Court upholds authority of St. Louis to enact red light camera ordinance.

 

The recent decision by the Eastern District in Smith v. City of St. Louis is one more step in a long line of cases that destroys the myth that using technology to reduce accidents at intersections through the use of photo red light cameras is not within the police power of a City. In the City of St. Louis case the Court found that the City had the authority to establish the offense under its police power as a public safety measure pursuant to state law or under its home rule charter. Reducing violations of running traffic control devices is a valid use of the police power. See earlier Post predicting that the trial courts decision on this issue would be overruled.  Is the St. Louis Ordinance Valid?

Can we stop the carnage through better technology?

Court of Appeals – Eastern District

Furthermore, if you voluntarily paid the $100 fine for violating the ordinance you are not entitled to a refund unless it is paid under duress, which was not the case in this matter nor could refunds be claimed against the City under an unjust enrichment theory.

The Court did make a detailed analysis of what the ticket for the violation needed to include and found that the tickets issued by the City and the information provided thereto did not conform to Rule 37 because it did not include information about the right to either plead guilty or not guilty and appear at trial, nor did the ticket set a date to appear. Since the City failed to comply with Rule 37 – that governs municipal courts  – the ordinance was invalid “as applied” and the City is back to ground zero with the need to rewrite its procedures for issuing tickets, although the Court provided a very clear outline of how to write tickets to implement the Ordinance based on its discussion of Rule 37.

In addition, the Court ruled that the time to challenge the ordinance with respect to due process such as self-incrimination and the right of confrontation is at the time of trial so these issues were put off for another day by reversing the trial courts decision on the due process claims. Persons charged with violation of the Ordinance will have to make their due process challenges when they defend themselves against the charge in court.

Due process claims will have to wait until trial.

The opinion in the  City of St. Louis case also debunked the use of red light cameras as a revenue generator noting that radar guns also can be used to generate revenues. There is nothing new or mysterious about the use of new technology to enforce traffic laws.

See earlier Posts discussing this topic: New Rules on Photo Red Light Cameras; Creve Coeur Photo Red Light Camera Ordinance; and Red Light Camera Ordinances  in Missouri

Howard Wright @ 2013

Port Authority cannot condemn land for economic development purpose.

The recent decision by the Missouri Supreme Court denying the right to condemn land for economic development purposes assumes a larger than life impact on the ability of state and local government  in Missouri to engage in economic development.

Missouri Supreme Court

After the 2005 Kelo decision by the United States Supreme Court, the General Assembly of the State of Missouri enacted section 523.271 RSMo. to limit the power of a condemning authority to take property for economic development purposes. State of Missouri ex rel. Jackson v. Dolan, is a case of first impression that addresses the limitations placed by the General Assembly on the power of government to acquire land through condemnation solely for economic development purposes.

In the Dolan case the Southeast Missouri Regional Port Authority (“Port Authority”) operated a port district. Within this district, the Port Authority owns between 500 and 600 acres of land. The Port Authority plays two roles with regard to the land it owns. First, it serves as a land developer by developing and leasing land to private companies. In this capacity, the Port Authority provides streets, sewers, utilities, railroad tracks, and access to the harbor contained within the port. The harbor itself is operated by a private entity on land leased by the Port Authority. In its second role, the Port Authority operates a six- mile railroad that connects with the Union Pacific and Burlington Northern Santa Fe. This six-mile railroad provides businesses in the area with the ability to transfer freight between barges and trains at the Port Authority’s harbor. A Port Authority has the power to acquire property of any kind or nature within its district necessary for its purposes by using the power of eminent domain.

In order to expand its facilities, the Port Authority decided to build a loop track on land that it already owned that would enable it to handle unit trains of around 100 cars that come from one shipper that are headed to one particular destination. The acquisition and lease of the land that the Port Authority sought to acquire would provide the underlying revenues to finance the construction of the loop track. The Port Authority’s current track is insufficient to handle trains of this magnitude, and it hopes by constructing a loop track it can reduce freight rates thereby promoting growth in jobs and commerce. The Port Authority sought to purchase a 30.65-acre parcel of land owned by Velma Jackson and Alicia Seabaugh (“Property Owner”) to use as a storage facility to handle liquid products to be transloaded from rail to barge or vise versa.

