Legislative Update - Feb. 19, 2021
Heavy snows and freezing temperatures wreaked havoc on the General Assembly this week (2/15 – 2/19/2021). The Senate cancelled all activities the entire week. The House met in technical session on Monday and Tuesday, and in full session on Wednesday and Thursday, but only for a short time each day.
No Floor or Committee actions.
HOUSE COMMITTEE ACTIONS
The House Judiciary Committee met Wednesday, February 17th and conducted public hearings on the following:
HB 162 – Rep. Rudy Veit (R – Wardsville)
The sponsor noted in the instance of a deadlock among the members of an LLC, the parties hire lawyers, and attempts to work out the deadlock drag on. He stated, this is unlike an instance of deadlock among members of a Subchapter S corporation. There, the members go to a judge and the judge says work it out or I will dissolve the corporation.
HB 162 would amend 347.143, RSMo, to allow the court to decree dissolution of a limited liability company (“LLC”) if the court determines:
(1) It is not reasonably practicable to carry on the business in conformity with the operating agreement;
(2) Dissolution is reasonably necessary for the protection of the rights or interests of the complaining members;
(3) The business of the limited liability company has been abandoned;
(4) Management of the LLC is deadlocked or subject to internal dissension; or
(5) Those in control of the LLC have been found guilty of, or have knowingly countenanced, persistent and pervasive fraud, mismanagement, or abuse of authority.
No one spoke in support of, in opposition to, or for informational purposes on the bill. Arnie Dienoff submitted a Witness Appearance Form in support of the bill.
HB 820 – Rep. David Evans (R – West Plains)
HB 820 would amend 221.025, 544.455, and 544.676, RSMo, with only a change to a section reference in Section 221.025. Section 544.455 would specify that one charged with a bailable offense may be released on one’s own recognizance unless the judge first determines the release will not assure the defendant's appearance or that, if released, the defendant would pose a danger to a crime victim, the community, any witness to the crime, or to any other person. When release on one's own recognizance will not reasonably assure appearance, the judge may impose numerous conditions on the defendant, including any condition established by Missouri Supreme Court rule. Section 544.676 would be amended to add to the list of existing factors a judge must consider when determining conditions of release, including the defendant's ability to pay and any other factor or tool approved by rule or order of the Missouri Supreme Court. The section would be further amended to add to the list of factors a judge must consider in determining whether a defendant poses a danger.
The sponsor stated, regarding catch and release – truly in a bail situation, a judge hears all of the evidence and makes a decision on bail based on that evidence. If person is not a danger to the community, they get out and do not sit in jail. This allows a judge to decide if the person is a danger – this looks at ability to pay and if the person is a danger. This bill is a clarification.
No one spoke in support of, in opposition to, or for informational purposes on the bill. Darrell Lee Moore (MO Association Of Prosecuting Attorneys, MO Office Of Prosecution Services) and Tiffany L. Marler (Nomoretears21:4) submitted Witness Appearance Forms in support.
In executive session, the committee addressed the following:
HB 156 – Rep. Rudy Veit (R – Wardsville)
There will be an amendment, but it was not yet prepared. The committee did not vote on the bill.
HB 160 – Rep. Rudy Veit (R – Wardsville) (compensation of jurors)
Amendment: The first two days are not covered in Rep. Viets bill, this would allow the county to vote to pay the jurors the first two days. The amendment was adopted unanimously.
Do Pass: by a vote of 11 to 0
HB 259 – Rep. David Evans (R – West Plains)
Do pass by a vote of 11 to 0
The House Committee on Crime Prevention, met Wednesday February 17th, and considered the following:
HB 295 – Rep. Lane Roberts (R – Joplin)
The sponsor stated the goal of the bill is to expand the pool of law enforcement officer applicants.
HB 295 would amend chapter 590, RSMo, by adding two new sections. Section 590.1070 would establish the "Peace Officer Basic Training Tuition Reimbursement Program” to assist Missouri residents attending a basic law enforcement academy in order to be a peace officer and obtaining full-time employment with a law enforcement agency. Section 590.1075 would establish the "Peace Officer Basic Training Tuition Reimbursement Fund," consisting of appropriations made by the General Assembly and any gifts, bequests, or donations to the Fund. Missourians employed as peace officers could apply for tuition reimbursement at a rate of 25% per year of employment, with full tuition reimbursed by the end of four years of employment. Qualifying government entities that pay for a person to attend the academy could submit for tuition reimbursement at the same rate. The POST Commission is designated to implement the program.
