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As I've written in the past, Chris Dunn may have passed away, but his case continues on as a challenge to the Constitutionality of the Texas Advance Directives Act ("TADA"), also referred to as Texas' "futile care law." I have hoped and prayed that his case would bring visibility to this little known, almost hidden, but appalling and often-used, law to the masses. More than that, his case may very well result in a ruling that this law is unconstitutional. It is the first such challenge to it.
On that front, I have an important update for you. Tomorrow there is a hearing concerning the case still pending in Harris County. Chris' mother, Evelyn Kelly, has been substituted in as the plaintiff in the case, and is proceeding on her own behalf and on behalf of Chris' estate, so the case is now referred to as Kelly v. Houston Methodist Hospital.
The hearing is on Defendant's (the Hospital's) Motion to Dismiss (its second or third such motion) and Plaintiff's (Ms. Kelly's) Motion for Summary Judgment ("MSJ"), which I think is a bold move on their part. These are both case dispositive motions. I am only going to address Plaintiff's MSJ here because it is more interesting to me and more about TADA. A MSJ is most often filed by a Defendant seeking to have a case dismissed. The burden is higher on the movant in such a motion.
A MSJ determines legal issues and whether there are any "genuine issues of material fact" which might need to go to a fact-finder (either a judge or jury) to determine the case. A judge cannot determine ultimate matters of fact. He can only determine whether there is a genuine issue of material fact - basically finding that there are facts upon which reasonable minds might disagree. In that event, those issues would be submitted to a fact-finder. A judge may not make credibility determinations. All inferences must be made in favor of the non-movant. Questions of law, however, are determined by the judge. Most of the time, a Defendant files such a motion and claims the Plaintiff has no case. Once in a while, a Plaintiff will file such a motion, which is what has been done here.
As you might expect if you've read anything about the law and anything I or anyone else has ever written about the problems with TADA, the lack of due process is central to the challenge. Ms. Kelly is arguing that the law is unconstitutional because it lacks both procedural and substantive due process. These are all questions of law for the judge to decide. Let's go through her arguments one by one so you have a better understanding of what's at stake here.
Plaintiff notes that the state has delegated this decision-making authority to hospital systems in Texas, so Methodist was acting under color of state law. As a result, it is incumbent on the state to temper the risk of erroneous deprivation of rights. There is no protection given to patients under this law to protect them from a mistaken or unjustified deprivation of these rights.
Reasonable notice of the claim or charge against an individual so as to advise him or her of the nature of the charge and relief sought.
Plaintiff's MSJ at 2 citing In re. R.M.T., 352 S.W.3d 12 (Tex. App.--Texarkana 2011); Pickett v. Texas Mutual Ins. Co., 239 S.W.3d 826 (Tex. App.--Austin 2007).
All three protections must be met and then there must be an impartial tribunal.
Now, it should be easy to any reasonably prudent person to see how this is an absolute requirement for any criminal or civil case. One can easily see why this these safeguards are necessary for basic fairness and justice. Now, contemplate the unfairness and injustice that results - and has resulted - because these safeguards are no where to be found in the Texas law that allows hospitals to kill a patient against their will. Contemplate that there are pro-life organizations and religious organizations that support his law and justify its usage. Contemplate that the Texas Medical Association supports this law - lobbied for it - and opposes any meaningful reform that would make it either more pro-life or comport with basic due process requirements. Contemplate that the TMA is the wealthiest lobbying group in Texas and has tremendous support in the legislature. Are you beginning to see the series of problems here? From morality to politics to basic civil rights to life and death.
Continuing the analysis of Plaintiff's MSJ, they argue that there is no opportunity to be heard under the law, which is the first safeguard required for due process. The law does allow the patient or his surrogate to attend the hearing and they are entitled to his medical records, however, "the statute does not entitle the patient or surrogate decision-maker to address the committee, to offer evidence, or to utilize counsel." Plaintiff's MSJ at 3 citing Tex. Health & Safety Code Ann. Sec. 166.046(b)(4). (Emphasis mine.) Plaintiff's brief notes that whether a patient or surrogate can address the committee is left to the institution. There are no guarantees.
Friends, I have attended such a hearing. Even as an attorney, I was mostly a passive bystander merely watching the rubber stamping of the decision to terminate a life early and against his family's wishes. I have written about that experience here. When I spoke recently at the Healthcare in Crisis conference, I noted that from my perspective, this law has more than one aspect of futility. There is also the futility of having legal counsel. We can't really do anything! This is directly because there is no due process in the statute. And, I'm here to tell you, that was not an accident or oversight, my friends.
It should be patently obvious that one cannot respond adequately and sufficiently with such little notice - even were you afforded that opportunity (and you are not). Moreover, Ms. Kelly's brief notes that patients and their surrogates are not given any idea as to how to prepare for such an "ethics committee hearing." There are no guidelines, criteria, or any idea given as to how the committee makes its decisions. Therefore, the patient or surrogate has no idea how to respond.
My experience is that patients or their surrogate are given a notice like Chris Dunn and Ms. Kelly were and that's that. It's boilerplate, non-specific language. It does not tell you why this withdrawal of life-sustaining care is no longer appropriate in their opinion. In this post, I provided the full letter Chris was given on November 13, 2015. It is pretty standard. How can you respond to that even were you given an opportunity to be heard and present evidence? You have no idea what that means, you have only 48 hours. If the person were a criminal rather than a patient, there would be no shortage of people clamoring for reform and change. Why is the ill person treated as lesser than a criminal? I have never received an answer to that question from any TADA supporter. That's telling.
Next, Ms. Kelly's MSJ addresses the violation of substantive due process by Sec. 166.046. "Therefore, a substantive due process violation occurs when the government deprives individuals of constitutionally protected rights by an arbitrary use of its power." Id. at 6-7 citing Byers v. Patterson, 219 S.W.3d 514, 525 (Tex. App.--Tyler 2007, no pet.) (citing Simi Inv. Co. v. Harris Co., 236 F.3d 240, 249 (5th Cir. 2000).
In support of this argument, Ms. Kelly argues that a competent individual has a substantive privacy right to make his own medical decisions. Id. at 7. The case of Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 269 (1990) is cited for its proposition that "It cannot be disputed that the Due Process Clause protests an interest in life." Plaintiff notes that "This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment." Id. The Cruzan Court "noted that the Constitution requires that the State not allow anyone 'but the patient' to make decisions regarding the cessation of life-sustaining treatment." Id. citing Cruzan at 286. The Supreme Court also held that the state could require a "clear and convincing evidence" standard to prove the patient's wishes. Id. citing Cruzan at 280.
Continuing Plaintiff's argument, Ms. Kelly argues that "The State of Texas does not own the decision, and thus lacks the authority, to end a patient's life by taking away life-sustaining treatment. As such, the State of Texas does not have any authority to delegate such a decision to any actor, private or public." Id. at 8. This is an excellent point! You cannot delegate what you do not have. And yet, that is exactly what has been done here.
