It’s an issue we don’t talk a great deal about, but it’s one that we’ve had a clear and long-standing stance on. Back in 2012, my colleague Michael Rathbone wrote about the problems with a proposal that would have further limited vertical integration of alcohol distribution in the state, and in 2013, my colleague David Stokes testified on the matter before the Missouri Legislature. It was logical, then, that we would have a stance on litigation that the United States Court of Appeals for the Eighth Circuit ruled on yesterday, and for which we submitted an amicus brief in collaboration with the Washington Legal Foundation in 2018.

The case, Missouri Broadcasters Association v. Dorothy Taylor, centered on a very specific aspect of Missouri’s three-tier law that prevents producers and distributors from providing certain advertising materials to retailers. Although there are many policy problems with the three-tier law, the First Amendment issue here is particularly egregious. Even though commercial speech has historically been subject to greater regulation, courts are generally reticent to impose or enforce content restrictions and burdens on commercial speakers. And as our amicus brief notes, these content impositions are substantial:

In § 311.070.1, Missouri prohibits alcohol manufacturers and distributors from “directly or indirectly, loan[ing], giv[ing] away or furnish[ing] equipment, money, credit or property of any kind” to “retail dealers.” Mo. Rev. Stat. § 311.070.1. This blanket ban prohibits manufacturers and distributors from giving any advertising-related support to retailers. In § 311.070.4(10), however, Missouri allows manufacturers and distributors to advertise on behalf of retailers, so long as the advertisement (1) excludes any mention of retail price, (2) lists “two or more unaffiliated retailers,” (3) does so only once, and (4) displays the retailers’ names inconspicuously. Mo. Rev. Stat. 4 § 311.070.4(10). But this “exception” is just an unconstitutional condition on exercising First Amendment rights.

And yesterday, the court of appeals agreed. Readers can find the ruling and our full amicus brief attached at the bottom of this page. We may have more to say on this matter in the future, but for now, suffice it to say that we are pleased with this outcome and hope that policymakers will, separately, consider doing more to dismantle Missouri’s antiquated alcohol regulatory regime in the future.

The post Raise a Toast: Missouri Three-Tier Speech Prohibition Struck Down appeared first on Show-Me Institute.

In the past, we have written and talked many times about the excessive regulations that require practitioners of African-style hair braiding to go to a cosmetology school and undergo 1,500 hours of expensive education—almost none of which is related to their distinctive techniques—to get a license. However, because the state has an interest in public health and safety, the court found “the fit between the licensing requirement and the State’s interest is imperfect, but not unconstitutionally so.” In other words, these generalized regulations apply to all hair-care professionals and are not aimed specifically at the hair braiders; therefore, the regulation is not discriminatory. The hair braiders argue that their trade is distinctive and should not be lumped in with barber or cosmetology regulations. However, the court determined that African-style hair braiding “rationally” falls squarely within the Missouri’s definition of cosmetology (RSMO 3.29.010). So where do we go from here?

This issue could be put to rest by commonsense licensing reform. Missouri could simply exempt hair braiding from licensing or impose more narrowly drawn qualifications. Past efforts at reform have failed. Is this a case where special interests are just protecting their turf? 

Ndioba, Tameka, and other African-style hair braiders want to practice a profession for which they’re qualified and offer a service to customers. Why doesn’t government get out of their way?

The post Hair Braiders Suffer Setback in Court appeared first on Show-Me Institute.

But that could change if a lawsuit challenging the North Dakota mandatory bar and filed in the Eighth Circuit — of which Missouri is a part — is successful.

A lawsuit filed by a Bismarck attorney will appear before the 8th Circuit Court of Appeals in St. Louis on Tuesday, April 4, claiming the North Dakota State Bar Association spent his dues to oppose a ballot measure he supported.

Arnold Fleck, 59, a self-employed attorney and member of the association, is being represented by the Goldwater Institute, an Arizona-based public policy think tank, in his lawsuit that argues the association contributed nearly $50,000 to a PAC opposing a shared parenting time and responsibility bill in 2014. An amended version of that bill — though shot down by voters twice in the past decade — just passed the Senate last week and before the state bar opposed the legislation, it took a neutral stance on the measure….

The case is addressing two additional issues: requiring the bar to adopt an “opt-in” for political spending, rather than an opt-out, and challenging mandatory bar membership as a violation of the First Amendment.

