Legislative Report: Week 5: Senate Perfects COVID Liability Protections after Marathon

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The Missouri Senate began debate on Senate Bill 51 & 42 at about 2 p.m. on Tuesday and ended their debate at 5:10 a.m. on Wednesday morning. The fifteen-hour debate ended with a substitute bill that reflected all the negotiations necessary for legislation to advance that provides COVID liability protection for health care workers, businesses, manufacturers, and churches. This issue remains a top priority for Governor Mike Parson, Republican Leadership, the health care community, the Missouri Chamber of Commerce & Industry, and many others. The bill still needs final approval by the full Senate before it moves to the House, and we expect that to occur next week.

HOUSE PASSES LEGISLATION TO TURN BACK FEDERAL LAWS ON GUNS
The Missouri House debated and passed House Bill 85 & 310 on Thursday that establishes the “Second Amendment Preservation Act.” In a highly animated floor debate the Democrat and Republican members accused each other of being too aggressive on gun regulations.

HB 85 & 310, “Declares that all federal acts, laws, executive orders, administrative orders, court orders, rules, and regulations, whether past, present, or future, that infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution and Article I, Section 23 of the Missouri Constitution, must be invalid in this state, including those that impose a tax, levy, fee, or stamp on these items as specified in the bill; require the registration or tracking of these items or their owners; prohibit the possession, ownership, use, or transfer of a firearm; or order the confiscation of these items”.

This legislation will now be sent to the Missouri Senate and will face some opposition from several urban lawmakers and various law enforcement groups.

CHIEF JUSTICE DELIVERS STATE OF THE JUDICIARY
On Tuesday, Missouri Chief Justice George W. Draper III presented the annual State of the Judiciary address virtually. Noting 2021 is Missouri’s 200th anniversary of its founding, he shared some history of Missouri courts. “Our state judicial branch first was formed when Missouri adopted its first state constitution in July 1820. The state’s first governor appointed the first Supreme Court judges in November 1820, and the Court held its first session in March 1821 in the town of Franklin.” The state’s first governor appointed the first Supreme Court judges in November 1820, and the Court held its first session in March 1821 in the town of Franklin.

Justice Draper said Missouri’s legal system was better prepared than those in other states to handle the COVID pandemic’s disruptions during the past year. “We have spent decades creating statewide technology infrastructure, allowing continued electronic case filings and court determinations when in-person proceedings are not required.” He said IT professionals in the State Courts Administrator’s office “did yeoman’s work to get more than 400 judicial officers and thousands of court employees online, working safely from remote locations.” And he thanked the presiding judges of the 46 judicial circuits and the chief judges of the three appellate districts who collaborated with other local leaders to determine how best to proceed given local circumstances. “The state of our judiciary is healthy. May you all stay healthy and well,” he said.

During the address, Justice Draper announced that Judge Laura Denvir Stith will be retiring in March from the Supreme Court after nearly 27 years of judicial service. Judge Stith was only the second woman ever appointed to the Court, and she served as Chief Justice from July 2007 through June 2009.

COVID LIABILITY BILLS (Luetkemeyer R-Platte City and White R-Joplin)
The Senate worked 15 hours on Tuesday and Wednesday morning to perfect COVID-19 liability protection. The bill was a compromise involving much discussion. The perfected version defines actions to including COVID-19 exposure actions, COVID-19 medical liability actions and COVID-19 products liability actions. Exposure actions cover individuals and entities that provide businesses, services, activities or accommodations from suits for actual, alleged, feared or potential exposures. COVID-19 medical liability actions are brought by persons who suffered personal injury or their representative brought for a health care provider’s act or omission providing COVID-19 related health care services. COVID-19 products liability actions are brought by individuals or their representatives who suffered personal injury caused by the design, manufacturing, importation, distribution, labeling, packaging, lease, sale or donation of a covered product. The plaintiff is required to show that the defendant engaged in recklessness or willful misconduct and the actual exposure of COVID-19 caused the personal injury. Religious organizations shall be liable if the plaintiff can prove intentional misconduct. The bill establishes a rebuttable presumption of an assumption of risk by a plaintiff in a COVID-19 exposure action when an individual or business posts a sign which contains the warning notice in the bill. Religious organizations are not required to post or maintain a sign. Changes to policies are not evidence of liability and businesses/individuals are not required to have a policy.

