MUNICIPAL ATTORNEYS NEWSLETTER

Missouri Municipal Attorneys Association

1727 Southridge Drive, Jefferson City, MO 65109               Editor Howard C. Wright

573-635-9134, Fax: 573-635-9009                                     Asst. Editor Ragan Wright  

September 08, Issue #9-08

NEWS AND UPDATES

UPDATE ON SALES TAX LAWSUITS. Tom Burcham, a Farmington attorney, filed suit last month against at least six more Missouri municipalities (Branson West, Mt. Vernon, Sikeston, Granby, Purdy, and Ste. Genevieve). He claims that the cities did not follow proper procedure in passing the sales tax ordinances (did not record the ayes and nays or lost the records) or have excessive rates (such as two, one-half cent capital improvement sales taxes). He requests the court to nullify the sales taxes and to receive attorneys fees. If he is successful in these suits, he will probably bankrupt these cities and about 80 others that are similarly situated. Please let us know if Mr. Burcham files suit against your municipality. We will keep you informed of developments. The MML will seek remedial legislation in the General Assembly next year.

CASE OUTLINES (MISSOURI)

One Free Back flush. Harvard Properties (Harvard) owned four garden apartments in Springfield where there were sewer backups on January 5 and January 13, 2005. Harvard sued the city of Springfield (City). After a bench trial the court awarded Harvard $6,807 which the City appealed to the Southern District. Harvard contends it proved that infiltration of rainwater into the sewer line caused the sewage to back up into the apartments, and the City had notice of the infiltration problem based on multiple backups in the apartments; therefore, it was a nuisance and constituted a taking of property for which Harvard was entitled to compensation. On appeal, the Southern District held that Harvard did not prove the backups were caused by the city sewer main. The evidence also showed that the lateral line from the apartments was three inches below the grade of the main line of the City and that it had a negative slope. In order to properly drain into the main line the lateral needed a positive slope of one-quarter inch per foot. Harvard failed to show that rainwater was the cause of the sewer backup. On the days of the backups, it was shown that there was an elevated flow in the City’s sewer line but it did not backup into properties with properly elevated laterals. The City showed that for many years Harvard had a back flow valve that prevented the water from flowing back into the apartments but this was removed. Citing its recent decision in Basham v. City of Cuba and the Missouri Supreme Courts decision in Blue Springs v. Nixon the court ruled that Harvard failed to prove that the City’s sewer line was the cause of the backup. Harvard Properties, LLC., v. City of Springfield, (28601, 08/29/08).

     Comment Howard: This is the second case in the last two months where the Southern District found that the plaintiffs failed to prove causation in a sewer backup case. The opinion states that the City needs to have notice and must fail to take corrective action in order to prove your case. Sounds like the City gets one free back flush. As we know sewer backup cases are hard to defend so these cases are a welcome sign even if they offer limited defenses. This case carefully lays out the law in this area distinguishing the Independence case and other cases adverse to cities on their facts.

Additional Electric Line did not Add to Property Owners Burden. The city of Jackson (City) took an assignment from Union Electric (UE) of a utility easement condemned by Union Electric in 1969 to construct an additional utility line. Property owners (Owners) alleged that the construction of a utility line was an additional burden on their property not contemplated or within the 1969 taking. They also contested the claim by the City that there was a right to trim, cut, and remove trees and obstructions within an area that was within 25 feet on either side of the utility easement. The circuit court granted the City’s motion for summary judgment and the Owners appealed to the Eastern District. The Eastern District ruled in favor of the Owners holding that based on the examination of the legal description in the 1969 petition, filed in the 1969 condemnation case, showed that UE did not condemn any rights to trim, clear, or remove trees in an area within 25 feet on either side of the easement. The court held that an additional electric line within the existing easement did not create an added burden on the Owner’s property since this was precisely the type of use contemplated in the 1969 condemnation order granting the easement. This right could be assigned to the City from UE. City of Jackson v. Bettilee Emmendorfer Revocable Trust, (ED90711, 09/02/08).

