdened By Limiting Their Choice To Only One Candidate

In a sharply divided 4-3 opinion the Missouri Supreme Court has ruled that the only choice listed on the ballot for voters in the State House District 76 will be their incumbent State Representative, Joshua Peters.

Peters had been facing competition from political activist Rachel Johns, but Peters sued to have his opposition removed from the ballot, arguing that when the election takes place this fall Johns will only have been a registered voter for twenty-one months and state law requires her to have been registered for twenty-four months.  Johns responded that the twenty-four month registration requirement violated the First and Fourteenth Amendments.

Where a law interferes with voters’ rights to choose who will represent them in elected office, the U.S. Supreme Court has said that courts’ first responsibility is to assess the magnitude of the burden that the restriction places on voters.  It has also said – repeatedly, for more than four decades – that “the right to vote is ‘heavily burdened’ if that vote may be cast only for one of two candidates in a primary election at a time when other candidates are clamoring for a place on the ballot.”  If a law heavily burdens voters’ rights, courts are supposed to strike the law down unless the government comes forward with a compelling government interest and shows that the restriction imposes is the least burdensome way of serving that compelling interest.  In this case, the government flatly admitted that it could not justify its restriction under this standard.

The majority, however, decided that the voters’ rights were not heavily burdened, even though the restriction at issue would leave only one name on the ballot in both the primary and general elections for State House District 76’s seat in the Missouri House of Representatives.  Ignoring the five U.S. Supreme Court majority opinions that the Freedom Center cited to establish that this artificial limitation on voters’ choices constituted a “heavy burden” on their constitutional rights, the majority cited a plurality opinion from the U.S. Supreme Court (only four of the justices approved the reasoning) and two federal circuit court decisions (neither of which was actually on point) in order to conclude that denying the voters’ chance to consider a candidate other than Peters was not a significant burden on the voters’ rights.

The three dissenting judges properly noted all of the U.S. Supreme Court opinions that the majority disregarded, and pointed out that “[n]o court, prior to today, has suggested that a state has such a carte blanche to impose temporal registration restrictions on who may run for office.”  More importantly, the dissent noted that, although the government claimed that the twenty-four month registration requirement was intended to ensure that candidates for office had had the opportunity to vote in the previous general election, the requirement does not actually do this, and so the restriction cannot be considered rationally related to the government’s asserted interest.

Under normal circumstances, if faced with a 4-3 decision where we would only need to change the mind of one judge to win the case, the Freedom Center would file a motion pointing out the errors and omissions in the majority opinion and asking the court to reconsider.  In this case, however, the Missouri Supreme Court preemptively stated that it would not entertain any such motions.  That means that there is no realistic way to save Ms. Johns’ candidacy for the 2016 election, which means that the voters of State House District 76 will only see one name listed on the primary and general election ballots this year.

That said, the case is not necessarily over yet.  The Missouri Supreme Court has rejected the reasoning adopted in a number of U.S. Supreme Court cases, and similar reasoning adopted by other state supreme courts and a couple of U.S. circuit courts – which means there is a chance that the U.S. Supreme Court may be interested in considering this case and reversing the majority’s conclusion.  The Freedom Center will carefully consider the possibility of asking the U.S. Supreme Court to do so.

PRESS RELEASE: Protecting the Right to Protest

PRESS RELEASE: Protecting the Right to Protest

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FOR IMMEDIATE RELEASE:    April 8, 2016

CONTACT:  Dave Roland

PROTECTING THE RIGHT TO PROTEST:

Candidate Challenges Laws That Keep Political Protesters Off Election Ballots

Mexico, Missouri—In 1999 the U.S. Supreme Court held that refusing to register to vote is an expressive act protected by the First Amendment because “there are those individuals for whom the choice not to register to vote implicates political thought and expression.”  Rachel Johns is one of those individuals.

“In 2014, as an African American woman living in St. Louis, I was disillusioned with the political system,” Rachel said. “I desperately wanted to do some good for my community, but I believed the deck was stacked against the interests of ordinary citizens.  I was eligible to register to vote, but felt that doing so would have been an endorsement of that broken system, and at the time I could not do that in good conscience.  My choice not to register was an act of protest.”

