Many people support the right of a jury to refuse to enforce a bad law. Most people think that courts shouldn’t make laws, but should leave lawmaking to representatives elected by the voters for that purpose.
For a legislature to jump into the middle of a court case and take a swipe at a jury and a judge is simply outrageous. When a family’s home is at stake, the legislature’s action is despicable.
In Brown v. Cedar Creek Rod & Gun Club, you can read the story of the Missouri legislature’s interference with a jury’s verdict and a judge’s injunction to protect the home of Daniel and Donna Brown and their child. Read on.
The Cedar Creek Rod & Gun Club was established at its present location in 1992, east of Columbia, Missouri, near the home of Mr. and Mrs. Brown, who had moved to their family property in 1985. Eventually, the Club’s members and guests (including the University of Missouri’s shooting teams) were firing 500,000 rounds per year at skeet, trap and sporting clays, during practices and tournaments.
The Browns were troubled by the noise and vibrations from the shooting, which was loud enough to be heard over the Browns’ telephone. There was increasingly less quiet time to enjoy their rural setting.
In 2004 the Browns sued the Club, seeking money and a permanent injunction to stop the “nuisance,” which is the legal term for damage to the value of real estate resulting from the use of nearby property. In December 2007, a jury awarded the Browns damages in the amount of $700,000. Four months later, the court entered a permanent injunction against the Club, limiting the days and hours of its operations and the types of events that could be held there.
The Missouri General Assembly in nearby Jefferson City quickly came to the rescue, not of the Browns, but of the Club and others like it, passing House Bill 2034 in 2008, amending section 537.294 of the Missouri Revised Statutes. This new law gave immunity to owners and operators of firearms ranges and authorized users of those facilities from civil liability for damages arising out “noise or sound emission from the use of any firearm,” deleting the word “normal” in front of “use,” which had been in the old version of the statute when it applied only to protect owners and operators (not all authorized users) from criminal liability only.
Obviously aware of the Browns’ jury verdict, HB 2034 also contained the following language:
Any actions by a court in this state to enjoin the use or operation of such firearm ranges and any damages awarded or imposed by a court, or assessed by a jury, in this state against any owner or user of such firearm ranges for nuisance or trespass are null and void.
The sponsors of HB 2034 were Reps. Brian Munzlinger and Therese Sander, neither representing the area where the Browns live. The bill passed the House 139-6 (voting nay were Representatives Curls, Daus, Low (Dist. 39), Oxford, Vogt, and Wright-Jones), and the Senate 30-4 (voting nay were Senators Bray, Justus, Smith and Wilson).
All voting against are Democrats and all but Reps. Daus and Vogt are women. I salute these legislators for their votes against HB 2034. I am ashamed of the remainder of our legislators, especially the lawyers in the legislature, for going along with this attack on a jury and property rights.
Meanwhile, the jury’s verdict and the court’s injunction were appealed by the Club. The Club also asked the trial court for a new trial and to vacate its judgments because of the passage of HB 2004, but the trial court refused.
The Court of Appeals for the Western District of Missouri was faced with the Club’s request for “remittitur,” which means that the losing defendant wants the jury’s money judgment reduced, a matter that usually is within the discretion of the trial judge. A trial judge can adjust the amount of money damages awarded by a jury if the trial judge (who heard the same evidence) believes that the jury misunderstood the evidence, made an arithmetic error, or finds the amount of the jury award to be “manifestly unjust.”
Motions for remittitur (and its counterpart “additur”) are rarely granted by trial courts, and appeals courts rarely overturn a trial judge’s decision on motions for remittitur or additur. Judges, following the common law tradition, give juries great respect.
In addition, the Court of Appeals was faced with figuring out whether HB 2034 was applicable and if so how to apply it to the trial judge’s injunction and the jury’s verdict.