CASE OUTLINES (FEDERAL)

Doctor’s Report Recommending Inpatient Treatment Is Not “Regarded” as Disabled. Kozisek, (Employee) was a war veteran who suffered from Post Traumatic Stress Disorder (PTSD). Employee did not make his employer, the County of Seward (County), aware of his condition. Employee worked part-time as a service officer, a building grounds supervisor, and a general assistance supervisor. Employee got drunk while off duty and shot and killed several pets on his farm. He was arrested for making terrorist threats and for using a firearm to commit a felony. Employee admitted he failed to take his medication for PTSD. The County and the Employee agreed that he would get a psychological and substance abuse evaluation. The evaluator recommended that the Employee complete an inpatient treatment for his alcoholism which he refused. Employee went to his own doctor and “manipulated” the doctor (who did not examine the Employee) into recommending that Employee did not need inpatient treatment and into believing that the Employee had already completed an inpatient treatment program which was false. The County fired the Employee who then sued the County on the grounds that he was disabled under the ADA; that the County regarded him as a disabled alcoholic; that the County violated his right of free speech based on his requests that his job be made full-time; for more funding of his position; and for violations of his civil rights under 42 U. S. C. 1983. The district court held that the County proffered a legitimate reason for the dismissal of the Employee – the refusal of inpatient treatment. The 8th Circuit upheld the district court’s decision holding that the County did not “regard” him as an alcoholic but instead took its action based on the Employee’s refusal of inpatient treatment due to a “very serious incident.” The “regarded as” provision in the ADA was meant to combat “archaic attitudes, erroneous perceptions, and myths” working to the disadvantage of the disabled or those perceived to be disabled. If a restriction is based upon the recommendations of physicians, then it is not based upon myths or stereotypes about the disabled and does not establish a perception of disability. There was no evidence that the PTSD impaired any of Employee’s major life activities or that the County was aware of his PTSD condition when it took its action. Employee claimed that he engaged in protected speech when he asked the County for more money for veterans' issues, and when he requested that his position be made full-time. These communications to the County were made pursuant to his duties as an employee and were not protected speech. Kozisek v. County of Seward, Nebraska, (8th Cir. No. 07-3682, 08/27/08).

Color of Law Under 1983 Action Even if it is Not Authorized by Law. The city of St. Louis (City) in conjunction with the St. Louis Development Corporation (SLDC) and the Land Clearance for Redevelopment Authority (LCRA) acquired some 24 buildings owned by SEITO through the exercise of eminent domain. A large sign was painted on the side of a residential building owned by SEITO which stated “End Eminent Domain Abuse” with a slash across the words without obtaining a sign permit. Notice was given by the City to SEITO in care of Neighborhood Enterprises, Inc. (NEI) of the illegal sign stating that a permit was required. NEI applied for the permit with the City and the City responded with a letter stating that the sign permit did not have the approval of LCRA because it ran afoul of the City’s sign regulation in ordinance #64831CRA and that the applicant may contest the “denial” at the LCRA meetings of May 22 or May 26. After receipt of the letter from the city inspector the City again notified NEI that the permit was illegal because it did not meet certain requirements of the city zoning ordinance and NEI could appeal the denial to the board of adjustment (BOA). NEI appealed to the BOA as suggested by the City where the appeal was denied which was the subject of a separate lawsuit. NEI also appealed to LCRA as suggested by the City in its earlier letter. LCRA acted on the appeal and adopted a resolution expressly denying the sign permit application and authorized the LCRA director “to take any and all other necessary and proper actions to effectuate the intent of the Resolution and Ordinance #64831.” NEI, SEITO, and Jim Roos (collectively referred to as plaintiffs) sued the LCRA, the City, and others in federal court requesting a declaratory judgment with respect to the validity of the sign ordinance, alleging a violation of their right to free speech and due process under 42 U.S.C. 1983. They also claimed that LCRA did not have the authority to grant, deny, or otherwise act on the sign permit; that the defendants did not follow proper procedures under the Missouri Administrative Procedures Act; and the decision was not supported by competent and substantial evidence. The district court granted the City’s motion to substitute parties thereby dismissing all of the parties except the City and its inspector since the city inspector and the BOA had denied the permit. The district court also granted the City’s motion to dismiss because the plaintiffs had initiated another lawsuit based on the BOA denial of the permit. The plaintiffs appealed to the 8th Circuit which reversed and remanded on the grounds that the plaintiffs stated a cause of action under 42 U. S. C. 1983 because LCRA acted or purported to act under “color of law” when it provided an appeal of the permit and adopted a resolution denying the permit, and authorizing its executive director to take action “to effectuate the intent of the resolution.” The 8th Circuit held that even though the LCRA acted outside of its authority, the plaintiffs had nonetheless sufficiently alleged that the LCRA acted under the color of law in purporting to deny the permit and adopting the resolution. Neighborhood Enterprises, Inc. v. City of St. Louis, (8th Cir. No. 07-3673, 08/29/08).