Then Ms. Kelly finishes this section by stating that hospitals are acting under color of state law when they act under Sec. 166.046. Id. at 8. The argument is that hospitals acting under this statute are exercising power they would not otherwise have but for this law and that they are exercising "statutory authority evocative of a government function" in that they give only two days' notice, held a hearing regarding terminating Mr. Dunn's life-sustaining treatment, made a determination that his request to continue life-sustaining treatment would be denied, determined that his life-sustaining treatment would be removed, and gave written notice that his life-sustaining treatment would be removed on or about November 24, 2015, which it was allowed to do under TADA. Id. at 8-9. A number of examples are then given where private entities have been held to act under color of state law for performing traditionally government functions or heavily regulated government functions. Since the hospital was acting under color of state law, the first element to a Section 1983 claim (a claim for deprivation of civil rights) is met.
Finally, Ms. Kelly addresses the fact that the death of Chris Dunn does not render the case moot. Id. at 11-12. Normally, cases cannot be heard if they are moot. Courts are not generally in the business of rendering "advisory" or "hypothetical" opinions. Usually, the controversy has to be ongoing. However, exceptions have been made federally (ironically, this is one reason the USSC found to justify imposing Roe v. Wade on the nation) and in Texas.
Ms. Kelly noted: "The Texas Supreme Court has recognized two exceptions to the mootness doctrine: (1) the capability of repetition yet evading review exception, and (2) the collateral consequences exception." Id. at 11 citing State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980). The first exception is what it sounds like, cases will be considered where they are repeated but the act being challenged is of such a short duration that it ends before a court can review the matter, at which time it would be moot. That is the situation here and Plaintiff's MSJ cites case law holding that in some cases, even the death of the affected individual does not moot the challenge. Ms. Kelly notes that Sec. 166.046 is designed for repetition. It is utilized repeatedly. Also, Ms. Kelly notes that this statute is designed to evade review. Even in a case where a lawsuit might be filed, 20 days are given to the responding party, but such time life-sustaining treatment would be withdrawn. Of course, not mentioned here, is the fact that there is no statutory provision allowing for judicial review of the ethics committee's decision. This case is unique because it is challenging the constitutionality of the law as a whole.
This cause of action is moot because the controversy is not capable of repetition.
I'm only going to briefly address them. You can pull the pleading yourself at the link I provided above.
First, the Hospital claims that it takes no position on the constitutionality of the statute as this is, according to it, an issue more appropriately determined by the Legislature. That is an interesting argument. Courts actually determine the Constitutionality of statutes, not Legislatures. It is also interesting that the Hospital - though willing to utilize this draconian statute - chooses not to defend it. Also telling. Finally, given the TMA and the Texas Hospital Association's lobbying arms, I'm sure that Defendant would prefer that this matter remain in the Legislature. But it is in Court now and I pray that the Constitution is upheld.
Second, with regard to the Hospital's state actor status, it reiterates that it is not taking a position on the Constitutionality of the statute. It claims that it cannot be sued in the capacity Plaintiff has sued them.
Third, the mootness issue is an interesting response. They argue that since Chris Dunn is now deceased, the issues raised are moot because the act complained of is not capable of being repeated - on Chris Dunn. Do you follow that? How convenient. But that is not what the law holds.
Again, you can read more of what they write buy pulling their pleading.
What has transpired most recently is that the State of Texas has decided NOT to litigate on behalf of the law, but agrees that it is unconstitutional. Wesley J. Smith, a stalwart opponent of TADA, has also written about the case and has praised Texas' Attorney General, Ken Paxton, for stepping in and filing what is called an amicus curiae brief challenging the Constitutionality of it.
The State of Texas, acting through its Attorney General, has a solemn responsibility to defend the constitutional rights of Texas citizens, even from state statutes. Moreover, the State of Texas operates numerous public hospitals and health care facilities, and accordingly has a vested interest in determining the constitutionality of Section 166.046 of the Texas Health and Safety Code.
Important things with regard to the future of TADA are going to be heard tomorrow in court. Please pray for a pro-life outcome. Judges do not always rule on the hearing day, so it may be some time before we know. I will keep you updated.
In the meantime, please pray.

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Under Illinois law, a political party that has not attained sufficient votes in past elections must field candidates for all offices on the ballot in the political subdivision in which it wishes to compete. In the 2012 election, the Libertarian Party could field a candidate for Kane County auditor only if it also proposed candidates for six other offices. In its suit under 42 U.S.C. 1983, the Party argued that the full-slate requirement violated its right of political association under the First and Fourteenth Amendments. The Seventh Circuit agreed, rejecting an argument that the requirement is justified by its interests in political stability, preventing ballot overcrowding, and avoiding voter confusion. The core of the fundamental right to political association is the right to band together in a political party to advance a policy agenda by electing the party’s members to office. That necessarily includes the candidates’ right to appear on the ballot under the party banner. For a minor party and its nominees, Illinois’s full-slate requirement extinguishes those rights unless the party fields candidates in races it may want no part of. This is a severe burden on fundamental constitutional rights. Illinois has not offered a compelling state interest to justify it. By incentivizing minor parties to manufacture frivolous candidacies, the full-slate requirement actually thwarts the interests Illinois invokes.
In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 16-1667 & 16-1775 LIBERTARIAN PARTY OF ILLINOIS, et al., Plaintiffs-Appellees. v. CHARLES W. SCHOLZ, et al., Defendants-Appellants. ____________________ Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12-CV-02511 — Andrea R. Wood, Judge. ____________________ ARGUED FEBRUARY 24, 2017 — DECIDED SEPTEMBER 22, 2017 ____________________ Before EASTERBROOK, KANNE, and SYKES, Circuit Judges. SYKES, Circuit Judge. Illinois law prevents political parties from fielding candidates on election ballots unless they meet certain conditions. One condition is known as the full-slate requirement: If a party hasn’t attained sufficient voter support in past elections, it must field candidates for all offices on the ballot in the political subdivision in which it wishes to compete. So in the 2012 election, the Libertarian Party of Illinois could field a candidate for county auditor in Kane 2 Nos. 16-1667 & 16-1775 County only if it also proposed candidates for circuit clerk, recorder, prosecutor, coroner, board chairman, and school superintendent. In this suit under 42 U.S.C. § 1983, the Libertarian Party argues that the full-slate requirement violates its right of political association under the First and Fourteenth Amendments. The district judge agreed and entered judgment invalidating the requirement. On appeal Illinois contends that the full-slate requirement is justified by its interests in political stability, preventing ballot overcrowding, and avoiding voter confusion. We affirm the district court. The core of the fundamental right to political association is the right to band together in a political party to advance a policy agenda by electing the party’s members to office. That necessarily includes the party’s right to access the ballot and its candidates’ right to appear on the ballot under the party banner. For a minor party and its nominees, Illinois’s full-slate requirement extinguishes those rights unless the party fields candidates in races it may want no part of. This is a severe burden on fundamental constitutional rights, and Illinois hasn’t offered a compelling state interest to justify it. Indeed, by incentivizing minor parties to manufacture frivolous candidacies as a means to an end, the full-slate requirement actually thwarts the interests Illinois invokes. I. Background Like other states, Illinois classifies general-election candidates into three groups: those affiliated with an “established” political party, those affiliated with a “new” political party, and those running as independents. If a candidate is Nos. 16-1667 & 16-1775 3 affiliated with a party, whether established or new, the party name appears alongside the candidate’s name on the ballot. A party becomes established through a strong electoral performance. If a party’s candidate in the most recent gubernatorial election received more than 5% of the vote, the party is established throughout the state. 