Businesses/individuals are not liable in COVID-19 exposure actions for the acts or omissions of a third party unless the individual or entity had an obligation under general common law principles to control the acts or omissions of the third party or the third party was an agent of the business or individual. In health care actions, the delay of an elective procedure for good cause is not reckless or willful misconduct. COVID-19 product liability cases will not hold businesses or individuals liable if they do not make the product in the ordinary course of business, make the product in the ordinary course but due to the emergency made it in a modified process or makes the product in the ordinary course but use of the product is different that its recommended purpose and used in response to the emergency. Plaintiffs have to show recklessness or willful misconduct and the damage was caused by such conduct. These provisions do not apply to fraud in connection with advertisement.

The bill allows for punitive damages but they shall not exceed nine times the amount of the compensatory damages. These provisions will expire four years after the effective date. Nothing in the bill expands liability otherwise imposed or limits any available defense. This bill replaces any common law caused of action except the ones specifically set out in the bill. These exceptions include:

• Applicability of any provision of law that imposes stricter limits on damages or liabilities for personal injury or affords greater protection to defendants;
• Does not affect actions under Chapter 213, 285 and 287 (Disability and Worker’s Compensation);
• Does not impair, limit or affect the authority of the state or local government to bring any criminal, civil or administrative action against a business or individual;
• Does not impact an action for intentional discrimination on the basis of race, color, national origin, religion, sex, disability, genetic information or age;
• Does not mandate a vaccination or affect the applicability of any provision of law that creates a cause of action for a vaccine-related personal injury;
• Does not prevent a business or individual to bring a cause of action regarding an order issued by a state or local government to cease operations;
• Does not prevent a cause of action for breach of contract for business interruption, or action where an insurer refuses to pay for such interruption;
• Does not impact causes of action for price gouging, noneducational related canceled events or payment of membership fees;
• Does not impact any provision of law providing for a cause of action for breach of contract against an educational institution for the refund of tuition or costs; and
• Does not impact causes of action under Chapters 441, 534, and 535 relating to residential property.

Actions for exposure shall not be commenced later than two years after the exposure. Actions for medical liability must be commenced no later than one year after the date of the discovery of the alleged impact and product liability actions must be commenced no later than two years after the alleged harm.

The bill does have an emergency clause.

LOCAL PUBLIC HEALTH ORDERS
Senate Bill 12, 20, 21, 31, 56, 67 & 68 (Onder, R-Lake St. Louis) was passed out of the Senate Health and Pensions Committee on Wednesday, February 3rd. SB 12 et al, modifies several provisions relating to public health and was filed in response to numerous local and county health orders put into effect during the current COVID-19 pandemic. First, this act provides that the state, any state agency, political subdivision, county commission, county health center board, or person is prohibited from enacting, adopting, maintaining, or enforcing measures during a declared state of emergency that would restrict, directly or indirectly, the free exercise of religion.

Second, the governing body of a political subdivision that has issued a public health order that closes, partially closes, or restricts the operation of businesses, churches, schools, or other places of public or private gatherings during and pertaining to such state of emergency shall approve, modify and approve, or reject such order by a two-thirds vote within 15 days of enactment, during which time the order may go into effect. Such public health orders shall be limited to no longer duration than 15 cumulative days in a 30-day period unless authorized by: (1) the Department of Health and Senior Services for orders to be in effect or extended for no more than 30 days in a 60-day period or (2) the General Assembly through a concurrent resolution for orders to be in effect or extended for no more than 90 days in a 180 day-period. Additionally, this act prohibits orders, rules, or regulations promulgated by political subdivisions from governing the number of people gathering or residing on private residential property during a state of emergency relating to the entrance of infectious, contagious, communicable, or dangerous diseases.

Third, beginning January 1, 2021, this act allows a taxpayer that is a resident of a city or county that imposes any city-wide or county-wide ordinance or order prohibiting or restricting the use of the taxpayer’s real property to receive a credit against property taxes owed on such affected property. The amount of the credit shall be a percentage of the property tax liability that is equal to the percentage of the calendar year that the restrictions on the use of the property were in place. The credit authorized by this act shall only apply to real property tax liabilities owed to a city or county imposing such an ordinance, and shall not apply to property tax liabilities owed to any other taxing jurisdiction.

