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

March 08, Issue #3/08

NEWS FOR YOU

MMAA SUMMER SEMINAR. The Missouri Municipal Attorneys Association Summer Seminar will be held at Tan-Tar-A Resort on July 18-20. We need your assistance in planning the program. Please send your suggestions as soon as possible by e-mail to Gary Markenson at gmarkenson@mocities.com or fax your suggestions for topics and speakers to 573-635-9009. If you remember to send your suggestions, we can almost promise you will not be arbitrarily assigned to present on a complex topic that will require extensive research. We look forward to hearing from you.

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.

LEGAL COUNCIL RFP. The city of St. Joseph is currently requesting proposals from qualified law firms to provide legal counsel, on an as-needed basis, in the following specialized area: economic development – (proposals due by 3:00 p.m. Friday, April 25, 2008). For further information, please contact: Patty Robbins, Division of Purchasing, Room 201, City Hall, 1100 Frederick Avenue, St. Joseph, Missouri 64501. Telephone: 816-271-5330; facsimile: 816-271-4697; e-mail: probbins@ci.st-joseph.mo.us.

CASE OUTLINES (MISSOURI)

City of Arnold Wins Eminent domain Case. City of Arnold (City) sought to condemn land owned by Homer Tourkakis (Owner) that was blighted pursuant to Section 99.820. City moved for the appointment of commissioners and the circuit court of Jefferson County granted Owner motion to dismiss on the grounds that Article VI, Section 21 of the Missouri Constitution limited the power to blight and acquire such property to home rule cities. The Missouri Supreme Court held that Article VI, Section 21 allows the General Assembly to pass laws for non-charter cities to blight land and acquire the blighted property. The court further found that the General Assembly authorized the city of Arnold, a non-charter city, to blight and acquire land. The phrase “laws may be enacted” in Article VI, Section 21 that indicates that the General Assembly has the authority to pass laws to allow non charter cities to eliminate blighted areas. City of Arnold v. Tourkakis, (SC88647, 03/18/08).

              Comment Howard. This is a very short and straight forward opinion. I would expect that opponents of the use of eminent domain will use this case as a springboard for their constitutional amendment for which they are now collecting signatures. This amendment not only limits the use of eminent domain to acquire blighted property for economic development purposes but also makes a change in law or zoning by a local community subject to damages. The amendment provides “and that private property, or the right to the use, sale, or enjoyment of private property, shall not be directly or indirectly taken or damaged unless such taking is necessary for a public use and just compensation is rendered.” The ballot language does not reflect the true implications of this change to the Missouri Constitution. Stayed tuned.

MUST BE an aggrieved person to APPEAL CONTESTED CASE. The city of O’Fallon approved a subdivision with a condition that the developer construct New Koch Road which would be paid for by the developer. Upon construction of New Koch Road, a section of old Koch Road, a county road, was to be vacated. The plan was to vacate two sections of old Koch Road and tie it back into New Koch Road. Residents of the township through which old Koch Road runs filed a petition pursuant to 228.110 RSMo to vacate part of the old Koch Road. Some 38 residents (Remonstrators) filed a remonstrance against the vacation of the road pursuant to 228.110.3 RSMo. St. Charles County (County) held a public hearing on the petition and thereafter voted to vacate the road. Remonstrators appealed the decision to the circuit court which reversed the action of the County to vacate. On appeal, the Eastern District held that the Remonstrators were not “aggrieved” parties and had no standing to challenge the decision of the County to vacate under Chapter 536, the Administrative Procedure Act. The court reasoned based on an earlier Southern District case, that provisions of Chapter 536 control over Chapter 228 of the state law relating to appeals from a decision to vacate a county road. Under Section 536.100 you must be an “aggrieved person” in order to obtain judicial review of a contested case. In this case, the Remonstrators did not demonstrate that they had a “specific and legally cognizable interest” in the matter. All they showed was a general interest that was no different than the general public. They were only complaining about being inconvenienced. There were no tax dollars spent on the new or relocated road and they failed to show they had any property interest. The court noted that the decision made by the County was largely a policy decision based on the fact that the new road was safer than the old road. Davis et al., v. St. Charles County, et al., (ED90063 and ED90064, 03/04/08).

              Comment Howard. It is refreshing to know that there is not a legal remedy for every alleged wrong. This opinion is very important because it establishes criteria to determine standing to appeal a contested case under Chapter 536. If you have questions about the standing of a person to challenge an administrative decision this is the starting point. It would seem that the same rule would apply to non-contested cases.

