There are several bills currently pending in the legislature designed to modify the Missouri Human Rights Act. I’m going to make a sketch of these here understanding that these modifications are complex and deserve much deeper treatment than afforded by this format.

HB 550 – This bill was introduced by Judiciary Committee Chairman Joe Don McGaugh (R – Chariton, Carroll and Ray). Rep. McGaugh also served on the Special Committee on Litigation Reform, the Joint Committee on Administrative Rules and the Joint Committee on Justice System. This bill had a public hearing before the Special Committee on Litigation Reform on February 13 along with many other bills comprising a general tort reform package.

This bill seeks to change the causation standard under the MHRA by changing the definition of “because” or “because of” to mean the motivating factor. In other words, it would be a defense to a discrimination claim that firing a person was not the motivating factor, but was still a factor. This would put the Missouri standard closer to the federal standard for employment discrimination claims.

Along with that change, the bill would require that juries be instructed on the business judgment rule in discrimination cases with the express intent of abrogating McBryde v. Ritenour Sch. Dist., 207 S.W.3d 162 (Mo. App. E.D. 2006) and its progeny. The business judgment rule creates a rebuttable presumption in favor of management that it acted for a proper business purpose and that judgment should not be second-guessed. In other words, management mistakes, even if very stupid, are not actionable. It must be more than a mistake or bad call to create liability for the business.

In line with the causation change, the bill would require courts to rely heavily on federal precedent from Title VII, age discrimination, and disability discrimination cases in applying the MHRA.  In accord with this, the bill recommends an analysis for courts to apply in determining summary judgment motions that would likely result in summary judgment being granted more in Missouri state court.

The bill also includes significant damages caps that limit recovery to actual back pay plus interest and then other damages tiered based on the number of employees the business has. For instances, if a business has less than 100 employees than other damages are limited to $50,000. If a business has more than 500 employees these other damages would be limited to $300,000. Based on reported verdicts and settlements, this would have a dramatic effect.

Finally, the bill includes a Whistleblower’s Protection Act which essentially codifies the common law exception to the at will employment doctrine as to whistleblowers. The bill defines whistleblower as a person who has reported to the proper authorities an unlawful act or serious misconduct of the employer that violates a clear mandate of public policy. The bill limits the potential damages available to a whistleblower, including a prohibition of punitive damages.

HB 552 is nearly identical. It was introduced by Assistant Majority Floor Leader Kevin Austin (R-Greene County). This bill was also subject of a public hearing on February 13.

HB 676 is also nearly identical. It was introduced by Rep. Dean Plocher (R – St. Louis) and was also the subject of a public hearing on February 13.

SB 43 goes even further in establishing a “but for” causation standard for MHRA actions. That is to say that the employee would have to prove that the employer would have not fired her or taken an adverse employment action but for the protected status. The bill also has the same abrogation of McBryde v. Ritenour Sch. Dist., 207 S.W.3d 162 (Mo. App. E.D. 2006) concerning the business judgment rule. The bill would expressly abrogate all existing Missouri approved jury instructions concerning the MHRA. This bill has the same damages limitations as found in the House bill. Finally, the Senate version includes a Whistleblower section similar to the House version.

SB 43 was initially filed by Senator Romine (R – Iron, Reynolds, St. Francois, Ste. Genevieve, Washington and Jefferson counties). It has been through the Small Business and Industry Committee and that version is now on the Senate’s formal calendar Bills for Perfection.

Tim West, MO Legislative Monitor
LAKC Board of Directors

My last post focused on bills seeking to change the joinder rules, but those bills also address venue so I want to update that post here and talk about a few other bills.

HB 461 essentially requires that venue be established as to each defendant in any petition alleging a tort. This was voted Do Pass (10-2) by the Special Committee on Litigation Reform and is set for hearing with the Legislative Oversight Committee on February 20 at 2pm.

SB 261 and SB 262 are the same and are set on the Senate’s Formal Calendar Bills for Perfection on February 20.  Those bills would make changes to Missouri Supreme Court Rules 52.05 and 52.06.

SB 259 and HB 462 seek to make changes to Missouri Supreme Court Rules 52.12. 52.12 concerns the concept of joinder. Specially, these bills seek to add a subsection that states: “Venue. No person shall be allowed to intervene in any action in which a tort is alleged if that person could not independently establish jurisdiction and venue.” These bills were introduced by the same Representative and Senator that introduced HB 461 and SB 261 and SB 262.