Fourth, no quarantine order issued by a county health board shall require, under penalty of law, that a person subject to quarantine isolate himself or herself from members of the same physical household.

Fifth, no public health order issued by any political subdivision, county health board, or state agency shall infringe on the parental rights of an individual, including decisions relating to the minor child’s care and custody, upbringing, education, religious instruction, place of habitation, and physical and mental health care. Nothing in this provision shall be interpreted to limit the ability of such political subdivision or state agency to protect a child from child abuse or neglect. A positive test result for COVID-19 of a parent, guardian, or child shall not be the sole or determinative reason to remove a child from the care and custody of a parent or guardian.

Sixth, no hospital shall adopt, and no political subdivision shall impose, any policy restricting the presence of or visitation by, in accordance with the hospital’s regular visitation hours and security protocols, the following: (1) one visitor if requested by a pregnant or new mother, (2) one member of the clergy or one person ordained for religious or pastoral duties if requested by the patient or the patient’s family, or (3) the child’s legal parent or guardian, provided such parent or guardian has either legal custody with no protective orders or unsupervised visitation.

Finally, candidates for county health board of trustees positions, under current law, are not required to run for election if the number of candidates is no greater than the number of positions to be filled. This act repeals this provision.

Also, on Tuesday, February 2nd the House Small Business Committee held an executive session and voted “do pass” on House Bill 288, 444 & 392 (Henderson, R-Bonne Terre) that is has many of the same provisions as SB 12 et al.

MOTOR FUEL TAX
Senate Bill 262 (Schatz, R-Sullivan) – Currently there is a state excise tax of 17 cents per gallon on motor fuel purchased in Missouri. SB 262 increases the tax by 2 cents per year over a period of 5 years. When the legislation is fully implemented, the Missouri tax on motor fuel will be 27 cents per gallon. The bill contains a referendum clause for a statewide ballot issue. The Senate Transportation, Infrastructure and Public Safety Committee conducted a hearing on the bill Feb. 2. Sen. Schatz said he is seeking bipartisan legislation to increase funding to support the sixth largest transportation system in the nation and its many unfunded needs. Testimony in favor of SB 262 was presented by Operating Engineers Union of St. Louis, Kansas City and Missouri; the Missouri Department of Transportation, St. Charles County, Missouri Trucking Association, Site Improvement Association, Missouri Soybean Association, Missouri Concrete Association, Greater St. Louis Incorporated, Missouri Corn Growers Association, Missouri Farm Bureau, Missouri Chamber of Commerce & Industry, Missouri Retailers Association, Missouri Cattlemen’s Association, City of Kansas City, Greater Kansas City Chamber of Commerce, Construction Employers Coalition, and 14 written testimonies in favor. Two written testimonies in opposition. Testimony for information only was presented by the Missouri Petroleum Marketers & Convenience Store Association which seeks an amendment to the bill so existing and future taxes would apply to all motor fuels, including electricity. Sen. Schatz also noted South Carolina law currently offers a motor fuel income tax credit that can be claimed on a resident taxpayer’s income tax return, a proposal that may be included during debate of SB 262. The committee took no action on the bill.


Committee Activity

House Bill 29 (Walsh, R-Ashland) adds all public employee retirement systems and quasi-governmental entities employees’ salaries and any incentive pay to the state’s government accountability portal in the same manner as all state departments and agencies report for public transparency. On Feb. 3, the House Pensions Committee voted Do Pass on HCS HB 29 by a 11-0 vote. The amended bill does not allow retiree annuities, allowances, or benefits to be released to the public.

House Bill 59 (Schnelting, R-St. Charles) establishes provisions to protect law enforcement officers and first responders. During an executive session of the House Public Safety Committee on February 2, substitute language was adopted to provide clean up language to address areas of concern relating to the assessor offices and title searches. Once amended, the committee passed the bill by an 8-0 vote.

House Bill 228 (Basye, R-Rocheport) prevents public school districts or charter schools from prohibiting a parent or guardian from audio recording any meeting held under the Federal Individuals with Disabilities Education Act or a Section 504 plan meeting (Federal Rehabilitation Act of 1973). On Feb. 2, the House Elementary and Secondary Education Committee voted Do Pass-Consent on HCS HB 228 by a vote of 16-0. The bill was amended to add an emergency clause.

