MUNICIPAL ATTORNEYS NEWSLETTER

Missouri Municipal Attorneys Association

1727 Southridge Drive, Jefferson City, MO 65109                                                                               

573-635-9134, Fax: 573-635-9009          

April 08, Issue #4/08 

Editor Howard C. Wright   

Asst. Editor Ragan Wright

NEWS FOR YOU

SUMMER SEMINAR.  Enclosed with this issue of the Newsletter is registration material for the City Attorney’s Annual Summer Seminar. This year’s Seminar will be held July 18-20, 2008 at Tan-Tar-A Resort. Please return the registration material to the Municipal League headquarters. There is no separate room reservation card for Tan-Tar-A this year. For reservations call 800-Tan-Tar-A. Room rates are $122. The tentative program listed on the registration materials is just that – tentative. If you have a better idea for topics, please let us know.

DUES. You will find enclosed a dues statement for membership in the Municipal Attorneys Association. Please pay promptly.

              If you are not currently a member of the association and would like to join, simply complete the enclosed form and return it along with payment.

LOU CZECH AWARD NOMINATIONS. The committee appointed by the Missouri Municipal Attorneys Association is soliciting nominations for the Lou Czech Award, which will be presented at the Summer Seminar July 18-20, 2008, at Tan-Tar-A.

              Nominees are limited to full members of the Missouri Municipal Attorneys Association and former members of the association gone from the state or profession less than three years. The committee will review the applications using the following criteria:

              1.  The individual’s professional accomplishments in serving the public’s interests and the various governmental jurisdictions wherein the nominee was employed.

              2.  The professionalism exhibited by the nominee in his/her relationship with elected officials, the public and other local government professionals. The committee also will consider the nominee’s time and effort spent in training and supporting young professionals just entering the field.

              3.  The individual’s accomplishments in addition to service to the employing jurisdiction; time and effort spent serving the local, state and international city attorneys associations; serving on Municipal League committees and in other capacities that have proven beneficial to the public welfare or the promotion of the profession of municipal law.

              4.  The nominee’s record of ethical conduct in all private and professional matters that bear on the individual’s acceptability of the Lou Czech Award.

              If you have a nomination, please submit the name and reasons you think the person should receive the award to Gary Markenson, Missouri Municipal League, 1727 Southridge Drive, Jefferson City, MO 65109.

CASE OUTLINES (MISSOURI)

No retroactive benefits.  Sihnhold’s 18-year service as an administrative law judge ended in 1989.  When he left the service, he was vested in the state retirement system but by law benefits could not

start until he was 65 years of age.  In 1999, the General Assembly passed legislation that allowed retirement benefits to begin at 62 years of age.  Sihnhold filed a declaratory judgment action alleging that he should be entitled to receive benefits at the age of 62.  The circuit court held that the application of the grant of compensation would be an unconstitutional grant of extra compensation under Article III, Sections 38(a) and 39(3) of the Missouri Constitution.  On appeal, the Missouri Supreme Court held that allowing Sihnhold to receive additional compensation violated the above constitutional provisions because he would obtain benefits that he was not eligible for at the time when he retired citing several 1975 cases.  Sihnhold v. Missouri State Employee Retirement System, (SC88813, 04/01/08).