We have long talked about the Constitutional attractiveness of opt-in arrangements especially when political speech is involved, but the ability of mandatory bars to command dues payments creates substantive fungibility problems if only an “opt-in” reform is adopted. If the Show-Me Institute could force every educator in the state to pay us for the right to educate, that would be an enormous benefit to our day-to-day operations that would help make fundraising for other Show-Me projects much easier. In reality, SMI has no such power, and the supporters we have are supporters of their own accord rather than through compulsion. We wouldn’t have it any other way.

But that freedom to associate and support an organization, or not, should apply as much to Bar membership as it does to other policy spaces. I don’t have a problem with the idea of a Bar exam to ensure prospective lawyers are versed in local law and jurisprudence, but once that hurdle’s been cleared, further interaction with a state Bar should be optional. In states where the statewide bar isn’t mandatory, the state still polices the legal profession effectively; there’s no reason to believe North Dakota, Missouri and other mandatory bar states wouldn’t be able to, as well.

Plenty of local bars continue to exist not because lawyers have to be members, but because they want to be members. The state Bar should adopt the same model.

The post The Mandatory Bar Goes to Court appeared first on Show-Me Institute.

While the share of the city’s property that either gets tax subsidies, qualifies as a non-profit, or is owned by the government is large individually, looking at these issues together shows the scale of the problems confronting Saint Louis’s tax base. In fact, about half of the city’s property by area is either tax exempt or receives tax breaks. Property tax exceptions are basically the rule. The map below demonstrates this:

As we discussed in previous posts, these areas include some of Saint Louis’s most economically important and profitable institutions, such as BJC Healthcare, Washington University in Saint Louis, Busch Stadium, the Eighth Circuit Court, and IKEA. In total, around 40% of the city’s property by value either is tax exempt or receives special tax breaks.

Who is left paying the full property tax rate? For the most part, residential areas on the city’s South (and especially Southwest) side have fewer exempt properties and tax breaks. In terms of value, utilities, casinos, manufacturing and distribution companies, as well as a handful of large businesses downtown appear to pay full property tax rates. However, as the map below shows, when it comes to parcels paying full real property tax levels, the city is hollowed out:

The next post on this issue will discuss some the negative results of this reduced real property tax base, as well as strategies for improving the base. 

The post Saint Louis Property Taxes, Part 4: All Together Now appeared first on Show-Me Institute.

Some might see a silver lining in the fact that the minimum wage will “only” go up to $11 instead of $13 or $15 per hour. That lining, unfortunately, is hair-thin; an $11 per hour minimum wage is still likely to have serious, negative consequences for the Saint Louis labor market, hurting the very people it is meant to help. If enacted, the increase will make Saint Louis County even more attractive to businesses compared to the city, because the county will have a much lower minimum wage coupled with the lack of an earnings tax.

The timing of this proposal is significant; it was passed now so that it would be exempt from HB 722, which, if enacted, would bar cities from raising their minimum wages after August 28 of this year. However, even if the minimum wage proposal is enacted before HB 722 goes into effect, there are still legal issues with this bill. Namely, section 67.1571 of Missouri State Statutes states that “No municipality as defined in section 1, paragraph 2, subsection (9) shall establish, mandate or otherwise require a minimum wage that exceeds the state minimum wage.”

Of course, things are never as simple as we might hope with regard to state statutes. A Saint Louis Circuit Court did rule that 67.1571 is invalid on procedural grounds. However, no higher court has ruled on this, so the question of 67.1571’s constitutionality is still open.

Relying on the courts to come to the rescue is no substitute for avoiding bad legislation in the first place. Policymakers should realize that minimum wage increases are not the way to alleviate poverty—but if they don’t,  a court ruling that the increase is invalid would preserve the jobs of many low-wage workers in the city.

The post Saint Louis City Board of Aldermen Passes Saint Louis County Employment Act of 2015 appeared first on Show-Me Institute.

The ruling is heartless. In essence, Judge David Lee Vincent III argues that it would be too costly to allow Saint Louis City students to choose where to go to school, because too many want to leave. So, instead of allowing those students to escape to a potentially better school, they have to stay to help perpetuate a failing system.

As Robbyn Wahby, executive assistant to the mayor of Saint Louis City aptly tweeted: “Status Quo 1-Kids 0.”

The Circuit Court’s ruling goes directly against a Missouri law that states: “[Unaccredited districts] shall pay the tuition of and transportation . . . for each pupil resident therein who attends an accredited school in another district of the same or adjoining county.”