After negotiations with the Property Owner failed, the Port Authority filed a petition for condemnation to acquire the 30.65-acre parcel. The Property Owner filed a motion to dismiss arguing that the sole purpose for the taking was economic development, which was in violation of § 523.271. After the trial court denied the motion, the Property Owner appealed to the Missouri Supreme Court which held that the taking was barred by section 523.271 because it was “solely for economic development.”  “Economic development” is defined by statute to mean: “…a use of a specific piece of property or properties which would provide an increase in the tax base, tax revenues, employment, and general economic health ….” The Port Authority tried to argue that loop track was not for economic development, but this argument failed since it was obvious that economic development was the heart of the transaction.

It is hard to argue that the analysis applied by the Court was wrong based on the language of the statute and the parroting of  Recommendation #13 of the Eminent Domain Task Force to the Governor, which states:  ”The public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health, standing alone, shall not constitute a public use.” As a member of the Eminent Domain Task Force, I argued on behalf of local government that the proposed limitation went too far. The record in the Report to the Governor reflects that their was extensive debate on Recommendation # 13.

By its very nature economic development will increase the tax base, increase tax revenues, and employment, and  will improve the general economic health of the district or community.  The taking of land for storage thereby enabling the construction of a loop track would improve the ability of the Port Authority to provide better services for its customers and create jobs is a core function of this special purpose district intended to create economic development.

Road to change is through the General Assembly

With one hand tied behind its back, Missouri will have a very hard time competing with surrounding states. I wonder if the General Assembly might view this limitation on economic development differently than it did when it was adopted it several years after the Kelo decision? The approach taken by the majority of the members of the Task Force failed to consider that economic development comes in many different forms. A more nuanced view of economic development that recognizes the need for a project that will create industrial jobs by building basic infrastruture is in order.

Howard Wright @ 2013

Does a drug dog get a “free air sniff?

Does a drug dog get a free air sniff? As crude as it sounds, this in large part really depends on where the dog is sniffing. In the last several months, we have had three very important cases – two from the United States Supreme Court and one from the 8^th Circuit – involving drug-sniffing dogs that answer this question.

Before launching into these cases lets take a quick look at how and why drug-sniffing dogs figure so prominently in these cases. Of course, it is all about scent and the other traits of particular dogs. Nova says that a dogs smell is  “tens of thousands of times as sensitive to odors as yours” “Dogs’ sense of smell overpowers our own by orders of magnitude—it’s 10,000 to 100,000 times as acute.” A dog can detect one part per trillion.  Its nose is has a special component that separates the air from the respiratory area into the olfactory area.  Certain breeds of dogs are better suited for detecting drugs than other dogs. It is also useful to note that a dog and its handler develop a unique relationship and that your dog becomes part of you with microbial connections to your skin and gut.

Dog forms a unique relations with owner

German Shepherd sniffing

In the first Supreme Court case, Florida v. Harris, Aldo, a German Shepherd was trained to detect certain narcotics (methamphetamine, marijuana, cocaine, heroin, and ecstasy). Aldo was with his handler Wheetley, a K–9 officer (Officer) in the Liberty County, Florida Sheriff’s Office who was on routine patrol when he noticed a truck with expired license plates. The Officer pulled over the truck driven by Harris observing as he approached the truck that Harris was “visibly nervous,” unable to sit still, shaking and breathing rapidly. He also noticed an open can of beer in the truck’s cup holder and asked Harris for consent to search the truck, but Harris refused. At that point, the Officer retrieved Aldo from the patrol car and walked him around Harris’s truck for what Justice Kagan, called  a “free air sniff.”

