Major Opinions: Appellate courts see ‘dip’ in caseloads from pandemic

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Missouri’s appellate courts are mostly back to their pre-pandemic operations, but the state’s long drought of trials has left them with fewer cases to be argued and decided.

The total number of appellate decisions, including those from the Supreme Court and the three districts of the Court of Appeals, has dropped by about 24 percent in 2022, compared with six-month periods prior to the pandemic.

Obviously, those courts can only decide the cases that are sent their way. Official statistics for the fiscal year that ended June 30 won’t be available until later this year. But a review of records on Case.net indicates the number of appellate filings fell to a low of roughly 1,200 in the later half of 2020. Approximately 1,375 cases have filed been so far this year. The average filings in the four six-month periods preceding the pandemic was 1,760.

At a panel discussion of the Kansas City Metropolitan Bar Association’s annual David Prager Appellate Institute on June 24, (which the author of this article moderated), appellate judges said they’re now seeing their lowest case counts since the pandemic began.

“We’re really seeing the full effect of decreases in activity in the circuit courts,” said Judge Alok Ahuja of the Court of Appeals Western District. But, he noted, notices of appeal are now returning to pre-pandemic levels, though it will probably be another eight to 10 months before those cases are argued and decided. “We see that this dip, this trough, that we’re in is ending.”

Judge Sarah E. Warner of the Kansas Court of Appeals, who also took part in the panel, said she’s facing the same issues on her side of the state line. Warner said that before the pandemic, a three-judge panel of her court would typically hear 24 cases in a month. Her July docket, in contrast, was just 12 cases.

In an email, Laura Roy, the clerk of the Missouri Court of Appeals Eastern District, said she is starting to see more notices of appeal come in, and she expects that to continue.

“This pandemic has taught me to take one day at a time,” she said.

None of which is to say that Missouri’s courts haven’t been issuing important rulings. Missouri Lawyers Media’s semiannual Major Opinions section reviews cases from the prior six months from the Missouri Supreme Court, the Missouri Court of Appeals and the 8th U.S. Circuit Court of Appeals that raised significant issues in a variety of practice areas. For prior sections, click here.

State government

Missouri’s Sunshine Law saw plenty of court action in the first half of the year.

The Western District ruled in June that the state’s open records law couldn’t be used to compel the disclosure of messages that former Gov. Eric Greitens’ administration sent using the phone application Confide, which automatically destroys messages after the communication is sent or received. The case is Sansone v. Governor of Missouri et al., WD84426.

The ruling built on that court’s March ruling that a state agency didn’t violate the Sunshine Law when it refused to provide information to a free-market think tank that it already had provided to a public-sector union. The case is Show-Me Institute v. Office of Administration, WD84561.

In another Greitens-related case, the Eastern District in January declined to disturb a default judgment ordering the St. Louis Circuit Attorney’s Office to provide records of its communications relating to the two dismissed cases against the former governor. The case is Solomon v. St. Louis Circuit Attorney, ED109396.

Medical marijuana also was a big topic. The Missouri Supreme Court said in February that the data of applicants for marijuana growing licenses could be disclosed as part of discovery in a competitor’s underlying lawsuit, despite the privacy protections in the state constitutional provision that legalized marijuana for medicinal purposes. The case is State ex rel. Missouri Department of Health and Senior Services v. Slusher, SC99205.

In May, the Western District ruled that regulations that restricted the total number of medical marijuana licenses to the minimum required by the state constitution were not irrational, arbitrary or capricious. The case is Sarcoxie Nursery Cultivation Center LLC et al. v. Williams, WD84492.

The Supreme Court in February struck down a state law that said proponents wanting to circulate a referendum petition must wait until the Secretary of State’s Office has certified its official ballot title, as it can leave too little time to collect signatures. The case is No Bans on Choice et al. v. Ashcroft, SC98879.