Dealing first with the injunction, the Court noted that precedent indicated that a permanent injunction could not be enforced if its scope was limited by a change in law. But some of the Browns’ evidence was about the damaging effect of “vibrations of the earth,” which were not mentioned in HB 2034, which limited liability only for “noise” and “sound emissions” from guns.
The Court of Appeals sent the case back to the trial court for a hearing on the extent to which the injunction would prohibit vibrations from the Club, rather than merely noise and sound emissions. The distinction between “sound emissions” and “vibrations” is a curious one, but it’s all the Court of Appeals justices had to work with in protecting the scope of the injunction.
Throwing the Browns a bone, the Court also added that the trial court might allow the Browns to make constitutional arguments about the effect of HB 2034 on their property, when the case went back of a trial on damage from vibrations. The constitutional issues raised could involve whether the intrusion of the legislature into the operations of the trial court was a violation of the Browns’ due process and equal protection rights and the separation of powers doctrine that assures the integrity of the operations of the three branches of government– judicial, legislative and executive–by restricting one branch from interfering with another.
The Court of Appeals upheld the jury’s award of $700,000 to the Browns for damage to their property, finding that the trial judge did not abuse his discretion in denying the Club’s motions for a new trial and remittitur. The Club had argued that the Browns’ lawyer made unfair statements characterizing the Club’s representative as a rich guy. Noting that the trial judge had asked the jury to disregard these statements, the Court of Appeals was satisfied that the amount of the award was not heavily influenced by these statements. In other words, the trial judge and the Court of Appeals respected the work of the citizens of the jury.
In 2005, the United State Supreme Court upheld a city’s use of its power of eminent domain to take away a family’s home so that mostly blighted properties could be assembled and sold to a private developer, in the case Kelo v. City of New London. The majority opinion noted that courts should not be intrusive, but that legislatures should be afforded “broad latitude in determining what public needs justify the use of the takings power.”
The Kelo decision created a firestorm in legislatures across the nation. Many politicians claimed to be outraged that the United States Supreme Court would condone the taking of a home for private development if a local governmental body had made a determination that economic development was a public purpose.
Missouri law was similar to Connecticut law on this point. Projects such as Branson Landing, as well as dozens of redevelopment projects in Missouri cities since the 1950s, used the threat of condemnation to force the sale of private property to government redevelopment agencies. The agencies would then sell the property to private parties. This practice had the firm support of legislators and executive branch officials of both parties.
But when Kelo came down, Missouri’s legislators claimed to be outraged by this federal assault on property rights, even though the Missouri legislators had provided funding for the redevelopment projects and enacted various laws to promote them.
Three years after Kelo, with HB 2034, the Missouri legislature adopted a law that purposely attempted to set aside a jury’s award of damages to compensate the Brown family. The legislature did its best to undermine the jury of citizens who found that the Browns had lost the use of their home because of a private sporting facility established next door.
Just as the voting booth is a sacred place in the legislative branch of government, the jury room is a sacrosanct place in the judicial branch. Voting and service on juries are the most basic units of citizen participation in our form of government and are components of the foundation of our democratic system. We should treat the results of elections and determinations of juries as conclusive, except when there is evidence of corruption, fraud or mistake. Our statutes and procedural rules of the courts allow motions for remittitur and showing evidence of fraud and corruption. Legislative action is not required and is unseeemly, especially by carving out broad immunities from civil and criminal liability for a narrow class of businesspeople and persons involved in a particular hobby.
Unless the Club and the Browns can reach a settlement quickly, the Club will probably ask the Missouri Supreme Court to review this decision. Obviously, many people see the dispute between the Browns and the Club as a Second Amendment-gun-rights case or another example of a runaway jury, swayed by emotion, justifying tort reform. Those factors are present, but are entirely beside the points I’m trying to make here, which are:
- the legislature should not intrude into the judicial process at this level in this manner, which is an extreme affront to the idea of juries.
- the legislature’s action can be seen as a governmental attempt to deny compensation for a private taking of property, which is contrary to the strong property rights positions that many legislators professed after the Kelo decision.