Aldo, a German Shepherd alerted at the driver’s-side door handle by signaling through a distinctive set of behaviors that he smelled drugs. The Officer concluded based principally on Aldo’s alert, that he had probable cause to search the truck but his search did not turn up any of the drugs, Aldo was trained to detect.  However the search did reveal 200 loose pseudoephedrine pills, 8,000 matches, and a bottle of hydrochloric acid, two containers of antifreeze, and a coffee filter full of iodine crystals, all ingredients for making methamphetamine. The Officer arrested Harris who was charged with possessing pseudoephedrine for use in manufacturing methamphetamine. 

A motion to suppress the evidence was filed and was overruled by the trial court leading to the conviction of Harris. The Florida Supreme Court held that the motion to suppress should have been sustained and the case was appealed to the United States Supreme Court, which held that the rules for finding probable cause is not reducible to “precise definition or quantification,”  “All we have required is the kind of ‘fair probability’ on which “reasonable and prudent [people,] not legal technicians, act.” In evaluating whether or not this standard has been met we apply, “… practical and common-sensical standard” and  “… we have consistently looked to the totality of the circumstances” to determine whether or not an officer had probable cause to search the vehicle based on the drug dog alert.    It would seem that the phrase “free air sniff” used by Supreme Court Justice Kagan, will surely be a phrase that will live on forever.

In the second Supreme Court case Florida v. Jardines, a police officer received an unverified tip that marijuana was being grown in the home of the Defendant.  The police sent a joint surveillance team to the Defendant’s home.  The Police walked to the front porch of the house accompanied by a trained canine handler and his dog who was trained to detect the scent of marijuana, cocaine, heroin, and several other drugs.  The dog would indicate the presence of these substances through particular behavioral changes recognizable by his handler.  As the dog approached the front porch he apparently sensed one of the odors he had been trained to detect, and began energetically exploring the area for the strongest point source of that odor.  The dog sat down at the front door indicating that this was the strongest point.  On the basis of what was learned at the home, a warrant was issued to search the residence.  A search revealed marijuana plants resulting in  the Defendant being charged with trafficking in cannabis.

Great pet – but not a drug dog

At trial, Defendant moved to suppress the evidence on the grounds that the canine investigation was an unreasonable search.  The trial court granted the motion and the Florida Supreme Court affirmed the trial court’s decision, which was appealed to the United States Supreme Court.  Justice Scalia, writing for majority upheld the decision of the Florida Supreme Court based on a property rights analysis.  When “…it comes to the Fourth Amendment, the home is first among equals.”  At its “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”  The area immediately surrounding and associated with the home is the curtilage, which is “part of the home itself for Fourth Amendment purposes.”

In the third case, Burlison v. Springfield Public Schools two deputies from the Greene County sheriff’s department arrived at the school with drug dogs to conduct a brief survey of randomly selected areas in the building.  The survey was conducted in accordance with school police services standard operating procedure. All backpacks, purses, and other personal items were to be left behind. When the room was cleared of students, a deputy sheriff took the drug dog into C.M.’s classroom.  Video footage shows that the deputy sheriff and drug dog left the classroom after approximately five minutes.  During that time the drug dog did not alert to anything. Mellony and Douglas Burlison later filed an action on behalf of their son C.M. under 42 U.S.C. § 1983 and the Missouri Constitution, alleging that Springfield Public Schools and officials violated C.M.’s constitutional rights by briefly separating him from his backpack during a drug dog exercise in his high school classroom.  The district court granted summary judgment to the district, its officials, and the sheriff after concluding that the policies used during the drug dog visit appeared to be reasonable and not deprive C. M. of a federal right.  Burleson appealed to the 8^th Circuit, which affirmed the decision of the trial court.  The 8^th Circuit noted the strong government interest in preventing drug use by students.  Drug problems in schools are “serious in terms of size, the kinds of drugs being used, and the consequences of that use both for our children and the rest of us.”  That is because “drug use carries a variety of health risks for children, including death from overdose.”  The U. S. Supreme Court has also rejected the idea that all searches or seizures in a school must be supported by individualized suspicion and the 8^th Circuit in other cases declined to require a school to find individualized suspicion before drug testing students participating in extracurricular activities because the school was “attempting to prevent and detect drug use by students.”