And, not to leave out the third branch of government, the Western District ruled in May that administrative orders from the Supreme Court gave circuit courts authority to give their presiding judges supervisory authority over deputy clerks. The case stems from an ongoing dispute between the Lincoln County Circuit Court’s presiding judge and its elected clerk. The case is Allsberry v. Ohmer et al., WD84992.

Court procedure

Many court cases hinge on technicalities, and the same can be said of appellate briefs. In March, the Supreme Court took the unusual step of fully dismissing the appeal of a workers’ compensation case after hearing oral arguments because the plaintiff’s briefs didn’t comply with the court’s formatting rules. Although appellate courts routinely call out such errors, they often will exercise their discretion and rule on the merits of the case. But with such a clear warning from the high court, appellants could see less leniency in the future. The case is Lexow v. Boeing Co., SC99199.

The Supreme Court has cracked down on the use of video hearings for criminal and juvenile defendants. In three cases issued in January, the court said safety concerns with in-person hearings during the pandemic don’t override an individual’s constitutional right to confront witnesses. The cases are State v. Smith, SC99086; C.A.R.A. v. Jackson County Juvenile Office, SC99231; and J.A.T. v. Jackson County Juvenile Office, SC99251.

The Supreme Court ruled in April that a constitutional challenge isn’t final for purposes of appeal until the trial judge has ruled on all the ways the law allegedly is unconstitutional. The 5-2 ruling sent a sales tax dispute back for further proceedings, which the dissent argued was unnecessary and “will have unwanted effects in other areas of law.” The case is Jefferson County 9-1-1 Dispatch v. Plaggenberg, SC98904.

The Eastern District in April declined to set aside default judgment against a business despite its arguments that the pandemic had hampered its response. The case is Dorsey v. JPAM Consulting Inc., ED109723.

The Eastern District in April overruled one of its own decisions from 1985 that had allowed arbitration provisions in contracts so long as the parties had “actual notice” of that provision. The court now says parties must include mandatory language set out in state law if arbitration is to be enforced. The case is Wind v. McClure, ED109818.

In April, the Eastern District said a woman allegedly injured by a malfunctioning hospital bed doesn’t have to produce confidential settlement documents and related communications from a separate car accident that may have exacerbated her injuries. The court said producing them at this stage would have a “a chilling effect.” The case is Hill v. Wallach, ED110232.

Employment

The Western District in March said the Missouri Human Rights Commission must allow plaintiffs to proceed with their lawsuits if it hadn’t finished investigating the claim by the statutory deadline. The agency had said it needed more time to determine if the claims were barred by a new provision of law that exempts religious organizations from the Missouri Human Rights Act — an issue that remains unresolved. The case is Najib v. Missouri Commission on Human Rights et al., WD84344.

The Western District ruled in April that the state’s Human Rights Act still provides individual liability for discrimination in public accommodations, pre-empting common law claims against those defendants. The case is Loomis v. Bowers, WD84424.

In January, the Missouri Supreme Court upheld a school district’s firing of a teacher who tried to download the school drive to her personal email, marking the first Missouri case to interpret the Family Educational Rights and Privacy Act. The case is Ferry v. The Board of Education of the Jefferson City Public School District, SC98959.

Both the Eastern and Western Districts have said the state owes unemployment benefits to workers whose normal employment conditions were upended by the pandemic. They include a fast-food worker whose hours were eliminated but was never formally terminated (Koenen v. BRG Liberty LLC, ED110045); a Walmart worker deemed to have quit when he caught COVID-19 (Chavis v. Wal-Mart Associates Inc., ED110016) and a call-center employee who began working remotely from New York state (Ekres v. Division of Employment Security, WD84496).

The Western District in February said a whistleblower lawsuit against the city of Kansas City may be able to continue, as it’s unclear when a one-year statute of limitations kicked in under the facts of the case. The case is Richest v. City of Kansas City, WD84464.