These bills are on the same track meaning that HB 462 is set for hearing with the Legislative Oversight Committee on February 20 at 2pm and SB 259 is on the Senate’s Formal Calendar Bills for Perfection that same day.

SB 260 and HB 463 seek to amend Supreme Court Rule 51.01 to incorporate the changes in Rules 52.05, 52.06 and 52.12. This appears to be bootstrapping to ensure that 51.01 does not create an ambiguity. These bills are on the same path as those discussed above.

These bills are all attempting to do the same thing: make it harder to bring a lawsuit in Missouri.  With that I guess it is not surprising who testified in favor and against the bills. 

Testifying in favor were Representative Kolkmeyer; National Federation of Independent Business; Missouri Retailers Association; Missouri Grocers Association; Associated Industries of Missouri; Johnson & Johnson; Monsanto; The Doctors Company; Missouri Trucking Association; Missouri State Medical Association; Jay Atkins, KC Southern Railway; Missouri Petroleum Council; Washington University; Missouri Chamber of Commerce and Industry; Missouri Railroad Association; Phil Goldberg, American Tort Reform Association; Missouri Insurance Coalition; Kansas City Power & Light; and Missouri Organization of Defense Lawyers.

Testifying against were Jeff Bauer, Missouri Association of Trial Attorneys and Jack Garvey.

Tim West, MO Legislative Monitor
LAKC Board of Directors

House Bill 461 seeks to change the joinder rules found in Supreme Court Rule 52.05 and 52.06. This legislation proposed by Majority Caucus Chair Glen Kolkmeyer (R – Jackson/Johnson/Lafayette) appears to be in response to Governor Greitens call for tort reform from his State of the State address in which he claimed there was a massive amount of lawsuits being filed in Missouri by non-Missourians because Missouri is a “judicial hell hole.”

 The bill would add this subjection to Rule 52.05:

(c) Independent Establishment of Venue. In addition to the requirements of subdivision (a), in any civil action in which there is a count alleging a tort, two or more plaintiffs may be joined in a single action only if each plaintiff could have separately filed an action in that venue, independent of the claims of any other plaintiff. Any plaintiff that cannot establish proper venue independent of the claims of any other plaintiff shall be deemed misjoined. If the plaintiff was first injured outside of the state of Missouri, two or more defendants may be joined in a single action if the plaintiff can establish proper venue against each defendant individually. If proper venue cannot be established against a defendant individually, that defendant shall be deemed misjoined.

 The bill would also add this language to the end of Rule 52.06:

If a plaintiff or defendant is deemed misjoined under supreme court rule 52.05(c), such plaintiff or defendant shall be severed from the action, and the claims shall be transferred to a county in which venue exists. If there is no county in Missouri in which venue exists, the claims shall be dismissed.

Senate Bills 261 and 262, sponsored by Majority Caucus Whip Brian Munzlinger (R – District 18, which is generally northcentral and northeastern Missouri) are identical and have been passed by the Government Reform Committee

 HB 461 is set for hearing on Monday, Feb. 13 at 1pm in front of the Special Committee on Litigation Reform so don’t delay in reaching out to your representative if you have a position on this proposed legislation.

In two earlier posts we discussed various bills that were referred to the Judiciary Committee. Since that time there have been quite a few new bills referred to Judiciary so let’s take a look at a few of those now that relate to criminal sentencing.

HB 38 – Galen Higdon (R – Platte/Buchanan) has introduced this bill, which seeks to make two significant changes regarding criminal sentencing. Those changes would effect RSMo 558.019 in that the language requiring an offender to serve a certain portion of his/her sentence would now be discretionary instead of mandatory (“may be required to” instead of “shall be”). This bill also proposes to add the following section:

1. (1) Any person, except for a person who was found guilty of first degree murder or of any sex offense under chapter 566, meeting the following qualifications shall be eligible for a parole hearing:

(a) There was no heinous motive involved in the crime;

(b) The person is capable of rehabilitation;

(c) The person has been a model prisoner;

(d) The crime did not involve physical harm or the threat of violence to another person; and

(e) The crime did not involve a firearm.

(2) For purposes of this subsection, "heinous" means any crime that is hateful or shockingly evil.

I doubt there is much interest on pushing a bill that gives a “soft on crime” impression.

HB 171 (same as HB 1622 last year) seeks to add five words (“at the time of adjudication”) to RSMo 589.405. Mike Kelley (R – Dade/Barton/Jasper/Cedar) wants to place a requirement on judges to tell sex offenders “at the time of adjudication” that they must register as sex offenders. The statute already requires that these offenders be told of the registration requirement at the time prior to their release and discharge.

