Creates the "Missouri Entrepreneurial Freedom Restoration Act"

SECOND REGULAR SESSION
SENATE BILL NO. 1439
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR SCHROER.
5911S.01I KRISTINA MARTIN, Secretary
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 1
one new section, to be known as section 1.340, to read as 2
follows:3
1.340. 1. This section shall be known and cited as 1
the "Missouri Entrepreneurial Freedom Restoration Act". 2
2. The general assembly finds and declares the 3
following: 4
(1) The right of individuals to pursue a chosen 5
business interest, occupation, trade, or profession free 6
from arbitrary, unreasonable, or excessive government 7
interference is a fundamental right; 8
(2) The original public meaning of Article I, Section 9
2 and Article I, Section 10 of the Constitution of Missouri 10
enshrined the right to earn a living as a fundamental 11
right. These constitutional provisions recognized that the 12
right to earn a living is deeply rooted in the history and 13
tradition of Missouri and of this nation, the common law, 14
and natural law; 15
(3) Nevertheless, in Williamson v. Lee Optical, Inc., 16
348 U.S. 483 (1955) and the Slaughter-house Cases, 83 U.S. 17
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36 (1872), the U.S. Supreme Court virtually eliminated the 18
requirement that the government justify burdens on the right 19
to earn a living despite its enshrinement in the Fourteenth 20
Amendment to the U.S. Constitution. This state’s courts 21
have largely followed suit in interpreting the right to earn 22
a living under the state constitution, thereby leaving it 23
unprotected; 24
(4) Overly burdensome restrictions on the right to 25
earn a living impede economic growth, hinder job creation, 26
and limit consumer choices without promoting public health, 27
safety, or welfare; 28
(5) Heightened judicial review requiring the 29
government to justify the burdens it imposes on the right to 30
earn a living provides a workable test for striking sensible 31
balances between the right to earn a living and competing 32
government interests in public health, safety, and welfare; 33
(6) Economic protectionism is never a valid government 34
interest and cannot justify burdens on the right to earn a 35
living. 36
3. The purposes of this section are: 37
(1) To restore judicial protection of the right to 38
earn a living by requiring courts to apply heightened 39
judicial review to government restrictions that 40
unnecessarily burden the right to earn a living; 41
(2) To promote economic opportunity, competition, and 42
individual freedom by removing unnecessary restrictions on 43
pursuing a livelihood in businesses, occupations, 44
professions, and trades; 45
(3) To provide a claim or defense to individuals when 46
the government unnecessarily burdens their right to earn a 47
living. 48
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4. The provisions of this section apply to all state 49
and local laws, and implementation of those laws, whether 50
statutory or otherwise, and whether adopted before or after 51
the enactment of this section. State and local laws adopted 52
after the enactment of this section are subject to this 53
section unless such law explicitly excludes such application 54
by reference to this section. 55
5. The right to earn a living in the businesses, 56
professions, occupations, and trades of life is the very 57
essence of personal freedom and opportunity. The state of 58
Missouri recognizes it as a fundamental right and nothing in 59
this section shall be construed to authorize any 60
governmental body to burden the right to earn a living. 61
6. State and local governments, including their 62
branches, departments, agencies, instrumentalities, and 63
officials, or other persons acting under the color of state 64
or local law, shall not burden a person’s exercise of their 65
right to earn a living unless the requirements of subsection 66
7 of this section are met. Government restrictions that 67
burden the right to earn a living without satisfying 68
subsection 7 of this section constitute a violation of this 69
section, making the governmental body liable for legal and 70
equitable relief. 71
7. Government restrictions that burden the right to 72
earn a living do not violate this section if the 73
governmental body demonstrates through clear and convincing 74
evidence that: 75
(1) Applying the burden to the person is necessary to 76
protect public health, safety, or welfare; 77
(2) Applying the burden to the person is the least 78
restrictive means to achieve the law’s stated purpose; and 79
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(3) Alternative mechanisms, such as voluntary 80
certification or less restrictive regulatory measures, could 81
not achieve the stated government interest without 82
unnecessarily restricting entry into the occupation. 83
As used in this subsection, the term "welfare" shall be 84
narrowly construed to mean only the protection of the public 85
against fraud or physical or psychological harm. "Welfare" 86
shall not mean the protection of businesses or agencies, 87
whether publicly or privately owned, against competition. 88
8. A person whose right to earn a living has been 89
burdened in violation of this section may assert that 90
violation as a claim for relief in a court of competent 91
jurisdiction in this state and as a defense in any judicial 92
or administrative proceeding. A court may issue 93
declaratory, injunctive, or other equitable relief, and 94
nominal damages to any person who proves a violation of this 95
section. 96
9. A person intending to engage in a specific 97
business, profession, occupation, or trade but hindered from 98
working by a burden on the right to earn a living, whether 99
or not currently engaged in a specific business, profession, 100
occupation, or trade, shall have standing to bring a claim 101
or defense asserting a violation of this section without 102
being required to first apply for, obtain, or be denied a 103
relevant occupational license or certification. 104
10. A person asserting a claim for nominal damages for 105
a violation of this section has standing to challenge 106
restrictions alleged to burden the right to earn a living 107
protected by this section. 108
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11. The court shall award reasonable attorney fees and 109
costs to any person who proves the government violated this 110
section. 111
12. Nothing in this section supersedes or preempts any 112
existing cause of action that a person may have under the 113
federal or state constitutions, any statute, or the common 114
law. This section instead provides an additional layer of 115
protection for the right to earn a living. 116
13. If any provision of this section or its 117
application to any person or circumstances is held invalid, 118
the invalidity does not affect other provisions or 119
applications of this section that can be given effect 120
without the invalid provision or application. 121
14. The state of Missouri hereby waives sovereign 122
immunity as to nominal damages up to one dollar for each 123
claim for any act by a state or local government official 124
that violates this section by unlawfully burdening the right 125
to earn a living. Further, any government official who, 126
through act or omission, unlawfully burdens the right to 127
earn a living by enforcing restrictions found to violate 128
this section is liable for nominal damages up to one dollar 129
for each claim and is not entitled to qualified immunity or 130
any other type of immunity for nominal damages. 131
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