CITY/COUNTY CONTRACT FOR POLICE SERVICES IS GOVERNMENTAL AND PROTECTED BY SOVEREIGN IMMUNITY.  Michael Conway  had a long history of mental illnesses and depression.  When he learned his brother’s family was coming by his mother’s house where he lived, he locked himself in his room after threatening to hang himself.  His mother called her other son, Davis, to tell him not to come over since Michael was having a bad day and threatened to kill himself.  Davis placed an emergency call to the 911 operator requesting that the police check out the situation.  The 911 operator dispatched the police and called the mother who told the operator that Michael had calmed down.  This information was relayed to the officers who had been dispatched although they deny ever receiving the information.  When the police arrived, the mother again checked on Michael, who told her to have the police leave and she then asked the police to leave the residence.  The police did not leave but instead kicked down the door to Michael’s room where Michael confronted them with a swinging sword and an unknown object in his other hand.  The police discharged a beanbag but when Michael kept coming at them with the sword the officer shot and killed Michael.  A wrongful death suit based upon the Civil Rights Act, 42 U. S. C. 1983 and certain state law claims were filed against the officers in federal district court.  The officers filed a motion to dismiss the 42 U. S. C. 1983 claim and the state law claims.  The federal district court sustained the motion to dismiss with prejudice as to the 42 U. S. C. 1983 claim and dismissed plaintiff’s state law claims without prejudice.  Plaintiffs subsequently brought an action against St. Louis County, the city of Winchester, and the police officers in St. Louis County Circuit Court.  This petition alleged counts of wrongful death, intentional or reckless infliction of emotional distress, failure to properly supervise, civil conspiracy, breach of contract by the police defendants, negligence, respondeat superior, and breach of contract by St. Louis County (County) and the city of Winchester (City).  Defendants moved for summary judgment which was granted. Plaintiffs then appealed.  The Eastern District found that no matter how tragic the event was, the officers were entitled to official immunity because their acts were discretionary and they were not acting in bad faith or malice.  The civil conspiracy claim failed since there cannot be a civil conspiracy without an underlying tort which did not exist due to the finding of official immunity.  Further, the trial court did not err in dismissing the claim for infliction of emotional distress because the defendants did not act intentionally or recklessly.  With respect to the allegation that the contract between City and the County was not governmental and actions taken there under were not protected by sovereign immunity the court found that an inter-local agreement for police services between the City and Couty was governmental.  Conway, et al. v. St Louis Count, et al. (ED90326, 04/01.08).

              Comment Howard. This case is very useful because it holds that the services under the inter-local agreement are protected by the doctrine of sovereign immunity.  There may be other cases on this question but this is the only case I have seen on this point.

Proof of abandonment OF ROAD REQUIRES CLEAR AND COGENT PROOF.  Abandonment of a public road that had been established requires the person asserting the abandonment to carry the burden of proof showing abandonment by clear and cogent proof.  This is a difficult standard to meet requiring proof of five years in which the road had not been used.  Just showing the road was blocked by large trees that appeared to be older than five years based on their diameter was not enough without some testimony about the type of tree, its age, and how that relates to its diameter.  The court appears to have been strongly influenced by the fact that without access to the road, the property would have been landlocked.  Barris v. Mercer County et al., (WD67601, 04/01/08).

HIGHWAY PATROLMAN ACTIONS OUTSIDE WORK WERE GROUNDS FOR DISMISSAL.  Ehler was a patrolman with the Missouri State Highway Patrol (MSHP) and was involved in a domestic dispute at home with his wife while intoxicated resulting in a call to 911 as an emergency.  Ehler butted his wife with his head resulting in her head hitting the wall.  He had several other incidents for which he was previously disciplined.  MSHP charged him with conduct unbecoming a highway patrol officer.  Said conduct includes that which has a tendency to adversely affect, lower, or destroy public confidence in the patrol.  RSMo 43.150 establishes a board to remove or discipline members of the (MSHP) consisting of six, unbiased members including one nonvoting captain, one sergeant, and four members of the same rank as the accused member.  The nonvoting captain presides over the hearing.  The hearing was held and all members of the board including the nonvoting captain signed the recommendation to substantiate the charges and terminate Ehler.  There was a dispute as to whether or not the nonvoting captain’s signature on the recommendation was a vote although his signature did not indicate whether or not he voted.  Ehler was terminated and he appealed to circuit court which reversed the board’s decision.  The Eastern District found that Ehler’s actions constituted conduct unbecoming of a member of the MSHP.  In addition, since all of the other five members of the board signed the recommendation, the signature of the non-voting captain was a harmless error.  The circuit court’s decision was reversed.  Ehler v. Missouri State Highway Patrolman, (WD68321, 03/11/08).

              Comment Howard. This is a very good case for the proposition that certain incidents outside the workplace are grounds for disciplinary action.  Also of interest, is the impact the actions of one non-voting member of the board can have when they do not comply with the requirements of state law which was deemed a harmless error since the signing of the recommendation did not affect the decision.