I’ll admit that I do not understand why we would seek to add a requirement that can later be used by a sex offender to avoid responsibility for not registering on the sex offender list. Give Rep. Kelley a call and ask him why sex offenders must be told twice of their registration requirements.

Tim West, MO Legislative Monitor
LAKC Board of Directors

My first few posts concerning the 2017 Missouri legislative session have focused on the House Judiciary Committee. In this post let’s take a look at two interesting bills in the Senate.

 SB200 – This is the same as SB591, which we looked at in the 2016 legislative session before it went through some modifications. This bill changes the standards applicable to expert witnesses in Missouri pursuant to RSMo 490.065. Jessi Baker’s official Senate summary on this is good so I’m going to copy it here:

"This act provides that current standards for admitting expert testimony in a civil action shall apply to legal actions adjudicated in probate court, juvenile court, family courts, or in actions involving divorce, marriage, adoption, child support orders, or protective orders.

In all other legal actions an expert witness may testify in a court proceeding if the expert has specialized knowledge that will help the trier of fact understand the evidence, the testimony is based on sufficient facts and the product of reliable principles, and if the expert has reliably applied such principles to the facts of the case.

An expert may base an opinion on facts in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts in forming an opinion, the facts need not be admissible for the opinion to be admitted. If the facts would otherwise be inadmissible, the proponent may disclose them to the jury only if their probative value outweighs their prejudicial effect.

An expert witness shall not testify on the defendant's mental state which constitutes an element of the crime. An expert witness may state an opinion without first testifying to the underlying facts, but may be required to do so on cross-examination.

A real property owner is competent to testify as to the reasonable market value of his or her land, in accordance with certain case law listed in the act."

SB 277 – Senator Paul Wieland (R-Jefferson County) seeks to have the death penalty removed as a potential punishment for first-degree murder. This would cause repeal to numerous sections is Chapters 546 and 565 of Missouri’s Revised Statutes. This bill was tried the last few years in the Senate and for several recent years in the House. Any chance it will pass this time?  If it did, would Greitens sign it? I can’t recall from the campaign his stance on the death penalty, if any. He did campaign on being tougher on violent crimes though, which would certainly include first-degree murder.

Tim West, MO Legislative Monitor
LAKC Board of Directors

First an update on bills discussed in the first post on this series of bills referred to the Judiciary Committee: HB 35 and HB 50 were voted do pass on the 19th after a hearing on the 17th.  HB 34 was referred to Legislative Oversight. 

Also voted do pass on the 19th was HB 285.  This bill sponsored by Nathan Beard (R - Pettis/Johnson) creates a requirement that a responsive pleading be filed in response to a motion to modify child support or maintenance.  The bill would add the following sentence to RSMo 452.370.1: "A responsive pleading shall be filed in response to any motion to modify a child support or maintenance judgment."  Further, the bill would add a similar sentence in RSMo 454.500 and change the word "may" to "shall" in reference to filing a responsive pleading in RSMo 425.747.

So what else does the Judiciary have to consider?

HB 72 would change the rules concerning the method of determining compensation in condemnation cases related to high voltage power lines.  The bill, among other things, provides property owners with the opportunity to get treble damages and an award of attorney fees in litigation.  I'll need to look at this more because it is not readily apparent to me how this bill is philosophically consistent with the Governor's message on the need for tort reform.  Rep. Joe McGaugh (R - Chariton/Carroll/Ray) can tell you more about this if you are interested.

Committee Vice Chair Corlew (R - Platte/Clay) has sponsored HB 152 which seeks to establish the "Armed Offender Docket Pilot Project" in Jackson County Circuit Court.  Even if the bill passed, it would be up to the Circuit Court to determine if they wanted to implement the docket as it comes with no money but rather authorizes the Circuit Court to charge a surcharge in an effort to pay for the docket, which would have a dedicated judge.  I haven't spoken to any of the Jackson County judges about this bill to determine if this would be beneficial so let me know if you have any insights.

I'll provide another update after the Committee's next hearing on the 24th.

Tim West, MO Legislative Monitor
LAKC Board of Directors

We are still early in the 1st Regular Session of the 99th General Assembly, but let's take a look at a few of the bills that have been referred to the Judiciary Committee.

