26
March
2021
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13:15 PM
America/Chicago

Legislative Update - March 26, 2021

This week (3/22 – 3/26), the General Assembly returned to work at the Capitol, after a week-long break. Of general interest in the House were actions relating to election laws or measures previously approved by voters (e.g., Medicaid expansion). By a bipartisan vote, the Senate voted down a bill to subject the authority of local health authorities during a state public health crisis to approval by local governing bodies. Next week, the House of Representatives is slated to take up its version of the state operating budget for floor debate.  

To identify bills of interest in your practice area and see the latest legislative action on them, visit The Missouri Bar’s Legislative Engagement Center.  Also, look for a mid-session issue of The Missouri Bar’s Legislative Digest, coming in early April.  

SENATE 

Senate Floor Action 

For a complete list of bills approved by the Senate and delivered to the House for consideration, click here

Senate Committee Action 

The Senate Judiciary and Civil and Criminal Jurisprudence Committee met on March 22, 2021, and held public hearings on the following bills: 

SB 312 – Senator Steven Roberts (D – St. Louis)  

SB 312 would amend chapter 546, RSMo, to specify that no person would be required to disclose a privileged communication between a person who submits a report of alleged criminal activity to a crime stoppers organization and the person who accepts the report on behalf of the organization, by testimony or otherwise. Nor would a person who submits a report of alleged criminal activity to a crime stoppers organization be required to produce any records, documentary evidence, opinions, or decisions related to the privileged communication, under subpoena. Any person arrested or charged with a criminal offense could petition the court for private inspection of the records of a privileged communication concerning himself or herself made to a crime stoppers organization. The petition would have to allege facts showing that the records would provide evidence favorable to the defendant and relevant to the issue of guilt or punishment. If the court determined that the person is entitled to any or all of the records, the court could order production and disclosure as it deems appropriate. This bill is the same as HB 1552 (2020). 

TESTIFYING IN SUPPORT 

  • Kevin Ahlbrand (Law Enforcement Officer and Missouri FOP) 

  • Darrell Moore (Missouri Association of Prosecuting Attorneys) 

  • Jared Meyer (Cicero Action) 

TESTIFYING IN OPPOSITION 

  • None  

Electronic Witness Appearance Forms in Opposition 

  • Arnie C. AC Dienoff  

SB 374 – Senator Tony Luetkemeyer (R – Parkville) 

SB 374 would amend section 544.665, RSMo, to provide a person who has been granted release pending trial in any criminal matter would violate the conditions of release imposed by the court by: 

  • Failing to appear for any court appearance; 

  • Being arrested or formally charged with any new criminal offense; or 

  • Violating any other condition of release that the court has placed on the person to secure his or her appearance at trial and to secure the safety of the community. 

It also would provide that, upon the finding of probable cause of a violation of conditional release by a court, an arrest warrant would be issued, because it is to be presumed that a person who committed a dangerous felony would not appear upon a summons when charged with the offense of failure to appear. If a complaint or indictment for violation of conditions of release is filed for failure to appear and the person charged had committed a dangerous felony, a rebuttable presumption that no combination of conditions will secure the safety of the community is created. The offender would then be detained pending trial. 

TESTIFYING IN SUPPORT 

  • Amy Fite, Christian County Prosecuting Attorney (Missouri Association of Prosecuting Attorneys) 

Electronic Witness Appearance Forms in Support 

  • Arnie C. AC Dienoff  

TESTIFYING IN OPPOSITION 

  • None  

SB 402 – Senator Bob Onder (R – Lake St. Louis) 

SB 402 would amend Chapter 491, RSMo, by adding section 491.016, which would provide that a witness’ statement, which would otherwise not be admissible, would be admissible as substantive evidence if the court were to find by a preponderance of evidence that: 

  • Defendant engaged in or acquiesced to wrongdoing with intent to cause witness’ unavailability; 

  • The wrongdoing the defendant engaged in or acquiesced to caused the witness’ unavailability; 

  • The state exercised due diligence to secure the attendance of the witness by subpoena or other means, or the witness is unavailable because the defendant caused the death of the witness; and 

  • The witness failed to appear at the proceeding. 

Additionally, in a jury trial, the hearing and finding to determine the admissibility of the statement is to be held and found outside the jury’s presence and before the case is submitted to the jury. 

TESTIFYING IN SUPPORT 

  • Darrell Moore (Missouri Association of Prosecuting Attorneys): there are increasing attempts to threaten witnesses, particularly in murder cases. Written testimony also.  

