Missouri Supreme Court Chief Justice George Draper Archives

High-profile overtime pay case for corrections officers heard by Missouri Supreme Court

April 22, 2020 By Brian Hauswirth

The Missouri Supreme Court heard remote oral arguments on Wednesday in a high-profile case involving the Cole County circuit court’s 2018 decision to award more than $113 million in overtime pay for Missouri corrections officers.

Missouri Supreme Court Chief Justice George Draper listens to remote oral arguments involving the corrections officer overtime pay case on April 22, 2020 in Jefferson City (photo courtesy of Missouri Supreme Court communications counsel Beth Riggert)

It’s a case that’s been working its way through the court system for eight years, and it’s a case that could have major implications across the street from the Supreme Court in Jefferson City, at the Legislature. That’s because of difficult budget times.

The key argument both sides emphasized on Wednesday is whether pre- and post-shift activities for corrections officers is compensable. The state attorney general’s office, which represents the Missouri Department of Corrections, says no. St. Louis attorney Gary Burger, who represents the corrections officers, says it is.

Wednesday was only the second time in history that the Missouri Supreme Court has held remote oral arguments. Due to COVID-19 concerns, only Missouri Supreme Court Chief Justice George Draper and a few staffers were in the Jefferson City courtroom. Chief Justice Draper faced a screen where attorneys participated by videoconference. The other six judges participated remotely via teleconference.

There were a few minor glitches, when Supreme Court Judge Laura Denvir Stith’s microphone cut in-and-out a few times. That was quickly fixed. State Solicitor General D. John Sauer had some audio issues early, and Counselor Burger briefly had difficulty finding his timer. Attorneys are allowed set times, for arguments.

Corrections officer Thomas Hootselle Jr. and other officers sued the DOC, on behalf of a proposed class of more than 13,000 officers, for allegedly failing to pay them under the Federal Fair Labor Standards Act for pre- and post-shift activities.

While labor agreements executed between the DOC and the Missouri Corrections Officers Association do not specifically address pre- and post-shift activities, Cole County Circuit Judge Pat Joyce ruled in 2018 that pre- and post-shift activities are compensable.

State Solicitor General D. John Sauer argues that the circuit court erred and that the case “involves a judgment imposing enormous liability on Missouri’s taxpayers without legal justification.”

Mr. Sauer cites a 1951 decision by the U.S. Supreme Court, about pre- and post-shift activities. He is asking the high court to reverse the Cole County Circuit Court’s decision.

“Because they’re quintessential preliminary and postliminary activities, not the work of consequence that these employees (corrections officers) are employed to perform,” Sauer tells the Supreme Court.

Solicitor General Sauer also says the trial court excluded testimony from the DOC’s damages experts.

Mr. Hootselle and the corrections officers are represented by Mr. Burger. During his oral arguments, Counselor Burger emphasized the main points in his 135-page brief to the high court. He says the class of more than 13,000 Missouri corrections officers “risk their lives every day maintaining safety and security at appellant Missouri Department of Corrections’ prisons.”

Burger says the DOC requires its officers to perform pre- and post-shift activities that are critical to prison safety and security, but has refused to pay the officers for those activities. He also says the time between shift changes, when pre- and post-shift activities happen, “are often when prisoners attack others, try to escape, or try to smuggle contraband.”

“You can’t escort offenders within a prison without getting the equipment first,” Burger tells the Missouri Supreme Court. “Without getting the handcuffs, without getting the radios or the keys or the appropriate equipment.”

Chief Justice Draper requested additional memos from Solicitor General Sauer and Counselor Burger, as arguments concluded. There is no timetable on when the Missouri Supreme Court will issue its decision.

High-profile corrections officer overtime case heads to Missouri Supreme Court on Wednesday

April 21, 2020 By Brian Hauswirth

The Missouri Supreme Court will hear remote oral arguments on Wednesday morning in a case involving a lower court’s decision to award more than $113 million in overtime pay for Missouri corrections officers.

Missouri Supreme Court Chief Justice George Draper listens to oral arguments in the Lamar Johnson case on April 14, 2020 in Jefferson City. Because of COVID-19 concerns, it was the first time in history the court held remote arguments (photo courtesy of Missouri Supreme Court communications counsel Beth Riggert)

Because of COVID-19 concerns, only Missouri Supreme Court Chief Justice George Draper is expected to be in the Jefferson City courtroom on Wednesday. He’ll face a screen through which attorneys will participate remotely by videoconference. The other six judges will be participating remotely via teleconference. You will be able to listen to the oral arguments live on the Supreme Court’s website.

This will only be the second time in history that the Missouri Supreme Court has used remote arguments. The first time was last week in the Lamar Johnson case.

Wednesday’s oral arguments are scheduled to begin at 9 a.m.

Following a jury trial, Cole County Circuit Judge Pat Joyce awarded the money to the corrections officers, and has also ordered the Missouri Department of Corrections (DOC) to pay for pre- and post-shift activities for officers, such as time to pick up and return radios and inventory weapons.

A corrections officer named Thomas Hootselle Jr. and other officers sued the DOC, on behalf of a proposed class of more than 13,000 officers, for allegedly failing to pay them under the Federal Fair Labor Standards Act for pre- and post-shift activities. Labor agreements executed between the DOC and the Missouri Corrections Officers Association do not specifically address pre- and post-shift activities.