Workers’ Compensation

Both the Eastern and Western Districts have applied a high bar that the Supreme Court has set for lawsuits against co-workers who cause on-the-job injuries. The Eastern District in February affirmed the dismissal of a wrongful death suit by the family of a man who was fatally knocked from the back of a trash truck (Miller v. Bucy, ED107055), and the Western District ruled in March that a man injured in the collapse of a utility trench cannot hold his employer personally responsible. (Bestgen v. Haile, WD83865).

The Eastern District in February reinstated a permanent partial disability award for a man injured in the workplace nearly a decade ago. It was the third time in three years that the court considered the “legal odyssey.” The case is Krysl v. Treasurer of Missouri, ED109568.

In May, the full Southern District split in determining whether a nurse who twisted her knee at work was owed workers’ compensation. The court disagreed whether her actions were truly connected to the workplace or if she could have been subjected to such an injury in her normal life. The case is Durr v. Clark’s Mountain Nursing Center et al., SD37212.

Tort claims

The Missouri Supreme Court in April affirmed the post-trial reduction of a $6 million jury verdict in a business dispute case. The ruling upheld Missouri’s cap on punitive damages, leaving the judgment at about $3.1 million. The case is All Star Awards & Ad Specialties Inc. v. HALO Branded Solutions Inc., SC99007.

It wasn’t the only high-dollar case to go through the appeals courts. The 8th Circuit in June denied an objector’s challenge to a $39.55 million class action settlement with Monsanto (Jones et al. v. St. John, 21-2292). In January, it held that a defendant in a massive verdict against a bankrupt business remains on the hook for $24.4 million (Olsen v. Kraus et al., 20-2771) and affirmed a $5.88 million verdict in favor of a farm supply store in a dispute with a lawnmower maker (S&H Farm Supply Inc. v. Bad Boy Inc., 21-1121).

The Eastern District, meanwhile, ruled in January that the state of Missouri is not responsible for most of its share of a $13.825 million settlement reached in 2018 with family of a man freed after 30 years of wrongful incarceration. The case is State ex rel. Schmitt v. City of St. Louis, ED108130.

The Eastern District also ruled in January that the two-year statute of limitations for medical malpractice claims applies to a woman who was injured when she fell out of bed at a rehabilitation hospital. She’d argued that her injuries were caused by ordinary negligence rather than medical negligence. The case is Payne v. Rehabilitation Institute of St. Louis LLC, ED109560.

A separate protection for med mal defendants tripped up another plaintiff when the Supreme Court said in June that he had filed his expert affidavits 18 days too late. The case is Giudicy v. Mercy Hospitals East Communities, SC99249.

The 8th Circuit said in January that two cases alleging pollution from leftover Manhattan Project nuclear waste belong in federal court because they deal with a nuclear waste event under the federal Price-Anderson Act. The cases are Banks et. al. v. Cotter Corporation, 21-1165; and In Re: Cotter Corporation, 21-1160.

Insurance

The Missouri Court of Appeals Western District ruled in May that an insurer is on the hook for part of a $4.5 million judgment despite its allegations that the policy misrepresented her father’s use of the car before he got into an accident. The case is Wright v. Nash and Key Insurance Company, WD84602.

The 8th Circuit has on several occasions upheld insurers’ denial of claims made during the COVID-19 pandemic. In February, the court threw out a challenge by a flower shop that claimed it overpaid for insurance during stay-at-home orders in 2020 and found an “epidemic” exclusion in a travel insurance policy meant there was no coverage for the airfare of a round-trip flight. The cases are Alissa’s Flowers Inc. v. State Farm Fire & Casualty Company, 20-3340, and Bauer v. AGA Service Company, 20-3711.

The Western District in June said an insurer could not prevent a circuit court from affirming a $5.2 million arbitration award, though it can still contest coverage in separate litigation. The facts of the case rocketed around social media, as it stemmed from a claim that the insurer’s policyholder had infected the plaintiff with HPV during sexual encounters in the car covered by the policy. The case is M.O. v. GEICO, WD84722.