REASONABLE USE RULE APPLIES TO CHANGE OF SURFACE WATER DRAINAGE.  The Larsons and Angeles own adjacent properties in St. Charles County.  The Larson’s' backyard abuts the Angeles’ back yard. The Larsons hired Pool Pros to install a swimming pool in their back yard, which resulted in a change of the surface water drainage altering the surface water flow in Angeles’ back yard.  The altered water flow caused the Angeles’ basement and backyard to retain water causing damage to their property.  The Angeles’ petition contained counts for negligence, nuisance, and negligence per se arising from the Larson’s installation of the swimming pool and the alleged changes in surface water flow.  Subsequently, the Larsons filed an action against the third-party defendant, Pool Pros.  The jury found the Larsons were negligent by changing the contour of their property and causing water to flow on the Angeles’ property awarding the Angeles $7,500 and in favor of the Larsons on their third-party claim against Pool Pros.  Defendants appealed to the Eastern District.  The verdict for Angeles was reversed because they submitted their case using MAI verdict director based on negligence and negligence per se (failure to have surface water run-off plan and permit approved by the city of O’Fallon) rather than a nuisance as required by Angeles v. Larson, (ED89869, 04/08/08). 

              Comment Howard. The opinion analyzes the elements needed to establish a case for nuisance as required by the reasonable use rule as set forth in Heins when surface water drainage is changed.

RULES FOR LIQUIDATED DAMAGES.  Local governmental lawyers regularly draft and review contracts with liquidated damage clauses.  Rules for establishing a valid liquidated damage clause are stated in Valentine’s, Inc. v. Ngo, (28570, 04/10/08).  “The general rule is liquidated damages clauses are valid and enforceable, while penalty clauses are invalid.  Liquidated damages are a measure of compensation which, at the time of contracting, the parties agree shall represent damages in case of breach.  Penalty clauses, on the other hand, are a punishment for breach.”  “Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of anticipated or actual loss caused by the breach and the difficulties of proof of loss.  A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy.” 

PRIOR INJURY FROM ACCIDENT DOES NOT PROHIBIT CLAIM FOR DUTY DISABILITY.  The Board of Trustees (Board) of the Police Retirement System of the city of St. Louis filed an appeal from the circuit court's judgment reversing its decision to deny service-connected disability benefits to John Dean Warner, who fell during a police training exercise.  In May 2003, Warner was undergoing police training in a field when he stepped in a hole, which caused his back to pop.  He did not experience immediate pain but went to the hospital at that point he also reported the injury to his supervisor.  Warner was eventually diagnosed with a very large herniation in the disc and underwent a CT scan.  The herniation appeared to be so large that the radiologist was concerned that it was not a herniation, but a tumor.  In October 2003, he had  spinal fusion surgery.  Before the May 2003 accident, Warner had been diagnosed with degenerative disc disease and he had other back problems.  The central issue was whether the Board erred in applying the law in finding that Warner was unable to prove his disability was the "natural and proximate result" of "an accident" pursuant to section 86.263, RSMo which required, the claimant to establish, that he “has become totally and permanently incapacitated for duty at some definite time and place as the natural and proximate result of an accident occurring during the actual performance of duty through no negligence on the member's part ...”  The Board concluded that the claimant's incapacitation was not a proximate result of the May 12 fall because in 2000 the claimant had a previous herniated disc that resulted in surgery.  The Eastern District found that the Board erred in applying the law to the facts and finding that the claimant did not prove the element of "an accident."  Case remanded for further findings as to whether the claimant's incapacitation was a "natural and proximate result" of the May 12 fall. John Dean Warner, III, Respondent v. Sgt. James Wurm , (ED89878, 04/01/08).

              Comment Howard. This case should be of interest to those involved in a duty-connected disability claim, where there is an allegation of prior injury under a similar statute since the court clarifies the law in this area.

