HB 3082

                                SECOND REGULAR SESSION
                   HOUSE BILL NO. 3082
                          103RD GENERAL ASSEMBLY
                           INTRODUCED BY REPRESENTATIVE DAVIS.
6749H.01I  JOSEPH ENGLER, Chief Clerk
                                           AN ACT
To amend chapter 1, RSMo, by adding thereto one new section relating to government
      restrictions on the ability of a person to earn a living.
Be it enacted by the General Assembly of the state of Missouri, as follows:
        Section A. Chapter 1, RSMo, is amended by adding thereto one new section, to be
2 known as section 1.340, to read as follows:
        1.340. 1. This section shall be known and cited as the "Missouri Entrepreneurial
2 Freedom Restoration Act".
32. The general assembly finds and declares the following:
4(1) The right of individuals to pursue a chosen business interest, occupation,
5 trade, or profession free from arbitrary, unreasonable, or excessive government
6 interference is a fundamental right;
7(2) The original public meaning of Article I, Section 2 and Article I, Section 10 of
8 the Constitution of Missouri enshrined the right to earn a living as a fundamental right.
9 These constitutional provisions recognized that the right to earn a living is deeply rooted
10 in the history and tradition of Missouri and of this nation, the common law, and natural
11 law;
12(3) Nevertheless, in Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955) and the
13 Slaughter-house Cases, 83 U.S. 36 (1872), the U.S. Supreme Court virtually eliminated
14 the requirement that the government justify burdens on the right to earn a living despite
15 its enshrinement in the Fourteenth Amendment to the Constitution of the United States.
16 This state’s courts have largely followed suit in interpreting the right to earn a living
17 under the Constitution of Missouri, thereby leaving it unprotected;
EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is
intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language.
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18(4) Overly burdensome restrictions on the right to earn a living impede
19 economic growth, hinder job creation, and limit consumer choices without promoting
20 public health, safety, or welfare;
21(5) Heightened judicial review requiring the government to justify the burdens it
22 imposes on the right to earn a living provides a workable test for striking sensible
23 balances between the right to earn a living and competing government interests in
24 public health, safety, and welfare; and
25(6) Economic protectionism is never a valid government interest and cannot
26 justify burdens on the right to earn a living.
273. The purposes of this section are:
28(1) To restore judicial protection of the right to earn a living by requiring courts
29 to apply heightened judicial review to government restrictions that unnecessarily
30 burden the right to earn a living;
31(2) To promote economic opportunity, competition, and individual freedom by
32 removing unnecessary restrictions on pursuing a livelihood in businesses, occupations,
33 professions, and trades; and
34(3) To provide a claim or defense to individuals when the government
35 unnecessarily burdens their right to earn a living.
364. The provisions of this section apply to all state and local laws, and
37 implementation of those laws, whether statutory or otherwise, and whether adopted
38 before or after the enactment of this section. State and local laws adopted after the
39 enactment of this section are subject to this section unless such law explicitly excludes
40 such application by reference to this section.
415. The right to earn a living in the businesses, professions, occupations, and
42 trades of life is the very essence of personal freedom and opportunity. The state of
43 Missouri recognizes it as a fundamental right and nothing in this section shall be
44 construed to authorize any governmental body to burden the right to earn a living.
456. State and local governments, including their branches, departments, agencies,
46 instrumentalities, and officials, or other persons acting under the color of state or local
47 law, shall not burden a person’s exercise of their right to earn a living unless the
48 requirements of subsection 7 of this section are met. Government restrictions that
49 burden the right to earn a living without satisfying subsection 7 of this section constitute
50 a violation of this section, making the governmental body liable for legal and equitable
51 relief.
527. Government restrictions that burden the right to earn a living do not violate
53 this section if the governmental body demonstrates through clear and convincing
54 evidence that:
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55(1) Applying the burden to the person is necessary to protect public health,
56 safety, or welfare;
57(2) Applying the burden to the person is the least restrictive means to achieve the
58 law’s stated purpose; and
59(3) Alternative mechanisms, such as voluntary certification or less restrictive
60 regulatory measures, could not achieve the stated government interest without
61 unnecessarily restricting entry into the occupation.
62
63 As used in this subsection, the term "welfare" shall be narrowly construed to mean only
64 the protection of the public against fraud or physical or psychological harm. "Welfare"
65 shall not mean the protection of businesses or agencies, whether publicly or privately
66 owned, against competition.
678. A person whose right to earn a living has been burdened in violation of this
68 section may assert that violation as a claim for relief in a court of competent jurisdiction
69 in this state and as a defense in any judicial or administrative proceeding. A court may
70 issue declaratory, injunctive, or other equitable relief and nominal damages to any
71 person who proves a violation of this section.
729. A person intending to engage in a specific business, profession, occupation, or
73 trade but hindered from working by a burden on the right to earn a living, whether
74 currently engaged in a specific business, profession, occupation, or trade, shall have
75 standing to bring a claim or defense asserting a violation of this section without being
76 required to first apply for, obtain, or be denied a relevant occupational license or
77 certification.
7810. A person asserting a claim for nominal damages for a violation of this section
79 has standing to challenge restrictions alleged to burden the right to earn a living
80 protected by this section. The asserted harm shall arise directly from the lawful practice
81 of the occupation itself, and not from independent criminal or unlawful conduct by third
82 parties.
8311. A regulation shall not be justified on the basis of moral disapproval,
84 generalized psychological impact, or the desire to discourage lawful but disfavored
85 conduct. Evidence offered by the government to justify a regulation shall demonstrate a
86 substantial causal relationship, and not mere correlation or statistical association,
87 between the regulation and the prevention of the asserted harm.
8812. A regulation shall not be deemed necessary if the asserted harm is already
89 addressed through existing criminal, civil, or administrative law unless the government
90 proves by clear and convincing evidence that such existing law is inadequate.
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9113. The court shall award reasonable attorney's fees and costs to any person who
92 proves the government violated this section.
9314. Nothing in this section supersedes or preempts any existing cause of action
94 that a person may have under the federal or state constitutions, any statute, or the
95 common law. This section instead provides an additional layer of protection for the
96 right to earn a living.
9715. If any provision of this section or its application to any person or
98 circumstances is held invalid, the invalidity does not affect other provisions or
99 applications of this section that can be given effect without the invalid provision or
100 application.
10116. The state of Missouri hereby waives sovereign immunity as to nominal
102 damages up to one dollar for each claim for any act by a state or local government
103 official that violates this section by unlawfully burdening the right to earn a living.
104 Further, any government official who, through act or omission, unlawfully burdens the
105 right to earn a living by enforcing restrictions found to violate this section is liable for
106 nominal damages up to one dollar for each claim and is not entitled to qualified
107 immunity or any other type of immunity for nominal damages.
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