House Bill 271 (Wiemann, R-O’Fallon) establishes the “Missouri Local Government Expenditure Database” to be maintained by the state Office of Administration. For each fiscal year beginning after Dec. 31, 2022, the database must include extensive information about a given municipality’s or county’s expenditures and the vendors to whom payments were made. A municipality or county may voluntarily participate in the database or may be required to participate if a petition process used by its residents is used to require participation. The database must be accessible by the public without charge. On Feb. 2, HCS HB 271 was voted Do Pass by the House Emerging Issues Committee on a 12-0 vote. The amended bill would not apply to villages with fewer than 30 residents. On Feb. 4 the House Rules-Administrative Oversight Committee also voted HB 271 do pass.

House Bill 334 (Simmons, R-Washington) makes changes to absentee voting, establishes voter identification requirements at the polls and use of provisional ballots, and repeals notice by the secretary of state in print, broadcast television, radio and other media about personal identification requirements for voting. On Feb. 3, the House Elections and Elected Officials Committee voted Do Pass on HCS HB 334 by a 7-3 vote. Two minor amendments were added to the bill, regarding where provisional ballots are placed in a secure container, and the election authority’s authorized location for polling places.

House Bill 362 (DeGroot, R-Ellisville) modifies provisions of the Sunshine Law by closing email addresses and telephone numbers submitted to a public governmental body by persons or entities for the sole purpose of receiving electronic or other communications including, but not limited to, newsletters, notifications, advisories, and alerts. On Feb. 2, HCS HB 362 was voted Do Pass by the House Emerging Issues Committee on a 12-0 vote. The legislation was amended to allow closure of email addresses and phone numbers used to distribute only newsletters, notifications, advisories, and alerts, not other communications. On Feb. 4 the bill was also voted do pass by the House Rules-Administrative Oversight Committee.

House Bill 441 (Falkner, R-St. Joseph) changes the laws regarding the consequences to a political subdivision for failure to file an annual financial statement with the State Auditor as required. Any political subdivision that has gross revenues of less than $5,000 or that has not levied a sales tax or use tax is not subject to the fine. In addition, the Director of the Department of Revenue has the authority to make a one-time downward adjustment to any fine he or she deems uncollectible. Non-compliance could result in disincorporation of the political subdivision. On Feb. 4, the House Local Government Committee voted Do Pass on HCS HB 441 on a vote of 12-0. HB 441 was amended to require notices sent to taxing entities such as a TDD to be sent to the municipality’s mayor, also. And, House Bill 806 (Bailey, R-Eureka) was added as an amendment, equalizing liability protection now given to state and county parks and adjacent landowners with liability protection for city parks and adjacent landowners.

House Bill 657 (Trent, R-Springfield) adds individually identifiable customer usage and billing records for residential customers of a municipally owned utility, unless the records are requested by the customer or authorized for release by the customer, to the list of records that may be closed under the Sunshine Law. A municipally owned utility shall make available to the public a commercial customer’s name, billing address, location of service, and dates of service provided for any commercial service account. The bill’s language is supported by the Missouri Press Association. On Feb. 3, HB 657 was voted Do Pass by the House Utilities Committee on a 7-0 vote.

House Bill 764 (Andrews, R-Grant City) — Currently, to legally qualify as a newspaper to publish public notices, a newspaper must have been published regularly for a period of three years; or must be the successor newspaper to a defunct newspaper that begins publication no later than 30 days after the termination of the prior newspaper. HB 764 reduces the time of regular publication from three years to one year and increases the time from 30 days to 90 days within which a successor newspaper must begin publication. The bill also allows a newspaper that has been purchased or newly established by another newspaper that satisfies these conditions to qualify. The House Emerging Issues Committee heard testimony on the bill Feb. 2. Rep. Andrews told the committee, “Our local newspapers connect our local citizens with the outside world,” and noted that newspapers in his Northwest Missouri district “try to be bipartisan” and “they simply cover the news. They are a trusted source of delivering local news.” Testifying in support of the bill was Mark Maassen, executive director of the Missouri Press Association, who noted the same language was filed last year in a bill sponsored by former Rep. Steve Lynch of Waynesville. Maassen provided comparisons with other states’ legal newspaper requirements (Missouri’s three-year requirement is the longest), and gave examples of three young newspapers that recently qualified in Missouri as legal publications. No testimony was given in opposition. The committee took no action on the bill.

