Legislative Update - Feb. 5, 2021
During the fourth full week of session (2/1 – 2/5/2021), both chambers continued to compensate for member absences related to COVID-19 and delayed or cancelled hearings and floor debates.
BAR-ENDORSED LEGISLATION
Five bills containing the three 2021 Bar-endorsed legislative proposals have been introduced in the House and Senate. A sixth Senate bill will be filed in the near future.
HB 929 – Rep. Louis Riggs (R – Hannibal), relating to trusts
HB 758 – Rep. Bill Hardwick (R – Waynesville), relating to trusts (In addition to its Bar-drafted provisions on trust decanting, HB 758 also provides for interpretation of terms of familial relation used in trusts.)
HB 953 – Rep. Louis Riggs (R – Hannibal), relating to alternative dispute resolution
HB 1020 – Rep. Louis Riggs (R – Hannibal), relating to the assignment of benefits for creditors
SB 338 – Sen. Tony Luetkemeyer (R – Parkville), relating to trusts (In addition to its Bar-drafted provisions on trust decanting, SB 338 also provides for interpretation of terms of familial relation used in trusts.)
A Senate companion bill on assignments for benefit of creditors will be introduced in the near future.
SENATE FLOOR ACTIONS
From 2:00 p.m. on Tuesday, February 2nd, until 5:10 a.m. on Wednesday morning, the Senate debated Sen. Luetkemeyer’s “COVID liability” bill. When debate ended on Wednesday morning, the Senate perfected a floor substitute for the bill (SS#2 SCS SBs 51 & 42). Summaries of the introduced bills were included in previous Legislative Updates. The primary new matters addressed in the Senate substitute include the following:
Clarifying that vaccines and gene therapies are not covered products;
Deleting “at risk” of suffering personal injury from COVID-19 exposure action;
Adding the definition of “religious organization” to the bill and providing such will not be liable in any COVID-19 exposure action unless a plaintiff can prove intentional misconduct;
Shifting from a conclusive to a rebuttable assumption of risk in COVID-19 exposure actions if a plaintiff enters premises having a posted or written notice that the individual waives all civil liability for damages based on inherent risks;
Exempting religious organizations from the notice requirement;
Removing elective procedures delayed for good cause from consideration as recklessness or willful misconduct;
Limiting punitive damages to no greater than nine times the amount of compensatory damages awarded;
Providing that the COVID liability measures will sunset in four years;
Adding that nothing in the bill prohibits a cause of action for events arising from:
State or local requirements for businesses or services to cease operations
Insurers failure to cover business interruption
Price gouging, cancelling noneducational events, or paying membership fees
Educational institution tuition costs or refunds
Landlord-tenant or forcible entry and unlawful detainer relating to residential property
Changing the court commencement dates for COVID-19 exposure and products liability actions from one to two years following the date of the alleged damage.
The bill must receive one more vote in the Senate before it will advance to the House.
SENATE COMMITTEE ACTIONS
The Senate Judiciary and Civil and Criminal Jurisprudence Committee met on Monday, February 1st, and heard the following bills:
SB 129 – Senator Tony Leutkemeyer (R – Kansas City)
SB 129 would amend section 565.240, RSMo. Under current law, a person commits the offense of unlawful posting of certain information over the internet if s/he knowingly posts the name, home address, Social Security number, or telephone number of any person on the internet intending to cause great bodily harm or death or threatening to cause great bodily harm or death to such person. This offense is a Class C misdemeanor. SB 129 would modify the current offense by adding “any other personally identifiable information” and further provides that if a person knowingly posts the name, home address, Social Security number, telephone number, or any other personally identifiable information of any law enforcement officer, or an immediate family member of a law enforcement officer, s/he will be guilty of a Class E felony. No one testified in favor of or in opposition to the bill.