Despite this decision, Rachel was still determined to do what she could to improve her community, protesting abuses of government authority and working to promote the establishment of a Civilian Oversight Board to check the power of the St. Louis Metropolitan Police Department.  As she pursued her activism, she got to know a local politician in St. Louis who inspired Rachel to believe that the political system could be redeemed if enough good people committed to changing the status quo.  On February 4, 2015, after careful deliberation and soul-searching, she ended her protest and registered to vote.  More than a year later, with the encouragement of friends, neighbors, and mentors, Rachel declared her candidacy to represent her district in the Missouri House of Representatives.

Last week, however, Rachel’s opponent filed a lawsuit challenging her candidacy, pointing out state laws that require a candidate for the Missouri House of Representatives to have been a “qualified voter” for two years prior to his or her election and noting that when this year’s general election rolls around Rachel will only have been registered to vote for one year, nine months, and four days.

“Rachel has been actively invested in promoting her community’s interests for much longer than she’s been registered to vote,” said Dave Roland, the Freedom Center of Missouri’s director of litigation. “The only reason her candidacy is in question is because she engaged in an expressive act of political protest that the U.S. Supreme Court has said is protected by the First Amendment.  Missouri law cannot be applied in such a way that it would penalize not only Rachel, but the voters of State House District 76 as well, simply because she engaged in a political protest.”

On April 7, 2016, the Freedom Center of Missouri came to Rachel’s aid, acting not only to defend her against her political opponent’s lawsuit, but also filing a separate lawsuit (also attached below) against Missouri’s Attorney General and Secretary of State to safeguard not only Rachel’s freedom to protest, but also the voters’ right to have a real choice as to who will represent them in the Missouri House of Representatives.

“I’m the only person of any party who was willing to challenge the incumbent in this race,” Rachel noted. “If I get removed from the ballot, my fellow voters and I will go through an entire election cycle without being able to cast a meaningful vote against the political status quo.”

“Representative government only really works when the voters have a genuine choice among candidates,” Roland explained.  “Courts all over the nation have been striking down similar laws that penalize citizens for political protest and artificially restrict voters’ choices of candidates, and we look forward to winning an important victory for Rachel, the voters of State House District 76, and citizens all over the state.”

Founded in November 2010 and headquartered in Mexico, Missouri, the Freedom Center of Missouri is a non-profit, non-partisan organization dedicated to research, litigation, and education in defense of individual liberty and constitutionally limited government.  The Freedom Center is Missouri’s leading legal advocate for the constitutional protection of election-related liberties secured by the First Amendment.  This is the fourth case they have taken dealing with the constitutional rights of candidates and voters; the Freedom Center won all three of the previous cases.  Additional information about the Freedom Center’s mission, cases, and activities can be found online at www.mofreedom.org.

Previous election-related cases:

Wright-Jones v. NasheedUnanimous Missouri Supreme Court Victory

Vowell v. KanderUnanimous Appellate Victory

Constitution Party of Missouri, et al. v. St. Louis County, et al.U.S. District Court Victory

# # #

[NOTE:  To arrange interviews on this subject, journalists may call Dave Roland at (314) 604-6621.]

To Fix a Broken Standard

To Fix a Broken Standard

 

Missouri is facing an unusual problem.

On the one hand, the state supreme court has held that laws affecting fundamental rights must be reviewed under the “strict scrutiny” standard.  Ordinarily this would be excellent news, because strict scrutiny is supposed to represent the very highest level of judicial protection for constitutional rights. This standard requires the court applying it to (1) presume that a law restricting a constitutional right is unconstitutional, (2) requires the government to present a compelling government interest that might justify the restriction on the constitutional right, and (3) requires the government to show that the challenged law is narrowly tailored so that it restricts no more liberty than is reasonably necessary for the purpose of serving the government’s asserted compelling interest.