House Bill 850 (Wiemann, R-O’Fallon) prohibits the modification of summary statements or ballot language approved by the General Assembly for Constitutional amendments or statutory measures. Courts will not have jurisdiction to rewrite or edit such language prior to placing it on the ballot. On Feb. 3, the House Elections and Elected Officials Committee conducted a hearing on HB 850. Rep. Wiemann said the courts are welcome to give opinions, but not change ballot language. The secretary of state and attorney general would maintain their authority to review ballot language. Testimony in favor of HB 850 was presented by the secretary of state’s deputy chief of staff. Written testimony in opposition was submitted by the ACLU-Missouri, AFL-CIO of Missouri, and the Missouri National Education Association. The committee took no action on the bill.

House Bill 920 (Baker, R-Neosho) Beginning January 1, 2022, this bill changes the dates for primary and municipal elections and the procedure to follow when there is a
vacancy. In its main provisions, the bill: (1) Changes that upon a vacancy in any elective office, except for the office of Mayor, the successor shall serve until the next available general municipal election instead of the available regular April election; (2) Changes the first regular meeting of the city council after the election to no later than the second Tuesday after the general municipal election day instead of the fourth Tuesday in April; and (3) Changes the election day for the election of political subdivision and special district officers to the first Tuesday after the first Monday from April to November each year. Hearing held February 3 in the House Downsizing State Government Committee. No testimony in support. Testifying in opposition were the Springfield Area Chamber of Commerce and City of Springfield.

Senate Bill 27 (Crawford, R-Buffalo) provides that a county treasurer shall have access to any document in possession of any county official that the treasurer requests that is financially relevant for the purposes of processing a payment. On February 3 the Senate Local Government and Elections Committee held an executive session where Senate Committee Substitute for SB 27 was voted do pass by a vote of 6-0. The substitute includes suggested language submitted by auditors.

Senate Bill 129 (Luetkemeyer, R-Parkville) – Under current law, a person commits the offense of unlawful posting of certain information over the internet if he or she knowingly posts the name, home address, social security number, or telephone number of any person on the internet intending to cause or threaten to cause great bodily harm or death to such person. SB 129 modifies the current offense by adding “any other personally identifiable information” and further provides that if a person knowingly posts such personally identifiable information of any law enforcement officer, or an immediate family member of a law enforcement officer, he or she shall be guilty of a Class E felony. The Senate Judiciary and Civil and Criminal Jurisprudence Committee heard testimony on the bill Feb. 1. Testimony in favor was presented by the Missouri State Troopers Association, Missouri Fraternal Order of Police, Kansas City Fraternal Order of Police, St. Louis Police Officers Association, and St. Louis County Police Association. No testimony in opposition. Sen. Luetkemeyer said the bill may be expanded beyond police officers to include firefighters, first responders, EMTs, and prosecutors. The committee took no action on the bill.

Senate Bill 134 (O’Laughlin, R-Shelbina) was heard Feb. 2, by the Senate Education Committee. The bill, similar to House Bill 228 (Basye, R-Rocheport), prevents public school districts or charter schools from prohibiting a parent or guardian from audio recording any IEP meeting held under the Federal Individuals with Disabilities Education Act or a Section 504 plan meeting (Federal Rehabilitation Act of 1973). Any audio recording made by a parent or guardian shall be the property of the parent or guardian, and shall not be considered to be a public record. Testimony in favor was presented by two parents. No opposition testimony was given. The committee took no action on the bill.

Senate Bill 149 (Onder, R-Lake St. Louis) modifies the initiative petition process by standardizing signature requirements, requires a $500 filing fee for each petition and requires the Attorney General and Secretary of State to review each petition for compliance. During bill presentation of the Senate Local Government and Elections Committee on February 3, the sponsor stated his intent of the legislation is to prohibit out of state interests and big corporations from influencing the petition process. The MO Secretary of State’s Office, MO Farm Bureau and MO Pork Association provided supporting testimony. Jobs with Justice Voter Action, Secure Democracy, AFL-CIO, MO NEA, ACLU, and MO Coalition for the Environment provided opposing testimony.


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