SB 212 – Senator Bill White (R – Joplin)
SB 212 amends several sections of law in order to replace the phrase “Department of Corrections and Human Resources” with “Department of Corrections” and the “Board of Probation and Parole” with the phrase “Division of Probation and Parole” or “Parole Board.” The bill would also repeal the provision providing that the governor shall not appoint the chair of the Parole Board, but the sponsor indicated he would have a committee substitute to remove this change. Adam Albach, legislative liaison for the Department of Corrections, testified in favor of the bill. No one testified in opposition or for informational purposes.
In executive session, the committee took the following actions:
SCS SBs 53 & 60 (Luetkemeyer) – A committee substitute combined SB 53, sponsored by Sen. Luetkemeyer, and SB 60, sponsored by Sen. Williams. Beyond combining them, there were no substantive changes to the bills. The committee voted the committee substitute Do Pass by a vote of 4 to 2.
SCS SB 66 (Brattin) – A Senate committee substitute was introduced to accommodate concerns raised during the public hearing on the bill. The committee substitute was voted Do Pass by a vote of 3 to 2. The revisions included:
Creating a five-year average to address one time money with regard to a political subdivision’s budget decrease;
Changing the list of offenses by addition subsection 4 under 557.045 so that if the victim is a worker in the performance of duty, the offender is no longer subject to perdition;
Defining unlawful assembly and blocking traffic;
Stating that rioting is a misdemeanor unless the offender knowingly damages the property in excess of $750, in which case it is a class E felony;
Adding public monuments or structures to the list of institutional vandalism;
Adding a law enforcement officer bill of rights.
The Senate Committee on Governmental Accountability and Fiscal Oversight met on Thursday, February 4th, and heard the following bill:
SB 179 – Senator Tony Leutkemeyer (R – Parkville)
SB 179 would amend section 435.415, RSMo, to provide that no arbitration award shall be binding, admissible in evidence, or provide the basis for any judgment or decree against any insurer unless the insurer has agreed in writing to the arbitration proceeding. Any arbitration award will not be subject to collection from any liability insurer unless the insurer has agreed in writing to the written arbitration agreement. An insurer's election to not participate in arbitration will not be construed as bad faith. The bill would also amend section 537.065, RSMo, to provide insurers intervening in a court proceeding where the defendant has contracted to limit his or her liability to specified assets have all the same rights and defenses afforded to the tort-feasor, including any rights or defenses that would have been available in the absence of a contract. The provisions do not alter or reduce an intervening insurer's obligations to any insureds other than the tort-feasor, including any co-insureds.
According to the sponsor, because arbitration technically is not a lawsuit, the insurance company cannot intervene. To prevent an insurer from entering into the proceeding, the injured party goes to arbitration.
Russell Waters testified in favor, stating that courts have held that the legislation passed in 2010, amending chapter 537, is useless. He further stated that use of the 537 statute has gutted the right to a jury trial as applies to insurers. Michael Henderson (Missouri Insurance Coalition) testified that adoption of this bill would restore balance and give all parties a right to participate in the process, which would be good for all Missouri businesses and consumers and contribute to Missouri’s economy. Richard Brownlee (State Farm Insurance) noted that 30% of the senators’ constituents who own cars are insured by State Farm. According to him, nothing causes more consternation for insurance companies than the current law because all they can do is sit in the back of the room and listen to what is going to happen to them. Rich Aubuchon (Missouri Justice Reform Coalition and the American Property Casualty Insurance Association), Associated Industries of Missouri, and the Missouri Chamber of Commerce and Industry also testified in support of the bill. The Missouri Retailers Association, the U.S. Chamber of Commerce, Enterprise Leasing, and the Missouri Organization of Defense Lawyers provided written testimony.
On behalf of the Missouri Association of Trial Attorneys, Mike Campbell testified in opposition to the bill. Mr. Campbell stated that the greatest worry to small business is that a claim will be filed against them that will bankrupt them because their insurance company will not pay the claim. He stated that insurance companies do have their day in court and that it is a two-pronged process. First, the insurance company comes to a judge and then the judge decides if the claim was covered or the insurance company wrongfully denied the claim. If the judge decides that the claim was covered, then a jury must determine if the claim was denied in bad faith. In Missouri, bad faith means that the insurance company has to be found to have put it own interest in front of that of the client. Mr. Campbell suggested that if the bill were passed, insurance companies would be incentivized to deny valid claims.