But in a set of cases dealing with Missouri’s new amendment addressing citizens’ right to keep and bear arms the court turned the idea of strict scrutiny on its head.  At issue was the state’s permanent prohibition on persons convicted of any felony offense from ever again lawfully possessing a firearm. The challengers conceded that, although the amendment explicitly allowed for these restrictions to be applied to convicted violent felons, the felon-in-possession statute unconstitutionally restricts the freedoms of a huge number of convicted felons have not shown any propensity for violence–the law treats someone convicted for tax delinquency the same as it treats a murderer or rapist.

In these Amendment 5 cases, the court started by expressly refusing to put the burden of proof on the government, instead stating that it would presume the validity of the challenged law and force the challengers to prove the law was unconstitutional.  This position directly conflicts not only with the way strict scrutiny is applied in literally every other state and federal court in the nation, it also contradicts the Missouri Supreme Court’s own precedents.  In Witte v. Director of Revenue, 829 S.W.2d 436 (Mo. banc 1992), for example, the Missouri Supreme Court stated that cases in which a law restricts fundamental constitutional rights “force the courts to peel away the protective presumption of constitutionality and adopt an attitude of active and critical analysis, thus subjecting the [law] to strict scrutiny.”  Even more recently, in Ocello v. Koster, 354 S.W.3d 187 (Mo. banc 2011), the court held that “[u]nder strict scrutiny, legislation is presumptively invalid and will be declared unconstitutional unless it is narrowly tailored to serve a compelling governmental interest.”  In its recent Amendment 5 rulings, however, the court did not make any reference to or effort to explain its departure from these earlier holdings – it simply acted as though they never happened.

In the cases challenging the felon-in-possession laws, the challengers admitted that the government has a compelling government interest in keeping firearms out of the hands of those who have been convicted of violent crimes, thus demonstrating a propensity for violence against others.  The proper question, then, was whether the government’s sweeping ban on nonviolent felons’ possession of firearms was reasonably necessary to keep firearms out of the hands of violent felons.

Under the traditional strict scrutiny standard, the government would be required to put forward evidence demonstrating such a necessity if the law was going to survive.  Again, however, the Missouri Supreme Court deviated from precedent, stating instead that the government need only appeal to “a long history, a substantial consensus, and simple common sense” to justify a restriction on fundamental constitutional freedoms – no actual evidence would be required.  In the context of the felon-in-possession law, the court made no effort to determine if less extensive restrictions would have adequately addressed the government’s asserted interests.  Instead, it concluded that because the government might theoretically have tried to make the challenged restrictions even broader (for example, extending the prohibition to those convicted of misdemeanors) the court would consider the restrictions to be “narrowly tailored.”

So even though the Missouri Supreme Court has given lip-service to the idea that it will apply strict scrutiny to restrictions on constitutional rights, the standard it actually applied in the context of the Amendment 5 cases bears little resemblance to the strict scrutiny courts apply in any other context or jurisdiction.

Why does this matter?  Because going forward, one of two things will happen whenever a citizen goes to court to argue that a law violates their constitutional rights: the courts will either apply the same, toothless version of “strict scrutiny” it used in the Amendment 5 cases, or they will make up their own standard on a case-to-case basis, the application of which will depend solely on whether the judges think a given constitutional right is worthy of protection.  Either result is unacceptable for a society that values the rule of law and constitutional checks on governmental power.

What can be done about this?  I’m glad you asked!

Missouri needs a constitutional amendment to clarify how this state’s courts must assess governmental restrictions on constitutional rights.  I propose that the following section (or something like it) should be added to Article V of the Missouri Constitution, which addresses the state’s judiciary:

1. The paramount responsibility of Missouri courts is to ensure that individuals in this state may exercise the rights and freedoms the people have enumerated in this Constitution.