No one spoke in support of, in opposition to, or for informational purposes on the bill. Mark Bruns submitted a Witness Appearance Form in support on behalf of the Missouri FOP. Arnie Dienoff submitted a Witness Appearance Form in opposition, stating this should be a local control matter.
HB 301 – Rep. Mike Haffner (R – Pleasant Hill)
The sponsor stated this bill is about protecting our communities. He emphasized it does not make resisting arrest a felony, that remains a misdemeanor. This bill only addresses resisting arrest by fleeing in a motor vehicle. He stated the prosecutors provided him additional language just prior to the hearing. He will work with committee members to consider the language.
HB 301 would amend 575.150, RSMo, specifying a person commits the offense of resisting arrest by fleeing in a motor vehicle if s/he resists an arrest, stop, or detention by fleeing from law enforcement in a motor vehicle and, during the course of fleeing, drives at a speed or in a manner that demonstrates a disregard for the safety of a person or property, including that of the pursuing officer or other occupants of the fleeing vehicle. The first offense is a class E felony. A second or subsequent conviction is a class D felony. If serious bodily injury or death to another person, including any officer, results during the commission of the offense, the offender is guilty of the offense of aggravated resisting arrest by fleeing in a motor vehicle, which is a class D felony. A second or subsequent conviction, it is a class C felony. A prosecuting attorney shall not be required to prove that the defendant knew why he or she was being stopped, arrested, or detained.
Jeff Weber (Cass County Sheriff's Office), Shawn Rhoads (Missouri Sheriffs United), and Darrell Moore (Missouri Association Of Prosecuting Attorneys and Missouri Office Of Prosecution Services) testified in support of the bill. In essence, they suggested adding to the list of tools that law enforcement has available to enforce the law. Brad Thielemier (Missouri State Troopers Association), Kevin Merritt (Missouri Sheriffs United), Mark Bruns (Missouri FOP), and Ken Cooper and Arnie Dienoff (individuals) submitted Witness Appearance Forms in support.
Sharon Jones (NAACP) spoke in opposition to the bill, stating substantial risk of harm should replace disregard for public safety in the bill because a traffic violation could trigger the disregard for public safety standard, thus making a traffic violation an automatic felony. She further identified the need to clarify that the current standard of “risk” applies to law enforcement officers, and the driver of, and other persons in, the vehicle.
HB 876 – Rep. Shamed Dogan (R – Ballwin)
HB 876 would amend 563.046 and 566.145, RSMo, and amend and/or add numerous sections to chapter 590. It would amend 563.046, RSMo, to prohibit the use of chokeholds by peace officers and security guards except when such tactics are justified as deadly force under Chapter 563, RSMo. It would amend 566.145, RSMo, to create the offense of sexual conduct in the course of public duty, which is a class E felony. A probation or parole officer, a police officer, or an employee of, or person assigned to work in, any jail, prison, or correctional facility commits the offense if s/he engages in sexual conduct with a detainee, prisoner, or offender, regardless of whether the person is on duty at the time the conduct occurs. The same personnel commit the offense if s/he engages in sexual conduct with any person while on duty. (Rep. Dogan said sex on duty is an extension of what applies to corrections officers – presumed nonconsensual, don’t want to hire bad cops from out of state – Impetus for reforms comes from a lot of turmoil saw over summer and the George Floyd incident for 8 minutes and 46 seconds he compared it to holding a moment of silence on the floor for 8 minutes and 46 seconds people would go nuts imagine having someone have a knee in your neck for that length of time while you are already handcuffed. He and senators had really intense discussions with law enforcement over the summer. He worked with law enforcement to craft the bill. )
HB 876 would make the following changes to chapter 590. Amended section 590.040 would allow the use of carotid restraints to effectuate arrests, but these methods must be taught and distinguished from chokeholds, which prevent or hinder breathing. It would amend 590.080, RSMo, to authorize disciplinary actions for peace officers who use a chokehold when deadly force is not lawful and the chokehold results in serious injury or death, regardless of whether the officer is criminally prosecuted. New section 590.651 would require all law enforcement agencies to prohibit chokeholds unless deadly force is lawful. Their use as deadly force is to be reported to the Attorney General and available for publication. Under new section 590.654, any peace officer or security guard who causes death using a chokehold and is not justified in using deadly force would be guilty of a class A felony. Under new section 590.655, the illegitimate use of a chokehold that causes serious injury and is not justified by the use of physical force defenses under Chapter 563 would be guilty of the offense of aggravated strangulation, a class B felony. Officers found guilty under 590.654 and .655 would be referred for disciplinary action under 590.080, RSMo.