HOUSE COMMITTEE ACTIONS
The House Public Safety Committee met Tuesday, February 2nd, and heard the following bills:
HB 770 – Rep. Jo Doll (D – Webster Groves)
HB 770 amends section 556.145, RSMo, to create the offense of sexual conduct in the course of public duty, which would be a class E felony. It would prohibit a probation or parole officer, police officer, or an employee of (or person assigned to work in) any jail, prison, or correctional facility from engaging in sexual conduct with a detainee, prisoner, or offender, regardless of whether the person was on duty at the time the conduct occurs. The bill is identical to HB 457, sponsored by Rep. Shamed Dogan (R – Ballwin). No one spoke in favor of or in opposition to the bill.
HB 898 – Rep. Bennie Cook (R – Houston)
HB 898 would add a victim’s employment as a law enforcement officer or first responder to motivations for offenses to be classified as hate crimes. The Missouri FOP, St. Louis Police Officers Association, and the Kansas City FOP submitted Witness Appearance Forms, but no one testified in support of or opposition to the bill.
HB 760 – Rep. Shane Roden (R – Cedar Hill)
HB 760 would create a “Voluntary Firefighter Cancer Benefits Trust” to make payments to firefighters who have contracted duty-related cancer. Workers’ compensation does not cover claims of cancer for firefighters in Missouri.
On behalf of the Missouri Fire Service Alliance, Jorgen Schlemeier testified in favor of the bill, noting that payment to the trust (about $164 per firefighter per year) would be less than paying an increased premium for workers’ compensation. No one testified in opposition to the bill. On behalf of the Missouri Intergovernmental Risk Management Association, Brian Bernskoetter testified for informational purposes, stating their position that workers’ compensation is a terrible solution for firefighters’ duty-related cancers.
In executive session, the committee adopted a committee substitute for HB 59, which would establish provisions to protect the personal information of active and retired first responders, and voted to Do Pass HCS HB 59 by a unanimous vote of eight in favor. The committee also voted on HB 457 and HB 770, rolling them into a single House committee substitute (HCS HBs 457 & 770) and voted to Do Pass the combined bills by a unanimous vote of eight in favor.
The House Special Committee on Litigation Reform met on Tuesday, February 2nd, and immediately convened in executive session. It voted to Do Pass HB 345 by a vote of six ayes and 3 noes. HB 345 would make changes to the enforcement of arbitration awards and intervention in court proceedings for insurance companies. On Thursday, February 4th, the same bill was voted Do Pass (5-2) by the House Rules – Legislative Oversight – Committee and reported out from the committee.
In regular session, the committee conducted hearings on the following bills:
HB 474 – Rep. Curtis Trent (R – Springfield)
HB 474 would create a fifteen-year statute of repose relating to product liability actions, providing that a person who had been injured by a defective or unsafe condition of a product due to negligence in the design, manufacture, sale, or distribution of a product would have fifteen years after the sale or lease of the product, into the stream of commerce, to bring a claim for damages. Subsections 1 through 8 of section 3 include the following exceptions:
actions relating to real property,
actions where a person has knowingly concealed any defective or unsafe condition in a product,
actions for indemnity or contribution by a defendant, when a product has a warranty that is greater than fifteen years, actions regarding negligent service or maintenance of a product,
actions regarding defective or unsafe conditions of a product when the product is the subject of a government-mandated recall, for certain products that cause respiratory or malignant disease, or
any action against a manufacturer where the harm occurred during the useful life of the product.
Ray McCarty (Associated Industries of Missouri) testified in favor of the bill, stating that product liability should not extend beyond a reasonable time after the date of purchase. He also pointed out that the reference to “useful life” is vague and should be tightened. A representative of the Missouri Chamber of Commerce and Industry also testified in favor, arguing that the bill affords a balanced approach to liability. Rich Aubuchon (on behalf of the Missouri Civil Justice Reform Coalition and the American Property Casualty Insurance Association) noted the exceptions had been added to the bill’s language in order to address the concerns of those who had expressed opposition. Michael Henderson (Missouri Insurance Coalition), Brad Jones (National Federation of Independent Business), and a representation for the Missouri Organization of Defense Lawyers also testified in favor of the bill.