Electronic Witness Appearance Forms in Support 

  • Arnie C. AC Dienoff  

TESTIFYING IN OPPOSITION 

  • None 

SB 487 – Senator Bob Onder (R – Lake St. Louis) 

SB 487 would amend chapter 544, RSMo, by adding one new section, 544.453, which would 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) Results of a risk assessment tool or process, if available, indicate 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. 

TESTIFYING IN SUPPORT 

  • Jeff Clayton (American Bail Coalition) testified that the bill was consistent with national best practices, focusing on public safety and providing a better balance – low risk individuals would be released on a personal recognizance bond, while high risk individuals would have a bond. 

  • Dan Mense (Coalition of Surety Agents of Missouri) testified that the bill would give judges discretion to release persons who they can count on to return to appear in court.  

  • Sheriff David Parrish (Missouri Sheriff's United; Missouri Sheriff's Association) testified that the Supreme Court of Missouri’s changes to the bail rules were too defendant-centered, with offenses increasing and high-risk offenders going in and out of facilities too often.  

Electronic Witness Appearance Forms in Support 

  • Arnie C. AC Dienoff  

TESTIFYING IN OPPOSITION 

  • Brian Bernskoetter (Missouri Association of Criminal Defense Lawyers) testified that the bill would represent a fundamental shift in the bail rules and, when individuals pay high bail, they have no money for an attorney and are forced into the public defender system.  

  • Mo Del Villar (ACLU of Missouri) testified that legislators shouldn’t overlook potential innocence and provided rearrest and re-appearance records stats from the District of Columbia, which does not have cash bail. 

Electronic Witness Appearance Forms in Opposition 

  • Peggy Placier - Self 

  • Benjamin Schulz  

  • Jeanne Mihai 

  • Eric Morris-Pusey - Self l 

The Committee took action on the following bills in executive session: 

  • SB 181 – Senator Tony Luetkemeyer (R – Parkville)  Do Pass  (5-0) 

  • SB 338 – Senator Tony Leutkemeyer (Bar-Endorsed Legislation)   Do Pass (5-0) 

  • SB 314 – Senator Lincoln Hough (R – Springfield) Do Pass  (5-1) 

HOUSE 

House Floor Action 

For a complete list of bills approved by the House and delivered to the Senate for consideration, click here

House Committee Action 

The House Committee on General Laws met on March 22, 2021. In Executive Session, votes on previously heard bills included the following:  

  • HJR 43 – Rep. Justin Hill (R – Lake St. Louis) Do Pass  (10-6) 

  • HJR 60 – Rep. Justin Hill (R – Lake St. Louis) Do Pass (10-6) 

  • HJR 24 – Rep. Bill Hardwick (R – Waynesville) Do Pass (10-6) 

Currently, when a judicial vacancy occurs on the Supreme Court of Missouri or the Court of Appeals or in any judicial circuit subject to nonpartisan judicial selection, the relevant nonpartisan judicial commission will nominate three persons and submit their names to the governor for consideration.  As introduced, HJR 24 would provide that, when a vacancy occurred on the Supreme Court or Court of Appeals, the governor would appoint a person to fill it, by and with the advice and consent of the Senate. Vacancies in any judicial circuit subject to nonpartisan judicial selection would continue to be filled by nomination by a nonpartisan judicial commission and appointment by the governor.  

Rep. Trent offered a committee amendment to HJR 24, further providing that: 

(1) each judge in office on November 8, 2022, would hold office for the remainder of his or her term, after which point the office would be vacated, subject to appointment under the amended section 25(a);  

(2) judges would be prohibited from accepting (directly or indirectly) any gifts of tangible or intangible items, services, or things of value from any licensed Missouri attorney or any paid lobbyist or lobbyist principal gifts, with exceptions for campaign contributions or gifts, family support, or anything of value from relatives; and  

(3) the official ballot title would be as follows:  

"Shall the Missouri Constitution be amended to:  

- Establish term limits for Supreme Court and Appellate court judges 

- Ban gifts from attorneys or lobbyists to judges 

- Appoint Missouri Supreme Court and Appellate Court judges by nomination of the governor and advice and consent of the senate?” 

The House Special Committee on Litigation Reform met on March 23, 2021, and held public hearings on the following bills:  

HB 997 – Rep. Bruce DeGroot (R – Ellisville) 

HB 997 would amend chapter 537, RSMo, to specify that no party would recover damages from another person or entity for exposing the party to a virus or other communicable disease unless the party pleads and proves certain elements by clear and convincing evidence. At the time of the pleading, a party seeking to recover damages from another for exposing the party would have to provide the defendant with an affidavit from a physician stating certain elements had been satisfied to a reasonable degree of medical certainty. Failure to provide an affidavit would result in a dismissal of the party's cause of action and an award in favor of the defendant for the defendant's costs and attorney's fees. (COVID liability claims would be treated like medical malpractice claims.)  