In Florida v. Harris involving a drug-sniffing dog was alongside a car stopped on a road and in Burlison v. Springfield Public Schools  the “free air sniff” took place on public property.  In Florida v. Jardines, there was no “free air sniff” because it took place on private property under circumstances strongly suggesting that marching the dog to the front dog was a guise to get evidence for a search warrant. After all,  the Justices in Florida v. Jardines were seemingly in agreement that  if a  postman had walked up to the door to deliver mail and smelled the scent of marijuana that the police could have used the “sniff” of the postman as a legal basis for getting a search warrant. Really, what is the difference? So far as I can tell, what made the search illegal was the intent of the police officers to “spy”  based on a suspicion that marijuana  was growing in the house and using the dog as a guise to get a search warrant.

What is fascinating about the second case, Florida v. Jardines, is the split between the Justices’ over the legal basis to uphold the motion to suppress  evidence obtained from the residence based on the dog alerting at the front door. Florida v. Jardines was a 5 to 4 decision with only Justices’ Scalia and Thomas fully supporting the majority opinion based on the trespass/property theory indicating that there was very little support for the legal reasoning of Justice Scalia.    There was a concurring opinion written by Justice Kagan, joined by Justices’ Ginsburg, and Sotomayor that would have decided the case based on a violation of the right of privacy,  although all three Justices in the concurring opinion agreed that the Fourth Amendment had been violated by the search, resulting in a five to four decision to uphold the motion to suppress.  Four Justices dissented and would have upheld the search based on the analogy that the dog sniff was no different from a mailman or a person delivering pamphlets who smelled the odor of marijuana, which would be  sufficient to obtain a search warrant.

You can expect much more sparring between “originalists” (members of the court who look for answers based on the law at the time our constitution was adopted) and other members of the court who recognize that new technology or development and deployment of drug sniffing dogs requires a broader analysis based on the right of privacy. For an earlier Post discussing the right of privacy, see “Search and Seizure in the World Without Walls” posted on February 7, 2012.

This story has not ended. Stayed tuned for one of the great ongoing modern-day debates over the right of privacy.

Howard Wright @ 2013

 

WESTBORO BAPTIST CHURCH CHALLENGE TO MISSOURI FUNERAL PICKETING LAW

I have described Westboro Baptist Church as the Church that loves to be hated in an earlier Post. I might add, they also love to rile up citizens into egging on state and local government officials to enact laws that are unconstitutional, thereby allowing the Church to file lawsuits and collect damages and attorney fees.

How do we get off?

Once again, Westboro Baptist Church made news when the 8^th Circuit held  in Phelps-Roper v. Koster,  that part of the Missouri funeral protest laws, which limited picketing and protests at funerals (section 578.501) –  was unconstitutional under the First and Fourteenth Amendments while upholding other parts of the state law.  The 8^th Circuit, while holding that section 578.501 was unconstitutional found the backup provision – section 578.502 – constitutional based on a narrow construction of the language applying in large part the reasoning in the earlier 8^th Circuit decision involving the City of Manchester and by severing the unconstitutional parts of section 578.502 from parts that were constitutional.

As predicated – in my earlier Post discussing the City of Manchester case - Westboro Baptist Church did not attempt to appeal the adverse decision in the Manchester case nor do I expect the Church to appeal the recent 8^th Circuit Court of Appeals decision in Phelps-Roper v. Koster. In short, Westboro Baptist Church does not want a ruling from the Supreme Court on ordinances like the City of Manchester ordinance. After all they are having too much fun collecting attorney fees from state and local governments for enacting laws that are unconstitutional.

Consider ignoring outrageous acts

The message for state and local public officials in Missouri is that if you want to prohibit the picketing of funerals adopt the City of Manchester ordinance or simply enforce section 578.502 of the state law as applied in the Koster case. Before enforcing section 578.502 local officials should seek guidance from an attorney so that the police have standard operating procedures since parts of the 578.502  were severed because they were unconstitutional. As a practical matter, it is  easier to adopt the Manchester ordinance than to develop a complicated operational procedure for your police officers.