The bill would amend 590.195 to specify that a law enforcement agency could be fined $1,000 each day it commissions a peace officer in violation of the law prohibiting law enforcement agencies from commissioning officers who do not hold a valid peace officer license. Finallly, HB 876 would add a new section 590.520, RSMo, to require an officer certified in another state to submit a preliminary application for certification before beginning employment with a law enforcement agency in this state. The agency would be required to deny an officer's preliminary application if s/he has
pled guilty to or been convicted of a felony,
had certification revoked in another state,
been discharged for serious misconduct, or
been laid off after a disciplinary investigation involving serious misconduct.
Sharon Jones (NAACP) testified in support of the bill, noting the lack of statewide standards for policing, police officers, and sheriffs. She also pointed out that the NAACP, the ACLU and law enforcement officers were heavily involved in drafting the language. While no others testified, Cheryl Adelstein (Jewish Community Relations Council), Christine Woody (Empower Missouri), Kelli Lowe (The National Police Wives Association), Executive Director Pat Kelly (Municipal League of Metro St. Louis), Sara Baker (ACLU of MO), and Susan Gibson, Victoria Godfrey-Zeller, Anne Litwin, Arnie Dienoff, Ellen Thieme, Kendall Martinez-Wright, Maureen Flynn-Hart and Rebecca Shaw (individuals) submitted Witness Appearance Forms in support. No one spoke for informational purposes.
No one testified in opposition to the bill. However, members of the committee who had previously served as law enforcement officers expressed numerous concerns with the bill as drafted.
HB 461 – Rep. Shamed Dogan (R – Ballwin)
HB 461 amends chapter 590 by adding a new section 590.510, RSMo, to require every law enforcement agency to have a written policy regarding the investigation of officer-involved deaths. The policy would require the investigation (1) to be conducted by at least two investigators, who are not employed by the agency employing the officer involved in the death and (2) to use a crash reconstruction unit from another agency if the officer-involved death is traffic related, unless it is a state law enforcement agency. The bill allows for an internal investigation if it does not interfere with that of the out-side agency. The investigators provide a complete report to the county or City of St. Louis prosecutor in which the officer-involved death occurred. Compensation for participating in an investigation is determined by a manner consistent with a mutual aid agreement.
Rep. Dogan said the bill simply requires independent investigations when a law enforcement author is involved in an incident. The Highway Patrol’s fiscal note presumes it is going to do all of the investigations, and there is nothing in the bill to require that.
Michael Bell, who led the charge to pass the same legislation in Wisconsin testified in support. He stated that, as a pilot in the Air Force, he had learned the best way to investigate flight mishaps was to have them performed by an outside agency. He believes the same to be true for police investigations – police departments shouldn’t investigate themselves. His son was shot in front of his mother and sister by a police officer. A police officer caught his gun on the mirror of a car but thought the son was trying to take his gun. When another officer arrived on the scene to assist, he shot the son, point blank, in the temple. The police department did its own investigation and, instead of admitting a mistake, concocted a story about how his son took the officer’s gun. One of the officers involved in the incident subsequently committed suicide. No others testified in support, but Witness Appearance Forms in support were submitted by Cheryl Adelstein (Jewish Community Relations Council), Sara Baker (ACLU of MO), Sharon Geuea Jones (Missouri State Conference of the NAACP), and Arnie Dienoff (individual). No one testified in opposition to, or for informational purposes on the bill.