TESTIFYING IN SUPPORT 

  • Rich Aubuchon (Missouri United School Insurance Council, American Property Casualty Insurance Association, Missouri Civil Justice Reform Coalition) 

  • Ray McCarty (Associated Industries of Missouri) 

  • Matthew Panik (Missouri Chamber of Commerce and Industry) 

TESTIFYING IN OPPOSITION 

  • Ken Barnes (Missouri Association of Trial Attorneys) stated that proof of the clear and convincing evidence standard is difficult but the requirement that everything be presented before discovery makes proof nearly impossible.  This level of detail would necessitate discovery to identify a well-reasoned expert who could articulate a position.  

SUBMITTING ELECTRONIC WITNESS APPEARANCE FORMS 

  • For a link to those submitting forms electronically, click here.  

HB 1064 – Rep John Wiemann (R – O’Fallon)  

HB 1064 would amend chapter 537, RSMo, to establish provision of law relating to liability in COVID-19 related actions. It is identical to SS#2 SCS SBs 51 & 42 (2021), which was summarized in the March 12, 2021, Legislative Update, provided in ESQ. 

TESTIFYING IN SUPPORT 

  • Rich Aubuchon (Missouri United School Insurance Council, American Property Casualty Insurance Association, Missouri Civil Justice Reform Coalition) 

  • Ray McCarty (Associated Industries of Missouri) 

  • Matthew Panik (Missouri Chamber of Commerce and Industry) 

  • Bill Anderson (Missouri Hospital Association) 

TESTIFYING IN OPPOSITION 

  • Ken Barnes (Missouri Association of Trial Attorneys)  

  • Lisa Panette testified that there is no tidal wave of litigation.  

  • Marcela Povit (business owner who was closed because of COVID) testified that complexity covers up fraud, and this bill is complex, and government should not be meddling in health care.  

  • Carla Gruwe testified that she initially had been excited about this bill because the conversation was about getting small business back to work, but as she read the bill more thoroughly it is about profit over people. 

SUBMITTING ELECTRONIC WITNESS APPEARANCE FORMS 

  • For a link to those submitting, click here.  

HB 1119 – Rep. Curtis Trent (R – Springfield)  

HB 1119 would amend section 287.120 RSMo, to state that an employee would not to be released from liability if the employee engaged in a willful act with the intent to cause bodily injury or death. Currently, employees are immune for damages involving bodily injury or death unless they committed an affirmative negligent act that causes or increases the risk of injury. 

TESTIFYING IN SUPPORT 

  • Michael Gibbons (The Doe Run Company) 

  • Ray McCarty (Associated Industries of Missouri)  

  • Rich Aubuchon (Missouri Civil Justice Reform Coalition) 

  • Matthew Panik (Missouri Chamber of Commerce and Industry) 

TESTIFYING IN OPPOSITION 

  • Mark Moreland (Missouri Association of Trial Attorneys) testified that the bill would raise the bar to get outside of the workers’ compensation system, where there is no right to a jury trial.  

SUBMITTING ELECTRONIC WITNESS APPEARANCE FORMS 

  • For a link to those submitting, click here.  

The Committee took action on the following bill in executive session: 

  • HB 1304 – Rep. Mike Henderson (R – Desloge) Do Pass (6-1) 

The House Special Committee on Criminal Justice met on March 23, 2021, and voted on the following bills in executive session: 

  • HB 38 – Rep. Kevin Windham (D – Hillsdale) Do Pass 

  • HB 460 – Rep. Shamed Dogan (R – Ballwin)  Do Pass 

  • HB 750 – Rep. Tony Lovasco (R – St. Paul)  Do Pass 

  • HB 1363 – Rep. Shamed Dogan (R – Ballwin)  Do Pass 

The House Judiciary Committee met on March 24, 2021, and held public hearings on the following bills: 

HB 251 – Rep. Nick Schroer (R – O’ Fallon) 

This bill would amend section 610.140, RSMo, by adding subdivision (4) of subsection 1 of section 571.030, RSMo, to the offenses eligible for expungement (offense of a person exhibiting any weapon readily capable of lethal use in an angry or threatening manner in the presence of one or more persons). 

TESTIFYING IN SUPPORT 

  • Tom Robbins (The Home Loan Expert) testified that the amendment just gives more individuals access to the court process. 

TESTIFYING IN OPPOSITION 

  • None 

TESTIFYING FOR INFORMATIONAL PURPOSES  

  • Darrell Moore (Missouri Association of Prosecuting Attorneys) 

SUBMITTING ELECTRONIC WITNESS APPEARANCE FORMS 

  • For a link to those submitting, click here.  