On two two separate occasions the 8th Circuit has told us  how to write a law prohibiting picketing of funerals.  It is now time to move on.

Howard Wright @ 2013

IMPORTANT 2012 CASES AFFECTING HUMAN RESOURCE POLICIES

Introduction:  A lot has happened in the public employment law area in the last year. This Post focuses on a few important cases that have affected public policy. This Post collects in one place  a handful of selected cases that present problems or present opportunities to improve HR policies by being proactive.   For the convenience of the reader, there is a short summary of  the topic so the reader can easily determine if he or she is interested in the topic. If interested, the reader can click on the link for a  discussion of the topic in more detail.  Regular subscribers to my Blog are forewarned that except for how to handle requests for ADA assistance no new analysis has been added. Subjects that impact local government in this Post are as follows:

Requests for ADA assistance - Are your police and other employees prepared to handle requests for ADA assistance? The arrest of a person who ran a stop light would seem like a pretty straightforward matter, yet it literally became a federal case.  Bahl, who was legally deaf ran a stoplight, was stopped, arrested, charged and convicted of the offense. From the outset Bahl – a person who was a “qualified individual” under the ADA – asked for assistance in trying to communicate and understand what was happening.  Do police officers have to provide ADA assistance during an arrest? How do you handle a request for ADA assistance after the arrest? For information concerning ADA assistance click here. 

Duty to bargain in good faith - One of the most significant changes in Missouri local government law in the last 60 years has been three Missouri Supreme Court decisions two of which were handed down in November of 2012.  The first case in 2007 held that public employees had a constitutionally protected right to engage in collective bargaining.  The two most recent 2012 decisions build on the earlier decision holding that the constitutional right to engage in collective bargaining implies that there is a duty to “bargain in good faith.” What does the duty to “bargain in good faith” mean? Can you be required to recognize a union that has police officers and sergeants in the same bargaining unit? For information about this important new development that will shape how you negotiate with your employees click here.

Sex harassment in the workplace and government facilities - How to deal with sex harassment in the workplace and government facilities is a critical issue for local government. Failure to properly handle these difficult problems can create untold liabilities for local government and can literally topple governments. Two recent cases that directly impact Missouri local government are discussed and provide some insights on how to handle these problems. For more information click here.

Computer use policy - A recent case highlights the importance of having good procedures to control the improper use of computers by government employees. How can you assure that employees are informed that city policy prohibits the use of city computers in a manner that is harassing, embarrassing, indecent, profane, obscene, or intimidating to other personnel or members of the public?  For information showing how a good computer use policy can help stop improper use of government computers, click here.

Social Media Policy - To have or not to have a social media policy is the question?  There are no easy answers. Without a social media policy, employees may feel emboldened to comment in the social media about public officials and public policy. Many times social media comments by employees are simply sideshows distracting from the primary business of local government. At other times revelations in the social media may shine light on illegal and despicable behind the scenes activity. No matter how it comes out public employers need to be prepared to deal with these situations. How extensive can a social media policy be without violating the employees right of free speech? For information concerning the pros and cons of developing a social media policy click here.

Public policy exception - The public policy exception to the at-will-employment doctrine can create a dilemma for the employer because the courts have not yet fully defined the extent of the public policy exception. Many public employees are at-will-employees, which means they do not have a property right in their job.  A recent case expanded the public policy exception to the Missouri employment-at-will doctrine by creating a new exception for persons who are organ transplant donors. In this case the old adage that bad facts make bad law was turned on its head.  The employer could not dismiss the employee because he took leave to be an organ transplant donor.  How does an employer determine if the employee is protected by the public policy exception?  I do not think it is always easy.  For more information, click here.

If you have any questions, concerning the above, you may contact me at 417-569-0386, e-mail me at howardwrightjr@me.com or contact me at Carnahan Evans Cantwell Brown where I serve as “Of Counsel.”