HB 32 - This seeks to add a paragraph to RSMo 621.035 to allow Enrolled Agents and CPAs to represent individuals and businesses before the administrative hearing commission on matters "relating to the assessment or reassessment of taxes or any other tax-related matter."  I have no idea what "other tax-related matter" means but you can ask the bill's sponsor, Gary Cross (R - Lee's Summit).

HB 34 - This bill seeks to update Article's 1 and 7 of Missouri's Commercial Code to match the current version of the UCC.  That seems like a sensible proposal by Representative Dean Plocher (R - Town and Country).

HB 35 - This bill seeks to create a rule of evidence regarding the admission of breath analyzer results for those allegedly intoxicated.  The bills seeks to abrogate the holdings of Stiers v. Director of Revenue, 477 S.W.3d 611 (Mo. 2016).  This was introduced by Rep. Plocher.

HB 50 - This bill, introduced by Rep. Rebecca Roeber (R - Lee's Summit / Greenowood), seeks to eliminate the division assignments between Kansas City and Independence that exists in the 16th Judicial Circuit.  RSMo 478.463 and 478.464 designate where each division resides.  Ms. Roeber's bill would strike those designations leaving the statutes to state only that there would be 19 circuit judges and 10 associate circuit judges.  I have not inquired or heard of the motivation behind this bill or what, if any reaction, it has received from Jackson County judges.  If you have any insight on this, I would love to hear about it.

I'll be back in a few days with a few more bills that our judiciary committee is likely to address this session.

Tim West, MO Legislative Monitor
LAKC Board of Directors

What's at the top of the GOP-controlled House's agenda?

Right to work.  Governor Greitens campaigned on a promise to pass a bill that prohibits Unions from mandating dues, legislators pre-filed bills and today, in his Opening Day address, House Speaker Todd Richardson said he would refer a bill to the Economic Development Committee tomorrow (1/5/17) and asked that the Committee get the bill to the House floor ASAP.

Ethics Reform.  Speaker Richardson said: "A gift ban will be the first bill out of this House."  Now whether this bill will have any teeth and actually have a reforming effect is anyone's guess, but the GOP, starting at the top with President Trump, is at least attempting to get reform soundbites.

Charter Schools.  Speaker Richardson today spoke about the need to expand access to charter schools.  A review of the currently filed bills suggests that this is an idea without a plan, but time will tell.  Keep an eye on HB189, offered by Kathryn Swan, which would establish a savings plan for K-12 educational expense and fits hand-in-glove with expanding charter schools.  Charter schools are likely to be the subject of renewed discussion in light of Trump's selection of Betsy DeVos, an advocate for charter school expansion, to be the Department of Education Secretary.

Tim West, LAKC MO Legislative Monitor
LAKC Board of Directors

With a Republican super majority in the legislature and Republican Eric Greitens replacing Democrat Jay Nixon as holder of the veto stamp, there could be a lot of legislation passed and signed into law that has had the legs the past few years.  For those of us in Kansas City area, that means concern or joy (depending on your perspective) over the prospect of another bill to repeal the 1% earnings tax.

For those of you that view a repeal bill as negative, including the 77% that voted in favor of the 1% tax the last time it was on the ballot, you have good reason to believe that a repeal bill will not be part of the 2017 agenda.  First, Senator Kurt Schaefer, the big proponent of the repeal bill was term limited out of office.  Second, Speaker Pro Tem Elijah Haahr, who sponsored a repeal bill last session recently said that he does not intend to sponsor a similar bill this session.

So, what will be at the top of the Republican legislative agenda for 2017?  Let me know what you think should or shouldn't be the legislature's focus?   

Missouri's veto session began on Wednesday, September 14.  By the end of the day, 13 of Governor Nixon's 20 vetoes had been overridden.  I'll address the impact of other bills in future posts, but the bill getting all the attention is that which allows concealed carry without a permit and expands the so-called stand your ground law.  This is the bill that lead KC Mayor Sly James to fear that the legislature would "double down on stupid."  As Mayor James said earlier today (Thursday the 15th), this result was not surprising.  The Kansas City Star had made an overly optimistic pitch about how the veto might not be overridden now that some Republicans had begun to express concerns over citizens carrying weapons without a permit and without the benefit of training classes.  That was never a realistic possibility as this was always going to be a party line vote.  The NRA was heavily supportive of this bill that makes Missouri the 10th state where concealed carry is permissible without a permit.  The law takes effect January 1, 2017.

Tim West
MO Legislative Monitor
LAKC Board of Directors