Revisiting Racism in Missouri's DHSS

In late October 2010, I reported on Stephanie Patton's legal victory in DSS, MO Healthnet Division, and DHSS vs Peace of Mind Adult Day Care. Judge Rod Chapel ruled in part that [emphasis added]:

...DHSS's actions were the result of a racially discriminatory animus and that DHSS's actions deprived Patton of due process and equal protection of the laws, in violation of U.S. Const. amend. 5, 14 and 15, and Mo. Const. art. I, §§ 2 and 10.

The state appealed the decision. In September of 2011, the Circuit Court of Cole County, Missouri, upheld Judge Chapel's decision in a terse one page judgment.

The state appealed again and on August 8th, 2012, Judges Karen King Mitchell, Victor C. Howard, and Cynthia L. Martin of the Missouri Court of Appeals, Western District, heard the case. Harvey Tettlebaum of the law firm Husch Blackwell represented Patton at the appeals court hearing.

I attended the August 8th hearing and drew the sketches displayed here.

The Western District Court of Appeals handed down their ruling this past Tuesday (embedded below). In part they ruled:

We seriously question whether Patton raised her constitutional claim at the "first available opportunity." The complaints Patton filed with the DHSS did not include allegations -- either explicit or implied -- of DHSS acting with a discriminatory animus toward Patton. In fact, there is no evidence in the record as a whole that Patton ever registered a complaint or concern with DHSS that Blum had called her a racial epithet and illiterate. In contrast, the record as a whole leads to the inescapable conclusion that the first time this complaint was registered was during Patton's testimony. This does not appear to comport with the obligation to raise a constitutional claim at the first available opportunity. 

However, we are not persuaded that the Departments preserved an objection to Patton's late assertion of a constitutional claim. The Departments did not object to Patton's testimony as untimely. Instead, the Departments took the position at hearing that the AHC did not have "jurisdiction" to decide the constitutional issue being raised by Patton.17 See transcript at 169 ("[D]iscrimination is not something that, or constitutional issues are not something that this Commission has the jurisdiction over, and case law sets forth that the first notice to raise constitutional issues would be at the circuit court level,not at this level. And so by not testifying here they're not waiving their first availability to introduce evidence. The factual record would be made on the circuit court level where the court has jurisdiction over it."). This objection suggested that Patton was required to wait to assert her constitutional claim -- a position in inherent conflict with the position taken by the Departments on appeal. [emphasis added]

In other words, the state argued "Heads--I win. Tails--you lose." Judges Mitchell, Howard, and Martin should be commended for calling the the state out on this. However, that Chris Koster's attorney would stoop so low to make contradictory arguments underscores the importance of replacing Koster with Ed Martin in November to restore a sense of justice to the Attorney General's office.

The ruling continues:

We need not determine whether Patton's testimony was sufficient to raise and preserve a constitutional claim or whether the AHC acted sua sponte in addressing the constitutional claim because we find in any event that the AHC's conclusion that DHSS acted with discriminatory racial animus toward Patton was legally erroneous. 

The AHC concluded that DHSS, as an agency, acted with a racially discriminatory animus toward Patton. The only evidence in the record to support this legal conclusion was the testimony by Patton that a single DHSS employee, Blum, directed a deplorable racial epithet toward Patton and called her illiterate. There was no evidence presented at trial that Blum's statements could be legally attributed to DHSS as a whole or that DHSS was even aware that the comments were made. Evidence that a single agency employee made a racial remark to Patton is insufficient as a matter of law to support a conclusion that the entire agency thereafter acted in its handling of Patton with racial animus. See James v. City of Jennings , 735 S.W.2d 188, 191 (Mo. App. E.D.1987). Even if the single (and wholly unacceptable) comment by Blum could be legally attributed to DHSS, standing alone that comment does not rise to the level of a constitutional violation in the absence of other evidence connecting the comment to subsequent agency action. DeWalt v. Carter , 224 F.3d 607, 612 (7th Cir. 2000) ("The use of racially derogatory language, while unprofessional and deplorable, does not violate the [U.S.] Constitution."); Blades v. Schuetzle , 302 F.3d 801, 805 (8th Cir. 2002) ("[W]e believe that the use of racially derogatory language, unless it is pervasive or severe enough to amount to racial harassment, will not by itself violate the fourteenth amendment."). The AHC erred in finding otherwise. 

The Departments do not argue that the AHC's error in finding that the DHSS acted with racially discriminatory animus requires reversal of all other conclusions reached by the AHC affecting DHSS. And in any event, as we have already discussed, the AHC's conclusion claimed to be erroneous in the Departments' fifth points relied on is defensible, independent of the AHC's finding on Patton's constitutional claim. Thus, although we agree with that the AHC committed legal error in finding that DHSS acted with racial animus toward Patton thus violating her constitutional rights, that conclusion was harmless. [emphasis added]

I had to laugh at that last bit. Surely Judges Mitchell, Howard, and Martin know full well that had they sustained Judge Chapel's finding that DHSS acted with racially discriminatory animus the budgetary damage from the resulting civil rights lawsuit would cause plenty of harm. Maybe they were being ironic.

I can understand why the judges do not feel that the evidence proves the culpability of DHSS; however, I think their conclusion rests on the assumption that this is an isolated incident. If a civil rights suit is brought against the state--as I believe it should be--we will see whether that assumption is correct.

The actions of Missouri's regulatory agencies had a devastating effect on Patton. Her business was shutdown. Her car was repossessed. Her home was foreclosed on. And so much more.

Yeah. There's still racism in America. It's in our government.

Patton is a modern day civil rights hero.

But there's also a problem with out of control regulations and bureaucracies. Because regulations weigh more heavily on small businesses like Patton's; because regulations can and do destroy small businesses, it is no wonder that we live in a world dominated by large corporations. It's only the large crony capitalist companies that can weather a hostile regulatory environment.