PSC DO OVER FOR AQUILA FAILS. This case is one in a series of cases involving the construction of a power plant in Cass County by Aquila without first obtaining proper zoning from Cass County or PSC approval prior to the construction of an $80 million dollar electric power generating facility. In Aquila I, decided by the Eastern District in 2005, the court held that the Cass County zoning laws applied to this facility unless the PSC granted approval of the power plant prior to its construction. After the decision in Aquila I, Aquila requested that the PSC approve the power plant that had already been constructed and the request was granted by the PSC. The PSC decision was appealed to Cole County Circuit Court, which set aside the PSC decision. Aquila appealed to the Western District which held that the PSC lacked authority to grant a post hoc CNN approving construction and that the PSC order was a nullity. Aquila argued that the general provisions of PSC statutes gave the PSC authority to grant the permit after the fact. This argument failed in the face of a very specific provision of state law requiring approval before construction started. State ex rel. Cass County, v. Public Service Commission for the State of Missouri, Aquila, Inc. (WD67739, 03/04/08).

 Comment Howard. This is nearly the last stop in Aquila’s epic efforts to block the order of the circuit court requiring this $80 million dollar plant to be torn down. Besides producing a lot of litigation this case may be best remembered for the great quote by the Western District in response to Aquila’s action in proceeding to construct without first securing a PSC permit or proper zoning. “Apparently believing that it is easier to ask for forgiveness than it is to get permission, Aquila chose a different course of action.” Congratulations to MMAA member Debbie Moore for slaying Goliath.

DEFINITION OF BLIGHT UNDER TIF STATUTE. For several years, we have been watching a battle of the Titians over the development of a TIF project on a 1,640-acre tract of farmland (Area) in the northeast corner of the city of St. Peters (City). Critical to the use of a TIF is the definition of blight and making sure that your city has followed all of the prerequisites set forth in the TIF statute. This all comes into focus in Great Rivers Habitat Alliance, et al, v. City of St. Peters. In 1999, the City adopted an ordinance approving a development plan for the Area. The Great Rivers Habitat Alliance (GRHA) challenged the ordinance and the City filed a motion for summary judgment that was granted by the circuit court. On appeal to the Eastern District, the court reviewed the adequacy of the determination of blight and whether or not the City met statutory preconditions to establishing a TIF. The first step in the court’s analysis was to break down the definition of blight into its components so that the evidence could be matched against the definition. The City based its case for blight on the Area having an inadequate street layout and by conditions in the Area that endanger life or property by fire or other causes. GRHA argued that the streets were adequate for the land as it already exists, namely as agricultural land. The City argued that the street layout would be inadequate for future mixed use development. The City lost on this argument since the definition of blight requires that it be based on present conditions and uses. The existing street system was adequate for the agricultural use. With respect to proof of certain conditions, such as whether the conditions endangered life or property the City relied on the risk of flooding showing the 1993 flood when the Area was under water as conclusive proof for its point. Nevertheless, GHRA disputed this arguing that the benefits of flooding on agricultural land (Nile River effect) and the sufficiency of the City’s proof. The court found that the City failed to connect the flooding to the endangerment of life or property. In addition, the City did not show the degree and the extent of the flooding other than the 1993 flood. Since the City failed to prove either of the two factors as blight, there was no reason to further consider whether or not the City proved that the Area was blighted under the other part of the blight definition. In order for a city to be able to use TIF, it must show that without the TIF funding the project would not occur. The City relied on the need to build a flood protection levy as the basis to establish the need for the TIF. The court noted that the City’s reliance on this as the basis for the TIF defied logic since the levy project was currently under construction without any TIF funding; therefore the City failed the “but for” test. The City also failed to prove that the redevelopment plan conformed to the master plan. For these reasons, the City was not entitled to summary judgment and the matter was remanded for further proceedings. Great Rivers Habitat Alliance, et al, v. City of St. Peters, et al, (WD67047 and WD67049, 03/04/08).

              Comment Howard. For those involved in economic development this case provides an extremely comprehensive analysis and breakdown of the definition of blight under the TIF statute and analysis of other findings a city must make in order to use TIF.