The Cole County circuit court has ruled that pre- and post-shift activities are compensable.

The DOC is being represented at the Missouri Supreme Court by the state attorney general’s office. In its 127-page brief, state Solicitor General D. John Sauer says the court erred in its decision and ruled in favor of the corrections officers after a one-sided jury trial. Sauer says only the corrections officers were allowed to present expert evidence.

“This case involves a judgment imposing enormous liability on Missouri’s taxpayers without legal justification,” Sauer writes in his brief to the Missouri Supreme Court.

Mr. Sauer is asking the high court to reverse the circuit court’s decision.

Mr. Hootselle and the corrections officers are represented by St. Louis attorney Gary Burger.

In his 135-page brief to the Missouri Supreme Court, Mr. Burger says the class of more than 13,000 Missouri corrections officers “risk their lives every day maintaining safety and security at appellant Missouri Department of Corrections’ prisons.” He says the DOC requires its officers to perform pre- and post-shift activities that are critical to prison safety and security, but has refused to pay the officers for these activities.

“The officers’ claim here is simple: MDOC must pay guards for guarding,” Burger writes.

Counselor Berger also says that the time between shift changes, when pre- and post-shift activities happen, “are often when prisoners attack others, try to escape, or try to smuggle contraband.”

The class action lawsuit began in 2012, and the circuit court issued its ruling in 2018.

While the Missouri Supreme Court will hear the case on Wednesday, there is no timetable on when they will issue a decision.

Missouri attorney general and St. Louis circuit attorney on different sides in Lamar Johnson case

April 14, 2020 By Brian Hauswirth

An attorney for a convicted St. Louis murderer who’s served 25 years in prison tells the Missouri Supreme Court that evidence shows that the inmate did not kill Marcus Boyd in 1994.

46-year-old Lamar Johnson is serving a life sentence for first degree murder at the Jefferson City Correctional Center. St. Louis Circuit Attorney Kim Gardner has filed a motion for a new trial (2019 file photo courtesy of the Missouri Department of Corrections)

The Supreme Court heard historic oral arguments in Lamar Johnson’s case on Tuesday, with six judges participating remotely, due to COVID-19 concerns. Attorneys also participated remotely, via videoconference. Only Chief Justice George Draper was in the Jefferson City courtroom.

It’s the first time the Missouri Supreme Court has used remote arguments.

Attorney Lindsay Runnels represents Johnson, who is the appellant in this case. The Midwest Innocence Project in Kansas City is also involved in Johnson’s defense.

St. Louis Circuit Attorney Kim Gardner has filed a motion for a new trial, saying there is credible evidence that Johnson is innocent.

Gardner is an intervenor in the case. She was represented Tuesday by attorney Daniel Harawa, who says Johnson is innocent and that the circuit attorney has filed for a new trial, as a minister of justice.

“If a prosecutor abused the power of their office to wrongfully convict an innocent person, then a prosecutor must be able to use her office to seek to undo that conviction,” Harawa says.

The Missouri attorney general’s office opposes Gardner’s motion for a new trial. The attorney general’s office says the circuit court has no jurisdiction to consider Gardner’s motion, especially at this late date.

In their 52-page brief, Attorney General Schmitt’s office writes, in part, “This court’s rule 29.11(b) provides that, in a criminal case, (a) motion for new trial … shall be filed within fifteen days after the return of the verdict.”

Johnson was sentenced to prison in 1995.

The chief counsel for criminal appeals for the attorney general’s office, Shaun Mackelprang, argued before the Supreme Court.

“A jury found him (Johnson) guilty, found him guilty of murder in the first degree and armed criminal action. To this day, there has not been a hearing with any evidence presented showing that he is, in fact, innocent,” says Mackelprang.

Mackelprang also says that in a criminal case, only the defendant can file a motion for a new trial.

The case involves allegations of St. Louis police and prosecutorial misconduct. Johnson’s lawyers allege that an eyewitness’ 1994 identification of Johnson “was manufactured and false,” and that the state paid the eyewitness to identify Johnson.

We also learned new details about Johnson’s request on Tuesday, including the revelation that Circuit Attorney Gardner isn’t ruling out requesting a pardon for Johnson from Governor Parson.

Supreme Court Judge Zel Fischer asked Counselor Harawa about that.

“Counselor, why hasn’t the circuit attorney joined with the defendant in requesting the governor to issue a pardon,” Fischer asks.

Harawa responded by saying they’re not ruling it out, but emphasizes they’re focusing on seeking a new trial for Johnson and that the state “engaged in misconduct.”

The Johnson case has received nationwide media attention, and there have been numerous amici briefs that have been submitted to the Missouri Supreme Court.

A group of 45 elected prosecutors from across the nation have filed an amici brief, which says Circuit Attorney Gardner must have a legal mechanism to seek a new trial for a defendant, “when newly discovered evidence shows the conviction was tainted by constitutional violations.”

But a group of 30 elected Missouri prosecutors disagrees, and has also filed an amici brief. They say the circuit attorney’s office has no authority to file a motion for a new trial in a criminal case, on the defendant’s behalf.

There is no timetable on when the Missouri Supreme Court will issue its decision.