Howard Wright @ 2013

FREE SPEECH AND PROHIBITION OF DISTRIBUTION OF INFORMATION

Some city ordinances are like rotting wood. They sit there for years, never used until one day you need to deal with a situation like those pesky KKK members who want to distribute pamphlets to persons driving vehicles or someone else who wants to display a sign on an overpass telling drivers as they approach the merger I-44 and I-55  that 911 was an insider’s job.

T-Boned at Intersection

If the ordinance is not properly constructed  – like rotting wood – it crumbles and you watch your case disintegrate while police officers and city councilmembers wonder – sometimes out loud – what is wrong with the city attorney? To top it off, the ACLU joins the fray and the next thing you know a simple little municipal court violation becomes a federal case and you are trying to defend in federal court the impossible.

It is hard to fault city officials.  After all,  common sense, as well as automobile accident statistics tell us that the number four cause of accidents is roadside diversions even for a split second. In addition, it is easy to trip over the right of free speech if the ordinance touches in any way on the Free Speech Clauses of the federal or state constitutions. Lawyers freely admit that one of the most difficult lawyering tasks is drafting laws that deal with free speech.

Right of Free Speech

Several recent Missouri cases illustrate how easy it is to fall into the free speech death trap. In the Desloge case the city ordinance prohibited any solicitation activities in or upon any public highway, thoroughfare, or street within the City including sidewalks. The KKK planned to distribute handbills in the City and wanted to approach individuals within stopped vehicles and distribute leaflets to them.  The City advised the KKK that they could not stand within the intersection and approach drivers and/or pedestrians in other public, private, or semiprivate areas, including public parking lots near the intersection.  As a result the KKK canceled their plans to distribute literature. The City – on advice from its attorney – reaffirmed its position.  Consequently the KKK canceled their plans to distribute literature and filed a lawsuit in U. S. Federal District Court alleging that the ordinance and its proposed application to the KKK violated their constitutional rights.

The City defended its prohibition of the use of the streets by referencing the three busiest intersections, arguing that the time it would take the driver in a stopped vehicle to take or refuse a handbill would disrupt traffic. Relying on longstanding precedent that the distribution of leaflets and handbills is a protected activity, the court determined that the Ordinance covered a substantial amount of protected free speech activity and was invalid. The Ordinance was not tailored to particular times, problematic locations, or circumstances under which the City might have legitimate concerns about traffic safety and congestion.  The Ordinance was  a complete ban on the use of streets, including sidewalks, and was much broader than similar bans that the court had previously held invalid. Therefore, the district court granted the KKK a preliminary injunction based on the likelihood that the City  would lose the case.

In another case, involving the City of St. Louis, the police were called to investigate whether or not a banner on an overpass near the merger of I-55 and I-44 violated a city ordinance that prohibited: “… the sale of any goods or merchandise, display any sign or pictures, participate in or conduct an exhibition or demonstration, talk, sing or play music on any street or abutting premises, or alley in consequences of which there is such a gathering of persons or stopping of vehicles as to impede either pedestrians or vehicular traffic.”  The officers observed a group of citizens and told them to leave because they were impeding traffic. When they refused, they were arrested and charged with violating the ordinance. The charges were later dropped. When the case was appealed, the 8^th Circuit Court of Appeals held that the ordinance was unconstitutional on its face.

The difficulty is that these lawsuits costs the taxpayers money and are a total waste of time and money since the prevailing party is entitled to their attorney fees and costs plus the city may have to pay damages. While it might be hard in the first instance to write an ordinance that passes constitutional muster, it is pretty simple to find cases where the ordinance has been upheld. These laws are very plain: don’t stand in a roadway so as to obstruct the free and uninterrupted passage of vehicles, traffic, or pedestrians of some other similar version of this language. In addition, don’t write your personalized ordinance. Instead  just copy and paste from a case in your jurisdiction that has been found to be  constitutional.