The case was one of several recent decisions involving to Section 537.065, a Missouri statute that allows defendants who face a denial of coverage to allow the plaintiff to obtain a judgment against them so long as the plaintiff seeks to collect that award only from the defendant’s insurance policy. Recent revisions to the law allow insurers to intervene before a judgment can be rendered, but examples of insurers doing do successfully are few and far between, as shown in recent cases such as Reddick v. Spring Lake Estates Homeowner’s Association et. al., ED109672, and Yuncker and Gutierrez v. Dodds Logistics et. al., WD84645.

However, ‘065 agreements carry risk as well, as an 8^th Circuit ruling in February demonstrated. The court found that there was no insurance coverage for a pair of arbitration awards for two employees who faced egregious discrimination at work. The combined $20 million awards had ranked as the third largest judgment of 2020, as tracked by Missouri Lawyers Media. The case is AMCO Insurance Company v. Columbia Maintenance Company, 21-1822.

Criminal law

The Eastern and Western Districts split on whether low-level sex offenders must still register for life. Amendments in 2018 to Missouri’s Sex Offender Registry Act allow some offenders to petition for removal after a certain period. The Eastern District in June ruled in favor of two offenders who had sought removal. But the Western District in May reiterated prior holdings that federal law requires lifetime registration. The dispute could end up in the Supreme Court. The Eastern District cases are Brock Smith v. St. Louis County Police et al., ED109734, and Gary Nelson Ford v. Col. Jon Belmar, chief of police as chief law enforcement officer of St. Louis County, et al., ED109958. The Western District case is MacColl v. Missouri State Highway Patrol, WD84739.

The Eastern District in March said a man allegedly caught with drugs when reporting the overdose death of an acquaintance prove Missouri’s recently passed “Good Samaritan” law applies to him. It was the first case to examine the law since its passage in 2017. The case is State v. Gill, ED109852.

Several defendants won new trials so that jurors could decide if they’d acted in self-defense. The Supreme Court in January said a man who fatally shot his stepdaughter’s husband should be able to argue he was defending himself from a potential act of arson (State v. Whitaker, SC98856). In April, the high court said woman may be able to invoke the state’s “castle doctrine” after she shot another woman who reached into her car window to hit her (State v. Straughter, SC99170). And the Eastern District said a landlord could bring in evidence of racist death threats he faced before wounding the son of his tenant (State v. Townsend, ED109061).

In June, the Supreme Court aired its worries about the use of a state constitutional provision allowing use of prior convictions or alleged crimes as evidence cases involving sex crimes children. Although the court affirmed the man’s convictions for molesting his daughter, a concurrence warned judges “not take the proverbial rabbit hole” of using unproven allegations against defendants. The case is State v. Minor, SC99469.

Constitutional

One of the Missouri Supreme Court’s more unusual cases involved the effect of its own reinterpretation of the state constitution. In 2017, the court had struck down a law that set a cap on the amount of revenue that St. Louis County could raise from fines and fees for minor traffic violations. But two years later the court overturned the case when it drastically revised its approach to such “special laws.”  Nonetheless, the court said in April that the special St. Louis County revenue cap remains unenforceable. The case is City of Normandy v. Parson, SC98998.

In April, the Supreme Court gave a nondefinitive answer to several municipalities that are challenging the constitutionality of a state law that bars enforcement of federal gun laws. The court said the challenge could continue in state court but declined to weigh in on the constitutionality of the Second Amendment Preservation Act. The case is City of St. Louis et al. v. State of Missouri et al., SC99290.

In February, the Supreme Court upheld a state law that bars city officials from using taxpayer money to advocate for ballot measures or political candidates, finding unanimously that the law doesn’t chill free speech. The case is City of Maryland Heights et al. v. State of Missouri, SC99098.

But in March, the court said a law that sought to require defense attorneys to give counseling information to victims of sexual assault violates the First Amendment, as it would interfere with their ability to zealously defend their clients. The case is Fox et al. v. State of Missouri, SC98909.

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