UNFUNDED MANDATES REMEDY UNDER HANCOCK IS TO DECLARE THE LAW UNCONSTITUTIONAL OR REQUIRE THE STATE TO FUND THE MANDATE.  Taylor, a resident of Ste. Genevieve County, filed suit against the state of Missouri challenging the constitutionality of the State's "Concealed-Carry Act," which authorizes the issuance of permits for persons to carry concealed firearms. Taylor claimed that the statute violated Article X, Section 16 through 22 of the State’s Constitution, known as the "Hancock Amendment," and that concealed weapon permits issued under the law should be invalidated. The trial court entered summary judgment for the State and Taylor appealed. The Missouri Supreme Court in Brooks declared the Concealed-Carry Act's funding mechanism unconstitutional. In 2005, the General Assembly responded by enacting legislation that provided that "the sheriff of every county, regardless of classification, is authorized to pay, from the sheriff's revolving fund, all reasonable and necessary costs and expenses for activities or services occasioned by compliance with the new law. By providing for payment of "all reasonable and necessary costs" of processing the permit applications, the revised funding mechanism under Section 50.535, RSMo Supp. 2006, addressed the Hancock violation identified in Brooks.  The only remedy for an unfunded mandate is to declare the mandate unconstitutional or to declare that the State must provide full funding. Voiding the permits does not in any way restore to the county and its taxpayers the money that was expended in issuing the permits.  Taylor v. State of Missouri, et al., (SC88559, 03/18/08). SC88559: Ed Taylor, Appellant v. State of Missouri, et al., Respondents.

HOW TO COMPUTE PREJUDGMENT INTEREST IN INVERSE CONDEMNATION CASE.  On May 8, 2002, significant rainfall seeped into and overloaded the city of Oak Grove’s sanitary sewer system.  This overload caused sewage to come up through the toilets and bathtubs in four of the Akers' eight apartment units.  The sewage was more than a foot deep in these apartments, creating extensive damage and forcing the residents to move out.  The Akers filed suit against the City on a claim of permanent inverse condemnation, seeking recovery for diminution in value of the property, as well as the loss of use of the property, which in this case constituted lost rent. Prior to the trial, the Akers informed the City and the court that they planned to seek prejudgment interest on any potential award.  Both parties stipulated that the determination of prejudgment interest would be made by the trial judge rather than the jury.  The parties also agreed that the date of taking, if one occurred, was May 8, 2002. At trial, the Akers' expert witness estimated a reasonable cost of repairing the apartments at $106,213.27.  The Akers also requested lost rental income in the amount of $37,350. The jury found for the Akers and awarded them $110,000.  The Akers then moved for prejudgment interest from the date of taking through the date of the verdict.  The trial court awarded prejudgment interest in the amount of $25,791.12.  The City has since paid the judgment with the exception of the prejudgment interest.  The City appealed the award of prejudgment interest on the grounds that this case involved a temporary partial taking for which prejudgment interest is not appropriate.  In the alternative, it argued that even if prejudgment interest was available, it should have been determined by the jury rather than the judge.  The Missouri Supreme Court concluded that Akers suffered a temporary partial taking and the basic measure of damages is the fair market rental value of the property during the time it was taken.  The Akers also were entitled to compensation to repair their property. As each payment accrues, whether for loss of rental or repairs, interest would begin to run on that payment from the date of accrual.  It was error for the trial court to calculate interest for all of Akers' accumulated damages as if they originated on the same date and it was error for the trial court to award this interest at a rate of 9 percent when it should have been at 6 percent.  The judgment was reversed and remanded as to the calculation of prejudgment interest and affirmed in all other respects.  Ackers v. City of Oak Grove, (WD65220, 03/18/08).

BACK TO SCHOOL ON DAMAGES FOR INVERSE CONDEMNATION.  The opinion above takes us back to school on damages when the government takes property through inverse condemnation.  If you need a primer on the issue of damages in inverse condemnation cases this case is it.

AWARD IS EXCESSIVE SINCE PROOF DID NOT SUPPORT REAL AND PERSONAL PROPERTY DAMAGES.  Collier, a resident of Oak Grove, suffered some 13 separate sewage backups between 1992 and 2004 resulting in raw sewage spilling into Collier's basement.  The sewage created a nauseating smell so strong that Collier became physically ill and that eventually produced mold causing her to have to vacate her house and destroy her personal property.  Collier brought an inverse condemnation claim against the City seeking damages for real and personal property loss and a separate claim for her physical injuries.  The jury awarded Collier $200,000 on her real and personal property damage claim and $60,000 on her personal injury claim.  The court awarded prejudgment interest on the inverse condemnation claim at 6 percent from the date of the first uncompensated backup, June 30, 1993, until the date of judgment in the amount of $139,528.76.  The court overruled motions for remittitur or a new trial.  The City appealed, arguing that the inverse condemnation award was excessive and that the prejudgment interest was inappropriately awarded and excessive.  Collier's pleadings and testimony did not make clear whether she was asserting a permanent or temporary taking.  The jury verdict lumped together the real property and personal property damages at $200,000.  Viewing the evidence in the best light the maximum damages to the real property was $100,000.  Collier’s evidence with respect to damages for specific personal property was $15,000 leaving a gap of $85,000 for damages to unspecified personal property which was not proven by sufficient evidence to allow the jury to determine its value with “reasonable certainty.”  The trial court erred by not ordering remittitur.  The case was remanded for a new trial or remittitur.  With respect to the prejudgment interest, the case was remanded and the trial court was referred to the Ackers case as to how this should be computed.  Collier v. City of Oak Grove, (SC88580, 03/18/08).  