The judge was able to sidestep that law by citing a 2011 study that estimated that more than 15,000 students who live in Saint Louis City would transfer to a school in a neighboring county if given the chance. The survey estimated that about 8,000 of those students would come directly from SLPS, with the remainder coming from a mix of charter schools and students participating in a voluntary transfer program.

That study estimated that the total cost of paying for transportation and education for those 15,000 students would be nearly $224 million each year. With that amount coming out of SLPS’ budget, SLPS officials testified that losing that much money would put the district at such a financial disadvantage that it could not serve the students who choose to stay.

In light of that evidence, Judge Vincent views the Missouri statute requiring a district to pay tuition and transportation of students who transfer out of an unaccredited district and to an accredited one as an unfunded mandate.

Though I have some questions about the math (15,740 students at $224 million comes to $14,231 per student, which appears to be cheaper than SLPS’ per-student expenditures of $15,861), the estimated cost is a symptom of a bigger problem.

The very fact that 15,000 students in Saint Louis City want to leave for a better school should be evidence enough that severe educational reform is needed. This is not a problem we should push aside because it will take some work to solve.

It is time to prioritize the education of students over the funding of districts. If public education dollars could follow any Missouri student to any school they choose (public, charter, private, parochial, virtual, etc.), then we would not be at this impasse. A wider variety of schools could take on the students from Saint Louis City who want to leave, and ease the potential burden of new students on the public school districts refusing to let city students in.

Frankly, closing bad schools is one option worth considering. If that is what is needed to ensure Missouri students have access to a quality education, then it is the right move.

The post Status Quo 1 – Kids 0 appeared first on Show-Me Institute.

It is the general assembly’s intent that this subdivision be interpreted as set forth in the Missouri cases of High Life Sales Company v. Brown-Forman Corporation, 823 S.W.2d 493 (Mo. 1992) and Brown-Forman Distillers Corp. v. McHenry, 566 S.W.2d 194 (Mo. 1978), rather than in Missouri Beverage Company, Inc. v. Shelton Brothers, Inc., 796 F. Supp. 2d 988 (W.D. Mo. 2011), aff’d, 11-2456 (8th Cir. February 28, 2012). Further, the general assembly declares that the federal court’s interpretation of this subdivision set forth in Missouri Beverage Company, Inc. v. Shelton Brothers, Inc., 796 F. Supp. 2d 988 (W.D. Mo. 2011), aff’d, 11-2456 (8th Cir. February 28, 2012) should be abrogated in favor of the preceding cases . . .

In a nutshell, the Missouri Legislature is referencing court rulings while trying to write a law instead of . . . actually writing the law. This is one of those proposed sections that make lawyers and special interests salivate and just about everyone else grimace in distaste and confusion. Unless you know what the court cases cited here do and do not say, it is almost impossible to understand how to best comply with the law. In a very real way, the law being “created” is not itself in the law. That is laziness, or worse.

What makes this particular instance especially bad is that it is fairly clear, given the apparent source of the law’s impetus, that this new, convoluted law could ultimately hurt consumers. The jumble of cases laid out above does not make that reality even remotely clear, which may very well be the point.

But whatever the reason for this proposed legislation, that it has been written in this form without clearly and unambiguously articulating what the new law will actually be as a result of this section — and relying on courts to de facto make the law through this sort of legislative reference — should be frustrating to taxpayers, policymakers, and companies alike. The legislature can, and should, do better.

The post Proposed Franchising Law A Convoluted Mess appeared first on Show-Me Institute.

St. Louis resident Jim Roos, in front of the offending sign. Photo by the Institute for Justice.

Good news for Saint Louisans: That “End Eminent Domain Abuse” sign that you can see at the intersection of Hwys. 44 and 55 is here to stay. In a partial free speech victory, the U.S. Supreme Court declined to hear the appeal of a circuit court ruling that struck down portions of Saint Louis City’s sign code for violating the free speech clause of the First Amendment.

For those of us in the Midwest, this is great news. This means that government cannot regulate signs and murals based on their content. And, as a result, the St. Louis Post-Dispatch reports that the offending portion of the city’s zoning code may have to be rewritten.

This is also a meaningful victory for anti-eminent domain activists in Saint Louis. Jim Roos, the plaintiff (pictured above), has had more than his fair share of struggles with city government. Using eminent domain, the city took 24 different properties from Sanctuary in the Ordinary, or managed by Neighborhood Enterprises, a nonprofit that provides low-income housing that Roos founded.