municipal court conviction does not count under persistent offender law when there is an sis. On March 29, 2005, Turner was charged by indictment under Section 577.010, RSMo (2000), for driving while intoxicated. The indictment alleged that Turner was a persistent offender under Section 577.023.1(2)(a) in that he had committed two prior "intoxication-related traffic offenses" within the ten-year period immediately preceding the new offense. Because he was a persistent offender, the charge was punishable upon conviction as a class D felony, Section 577.023.3 RSMo. On April 18, 2005, Turner pleaded guilty and was sentenced to three years imprisonment pursuant to a plea agreement. Thereafter, Turner timely filed a motion alleging that the sentence imposed by the trial court was in excess of the maximum sentence authorized by law because one of the two prior intoxication-related offenses used to prove Turner's status as a persistent offender, was a municipal court conviction where an SIS had been granted. Turner argued that this could not be used to enhance punishment under Section 577.023. The motion court denied relief, and an appeal was taken on the issue. The basis of Turner's argument was that there were two conflicting provisions within Section 577.023 RSMo that purport to address the use of prior municipal SIS dispositions for enhancement purposes. In the statute Section 577.023.1 and 2(a) permits the use but Section 577.023.14, disallows the use or prior SIS dispositions. He argued that the statute, therefore, was patently ambiguous, and because the statute was penal, the rule of lenity should be invoked to resolve the ambiguity in favor of defendant. The court held that given the conflicting provisions in the statute, there was simply no way to know whether the purpose of the act was to broaden the scope of prior offenses used to enhance punishment to include all offenses resulting in an SIS, or to broaden the scope in a smaller way by including only state offenses resulting in an SIS. Likewise, it is equally difficult to ascertain the problem to be remedied where the statute sets out conflicting solutions, one that includes all offenses resulting in an SIS and the other that includes only state offenses. Having determined that the ambiguity could not be resolved by resorting to other canons of construction, the rule of lenity applies, and the statute must be interpreted in favor of the defendant. Accordingly, the use of prior municipal offenses resulting in an SIS cannot be used to enhance punishment under Section 577.023. Turner v. State of Missouri, (SC88651, 03/04/08).

NO PRIOR DRIVER’S LICENSE REQUIRED IN ORDER FOR CHARGE OF DRIVING ON REVOKED DRIVER’S LICENSE CHARGE. The prosecuting attorney charged the defendant with five counts of a class D felony for driving while his driving privilege was revoked, in violation of Section 302.321 RSMo (2003). After the movant and the State reached a plea agreement, the movant appeared before the plea court to enter his pleas of guilty in each of the five cases. The plea court found that the movant's pleas of guilty were voluntarily and intelligently made, with a full understanding of the charges and sentenced the movant to five concurrent terms of four years imprisonment. After being delivered to the Department of Corrections, the movant filed a motion to vacate, set aside, or correct the judgment and sentence alleging that the plea court impermissibly accepted his guilty pleas and entered convictions because a factual basis did not exist for the pleas. He argued that since he had never held a driver's license or driving privilege, his license or privilege could not be canceled, suspended, or revoked so as to be eligible for criminal liability under Section 302.321 RSMo. He argued there was no factual basis for his pleas of guilty to the offense of driving while revoked. The motion court denied the movant's motion for relief. The court acknowledged that the movant had never had a Missouri driver's license. The court reasoned, however, that the State had not charged the movant with driving while his driver's license was revoked or suspended, but had instead charged the movant with driving while his operating privilege was revoked or suspended. The court noted that Section 302.321 RSMo specifically authorizes the prosecution of any individual in this situation. On appeal, in a case of first impression, the court found that Section 302.321 RSMo applied since it prohibited driving after your driving privilege has been cancelled, revoked, or suspended even if you never had a driver’s license. Nelson v. State of Missouri, (ED88797, 02/26/08).

LAW THAT PROHIBITS SEX OFFENDER FROM LIVING WITHIN 1,000 FEET OF SCHOOL CANNOT BE APPLIED RETROSPECTIVELY. In 2005, R. L. pled guilty to attempted enticement of a child in violation of Section 566.147 RSMo. He received a three year suspended execution of sentence and was placed on probation for five years and was required to register as a sex offender. In 2006, the General Assembly passed Section 566.147 RSMo, that required those convicted of attempted enticement of a child from residing within 1,000 feet of a public school as defined by statute or any private school giving instruction in twelfth grade or below. R. L. was informed by the Department of Corrections that he needed to establish a plan to relocate since his residence, where he lived since 1997, was within 1,000 feet of a school. R.L filed a petition for injunction and declaratory judgment resulting in a declaration by the Cole County Circuit Court that the law was unconstitutional because it violated Article I, Section 13 of the Missouri Constitution which prohibits civil laws that are retrospective. On appeal to the Missouri Supreme Court, the judgment was affirmed as violating the Missouri Constitution that prohibits retrospective laws. R. L. v. State of Missouri Department of Corrections, (SC88644, 02/19/08).