10 ILL. COMP. STAT. 5/10-2 (2010). A party can also attain established status on a more limited basis. If its candidate (or candidates collectively) received more than 5% of the vote in a particular race in the most recent statewide election—for example, the race for Illinois Comptroller or Illinois Secretary of State—then the party becomes established for statewide elections. Likewise, if a party received more than 5% of the vote in a congressional or county race in the last election, it becomes established for congressional districts or for that county. 1 Id. 1 The statute provides in part: A political party which, at the last general election for State and county officers, polled for its candidate for Governor more than 5% of the entire vote cast for Governor, is hereby declared to be an “established political party” as to the State and as to any district or political subdivision thereof. A political party which, at the last election in any congressional district, legislative district, county, township, municipality or other political subdivision or district in the State, polled more than 5% of the entire vote cast within such territorial area or political subdivision, as the case may be, has voted as a unit for the election of officers to serve the respective territorial area of such district or political subdivision, is hereby declared to be an “established political party” within the meaning of this Article as to such district or political subdivision. 4 Nos. 16-1667 & 16-1775 A party that isn’t established can access the ballot only as a new party. Attaining new-party status involves different hurdles. Unlike in any other state, new parties in Illinois must submit a full slate of candidates, one for each race in the relevant political subdivision. 2 Id. Additionally, the party must gather a minimum number of signatures on nominating petitions. For state offices, the number is the lower of 25,000 or 1% of votes cast in the preceding statewide election. For county offices, the number is 5% of the votes cast in the county’s preceding election. Id. The new-party petition— with signatures and a full slate—must be filed between 134 and 141 days before the election. 10 ILL. COMP. STAT. 5/106 (2010). Finally, the conditions to ballot access for independent candidates are similar to those for new parties except that the full-slate requirement doesn’t apply. See id. § 5/10-3 (2010); id. § 5/10-6. So if a candidate’s party meets the signature requirement before the petition deadline but doesn’t field a full slate, the candidate can run as an independent. In the 2012 election, the Libertarian Party attempted to nominate Julie Fox as its candidate for auditor of Kane County. But the Libertarian Party wasn’t established, and it met neither the signature requirement nor the full-slate requirement necessary to receive the new-party designation. The Libertarian Party, Fox, and one of Fox’s supporters sued 10 ILL. COMP. STAT. 5/10-2 (2010). 2 The statute provides that a new-party petition “shall at the time of filing contain a complete list of candidates of such party for all offices to be filled in the State, or such district or political subdivision as the case may be, at the next ensuing election then to be held.” Id. Nos. 16-1667 & 16-1775 5 Illinois election officials in federal district court under 42 U.S.C. § 1983, challenging the full-slate requirement.3 (The defendants were sued in their official capacities, so we refer to them collectively as “Illinois.”) Ruling on crossmotions for summary judgment, the judge held that the fullslate requirement violates the First and Fourteenth Amendments. Illinois appealed. II. Discussion We review a summary judgment de novo. Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017). Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. FED R. CIV. P. 56(a). Before addressing the merits, however, we take up a jurisdictional question of standing. A. Standing The Constitution empowers federal courts to adjudicate cases or controversies. U.S. CONST. art. III, § 2, cl. 1. The Article III case-or-controversy limitation confines the federal judiciary to “the traditional role of Anglo–American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law.” Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009). The doctrine of standing enforces this limitation. Id. To establish standing, a plaintiff must demonstrate “(1) an injury in-fact; (2) fairly traceable to the defendant’s action; 3 The Libertarian Party challenges the full-slate requirement both as applied and facially. Because the requirement applies in the same way to all minor parties and their candidates, the suit is best understood as a facial challenge. 6 Nos. 16-1667 & 16-1775 and (3) capable of being redressed by a favorable decision from the court.” Parvati Corp. v. City of Oak Forest, 630 F.3d 512, 516 (7th Cir. 2010). Illinois argues that a judgment favorable to the Libertarian Party wouldn’t redress its injury: The Party didn’t meet the signature requirement, so it would have been barred from the 2012 ballot even in the absence of the full-slate requirement. 4 This argument misconceives the Libertarian Party’s injury. It isn’t simply that the Party couldn’t run its candidate for county auditor in the 2012 election. It’s that Illinois law imposes a burdensome condition on the Party’s exercise of its right of political association; that is, the Party’s injury is its inability to access the ballot unless it fields a full slate of candidates. That requirement persists and stands as an ongoing obstacle to ballot access. In other words, the full-slate requirement raises the cost of ballot access to minor parties. It’s a barrier to entry that operates directly on the Libertarian Party and is a continuing burden on its ability to field candidates for statewide and countywide office. As we’ve consistently held, that’s an injury easily sufficient to support a suit for prospective relief. See, e.g., Krislov v. Rednour, 226 F.3d 851, 857 (7th Cir. 2000) (holding that the plaintiffs had standing because being “required to allocate additional campaign resources … in itself can be an injury to First Amendment rights”); Nader v. 4 Illinois doesn’t argue that the controversy is moot, and it isn’t. See Storer v. Brown, 415 U.S. 724, 737 n.8 (“The … election is long over … but this case is not moot, since the issues properly presented … will persist as the … statutes are applied in future elections. This is, therefore, a case where the controversy is capable of repetition, yet evading review.”) (internal quotation marks omitted). Nos. 16-1667 & 16-1775 7 Keith, 385 F.3d 729, 736 (7th Cir. 2004) (observing that a candidate could challenge certain ballot-access restrictions before attempting to comply with them because “it was certain that it would cost him more to [comply with the restrictions] than if the challenged provisions were invalidated”) (emphasis added); Lee v. Keith, 463 F.3d 763, 767 (7th Cir. 2006) (asserting jurisdiction over an independent candidate’s suit because the challenged statutes “continue to restrict potential independent candidacies”). We proceed to the merits. B. Full-Slate Requirement The First Amendment, which constrains stategovernment action by incorporation through the Fourteenth Amendment, “protects the right of citizens to associate and to form political parties for the advancement of common political goals and ideas.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357 (1997). That right “means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes.” Williams v. Rhodes, 393 U.S. 23, 31 (1968). Further, because “voters can assert their preferences only through candidates or parties,” their right to vote “is heavily burdened if that vote may be cast only for major-party candidates at a time when other parties or other candidates are clamoring for a place on the ballot.” Anderson v. Celebrezze, 460 U.S. 780, 787 (1983) (internal quotation marks omitted). Laws restricting a party’s ballot access thus burden two rights: “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their 8 Nos. 16-1667 & 16-1775 votes effectively. Both of these rights, of course, rank among our most precious freedoms.” Williams, 393 U.S. at 30.5 We evaluate ballot-access restrictions by weighing “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiff’s rights.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson, 460 U.S. at 789). Under this flexible standard, the level of scrutiny depends on the regulation at issue: the more severely it burdens constitutional rights, the more rigorous the inquiry into its justifications. Id. Nondiscriminatory restrictions that impose only slight burdens are generally justified by the need for orderly and fair elections. Id. at 433–34. But given the importance of the rights at stake, a severe restriction on a party’s access to the ballot must be “narrowly tailored to serve a compelling state interest.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008) (quotation marks omitted). 