              Comment Howard.  The Collier case applies principles set forth in Ackers illustrating how confusion reigns when a plaintiff mixes up her theories.  Obviously, sewer back-up cases still remain a big issue for local government.

FIRE PROTECTION DISTRICT CASE IMPACTS ANNEXATION STATEWIDE.  Paul Campo reports that a recent Jackson County Circuit Court decision in South Metropolitan Fire Protection District v. The City of Lee’s Summit, Case No. 0716-CV31962 could substantially impact annexations by municipalities when there is a fire district in the annexed area.  The circuit court took out of context two subsections of 72.418, which was part of the boundary statute applicable only in St. Louis County by holding, that these two subsections apply to all annexations by municipalities.  If these subsections apply statewide, fire protection districts can continue to provide fire protection services and emergency medical services in the annexed area to the exclusion of the annexing municipality.  It will also freeze the fire protection district levy as of the date of the annexation and continue the levy for bonded indebtedness.  It is very clear that many communities have a strong interest in this case and should file an amicus brief with the MML in support of Lee’s Summit.

TIRED OF HAVING YOUR STREETS TORN UP?  The March 24, 2008 edition of Missouri Lawyers Weekly reported that a Jackson County jury returned a verdict for the city of Greenwood in the amount of $1.9 million with an additional $10 million tacked on for punitive damages against Martin Marietta Materials and Hunt Martin Materials.  The article reports the mayor stating that the City passed an ordinance to protect the streets from being further damaged.  Seems like the jurors were mad.  Maybe they had run into too many potholes. 

LEGISLATION, NEWS, AND OTHER MATTERS

GENERAL ASSEMBLY MAY BE LAST CHANCE FOR AQUILA.  Last month we reported that Aquila had lost its appeal in the Western District.  Apparently, I grossly underestimated the cost to tear down and the loss to Aquila was about twice as much as we estimated.  There is now a bill before the General Assembly to grant the Public Service Commission authority that would allow the electric generating plant to remain.  When all else fails you can expect those who do not respect the rule of law to ask the General Assembly for relief. 

BOOK ON CLEAN WATER ACT.  The Clean Water Act Handbook is a practice-focused guide to the complex framework of federal and state controls on processing wastewater and storm water.  This book examines the numerous changes to the federal Clean Water Act that affect practitioners working in the area. The Clean Water Act Handbook, Second Edition, Mark A. Ryan, editor Price: $79.95 for members of the ABA Section of Environment, Energy and Resources members /$95.00 for nonmembers.  To order online, please click: http://www.abanet.org/abastore/productpage/5350099. To order by phone, call the ABA Service Center at 800-285-2221 and request product code 5350099. “How State Liability Protections, Eminent Domain Reforms, and Cost Recovery Authority can Spur Local Government Action to Acquire and Redevelop Brownfields” is online and available at: http://www.nemw.org/State_prog_public_agency_action.pdf.

RLUIPA AUDIO-CONFERENCE:  For those who missed the IMLA /Strafford Publications audio-conference on “Avoiding a Zoning Battle between "Ministry" and Municipality ... or Fighting One If You Must: Strategies for Local Governments Facing RLUIPA Claims,” a CD of the entire audio-conference proceedings, including the Q & A portion, and PDF files of all handout materials, is available for purchase.  I thought the program and materials were very good.  If you have a RLUIPA problem this is good place to start.  IMLA members are entitled to a $50 discount off the regular purchase price of $297 (there is also a special price for the CD for those who registered for this event).  See http://www.straffordpub.com/products/tlsmaa-imla; the program outline is available at http://www.straffordpub.com/products/tlsmaa-imla/ProgramOutline.pdf.

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