     Comment Howard: We have all faced similar situations in which the city inspector gets it wrong and from that point forward you are bailing water. The adoption of the resolution by LCRA denying the appeal and directing its director to take action “to effectuate the intent of the Resolution and Ordinance #64831” compounded the initial mistake. Even the pleadings of the Plaintiffs that alleged that LCRA did not have authority should have been sufficient to resolve this matter unless the LCRA or its director took some additional action beyond the adoption of the resolution. I understand a long line of cases hold action taken by the government which purports to be action under color of law states a cause of action, but in this case, the LCRA should be entitled to immunity since they were performing a quasi judicial function in reviewing an appeal even though they were mistaken about their jurisdiction to hear the matter. Of course, all that the 8th Circuit seemed to be suggesting is that issues in this case need to be refined based on further litigation. Stay tuned as this gets sorted out.

White Applicants Must Show Discrimination Took Place After Consent Decree Was DissolveD. Unsuccessful white applicants (Applicants) for entry-level firefighting positions filed a reverse discrimination lawsuit against the city of St. Louis (City) in 2001 alleging violations of Title VII and 42 U.S.C. sections 1981 and 1983. In 1976, a lawsuit was successfully brought against the City alleging racially discriminatory hiring and promotion practices. This matter was resolved by a complex consent decree that required the City to hire qualified black candidates “for at least 50 percent of the vacancies for entry level positions.” The 1976 decree provided that it could be modified at any time five years after 1976 and upon a showing that the goals of the decree had been achieved, it could be dissolved. In 1990, the federal government moved unsuccessfully to modify the decree. In 2001, two unsuccessful white Applicants for entry-level positions brought their actions alleging they were victims of unlawful reverse discrimination. In 2003, the district court ruled the decree was constitutional when entered in 1976 but dissolved the decree because its stated goal had been achieved. In February of 2005, the district court granted the Applicants summary judgment on the liability issues and ordered a jury trial on the damages. The jury returned a verdict for the Applicants and the City appealed on the grounds that the court erred in awarding retroactive pay. The 8th Circuit agreed with the City and reversed the holding that the award of retroactive damages prior to the dissolution of the decree in November of 2003 was in error. In addition, the Applicants needed to prove that their damages were caused by a post dissolution hiring practice of the City that occurred after 2003. Martinez v. City of St. Louis, (8th Cir. No. 06-3554, 08/26/08).

Ban From City Facility Upheld. The town of Greenburgh (Town) operates a community center (Center) and employed Williams to work at the Center until June of 2002 when he was laid off. On December 27, 2002, Williams after exercising at the Center, improperly obtained access to a secured locker room in order to use the sauna. Bland the deputy commissioner of the department’s community resources was giving a tour of the Center and found Williams using the sauna at which time he ordered him to leave. Words were exchanged and there was some physical contact between Bland and Williams. Bland called the police who escorted Williams from the Center. At that time, the police told Williams he needed to obtain permission before returning to the Center. The next day Williams returned to the Center to retrieve a watch that he had left from the day before without obtaining permission. When Williams entered the Center he saw Bland but did not stop and explain since Williams believed it was not necessary. Later that day after entering the Center, Williams contacted a member of the Center’s advisory board, who Williams believed gave him permission to use the Center. Bland called the police and Williams was arrested for trespassing. That same day the commissioner for community resources banned Williams from the Center because of his improper conduct. Williams was prosecuted for trespassing and was found not guilty because the court found that the original notice lacked a definitive term. The Town eventually amended the notice of the ban by making it for one year. In November of 2005, Williams again asked to use the Center and his request was granted, then he sued the Town and its officials alleging that the Town violated his due process rights; his right of free speech under the First Amendment; and his right to be free from false arrest under the Fourth Amendment. On cross-motions for summary judgment the district court ruled in favor of the defendant. On appeal, the 2nd Circuit held that the right to travel does not extend to a specific place; that William’s right of free speech was not impeded or chilled; and that his Fourth Amendment right to be free from false arrest was not interfered with since the officers had probable cause to make the arrest because they had no way of knowing that the notice was invalid due to it not having a definitive term. Williams v. Town of Greenburgh, (2nd Cir. No. 06-4897-cv, 07/22/08).