The time to get rid of the dead wood in the city code is before the “9/11 Questions Group” or the KKK arrive in your community asking about your ordinances with respect to the distribution of information.  A good time to make these changes is when you are doing a general revision of the city code.

When these groups  show up the chances are they already know that your ordinance is invalid.  If you are faced with a situation  where they are knocking on the door asking about your ordinances with respect to distribution of information and you determine the ordinance is unconstitutional, repeal it immediately and replace it with an ordinance that is constitutional. Consider taking action by being proactive like the City of Rochester did before faced with the problem.

NURSING STUDENT ENTITLED TO ASL INTERPRETER

Differences between federal and Missouri law make it difficult to compare   a wealth of federal case-law creating uncertainty for employers and attorneys who advise clients about the Americans for Disability Act (ADA). In an ADA case - Wells v. Lester E. Cox Medical Centers, - the Missouri Court of Appeals for the Southern District held that unlike the Federal Rehabilitation Act, the Missouri Human Rights Act (MHRA) makes the question of reasonable accommodations a part of the test of whether or not a disability exists.

Southern District

In the Lester E. Cox Medical case, Plaintiff had a hearing deficit since the age of three.  Her unaided hearing continued to deteriorate as she aged. Plaintiff was enrolled in the Lester E. Cox Medical Center’s College of Nursing (College) general education program during the Fall 2006 and Spring 2007 semesters. During these semesters, the College provided Plaintiff with accommodations to compensate for her hearing loss in the form of note takers, tape recordings of class sessions and American Sign Language (ASL) interpreters. Prior to admission to the College’s Associate of Science in Nursing (ASN) the College used one of its own employees to conduct the initial research to determine that a deaf/hard of hearing individual can be trained to do the job. Plaintiff was eventually admitted into the ASN program for the Fall 2007 semester.

Before Plaintiff’s classes began, she met with college administrators to discuss the accommodations she would need in order to participate in the ASN program. Plaintiff had received new hearing aids in 2007 that she thought would improve her hearing, and both college administrators and Plaintiff expected that she would be able to function in the clinical portions of the program without the assistance of an ASL interpreter based upon the anticipated improvement in her hearing. During the 2007 semester, Plaintiff received volunteer note takers and tape recordings of class sessions, and she was provided an ASL interpreter during the classroom portions of the ASN program.The Missouri Department of Vocational Rehabilitation reimbursed the College for 75 percent of the cost of the ASL interpreters, and it provided adapted equipment to allow Plaintiff to fully participate in her clinical exercises. Plaintiff also received an ASL interpreter during the first week of clinical rotations. 

After beginning her clinical rotations, Plaintiff requested that she be provided with ASL interpreters to assist her in the pre-clinical and post-clinical conferences. For the 2008 Spring semester, Plaintiff again requested note takers and ASL interpreters to assist her in completing her course and clinical work. Before the second semester, the College dismissed Plaintiff from its ASN program stating in its dismissal letter that Plaintiff’s “hearing loss would substantially limit and in some cases completely limit Plaintiff’s ability to safely perform clinical rotations.”

Plaintiff filed a claim under the MHRA, alleging that the College failed to provide her with reasonable accommodations so that she could participate in its nursing program despite her disability. The trial court granted the College’s motion for summary judgment, and the Plaintiff appealed to the Southern District, which reversed.

The Court held that: “Unlike the Federal Rehabilitation Act, the MHRA imposes an affirmative obligation to provide reasonable accommodations if the impairment, that is accommodated, does not interfere with the individual’s ability to utilize the program.” As noted above Missouri makes the question of reasonable accommodations part of the test of whether or not a disability exists, unlike the federal law.

I find this to be a very difficult and troubling case. It seems like the School did everything it could to accommodate the Plaintiff and finally  realized it was not going to work.  One concern  is that Cox used one of its own employees to conduct the initial research to determine that a deaf/hard of hearing individual could be trained to do the job. Monday morning quarterbacking is always easy, but perhaps an independent world-class expert might have figured this out before the College got deep into the training of a nurse.

Howard Wright @ 2013