5 The Libertarian Party also challenges the full-slate requirement under the Equal Protection Clause of the Fourteenth Amendment. Because the requirement is unconstitutional on other grounds, we don’t address this claim. Nos. 16-1667 & 16-1775 9 We have little difficulty concluding that the full-slate requirement severely burdens the First Amendment rights of minor parties, their members, and voters. As a condition for ballot access, the requirement forces minor parties to find and recruit candidates for races they want nothing to do with. In many instances the minor party must locate candidates for relatively obscure offices like county recorder or coroner. Moreover, in order to support candidates genuinely interested in winning (Illinois assures us that the full-slate requirement isn’t meant to produce sham candidacies), a party must devote to each candidate the funding and other resources necessary to operate a full-fledged campaign. To take the example of Fox’s candidacy for Kane County auditor, running a fully funded candidate for each Kane County office would have increased the Libertarian Party’s costs sevenfold. The full-slate requirement similarly burdens the right of a candidate to run as the standard bearer for his party. Although a party’s failure to submit a full slate doesn’t prevent the candidate from accessing the ballot as an independent, party-affiliated campaigns and independent campaigns “are entirely different and neither is a satisfactory substitute for the other.” Storer v. Brown, 415 U.S. 724, 745 (1974). To give just one example, a party loyal who must run an independent campaign is denied the ability to quickly communicate information about his views and values through association with his party. Relying on two Supreme Court cases, Illinois argues that parties and candidates have no right to appear next to each other on the ballot. See Timmons, 520 U.S. 351; Wash. State Grange, 552 U.S. 442. But those cases—neither of which 10 Nos. 16-1667 & 16-1775 involved a regulation limiting ballot access—do not stand for that principle. In Timmons a minor party challenged Minnesota’s antifusion statute, which prevented a person from running as the candidate for two parties in the same election. 520 U.S. at 353–54. The statute barred the minor party from nominating its chosen candidate because he’d already filed as a candidate for the state Democratic party. Id. at 354. The minor party alleged that the statute violated its political-association rights by denying it the ability to appear next to its candidate of choice on the ballot. In rejecting that argument, the Supreme Court observed the obvious: A party never has the option to select just anyone as its candidate because a “particular candidate might be ineligible for office, unwilling to serve, or, as here, another party’s candidate.” Id. at 359. The Court thus emphasized that antifusion laws “do not directly limit the party’s access to the ballot” but merely “reduce the universe of potential candidates who may appear on the ballot as the party’s nominee only by ruling out those few individuals” already running with another party. Id. at 363. The full-slate requirement, on the other hand, does directly limit minor parties’ ballot access. Far from entailing nothing more than a slight drop in the pool of candidates from which a party can choose, it prevents minor parties from affiliating with anyone on the ballot unless they mount numerous additional campaigns. Washington State Grange was a forced-association case. The state of Washington adopted an initiative providing that primary-election ballots would identify each candidate with his self-designated party preference. 552 U.S. at 444. The law didn’t allow a party to prevent a candidate from designating Nos. 16-1667 & 16-1775 11 it as his party preference. In a preenforcement facial challenge, the state Republican Party argued that the statute violated its associational rights by usurping its right to nominate its own candidates and by forcing it to appear on the ballot alongside candidates it didn’t approve. Id. at 448. The Supreme Court upheld the statute, reasoning that Washington might print the ballots in a manner that clarified the one-way nature of the party-preference designation. Id. at 455–56. That possibility was enough to defeat the facial challenge. Id. at 457. But the Court expressly declined to consider any ballot-access implications the statute might carry because those issues were outside the question presented. Id. at 458 n.11. Neither Timmons nor Washington State Grange questioned the long-recognized right of political parties to access the ballot. Because the full-slate requirement—the only one of its kind in the country—severely burdens the First Amendment rights of minor parties and their members, it must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289 (1992). Illinois invokes three state interests in defense of the requirement: promoting political stability, avoiding overcrowded ballots, and preventing voter confusion. See Storer, 415 U.S. at 732 (affirming the validity of those objectives). Illinois emphasizes that these interests are served by reserving the ballot for parties with at least a modicum of public support. No one doubts that Illinois’s stated interests are compelling in the abstract, but the full-slate requirement doesn’t advance them. By creating unwanted candidacies, the requirement increases political instability, ballot overcrowding, and voter confusion. As Illinois would tell it, the re- 12 Nos. 16-1667 & 16-1775 quirement exogenously sorts minor parties into two camps: those that have a bench of ready candidates for every race and those that don’t. But like other laws, the full-slate requirement shapes the behavior of those it binds. Whatever its aim, the requirement forces a minor party to field unserious candidates as a condition of nominating a truly committed candidate. The Libertarian Party, for example, might have filled the six other Kane County slots with Fox’s friends or relatives. In reality, then, the full-slate requirement does not ensure that only parties with a modicum of support reach the ballot. Instead it ensures that the only minor parties on the ballot are those that have strong public support or are willing and able to find enough frivolous “candidates” to comply with the law. To be sure, the full-slate requirement—like any regulation that increases the cost of ballot access—reduces the likelihood that a feeble party will secure a ballot position. But Illinois’s interest in reserving the ballot for strong parties is directly served by the signature requirement. That regulation—which at 5% of votes cast in the preceding election is restrictive in its own right—suffices to winnow out weak parties. Finally, the full-slate requirement doesn’t prevent ballot overcrowding or voter confusion; to the contrary—it clutters the ballot with numerous candidates who wouldn’t otherwise run and who may or may not be sincerely interested in public office. The full-slate requirement severely burdens fundamental constitutional rights and is not narrowly tailored to a compelling state interest. We AFFIRM the judgment of the district court.
Seventh Circuit invalidates the Illinois "full slate" requirement for minor parties to appear on the ballot.


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School board races across the state have added importance this election year. A growing coalition of parents believe that the elections held this year are the most important in recent memory. For these parents and tax payers, the future of our school districts are at stake. A transformation of education is underway, led by a consortium of unelected ‘officials’ and lobbyists, school attorneys and special interest groups. For this reason, the elections of 2014 have taken on added significance. These elections are about the most personal form of government and local control, accountability and responsibility.
The Camdenton R-3 school district board of education has three seats up for election on April 8. This year’s elections are taking place under the long shadow cast by last campaign season. It showcased, in a snapshot, the brutal reality of politics and power in Camden County. This year’s elections, thus far, are taking an entirely different course. The goal however, remains painfully clear. Ensure the status quo.
Recently, the Lake Sun asked candidates for Camdenton school board their qualifications and asked a couple of questions. The responses to the first of those questions are noteworthy, as it deals with a fundamental change to the way the public is ‘allowed’ to interact with board members.
Do you think the current school board policy regarding public participation allows for sufficient opportunity for the public’s voice to be heard? Do you support the current policy or if elected would you seek to make changes to the policy?
This policy represents a fundamental shift of the tax paying public’s ‘role’ in school affairs. It plainly seeks to use a questionable interpretation of law to stifle public input to the board, requiring an approval process that filters communications meant for the board through both school administration and school attorneys. This, to many parents, represents another step in a silent coup, preformed under the assumption of authority neither the administration, nor the school attorneys, have. A concerted effort has been made to reinforce the false logic that our representatives should somehow be ‘protected’ from hearing from the public and parents they serve.