In protest, Roos painted the large “End Eminent Domain Abuse” sign on another property threatened with eminent domain. As a result, the city hit Roos with a citation, and said that a permit was required. He applied for a permit, only to be denied.  We wrote about this issue in 2011, in a post aptly titled, “Using Your Property to Criticize Us for Taking Your Property? You’d Better Believe That’s Illegal.”

Fortunately, Roos  and the Institute for Justice, a nonprofit libertarian public interest law firm, continued to challenge the city’s zoning code, leading to the partial free speech victory today.

Those of us in the 8th Circuit (Missouri, Arkansas, Iowa, Minnesota, Nebraska, North Dakota, and South Dakota) can take solace in knowing that our First Amendment rights are a little more secure. However, as Michael Bindas, the Institute for Justice attorney who represents Roos, pointed out, “Unfortunately, citizens in some other federal circuits do not enjoy the same protections that Jim’s case secured.”

Hopefully this case will help give victims of eminent domain abuse the courage to stand up and complain about it. Of course, the best victory for property owners would be for laws that allow eminent domain abuse to be repealed.

You can learn more about Jim Roos and the Institute for Justice here.

The post A Free Speech Win In Saint Louis appeared first on Show-Me Institute.

Roos painted the mural to protest the city’s decision to use eminent domain to seize numerous properties from his low-income housing nonprofit organization, Sanctuary in the Ordinary. After Roos completed the mural in 2007, the city cited him for violating its sign code and ordered Roos to remove the mural. Roos refused, and fought the case in federal court on First Amendment grounds. Last March, a U.S. District Court ruled against Roos, remarkably claiming that the mural would be legal if it were devoid of political content, like a fleur-de-lis or a Cardinals logo. This turns the First Amendment on its head, because it was explicitly added to the Constitution with the intent of protecting political speech.

The case also illustrates the unity of property rights and civil rights. If the government can legally regulate away Roos’ most effective platform, it will have the same chilling effect on free speech as direct censorship. Similarly, freedom of religion is useless if zoning laws prevent groups from building places of worship; freedom from search and seizure only applies if your home is your castle; and freedom of the press will not get you very far if the government can block access to all the presses. Many people think of property rights and civil rights as fundamentally different things, but if the government places enough restrictions on how you can use your property, it must necessarily interfere with our fundamental political rights. Let us hope that the appeals court will understand this connection and allow Roos to speak his mind.

Headline allusion here.

The post Using Your Property to Criticize Us for Taking Your Property? You’d Better Believe That’s Illegal appeared first on Show-Me Institute.

The court ruled today that the government does, in fact, get to choose which messages citizens can communicate. In the words of Michael Bindas, one of the attorneys from the Institute for Justice representing Roos in his lawsuit, “The court’s decision gets it precisely backwards.” Fortunately, IJ and Roos intend to keep fighting, and the Eighth Circuit Court of Appeals will have the chance to correct the lower court’s mistake.

The post Your Government, Your Editor appeared first on Show-Me Institute.

The post Under the Color of State Authority appeared first on Show-Me Institute.

As it turns out, the city — and especially the Land Clearance Redevelopment Authority (LCRA) — didn’t much care for the criticism. The government cited Roos for illegally displaying a sign without a permit. Even though his right to free speech means that the city had no proper authority to require Roos to seek their permission to express his opinion about eminent domain, Roos complied with the city’s directive and applied for a permit. The LCRA persuaded the city’s Building and Inspection (B&I) Division to deny the permit, because Roos had not first gotten the LCRA’s permission to file the application. When Roos then sought the LCRA’s permission to pursue a sign permit, the LCRA denied his request. With the help of the Institute for Justice, Roos sued to enforce his constitutional rights to free speech.

When the city saw that the lawsuit sought to hold the LCRA accountable for its role in denying Roos’ constitutional freedoms, officials argued that the court should not hold the LCRA accountable because it had no authority to deny the permit in the first place. In other words, the city argued (and, remarkably, the trial court agreed!) that Roos was not entitled to a judgment that the LCRA had acted unlawfully because … well … the LCRA had acted unlawfully.

It is important for all of us that the Eighth Circuit reverses the lower court’s decision. If judges refuse to punish (or even recognize) constitutional violations resulting from improper assertions of governmental authority, agencies such as the LCRA will be able to continue intimidating people without fear of reprisal. These agencies already bully too many people just by using the powers already given them under the law — they surely should not be allowed to get away with making up new rules in order to exercise even more control over our lives.

The post You Can’t Sue Us … We Had No Right to Do What We Did! appeared first on Show-Me Institute.