2. When in a lawsuit properly before one of this state’s courts one party timely asserts that a government entity  that is also an opposing party has enforced or has threatened to enforce against the asserting party a law, regulation, or policy that might limit the asserting party’s exercise of a specified right or freedom enumerated in this Constitution or might otherwise penalize the asserting party for exercising such a right or freedom, the court must assess the asserting party’s claim in the following manner:

(1) The court must determine whether the challenged law, regulation, or policy limits or penalizes the party’s exercise of the right or freedom the asserting party has specified, giving the right or freedom the broadest scope that is consistent with the plain meaning of each word and phrase in the relevant constitutional provision; the court shall not infer any exceptions to or limitations upon the right or freedom unless the exception or limitation is expressly authorized by this Constitution, and any ambiguity in the Constitution’s language shall be resolved by determining how each word or phrase in the relevant provision most likely would have been understood by the voters at the time they ratified that provision;

(2) If the facts of the case show that the challenged law, regulation or policy does limit or penalize a party’s exercise of a right or freedom articulated in this Constitution, the court must presume that the challenged law, regulation or policy is unconstitutional and must adopt a perspective of active and critical analysis that gives no deference to government assertions unsupported by competent evidence;

(3) The presumption of unconstitutionality may only be overcome if the government entity responsible for enforcing the challenged law, regulation, or policy presents to the court competent evidence sufficient to prove beyond a reasonable doubt that the challenged law, regulation, or policy is not only necessary for the prevention of a specific, non-speculative threat to the public health and safety, but also that the law, regulation or policy allows persons to exercise as much of the asserted constitutional right or freedoms as is consistent with preserving the public health and safety against the threat the government has demonstrated.

3. Any order or opinion in which a court of this state upholds the constitutionality of a law, regulation, or policy that restricts or penalizes a right or freedom enumerated in this Constitution must identify any specific government interest served by the restriction or penalty as well as the evidence the court relied upon to determine that the law, regulation, or policy represents the least-restrictive means of serving the specified government interest.

4. Any other provision of this Constitution notwithstanding, a judge’s failure to comply with the terms of this section shall be valid grounds for impeachment.

 

PRESS RELEASE: Missouri Supreme Court Defies Voters, Effectively Nullifies Amendment 5

PRESS RELEASE: Missouri Supreme Court Defies Voters, Effectively Nullifies Amendment 5

 

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FOR IMMEDIATE RELEASE:    February 9, 2016

CONTACT:  Dave Roland

Missouri Supreme Court Defies Voters, Rules Amendment 5 “Worked No Substantial Change” in Missouri Constitution 

Mexico, Missouri—By a 5-2 margin, a majority of the Missouri Supreme Court’s judges have effectively nullified a state constitutional amendment approved by more than sixty percent of voters in 2014.  Amendment 5, as the measure was known, made major textual changes to Article I, section 23 of the Missouri Constitution and was designed to establish the most stringent constitutional protections possible for citizens’ rights to keep and bear arms.  But in a trio of opinions authored by Judge Laura Denvir Stith and handed down today that reject decades of rulings about how courts must interpret changes to legal provisions, the Missouri Supreme Court has concluded that the amendment “worked no substantial change in Article I, section 23.”

Judges Mary Russell, Paul Wilson, Zel Fischer, and Chief Justice Patricia Breckenridge each joined the majority opinion.

“The words of the Missouri Constitution are the most essential, most fundamental tool the people have to define—and limit—the powers of their government,” said Dave Roland, director of litigation for the Freedom Center of Missouri, who argued one of the three cases before the Missouri Supreme Court.  “The people used the most powerful language available to them to demand protection for their rights to defend themselves using firearms; the majority opinion openly defies the people’s authority to protect this right or any other constitutional right.”

In a stinging dissent, Judge Richard Teitelman highlighted the flaws in the majority’s logic, saying, “The principal opinion asserts ‘context matters’ when courts apply strict scrutiny.  If context matters, then this Court should consider the fact that the list of nonviolent and impersonal regulatory offenses is a long one and it grows every year. … [The felon-in-possession statute] strips the delinquent taxpayer of his or her constitutional rights on the same terms as a murderer.  I fail to see how restricting the constitutional rights of those who bet on horse races or divulge the names and addresses of donors to a state-established trust fund is narrowly tailored to the prevention of gun violence.”

Judge George Draper joined Judge Teitelman’s dissent.

“These decisions put in jeopardy every single right that Missourians hold dear,” explained Jenifer Zeigler Roland, the Freedom Center’s executive director.  “The majority has today rejected the idea that our constitutions impose serious restrictions on governmental power and has announced that, no matter how clearly any individual right is stated in the Missouri Constitution, four judges who do not like that right can render it meaningless.”