Part of the new public comment policy, as recommended during an August visit from an MSBA lawyer, appears below. Camdenton adopted a policy that restricts the public from having open discussions with the board about their concerns, if those requests aren’t ‘approved’ by administration and attorneys.
7. Only items from the posted agenda may be discussed. If an individual seeks to address an issue that is scheduled to be discussed by the Board in closed session, the Board may require the person to hold his or her comments until closed session.
8. The Board may vote to suspend or amend these rules in extraordinary circumstances. The Board may impose additional rules as it deems necessary and reserves the right to alter the above rules depending on the circumstances. The Board reserves the right to cancel, reschedule or delay the public comment period at any time or delay comment on a particular topic. The Board may refuse to hear comments on a particular topic if advised to do so by legal counsel.
Yes, I believe the recently-updated school board policy facilitates engaged communications with our students, parents and patrons. We truly want to hear from our public. It’s their school. We recently enhanced this school board policy with an email address so our patrons can access all board members at exactly the same time from our school district’s web site. We have received emails, returned replies and heard positive responses from the public because of this additional and convenient use of technology. This is in addition to the options of writing us letters as well as speaking during every public portion of our school board meetings.
Yes, I support this policy. We will be monitoring its progress. We also will continue to be cognizant of new technology as it emerges to communicate with the public exemplifying transparency and participation.
I invite you to peruse our website, http://www.camdentonschools.org. There you will easily find exciting student highlights and important information. Please click the “school board” tab to learn and/or leave any questions, concerns or comments. We are here to work together for our awesome LAKER NATION!
First of all, I believe that communication between the public and a public school is essential to the vitality of the school and community. I believe that transparent, open lines of dialogue can aide in the direction of the district and prevent disruptions that hinder progress at all levels. Awareness of situations as they arise is key to correcting them and will strengthen the district as a whole. E-mail has proven to be an efficient method to communicate.
Second, I do believe that concerns should be filtered through proper channels. There are many issues that are most appropriately handled by the teachers and administrators who work closely with the students. This will allow everyone, including the board of education, to most efficiently perform their duties in a timely manner. It also allows continued focus on delivering the best possible education and work environments for our district, which is our goal.
Lastly, if an issue warrants board attention, best practice is inherently to give all parties preparation time. This allows improved communication and input, which will expedite resolutions so that we remain focused on our goals.
After reviewing Board Policy “BDDH-Public Participation at Board Meetings” and attending several Board meetings it is evident to me that the Board is allowing a public comment time during the meeting. As outlined in the policy the public comment period is only designated for items that are on the agenda for that month. However, the policy also states that any member of the public may request an item to be placed on the agenda for discussion as long as it is received seven days prior to the meeting. Certain items regarding personnel, student issues and legal matters may need to be addressed in closed session.
Perhaps better communication to the public with regards to this policy and the procedures to be heard at a Board meeting whether it is during the public comment portion of the meeting or getting an item placed on the agenda for public discussion.
Not knowing what the public wants changed I would have to support the current procedures in the policy manual, many school districts in the state do not allow a public comment time in their School Board meetings, this is a local decision.
I do support this policy. Our policy allows the community to request topics of concern to be placed on the agenda which allows the patrons AND the district to prepare for an educated discussion. I believe this 7-day policy supports a professional and cooperative environment. Board members are responsible for protecting our staff and students; allowing anyone to speak on impulse could open the district to possible legal repercussions. This past year the board unanimously voted to introduce a board email address. This line of communication provides patrons an avenue to contact us with any issues and concerns while allowing us to continue focus on the goals and progress of students and staff.
Four of the five candidates for Camdenton school board, as indicated by the answers given above, are in favor of this public comment policy. The lone dissenter from the ‘company line’, candidate Mindi Sales.
I do not support the current policy on public comment. I attended the board meeting last fall where the MSBA came in and spoke to the board when recommending that they limit public comment to those items approved to be on the agenda. I was disappointed when the board, including 2 of my incumbent challengers, voted to approve that policy. When the question was asked of the attorney who was trying to convince the board to alter policy to put heavy limits on allowing the public to speak to the board, if there had been instances where a board had ever been sued as a result of public comment. She answered, “no, but it could”. Thus, the policy was changed. I do not think that is fair to the community that we are serving. I believe that the board is elected to be the voice of the people. I do NOT think we should limit their opportunity to be heard. Might a meeting go on for a long time if we have lots of comments? It might! But when else does the public have an opportunity to speak to the entire board?
To understand the context of Mindi’s dissatisfaction regarding the board’s recent decision to adopt this policy, her own recent experiences in attempting to address the board offers insight. In the summer of 2013, Mindi attempted to find out why former Camdenton Middle School Principal Sean Kirksey was suspended. Finding a disparity between DESE’s outline for responsibility and Kirksey’s suspension, Mindi sought answers from the school board regarding his suspension. It was during this time that a lawyer from the unelected Missouri School Board Association spoke during a meeting of the school board.
Her experience is reprinted below, taken from her campaign’s Facebook page, Mindi Sales for Camdenton School Board.
My experience with the public comment policy started when I wanted to address the board concerning Sean Kirksey. I thought that as a tax payer and a citizen of the district, the board would want to hear from me since they were, in theory, representing me. So, I emailed Dr. Hadfield and called Chris McElyea to discuss my options. I was told that I could NOT talk to the board about employees. I thought that was wrong! If I wanted to come and read a letter about a teacher that went above and beyond, they would let me do that, but I couldn’t say that I thought Sean went above and beyond? My real question was WHY???
So, Dr. Hadfield had someone from the Missouri School Board Association (MSBA) to come in to talk about public comment. I was at that meeting. Her main point was that we MIGHT be sued if we allowed public comment about a staff member. Now, this has NEVER happened, but since it MIGHT, we should shut off all public comment unless the person wanting to speak follows some very controlled rules?!?
Here is the thing about speaking in front of the board: You have all 7 members there and everyone will hear the same words. If you go meet each individual, sometimes different things are said to different people, therefore causing a bigger problem in my opinion. When you are on a Board of Education making sometimes tough decisions, it is not always going to be happy and fun. But, we need to have ALL the input to make a good decision, and that includes the input from the people!!
THIS IS THE MAIN POINT I WANT YOU TO HEAR: In order for you to talk about an issue to the board, your issue MUST be on the agenda. In order to be on the agenda, you have to ask at least 7 days in advance and get approval. The board does not have to allow your agenda item on the agenda. WHY is someone allowed to dictate what the people can say to their own board?!?!?
Here is how that policy did not apply when I was wanting to talk about Sean. The Board was already making the decision concerning Sean. What good would it do to go talk to anyone other than the Board? Why didn’t they want my input? Why wouldn’t they want to hear from someone who had nothing but great experiences with an employee whose fate they were deciding?