     Comment Howard: If you are considering banning someone from a public facility this is a very good case to review. It is advisable to limit the term and to provide an opportunity for the banned person to explain his or her side to dispute the ban. I suspect that recent unfortunate events will make the courts more sensitive to protecting the public interest from disruptive behavior.

City May Disconnect Utilities After Giving Notice and Opportunity for a Hearing. If your city owns the electrical system, disconnection of electric utilities is always an option particularly when dealing with difficult persons who avoid other city administrative efforts. In this case, the property owner used just about every trick to avoid on site inspections by the City and a hearing with respect to a dangerous building. Finally the City gave the property owner notice that it would disconnect the electricity and provide the owner an opportunity for a hearing. The property owner failed to ask for a hearing and the utilities were disconnected. The 10th Circuit upheld the City action stating the City had authority to order electric utilities disconnected after providing notice and opportunity for a hearing. Spacklin v. City of Blackwell, (10th Cir., No. 07-6287, 08/14/08).

City Council Requirement of Nondenominatial Prayer Upheld. Opening a city council meeting with a prayer does not violate the First Amendment separation of church and state; nor, did the city council policy requiring city councilmembers to offer a nondenominatial prayer violate city councilmember’s rights who was obliged by his faith to end a prayer in the name of Jesus Christ. Turner v. City Council Of the City of Fredericksburg, Virginia, (4th Cir. No. 06-1944, 07/23/08).

     Comment Howard: Periodically we get questions on our list serv about city council prayers. This is a great case to start your research because the opinion is particularly persuasive since it was written by Associate Justice Sandra Day O’Conner (retired).

Legislation and Other Matters

Track Record on Takings Legislation. IMLA reports that the “Track Record on Takings Legislation – Lessons from Democracy’s Laboratories,” by John D. Echeverria and Thekla Hansen-Young (Georgetown Environmental Law & Policy Institute, Georgetown University Law Center) is available online. The 62-page report examines the experiences of two states, Florida and Oregon, with so-called takings “compensation” measures. The goal of the report is to identify the lessons from these states that might be useful to citizens and policy makers in other jurisdictions considering similar measures. See http://www.law.georgetown.edu/gelpi/TrackRecord.pdf .

Wireless Association. IMLA reports in its August 20, 2008 IMLA Newsetter that The Wireless Association, an industry group, has asked the FCC to interpret “ambiguous provisions of section 332 (2)(7) of the Communications Act of 1934” to ensure federal goals favoring the deployment of wireless telecommunications networks and competition are not to be undermined by state and local government zoning authorities charged with taking action on cell tower requests. The groups seek to have a shot clock of 45 or 75 days for zoning applications; rule that applications are automatically deemed approved if local government misses the FCC deadline; prevent local government from considering the presence of service of other carriers in evaluating the application; and preempt any ordinance that would effectively require a variance for every tower application. The law firm of Miller & Van Eaton has prepared a comprehensive analysis of the petition that can be found at: http://www.imla.org/images/publications /newsletter/millervaneatoncita.doc. You may want to consider informing your city council and members of the planning and zoning commission of this threat to local authority.

ADA Amendment Act. Congress just passed the ADA Amendment Act of 2008 that expands the definition of “disability” by removing a reference “substantially limiting one or more major life activities.” It also provides a new definition of “substantially limits” to mean “substantially restricts” which is not defined. It defines “regarded as having an impairment” as being perceived or being treated as having a physical or mental impairment.” A copy of the House version of this bill is at http://thomas.loc.gov.

HOW TO OBTAIN OPINIONS

The material contained in this Newsletter is summarized as a service to MMAA members. Almost everything cited in the Newsletter can be found on the Internet. There are a variety of places to search for cases on the internet. Below are several sites that I use for searches. If you have questions or comments please feel free to email me at howardcwright@mchsi.com or call us at 417-569-0386.

Missouri: http://www.courts.mo.gov/courts/pubopinions.nsf.,

Federal: http://www.ca8.uscourts.gov/onestop.html.

Supreme Court: http://www.supremecourtus.gov/

Other sources: www.findlaw.com and http://www.molawyersweekly.com/.

The opinions cited in this Newsletter may be subject to revision or withdrawal prior to publication.