A representative for the Missouri Association of Trial Attorneys testified in opposition, stating that the bill was arbitrary and capricious, citing a hypothetical example where one might buy a car and be involved in an accident where the air bag doesn’t work. The individual could sue if the care was fourteen years and 364 days old, but not if it were fifteen years and one day old, despite the fact that air bag failing to deploy was a manufactured defect. At fifteen years and one day, the individual would lose the right to a jury trial provided under Article 1, Section 22(a) of the Missouri Constitution.
The Special Committee on Criminal Justice convened for its first meeting on Tuesday, February 2nd, and heard the following bills:
HB 504 – Rep. Cheri Toalson Reisch (R – Hallsville)
HB 504 would provide that any offender sentenced under subsection 3 of section 195.295, RSMo, relating to convictions for drug trafficking in the second degree, prior to January 1, 2017, when the section was repealed, would be eligible for parole after having served ten years of his or her sentence if the Parole Board determined that there is a strong and reasonable probability that the offender will not re-offend.
No witnesses spoke in favor of or in opposition to the bill. However, a Witness Appearance Form in support was submitted by Rebecca Shaw of Columbia. Adam Albach, legislative liaison for the Department of Corrections, testified for informational purposes only. He noted that subsections 2 and 3 of section 195.295 provide for sentencing and not convictions, and do not allow for parole. This would make a change to subsection 3, that would allow individuals sentenced under the drug trafficking statute to have a parole hearing.
HB 316 – Rep. Cheri Toalson Reisch (R – Hallsville)
According to the sponsor, HB 316 is intended to address situations where a person has been convicted of a felony offense can’t work at Casey’s, making pizzas in the back of the store, because the store also sells lottery tickets and alcohol in the front. The bill would provide that the supervisor of Liquor Control cannot prohibit a person from participating in the sale of alcohol based solely on being found guilty of a felony offense. To facilitate enabling people to work, the bill would repeal language requiring an employer with a liquor license to report the identity of any employee convicted of a felony to the Division of Liquor Control. It further specifies that the Missouri Gaming Commission could not prohibit a person from participating in the sale of lottery tickets based solely on the individual being found guilty of a criminal offense,
The Missouri Petroleum Marketers & Convenience Store Association and Empower Missouri testified in favor of the bill. They testified that present law places a burden on employers and serves as a barrier to potential employees who have felony records. The Jewish Community Relations Council of St. Louis, the Smart Sentencing Coalition, and the following individuals (Matthew Rosene, Maureen Flynn-Hart, Olivia DePaul, and Sister Mary Ann McGivern) submitted Witness Appearance Forms in support of the bill.
HB 432 – Rep. Hannah Kelly (R – Mountain Grove)
HB 432 would establish the Birth Match Program and require data sharing between the Departments of Social Services and Health and Senior Services and the courts to compare birth reports with reports of parents who have been convicted of child abuse and neglect or have had a termination of parental rights, in order to ensure the safety of the child and to provide services to the child.
Emily van Schenkhof (Missouri Children’s Trust Fund) testified in favor of the bill, stating that adoption of the bill would further the goal of preventing child fatalities by causing the DSS to be notified immediately when babies are born and if in-home visits are necessary. A representative for Kids Win Missouri noted the extreme importance of early intervention in order to save children. On behalf of FosterAdopt Connect and the Foster Family Support Group, Scott Penman testified in support. Arnie Dienoff, Missouri KidsFirst, and the Missouri Coalition of Children’s Agencies submitted Witness Appearance Forms in support of the bill.
No one testified in opposition. A representative for the Department of Social Services testified for informational purposes, stating that the department does have a central registry, but it does not include a parental right termination list because this information is only contained within individual case files. The department would have to create a new list to add to its central registry, and it would have to work with the judiciary to obtain information on terminations that exists outside the DSS system. The initial creation of the list would be a heavy and costly lift for the department, but going forward, they could add a check box to the information currently collected.