Do I believe that there should be procedures in place for complaints? Of course! The Board cannot deal with every issue that is brought up in every building every day. I understand that. But, I do feel the board has a responsibility to listen to the people. I do not think they should hide behind a policy in hopes of trying to avoid an issue. Sometimes the board might have to listen to something that might be a bit uncomfortable. For example, I was at a meeting once when someone wrote a letter that was talking about Laura Martin in a disapproving manner. Laura sat and listened to the entire letter. No one stopped this person from saying what she had to say about Laura. If we are going to allow some not so warm and fuzzy comments to be made, why can’t we comment positively about someone?!?!
Being on the board is not always going to be easy, nor is it always going to be fun. Sometimes it might be down right uncomfortable. But, we have been elected to do the will of the PEOPLE. Shouldn’t the board be willing to HEAR the people?
I think it is important that the voters know where everyone stands on these types of issues. After all, the board is representing YOU!
Mindi’s experience raises some very real concerns with the adoption of this kind of restrictive policy. It allows for administration and lawyers to dictate what the public can and cannot relate to the board. When taken beyond Mindi’s example, the framework created by this policy change is one that is anything but transparent, despite the claims made above by Selynn Barbour. It is designed to conceal. It is designed to silence questions.
This policy change was initiated by Barbour, who made the motion to approve this new language regarding public comment. Her motion was seconded by Jackie Schulte.
In the traditional fashion of Washington politicians, the school board, after adopting this stifling policy, announced that the board of education members would be ‘allowed’ to have email addresses through the school. These email addresses, according to the false narrative presented by Barbour, would make it easier for the concerns of tax payers and parents to reach board members.
The email “enhancement” comes with familiar policy language.
On January 14, 2014, in an article in the Lake Sun announcing the email policy, Assistant Superintendent Roma France announced the implementation of Camdenton’s email accounts for board members.
1. If you are providing Board members an e-mail address, all Board members by policy must sign the Authorized User Permit that staff and students must sign and Board member must agree to the same terms as staff and students.
This first policy restriction would allow, presumably, for the unfettered monitoring of emails between themselves and their constituents. It creates an environment worthy of the NSA in the Camdenton school district. It would allow complete access to all board member’s accounts, without cause, without warrant. Camdenton’s version of Big Brother, it can reasonably be assumed, is manned by school administration and the districts lawyers, the firm of Mickes, Goldman and O’Toole.
4. When information is sent via the generic Board@camdentonschools.org, the protocol is for the superintendent or Board president to respond on behalf of the district and to cc the Board the response so that the Board knows the patron has been corresponded with and what was said. If a Board member disagrees with the response or has questions, he or she is encouraged to immediately notify the superintendent and the Board president of that fact.
The last sentence in this ‘guideline’ is one that gives us pause, particularly when we consider the access and latitude granted the administration and its lawyers in regard to the distribution of emails in the first place. This assumption of authority, of determining which emails reach the board, is reemphasized throughout these ‘rules’ created by administration and their attorneys.
Number five of these ‘guidelines’ ensures that, even a board member can be denied the ability to add a topic or concern to the agenda.
5. Any Board member may ask that a subject is added to the Board’s agenda at the next meeting for discussion. The Board as a whole will ultimately vote when approving the agenda to determine if the issue will be discussed.
However, Board members are free to direct questions or concerns to the superintendent or Board president.
6. A Board member who is not the Board president may correspond individually with a patron, but is required to indicate that the opinions expressed are his or her own and not the Board’s. A Board member is prohibited from using a district-provided e-mail address contrary to district policy or law or to violate district policy or law.
The key words and phrases in ‘rule’ number six are distressing. “Board member”, “prohibited”, “contrary to district policy” and “violate district policy”. These are words that place control of our school, not in the hands of our elected representatives, but into those of administration and attorneys. Many of these policies were crafted, approved and suggested by the attorneys for our school district and district administration. They are not rules of law, nor are should they be.
Rules nine and ten completes the usurping of power from the citizens in the Camdenton school district. They clearly illustrate the ongoing efforts to eliminate ‘local control’ over our school districts.
9. The superintendent or Board president in their discretion may not respond to messages from the same sender that are repetitive, or messages that are threatening or that use profane language.
10. The superintendent or Board president will not directly respond to messages involving litigation, potential or pending litigation, or a situation on appeal pursuant to district policies or the law.
In addition, the superintendent or Board president may not respond to messages if advised by the district’s attorney not to do so. However, the superintendent or Board president will acknowledge receipt of the message and notify the sender of the rules.
These policies, designed to remove, control and suffocate the input of parents and tax payers, are the opposite of Barbour’s claims.
“Yes, I believe the recently-updated school board policy facilitates engaged communications with our students, parents and patrons. We truly want to hear from our public. It’s their school. We recently enhanced this school board policy with an email address so our patrons can access all board members at exactly the same time from our school district’s web site.
She also invited the public to “peruse” the school web site. Perhaps Ms. Barbour should have perused a dictionary for both the correct definition of transparency. To her credit however, Ms. Barbour didn’t dive under her desk like partner-in-crime, Jackie Schulte. Ms. Schulte used the question regarding the public comment policy shift to beat the drums of fear mongering. This fear mongering is based on the flawed legal interpretation that, somehow, the school board could be held liable for what a citizen says to them. This laughable notion is parroted by Schulte.
It should come as no surprise that both Barbour and Schulte embrace these restrictions. They have a history of misleading the public regarding school business. Nor have they been alone in this endeavor. The desire to mislead the public, engage in character assassination and restrict public comment and input appears to have a clear motive.
The Camdenton school district is a $45 million dollar a year business. How that money is distributed, to whom and why, are questions that some board members simply do not want asked. For example, Selynn Barbour would presumably prefer the public didn’t know that she must recuse herself from all votes to approve payments to the district’s architects. Why must she recuse herself?
Because she is related to members of the firm.
School board president Chris McElyea has the same complication, when issuing payments to his father’s title company.
Nor are these policies, and the motives behind them, only being questioned by Mindi Sales. As was previously mentioned, during the August meeting of the Camdenton school board, a presentation was given by an unelected attorney speaking on behalf of the MSBA. This presentation offered the basis for legal fear mongering echoed in Schulte’s statement.
The lawyer’s presentation wasn’t the only one heard by the board that evening. Another presentation was made in reference to the public comment policy and its motivations and application. Chris Michaelree spoke about these issues during the time allowed him during public comment. His presentation appears below, in full.
“Board Policy BDDB states that a patron desiring to be included on the agenda shall make a request to the superintendent. The board can limit the number and speaking times of a spokesperson, it does not however include a provision for the board or superintendent to deny the request. The use of the word request does not imply that a request can be denied, it is the same term used in the first paragraph of this policy that a board member may request an item be added to the agenda, or as in a sunshine request, it is a term used for courtesy. Therefore, any patron who has made a request under this policy and has had their request denied has been a victim of a violation of board policy by the superintendent or the president of the school board.
Board Policy BDDH has most of the same terminology but does add a few provision. It states that the request can be denied if the proper grievance policy procedure has not been followed. But it also states that the item will be appropriately placed on the agenda. In a lot of cases the grievance policy does not cover what patrons wish to discuss with the board since it might not be something in which they had direct involvement. For example, if I wanted to discuss actions of a school employee, with whom my child nor I have direct contact, but I feel their actions were right or wrong, there is no grievance procedure for me to follow and therefore if I make a request to be added to the agenda and my request is denied the superintendent or president of the school board is violating board policy again. In fact if any request is denied for any reason other then you need to follow the grievance policy before this can be added to the agenda, it is a violation of board policy. Even if the school’s attorney recommends that they deny the request it is still a violation of board policy. It is very sad that the school administration justifies breaking board policy because there attorney recommended it. When administration breaks board policy some sort of consequence should be imposed on administration.