In executive session, the committee voted the following Do Pass by a vote of 9 to 0:
HB 292 – Rep. Lane Roberts (R – Joplin)
The sponsor offered an amendment making two minor adjustments in last paragraph – to include the language “that serve no legitimate purpose” and to strike the words “or about”. The amendment passed.
The House Rules – Legislative Oversight – Committee met on February 18th, and voted and reported the following Do Pass:
HB 249 Ruth AIM Zones 9 to 0
HB 52 Schnelting Firearms On Public Transit 7 to 2
HB 63 Pike Intoxicating Liquor 9 to 0
HB 138 Pietzman Department of Natural Resources 9 to 0
HCS HB 357 Baker Cottage Industries 9 to 0
HB 533 Knight Intoxicating Liquor 9 to 0
The House Rules – Administrative Oversight – Committee met on February 18th, and voted and reported the following Do Pass:
HB 316 Toalson Reisch Certain Criminal Offenders 9 to 0
The House Special Committee on Litigation Reform met February 18th and conducted public hearings on the following
HB 946 – Rep. Justin Hill (R – Lake St. Louis)
HB 946 would amend chapter 544, RSMo, by adding one new section, 544.453. to establish provisions that will apply when a judge or judicial officer sets bail in all Missouri courts. The provisions include
(1) Public safety is to be the paramount consideration when setting bail and conditions of release;
(2) Only probable cause would need to be established for an arrest warrant to be sought and issued;
(3) Release on one's own recognizance would consist of
the defendant's signature, and promise to appear in court and to comply with all nonmonetary conditions of release without having to post any cash, surety, or property as security, or
if the defendant fails to appear in court or comply with nonmonetary conditions of release, that person would be required to later pay the same;
(4) Judges will have discretion to release a defendant on one’s own recognizance if permitted by law, but there will be no presumptions in favor of release on one's own recognizance in any category of offenses, specific offenses, or gradations of offenses;
(5) There will be a presumption against release on one's own recognizance with or without nonmonetary conditions of release that may be overcome by clear and convincing evidence that a person is not a flight risk or danger to the community in the following circumstances:
(a) A person has been convicted of a prior felony, sexual offense, or violent charge within the past five years;
(b) A person is already on bond on a pending charge;
(c) A person is on probation or parole;
(d) A person has committed continuing or severe acts of arson, rioting, or looting, which may endanger public safety if released;
(e) A person has failed to appear in court as required once in the previous three years; and
(f) The results of a risk assessment tool or process, if available, indicate that the person is not low risk;
(6) Missouri courts will not permit secured bonds, bonds in the sum of ten percent, or unsecured bonds. The judge will set bail in a single monetary amount, to be fully secured by the defendant by any method, including cash, property, or surety bond, or a combination. However, courts cannot discriminate against a defendant due to bond type selected to fully secure the defendant's release. Further, the courts cannot require a particular type of bond; and
(7) Attorneys will not be permitted to recover, nor allowed to enforce, any lien or claim on bail proceeds deposited with the court, within a criminal case. All proceeds are to be returned to the defendant upon release of the bond.
Dan Menze, a licensed surety agent, testified in support of the bill on behalf of the Surety Agents of Missouri. He stated when the MO Supreme Court advised judges they should release as many defendants as possible on their own recognizance, it resulted in an increase of “catch and release.” Adoption of this bill would make sure defendants have skin in the game. James Harris (American Bail Coalition “ABC”) testified in support, in addition to the executive director of the ABC, Jeff Clayton, having electronically submitted written testimony. The ABC’s points were (1) the legislation makes public safety the paramount consideration for purposes of offering bail, a national best practices in its view; (2) the legislation simplifies the bail system by creating two forms of bonds, a release on personal recognizance or a bail; (3) the people who do not make bail are on average more dangerous—they have twice as many arrests and twice as many convictions; and (4) Supreme Court Rule 33 places a burden on sheriffs in the rural parts of state because, at least with a warrant and a bond, the bondsman pursued defendants, now the sheriffs offices are being tasked with finding the person who doesn’t show up for court. Larry Newman (Missouri Alliance of Professional Bail Bond Agents), Mark Bruns (MO FOP), and Tiffany L. Marler (Nomoretears21:4 and Special Forces of Liberty) provided Witness Appearance Forms in support of the legislation.