HB 865 – Rep, Brenda Shields (R – St. Joseph)
HB 865 would authorize any county or city not within a county to levy property tax to establish a county early childhood education board. The levy would first be approved by the qualified voters of the county or city of St. Louis. The primary goal of any board would be to expand and improve early childhood education services for children under five years.
Linda Rallo, vice president of Aligned, testified in favor of the bill. According to her testimony, it would permit local communities decide if they needed early childhood education, which is an investment in the workforce of future. A representative of KidsWin Missouri also testified in favor, noting that (as of January 13th) there were seventy-two Missouri counties that qualified as childcare deserts, meaning for every one open slot, there were three children who could fill it. Five Missouri counties have no licensed childcare facilities. Arnie Dienoff submitted a Witness Appearance Form in favor. No one testified in opposition.
HB 76 – Rep. Jim Murphy (R – St. Louis)
HB 76 would provide for Safe Haven baby boxes as places where a parent could voluntarily deliver a child (forty-five days old or younger). The bill would authorizes the Department of Health and Senior Services to promulgate rules relating to the “Safe Place for Newborns Act of 2002.” No one testified in support of or in opposition to the bill.
The House Judiciary Committee met Wednesday, February 3rd, and heard the following bills:
HB 585 – Rep. Dan Houx (R – Warrensburg)
HB 585 would revise section 194.119, RSMo, to remove a surviving spouse as next-of-kin if an action for dissolution of marriage has been filed and is pending in a court of competent jurisdiction. The bill would also allow the next-of-kin to delegate final disposition of the deceased to an agent through a power of attorney. However, an individual with a superior claim (as established by the list in the order of priority currently stated in section 194.119) would have to be given notice by a person with an inferior claim desiring to exercise the right to control final disposition. Under this bill, the notice could be in person or by written notice with delivery confirmation, rather than "personally served” with written notice. No one testified in favor of, or in opposition to, or for informational purposes.
HB 69 Hardy Bollington (R – Poplar Bluff)
HB 69 would amend section 407.300, RSMo, to require every purchaser or collector of, or dealer in, junk, scrap metal, or any secondhand property to require from the seller, for any purchase of copper, either a bill of sale that indicates or an affidavit that attests that the copper being sold was acquired lawfully. Currently, for sales of $50 or less, no photo ID is required.
Randy Scherr (Missouri Auto and Truck Recyclers Association) testified in favor, but he noted that number 3 on page 2 might have an unintended consequence because autos and trucks sometimes contain a component that is a small amount of copper. Bill Gamble also testified in favor on behalf of the MO Railroad Association and MO Broad Band Providers. The Missouri Automobile Dealers Association; the Missouri Realtors Association; the Association of Missouri Electric Cooperatives; Arnie Dienoff; and Joan Libla submitted Witness Appearance Forms in support.
Shannon Cooper (Advantage Metals Recycling) testified for informational purposes, stating that the company he represents does not condone stealing and would be interested in stiffer penalties for those who steal. Trent Ford (Mid America Chapter of The Institute of Scrap Recycling Industries) also testified for informational purposes, stating that the scrap recyclers look forward to helping law enforcement officers do their jobs and also would like to see harsher penalties for bad actors.
No one testified in opposition.
HB 712 – Rep. Mark Ellebracht, (D – Liberty)
HB 712 would amend chapter 479, RSMo, by adding section 479.162, which would provide that a defendant could not be charged any fee for obtaining a police report or probable cause statement in a proceeding for a municipal ordinance violation or any other proceeding before a municipal court. Instead, these would be provided by the prosecutor on the defendant’s written request for discovery. No one testified in person on the bill. Arnie Dienoff submitted a Witness Appearance Form.