Two options are being presented to the board tonight, one that allows public comment and one that will remove public comments from future board meetings. If the board ultimately decided to not allow public comments, it just shows how secretive you want to be about school operations. It also shows how much you don’t care about the opinions of the community.
When I received my letter saying that I was added to the agenda, Hadfield also included several restrictions on what I am and am not allowed to talk about even though board policy on agenda items does not put a restriction on what I am allowed to discuss, not to mention the fact the it violates my 1st amendment right of freedom of speech. I was however invited to closed session where the restriction would not apply. I believe that the community has the right to know some of the things going on at the school. I can understand why Hadfield would try to add these restrictions. I would not want my dirty laundry publicized, but the truth of the matter is, until all of what is going on in the school comes out it is never going to change. My father often asks me why I am doing this when I talk to him about what is going on or ask him his opinion since he sits on a board. My response is always the same, there is a problem in the school and it is the administration and it needs to change, and if I don’t try then it might never change.
If an employee were to violate board policy, severe consequences would follow, and maybe even the loss of their job. But why is it when an administrator or board member violates board policy nothing happens. The board policy is the board’s rule book and should be strictly adhered to, because what’s the point of having policy or even a school board if administration and board members can violate policies at there choosing without consequences.
A while ago I requested that a teacher and I be allowed to go before the school board to discuss a teacher and provide evidence that an administrator was lying to the board. Hadfield denied my request. Consequently the board only heard from the administrator and the teacher did not have her contract renewed. Later I talked with Hadfield and he verbally admitted that yes the request should have been granted, but it is all over with and done so it does not matter now. Why is Hadfield’s violation of board policy ignored when it had the power to cost an employee their job.
The administration does not care about right or wrong, only how it will effect their agenda, be it good or bad. A teacher was placed on administrative leave because they were accused of testing a student without the parent’s consent. The teacher stated that the process coordinator instructed to test the student, since the teacher was not present at the meeting. Only two school employees were at the meeting, the case manager, and the process coordinator. The case manager wrote a letter testifying that the parents were asked and did give consent, the process coordinator must not have filled out their paperwork correctly. And of course nothing was ever done. The teacher remained on administrative leave and did not have a contract renewed. My impression of administration was” who cares we are going to do what we want no matter what kind of facts you present”.
Another teacher was called into administration and shown a list of unsigned charges and given a choice to resign before the charges were signed. The teacher chose to fight it. The charges were never signed, instead administration moved the teacher out of the class room to a position where they basically sat around all day at a desk and did noting, in hopes that the teacher would resign. The teacher did not resign and is now back teaching again.
Yet another teacher had a spray bottle full of an alum solution in the class room. The school’s story is that the teacher did not use it on a student instead the student got the spray bottle off the desk and sprayed it in his own mouth. Lucky for this teacher she was friends with an administrator, this teacher is still teaching.
There is a real problem with administration in this school. Teachers are afraid. I actually talked to a teacher today and asked if they were excited about tomorrow. There response was I am going in kicking and screaming, I would rather stay home, but I will go in, do what I need to get done and leave. Is this really how we want our teachers to feel? That they have a deadly fear of the school administration.
A comment was made in the paper a while back, that the school board was the reason that they did not get very many applications to fill some important jobs in the district, I would argue that it is the way the administration behaves as to why people are steering clear of applying for positions in this school.
Mr. Michaelree’s concerns are not without merit. He took the results of his research into the district’s behavior to the Camdenton Police Department. The Department, citing a conflict of interest due to their relationship with the school, stated that they could not investigate further. They also indicated that Mr. Michaelree’s research should be taken to Jefferson City, as there is cause, in their opinion, to pursue the investigation further.
Nor are financial questions the only questions being raised this election season. An investigation into Sean Kirksey’s case revealed a bully system that has been institutionalized in Camdenton. Questions raised by the suspension of Sean Kirksey uncovered a tense, oppressive work environment and the many good teachers left in its wake. These former teachers and administrators in the Camdenton school district described a climate of hostility and fear.
These stories were reinforced when, earlier this school year, after less than three months in the Camdenton school district, a first grade teacher with more than a decade’s experience felt she needed a lawyer to tender her letter of resignation. She feared further repercussions from administration. She was frightened for her ability to teach in another district, should the bullying that led to her resignation extend beyond Laker Nation to her search for another position.
The bully system that has been constructed in the Camdenton is not restricted to the staff and teachers of the district. It has been extended to parents who ask the types of questions raised by Mindi Sales, Chris Michalree and Sean Kirksey. These parents have been targeted in the most insidious of ways, through other examples of questionable legal interpretation. Our school district has been used to file flimsy lawsuits of retribution against families in our district.
These frivolous, spiteful suits have served to fatten the pockets of district attorneys Mickes, Goldman and O’Toole. For the firm, an assault against parental rights is a windfall in payments from a district like Camdenton. Or Lebanon. Or Marshfield. Or Richland. The law firm of Mickes, Goldman and O’Toole represent more than three hundred school districts across the state of Missouri. Their deep affiliations with the MSBA and other organizations have ensured their silent coup, this assumption of authority, has been exported across our state with the veracity of a virus. So too, are the firm’s practices.
Across the state, the law firm that has assumed the authority to monitor Camdenton board member emails and endorses the flawed legal argument that is being used to silence parents and tax payers, has left a litter box full of questionable actions in districts across the state. In southeast Missouri, the law firm filed a cease and desist letter against a parent for asking questions. In Lebanon, they have claimed legal authority to rewrite court ordered parental custody agreements. In Camdenton, they have cost thousands of dollars in legal fees regarding questionable personnel decisions and in filing a lawsuit against a family who home schooled their children under unsubstantiated claims of abuse and educational neglect.
It is understandable, why the law firm of Mickes, Goldman and O’Toole, has assumed authority and control over what can be said to our school board representatives.
Seylnn Barbour made the motion to give the firm this power. Jackie Schulte seconded it. Board members Williams, McElyea and Masterson all agreed to limit your complaints about this loss of local control and representative government. They have codified, with their votes, the transformation of our own school district. Why would they be in favor of limiting your right to voice your displeasure?
If the public were allowed to ask questions, we might not stop.
The transformation of education across the state of Missouri is underway. Stories like those from Hickman Mills, a district whose board has so blatantly abused their positions, remind us that Camdenton is not a mirage. It is not occurring in a vacuum. The people of the Camdenton school district, and districts across the state, have the opportunity to wrest control away from the authors of this scheme to steal local control out from under our noses.
We have the opportunity to ask these questions. We have the right to demand answers.
As mentioned at the beginning of this article, the tactics being employed by those in support of this oppression are different than those displayed during the past election. Instead of actively mudslinging, attacking and blatantly making false claims against those who question the district’s course, tactics are being employed in this election that remind of the policies detailed above.