HB 451 – Rep. Dottie Bailey (R – Eureka) 

HB 451 would amend Chapter 208, RSMo, by adding one new section (208.245). It would require parent, caretaker relative, putative father, or identified noncustodial parent to cooperate with the child support program to be eligible for Supplemental Nutrition Assistance Program (SNAP) benefits. 

TESTIFYING IN SUPPORT 

  • James Harris (Opportunity Solutions Project [a welfare reform organization]) 

TESTIFYING IN OPPOSITION 

  • Jeremy LaFaver (Empower Missouri) testified that using the hunger of the child as the motivator for the parent results in harm to the children. (He also submitted written testimony.) 

  • Scott Penman (Operation Food Search) 

SUBMITTING ELECTRONIC WITNESS APPEARANCE FORMS 

  • For a link to those submitting, click here.  

HB 467 – Rep. Chris Dinkins (R – Annapolis) 

HB 467 would amend section 589.414, RSMo, to provide that Tier I sexual offenses include child molestation in the second degree if the punishment is one year or less. 

TESTIFYING IN SUPPORT 

  • Darrell Moore (Missouri Association of Prosecuting Attorneys) 

TESTIFYING IN OPPOSITION 

  • No one  

SUBMITTING ELECTRONIC WITNESS APPEARANCE FORMS 

  • For a link to those submitting, click here.  

HB 758 – Rep. Bill Hardwick (R – Waynesville) [Bar-Endorsed Legislation] 

This bill is identical to SB 338, sponsored by Senator Tony Luetkemeyer (R – Parkville) and summarized in the March 12 Legislative Update, provided in ESQ.  

TESTIFYING IN SUPPORT 

  • Dan Wheeler (The Missouri Bar) 

TESTIFYING IN OPPOSITION 

  • No one  

SUBMITTING ELECTRONIC WITNESS APPEARANCE FORMS 

  • For a link to those submitting, click here.  

HB 1315 – Rep. Ron Hicks (R – Dardenne Prairie) 

HB 1315 would amend sections 210.830, 211.462, 452.402, 452.423, 453.025, and 455.513, RSMo, and add one new section (484.355), establishing certain statutory requirements for guardians ad litem (GAL). The bill would require that a GAL meet face-to-face with the parents and the child and provide the parents with a copy of the Missouri Supreme Court standards governing GAL, within twenty-one days of appointment. It would require the GAL to continue to maintain contact with the child throughout the appointment and disallow designation of the duty to a volunteer advocate or other person. It would not, however, prohibit a volunteer advocate from meeting with the child.  

The bill also would require that, in all proceedings for child custody or for dissolution of marriage where custody, visitation, or support of a child is a contested issue, or in a proceeding in which child abuse or neglect is alleged, the court appointment of a GAL would be for a temporary duration. The GAL’s appointment would be limited to the purpose of conducting special investigations to assist the court in determining the best interests of the child. 

The sponsor indicated that he wanted to start a discussion and would delay pursuing the bill until next year.  

TESTIFYING IN SUPPORT 

  • Jeff Miller (Equal Shared Parenting) testified his goal was to make GAL law consistent across all areas of law and to codify the Supreme Court standards for GALs in statute.  

  • Scott Smith testified that the bill was necessary because lack of due process is built into the GAL process. GAL recommendations to a court can adversely impact a parent in a divorce.  

  • Jeremy Roberts (Americans for Equal Shared Parenting) testified that parties in a dispute have no choice but to accept the recommendations the GAL to the court.  

TESTIFYING IN OPPOSITION 

  • Carla Holste (a family law attorney) testified that the bill is based on a presumption that the role of a GAL is the same in every case, which is incorrect. Each case is unique, and GALS have different obligations depending on the individual case.  

SUBMITTING ELECTRONIC WITNESS APPEARANCE FORMS 

  • For a link to those submitting, click here.  

The Committee took action on the following bills in executive session: 

  • HB 1069 – Rep. David Evans (R – West Plains) Do Pass  (10-1) 

  • HB 1416 – Rep. John Black (R – Marshfield)  Do Pass  (8-4) 

The House Special Committee on Litigation Reform met on March 25, 2021, and voted on the following in executive session:  

HB 195 – Rep. Mark Ellebracht (D – Liberty) Do Pass  (6-2)  

HB 997 – Rep. Bruce DeGroot (R – Ellisville)  Postponed 

HB 1064 – Rep. John Wiemann (R – O’Fallon)  Do Pass  (6-2) 

HB 1119 – Rep. Curtis Trent (R – Springfield)  Do Pass (6-2) 

SS#2 SCS SBs 51 & 42 – Senator Tony Luetkemeyer (R – Parkville)   Do Pass (6-2)