HB 157 – Rep. Rudy Veit (R – Wardsville)
HB 157 would amend chapter 550, RSMO, by adding a new section (550.125) and creating the “Change of Venue for Capital Cases Fund,” consisting of money appropriated by the General Assembly. The fund would be used solely to reimburse a county that received a capital case from another county. At the conclusion of the case, the receiving county could apply to the Office of State Courts Administrator (OSCA) for reimbursement of any costs associated with sequestering jurors. If OSCA determined that the county was eligible for reimbursement, it would disburse the money to the county. If OSCA determined that a county was not eligible, the county of origin would be responsible for reimbursement.
Judge Jon Beetem testified in favor, stating that the rural counties don’t have the facilities to take care of capital murder cases, so they need the case to be heard in a larger county. The law requires that the jury be sequestered in a capital case, and the costs are significant. Alex Eaton (Missourians for Alternatives to the Death Penalty) testified in opposition, stating that the organization he represents does not support using taxpayer funds for sequestering jurors for death penalty cases. Arnie Dienoff submitted a Witness Appearance Form in support of the bill.
HB 531 – Rep. David Evans (R – West Plains)
HB 531 would amend section 217.777, RSMo, by adding a new goal to the Department of Corrections’ community-based treatment programs as sentencing alternatives: To promote opportunities for nonviolent primary caregivers to care for their dependent children. The bill would also amend section 559.120, RSMo, to provide that a court consider the option of ordering an offender to participate in a community-based treatment program if the court finds the offender is the primary caregiver of one or more dependent children, confinement is not necessary to protect the public, and the offender can be effectively supervised and guided successfully though a community-based program.
The Missouri State Medical Association testified in favor, informing committee members that it has a program that specifically deals with the mental health of children of incarcerated parents. Liza Weiss (Missouri Appleseed) testified in favor, noting the importance of keeping families together to improve the physical and mental health of the children and the criminal justice system. Jeff Smith (Missouri Appleseed) testified that this bill would help in a small way to break cycle of incarcerated parents because kids of incarcerated parents are more likely to be incarcerated when they grow up.
No one testified in opposition and no one testified for informational purposes. The Center for Women in Transition, the American Conservative Union, the Missouri Catholic Conference, and individuals: Dr. Samantha Lund, Angela, Patty, and Arnie Dienoff submitted Witness Appearance Forms.
HB 530 – Rep. David Evans (R – West Plains)
HB 530 would revise section 488.029 to indicate that the surcharge of $150 in all criminal cases would be assessed for any violation of chapter 579, RSMO, rather than chapter 195. Section 556.046 would be amended so a person may be convicted of an offense included in an offense charged in the indictment if the person’s offense is established by proof of the offense or less than all the elements, as opposed to facts, required to establish the commission of the offense charged. Section 556.046 would be amended to state that the court is obligated to charge the jury to an included offense only if (1) the offense is established by its proof or less than all the elements required to establish the charged offense was committed; (2) the evidence provides a rational basis to acquit the person of the offense charged and convict the person of the included offense; and (3) either party requests the court to charge the jury with respect to a specific included offense.
There is no basis for plain-error review on direct appeal or for postconviction relief if the defendant or defense counsel fails to request the court to charge the jury. The legislation provides the trial court has a duty to determine if a rational basis in the evidence for a verdict exists.
Locke Thompson, Cole County Prosecuting Attorney, testified in favor of the bill on behalf of the Missouri Association of Prosecuting Attorneys.
The Missouri Association of Criminal Defense Lawyers submitted written testimony in opposition using the Witness Appearance Form. Their primary concern was that HB 530 would place the determination of whether there is a “rational basis” for not believing certain facts presented and therefore allow the judge to withhold an instruction on the law based on his own interpretation of the facts. By stripping the jury of an important part of its fact-finding function ad giving it instead to a single judge, this bill diminishes the jury trial right for those who have chosen to exercise it.
In executive session, the committee voted on the following bills:
HB 144 – Do Pass by vote of 10 to 0
HB 548 - Do Pass by a vote of 10 to 0, with an amendment to add “substantially contributed to cause” the unavailability of a witness
HB 527 – Do Pass by a vote of 7 to 4, with an amendment to require that the county commission of the county through which the merchant line will pass adopt a resolution in support before the company can go before the PSC.