As reported by American Spring, KRMS ownership has refused to allow any candidates for Camdenton school board to advertize on their station. This represents the inability and unwillingness of local media to cover the school without bias. Instead, it indicates a clear bias, in favor of the status quo.
For long time residents of the Camdenton school district, this is only the most recent example in a pattern of bad behavior. It was this same assumption of authority that led to the district being sued in Missouri Supreme Court by the Lagares family in the 1990’s.
That case, Lagares v. Camdenton school district, revolved around the same blind assertion, same assumption of authority by the school district and its administration, the board of education and the district’s legal counsel.
In that case, as with the ‘policies’ referenced above, the Missouri Supreme Court ruled that the school district had no authority to overrule the Missouri Constitution in making ‘policies’ such as those referenced above. To enact these ‘policies’ themselves is to violate state statutes, our state and United States Constitutions.
That case, Lagares v. Camdenton school district, was more than an educational case. It was fought to preserve the rights of parents and citizens from this exact kind of government overreach by any political subdivision of the state.
The adoption of these overreaching ‘policies’ is illegal to begin with. Enacting these ‘policies’? Also illegal.
The school board is an administrative body. They cannot assume the powers not granted them by the Missouri State Constitution. They cannot, in other words, assume the role of the legislative and create law. They are simply to follow the laws laid out by the state legislature.
This legal precedent was set in Lagares v. Camdenton. The Camdenton school district was already found guilty of this exact sort of overreach. The Missouri Supreme Court said so. The Lagares ruling stands as a legal precedent that has been cited in dozens of cases around the country.
The establishment, the ‘status quo’ crowd knows this fact well. Hence their illegal actions to attempt to silence questioning their authority. It is Fascism 101. Thwart the Constitution, assume authority you do not have, silence anyone who questions this ‘authority’.
These statutory provisions empower the state board of education to promulgate (1) regulations concerning the standard for identifying handicapped children under the definitions contained in §§162.670 to 162.995; (2) regulations governing the evaluation and reevaluation of handicapped children before and during assignment in a special education program; and (3) standards for approving all special education programs established under §§162.670 to 162.995, including the qualifications of personnel and the standards for determining the assignment of the children to particular programs. None of the regulations the state board of education is empowered to adopt, however, concern the standard to be used in evaluating the sufficiency of the special educational services provided to a particular handicapped child.
It is the last paragraph of this ruling that is most important. Here, the Court is quite clear. The school district is not empowered to create these ‘policies’. Period. End of story.
Federal case law is equally clear on this matter.
While federal cases interpreting Missouri law are persuasive, they “are not binding on this court interpreting our own state statute.” See Wentz v. Indus. Automation, 847 S.W.2d 877, 880 n. 2 (Mo.App.1992). Unlike the Eighth Circuit in Gill, this court finds that the legislature’s intent to hold Missouri special educational services to a higher standard than the IDEA’s minimum “educationally benefit” standard is apparent from the plain language of the “maximize the capabilities” language used in §§162.670 and 162.675. “The legislature is presumed to have intended what the law states directly.” Metro Auto Auction v. Dir. of Revenue, 707 S.W.2d 397, 404 (Mo. banc 1986).
In Lagares v. Camdenton, the civil rights of parents and citizens were on the line. While the case dealt with education, if one were to simply substitute the word ‘education’ with ‘Sunshine Law’ or ‘Due Process’, the ruling is still relevant. It is about government overreach.
Or, to put it in lay terms, as a dear and wise friend explained to me, it is the parable of the elephant and the mosquito. Everyone is focused on the elephant, or the policy and its gross overreaches. In the meantime, it is the mosquito, the nagging, persistent assertions of authority that are eating our body politic alive.
It is the mosquito, in the form of ‘policies’, that is conspiring to steal the rights we have already paid for in blood and sacrifice. It is the mosquito that has led the Camdenton school district and the law firm of Mickes, Goldman and O’Toole to be named as Defendants in a Federal law suit.
Currently, the Camdenton school district is stating that they can break the law and write policy. This is the position espoused by four of the five candidates for school board.
The bully system represented by these illegal, fascist actions is both ruthless and relentless. In part, because of this ruling, the Lagares family has been targeted by both the Camdenton and Lebanon school districts and their law firm of Mickes, Goldman and O’Toole. The Lagares family’s unbelievable, gut-wrenching story can be found here.
It is the perfect illustration of exactly how much truly is on the line this election season. It is an opportunity for the community to demand an end to government overreach.
Tonight, at the Osage Hills Church in Osage Beach, the public will have an opportunity to hear from these candidates for Camdenton school board. This forum is sponsored by the Camden County Republican Club and begins at 6:30 PM.
Stay tuned to http://www.americanspring2011.com, Guerrilla Radio with American Spring Facebook page and @AmericanSpring on Twitter for the latest updates on this and other stories.
The Lake Sun Leader and Lake Media, scrambling to restore lost credibility, has announced the formation of a ‘citizens advisory board’. The stated purpose of this board is for members of the community to meet with the tabloid’s staff and editors to help determine what stories are covered and how they are reported.
This is ironic, considering that the editorial staff at the Lake Sun has banned several such citizens from commenting on their articles via Facebook, including myself. In my case, there were no violations of LSL Facebook policy. I was banned for asking questions about ‘Right to Work’ legislation. My questions were on topic and adhered to the Lake Sun’s stated policies for comments. Nor was I the only person banned as a result of editorial malpractice, as others were banned for asking similar questions. Now, Lake Media, caught in the vice of corporate bankruptcy and a documented lack of credibility, is scrambling to remain relevant while its circulation numbers are presumably dropping, in direct relationship to the community’s lack of trust in the organization.
The Lake Sun has asked for submissions from the public to address why they should be allowed to sit on this board. They have asked that all such submissions be kept to 150 words and should include background information, such as educational background and current profession.
During the past three years, I have written more than 150 words on the Lake Sun’s woes. They have been caught in a cavalcade of lies and manipulations of fact. Consistently, under the ‘leadership’ of editor Joyce Miller, they have set aside the public’s best interests in order to satisfy false narratives provided to them by school administrators, board members and elected representatives of the Lake area.
The paper, having lost the trust of the community they purport to serve, has traded its credibility away for cents on the advertising dollar. This plea for community involvement has come far too late. The editorial direction of Lake Media and its subsidiaries has been a lemming march over a sheer cliff. Now, realizing the errors that have been made under Miller’s tenure, the paper is hopeful for a life line from the very community they have repeatedly lied to.
While I have no expectation of being invited to participate in such a board, I would suggest that Lake Media consider offering invitations to Leslie Chamberlin of Citizens for a Better Camden County and local business owner Theresa Townsend. These ladies, while lacking a background in journalism, distribute qualities that are sorely lacking at the Lake Sun: integrity and trustworthiness.
Considering the established history of Lake Media’s editorial direction, these are traits that will almost certainly disqualify both women from serving on such a board.
Fire the entire staff, starting with editor Joyce Miller OR develop a marketing strategy that would serve a tabloid. Credibility is the currency of news organizations. The balance sheet of public opinion is running parallel to the Lake Sun’s.
Both are clearly in the red.
This sentence has been amended to its current form.

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