The full impact of the majority’s rulings is revealed by what it means for Pierre Clay, the defendant in one of the three cases.  The only offense of which Clay has been convicted is possessing a weapon in his car for purposes of self-defense – which is, of course, the essence of the constitutional right at issue in this case.

“Mr. Clay is a hard-working husband and father who simply wants to keep his family safe,” Roland concluded. “It is heartbreaking and senseless that he now faces time in prison for no reason other than that he exercised his constitutional right to possess a firearm for defensive purposes.”

The Freedom Center of Missouri vows to continue working at all levels to protect and, where necessary, to restore Missourians’ individual liberties and their authority to act via constitutional amendment to restrict the powers of their government.

Additional information about the Freedom Center’s mission, cases, and activities can be found online at www.mofreedom.org.

 

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[NOTE:  To arrange interviews on this subject, journalists may call Dave Roland at (314) 604-6621.]

VICTORY: St. Louis County Can No Longer Ban Minor Parties, Independent Candidates From Ballots

VICTORY: St. Louis County Can No Longer Ban Minor Parties, Independent Candidates From Ballots

St. Louis County officials may no longer ban minor parties and independent candidates from special election ballots. In an important victory for voters and candidates dissatisfied with the two major political parties, U.S. District Judge Ronnie White has signed an order that permanently prohibits the county and its election officials from enforcing a charter provision that limited voters’ choices to only candidates representing the two major political parties.

Last January, the Constitution Party of Missouri attempted to nominate St. Louis County resident Cindy Redburn as its candidate for a special election to fill a vacant seat on the St. Louis County Council.  But a representative for the St. Louis County Board of Election Commissioners rejected Redburn’s paperwork, claiming that the County’s charter only allowed county officials to list the Republican and Democrat nominees on the ballot as candidates for the voters’ consideration.

“This provision of the St. Louis County Charter was written to completely exclude minor parties and independent candidates from running to fill vacancies on the county council,” explained Dave Roland, director of litigation for the Freedom Center of Missouri and the plaintiffs’ attorney in this case. “It is hard to imagine that anyone ever thought this was constitutional.”

With the Freedom Center’s assistance, the party, the would-be candidate, and a number of Redburn-supporting voters sued to ensure that there would be an alternative available for St. Louis County voters uninspired by the major parties’ candidates.

Once the lawsuit was filed, attorneys representing St. Louis County and its Board of Election Commissioners quickly agreed to put Redburn on the ballot for the upcoming election, but they still tried to negotiate a deal that would shut other minor parties and independent candidates out of the race.

“That was just out of the question,” said Redburn.  “The other plaintiffs and I took on this case as a matter of principle.  We didn’t want any special treatment; we wanted everyone to have their constitutional rights respected and for voters to have a real choice of candidates.”

After the election took place in April, the County asked the judge to throw the case out, even though the County still intended to exclude independent candidates and minor parties from future special elections.  Judge White declined to do so, indicating that he intended to address the substance of the plaintiffs’ claims.

On January 27, 2016, Judge White brought the case to a conclusion, entering an order that permanently enjoins St. Louis County and its Board of Election Commissioners from enforcing any ban on independent candidates’ and minor parties’ participation in special elections.

“It is vitally important to our constitutional system for citizens to be able to cast ballots for candidates that truly represent the voters’ ideas and policy preferences,” Roland explained. “We are thrilled that our lawsuit has helped to restore these important First Amendment protections to citizens, candidates, and political parties in St. Louis County.”

Founded in November 2010, the Freedom Center of Missouri is a non-profit, non-partisan organization dedicated to research, litigation, and education in defense of individual liberty and constitutionally limited government. The Freedom Center is one of Missouri’s leading legal advocates for the constitutional protection of voters’ rights to elect representatives of their own choosing. In 2012, Roland won a unanimous Missouri Supreme Court decision that allowed voters to elect Jamilah Nasheed to the state senate, and in 2014 the Freedom Center won a victory that prevented Secretary of State Jason Kander from unilaterally removing candidates from election ballots.