Brian Bernskoetter (MO Organization of Criminal Defense Lawyers) testified in opposition to the bill. He stated that in the situations of those to which the bill applies, the taxpayers pay one way or another. If the defendant stays in jail, the taxpayers pay the bill for the stay. If the defendant pays the bail bondsman first, the defendant ends up in the Public Defender system, and once again the taxpayers pay for it. If the bill is adopted, defendants will have to prove they are not a flight risk. How do you prove a negative? Mo Del Villar (ACLU of MO) electronically submitted written testimony in opposition. He noted the legislation is a direct attempt to overturn much of the Missouri Supreme Court’s rules on bail, which, as well as federal law, uphold the presumption of innocence and ensure that Missouri does not permit unconstitutional debtors’ prisons. This legislation does the opposite. Further, under this legislation, current incentives for private criminal attorneys fall away, and more and more defendants will find themselves in need of a public defender.
Mary Fox (State Public Defender System) testified for informational purposes. She stated the Public Defender System could see an increase in the number of cases it must handle if this legislation passes. She further noted, as a result of bond assignments to attorneys being used, defendants are kept out of the Public Defender System. This legislation would change that by disallowing such assignment. She also pointed out that “dangerous to the community and failure to show up in court” are already a part of MO Supreme Court rule 33, which was just a codification of United States v. Salerno, 481 U.S. 739 (1987).
HB 922 – Rep. Dan Houx (R – Warrensburg)
HB 922 would amend sections 516.120 and 516.140, RSMo, to remove “or for any other injury to the person or rights of nother, not arising on contract and not herein otherwise enumerated” from the list of personal injury claims that must be brought within five years. It would amend 516.140 to say instead that actions for any injury to the person or rights of another, including actions for personal or bodily injury, not arising on contract and not otherwise provided for by law, must be brought within two years.
The sponsor indicated that the average statute of limitations is 2 to 3 years for personal injury claims. This proposal would simply get MO in line with its surrounding states.
Rich Aubuchon (Missouri Civil Justice Reform Coalition and American Property Casualty Insurance Association) testified in support of the bill, noting that evidence gets lost. He also testified that the insurance industry is interested in adding uninsured and under-insured motorists (“UIUM”) to the bill so that the statutes of limitations for UIUM are the same as the others arising out of personal injury matters. Most UIUM personal injury cases are related to car wrecks. Brian Bernskoetter (MO Organization of Defense Lawyers) also testified in support. Brad Jones (NFIB), Heath Clarkston (U.S. Chamber Of Commerce), Matthew Panik (MO Chamber of Commerce & Industry), Michael Gibbons (Bayer U.S. and Enterprise Leasing), Michael J. Henderson (Missouri Insurance Coalition), Ray McCarty (Associated Industries of MO) and Tom Crawford (MO Trucking Association) submitted Witness Appearance Forms in support.
Mark Moreland spoke in opposition to the legislation on behalf of the Missouri Association of Trial Attorneys. He stated the legislation seeks to limit the ability of injured parties to file a claim in order to collect for a personal injury after two years. Attorneys incur costs at the outset of a case, so they wouldn’t engage in a suit unless a client has a legitimate claim, which requires investigation and can take time. He disagrees that evidence will walk away when there is a case to be made. He noted the insurance carriers will always say that a longer statute of limitations causes an increase in premiums Finally, he highlighted Missourians should feel fortunate that we maintain a 5 year statute of limitations for personal injury. After all, the statute of limitations on debt collection is 10 years. Arnie Dienoff submitted a Witness Appearance Form in support.
In executive session, the committee addressed the following:
HB 519 – Rep. Jeff Knight (R – Lebanon) with an amendment by Rep. Degroot
Voted Do Pass by a vote of 8 to 0.
HB 577 – Rep Alex Riley (R – Springfield) with amendments
Voted Do Pass by a vote of 6 to 2.