COMMON LAW DEDICATION OF ROAD. No dedication of road to public use under implied or common-law dedication unless intent is “unequivocally manifested, expressly, or by plain implication.” Tinnes v. Brand, (28250, 02/19/08).

writ of certiorari is the exclusive remedy for challenge to county zoning in fourth class county. Section 64.870.2 provides that appeals from fourth class county zoning decisions are by writ of certiorari and that this is the exclusive remedy; therefore a petition for declaratory judgment does not lie and must be dismissed. There is no authority for the County to charge a person for a building permit when no such permit was issued and the County did not incur the associated expense. Gash v. Lafayette County, (SC88437, 02/19/08).

JACKSON COUNTY CIRCUIT COURT RULES THAT CITY COUNCIL HAS THE AUTHORITY TO EXTEND CITY MANAGERS CONTRACT. In December, Kansas City Mayor Mark Funkhouser decided not to renew the contract of the Kansas City city manager which was set to expire April 30. The mayor took the position that under the city charter only the mayor had the power to introduce an ordinance to renew or not to renew the city manager’s contract. The majority of the City Council disagreed and voted nine to four to extend the city manger’s contract through 2011. Mayor Pro Tem Bill Skaggs agreed with Funkhouser and filed a lawsuit challenging the council’s vote. Jackson County Circuit Judge Brian Wimes ruled that the city manager does not have to leave his position April 30. Judge Wimes’s decision meant that the City Council’s nine to four vote to extend the city managers contract did not violate the city charter. “The charter provision cited by the plaintiffs applies when a city manager is initially appointed and not when the contract is extended. If the mayor wanted to remove Cauthen he would need to abide by a different section of the charter that requires six city councilmembers to vote with the mayor to terminate Cauthen.” Shughart Thomson & Kilroy, P.C.’s shareholder and municipal lawyer Jack Campbell represented the majority of the City Council. Jack Campbell stated, “We believe Judge Wimes did just the right thing in his interpretation of the city charter.” Congratulations to Jack Campbell, MMAA member.

SECTION 82.020 REQUIRING HOME RULE CITIES TO HAVE A POPULATION OF 10,000 OR MORE VIOLATES CONSTITUTION. The city of St. John (City) filed municipal charges against Donald Davis in St. Louis Circuit Court. The defendant moved to suppress certain evidence and to dismiss the matter on the grounds that the City was not a charter city and ordinances adopted by the City were invalid. City had been operating as a charter city since 1973 following an amendment to the Missouri Constitution that allowed any city that had a population of 5,000 or greater to adopt a city charter. Section 82.020 provides that any city having a population of 10,000 or greater may adopt a home rule charter. St. John’s population never reached a population of 10,000. St. Louis County Circuit Court ruled that the City is properly incorporated as a home rule city and that the provisions of Article VI, Section 19 and 19(a) control over section 82.020. The City of St. John v. Donald Davis. Circuit Court of the County of St. Louis, (No. 06CR-001088, 02/20/08)

CASE OUTLINES (FEDERAL)

PER SE RULE FOR “ME TOO” EVIDENCE DOES NOT CONTROL ADMISSION OF EVIDENCE IN EMPLOYMENT CASE. One of the more difficult questions in employment discrimination law is the extent to which the employee can show evidence of similar discriminatory acts involving other employees. Typically, the employee asks for records of many other employees, many of which seem to not be related to the issues. The employer seeks to exclude all such evidence to keep the case as narrow as possible. In this matter, the United States Supreme Court examined the rule with respect to the use of such evidence. In this case, Sprint moved in limine to exclude the testimony of former employees alleging discrimination by supervisors who had no role in the employment decision. Mendelsohn (plaintiff) challenged on the ground that such evidence was irrelevant to the case's central issue and unduly prejudicial. Granting the motion, the district court excluded evidence of discrimination against those not “similarly situated” to Mendelsohn. The Tenth Circuit treated that order as applying a per se rule that evidence from employees of other supervisors was irrelevant in an age discrimination case. The Supreme Court concluded that the district court abused its discretion by relying on Aramburu and determined that the evidence was relevant and not unduly prejudicial, and remanded for a new trial. The United States Supreme court concluded: “Relevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules.” Each case requires a fact-intensive and context-specific inquiry. There is no per se rule for exclusion or inclusion of such evidence. Sprint/United Management Co. v. Mendelsohn, (U.S. No. 06-1221, 02/26/08)

WHAT CONSTITUTES FILING OF CHARGE UNDER ADEA? Employees over the age of 40 who were or had been employed as couriers for a mail and pickup delivery service brought action against employer alleging that two programs which tied couriers' compensation and continued employment to certain performance benchmarks violated Age Discrimination in Employment Act (ADEA). The United States District Court dismissed action on the grounds that employees had not filed a charge with the Equal Employment Opportunity Commission (EEOC) at least 60 days before filing suit. Appeal was taken by employees. The court of appeals for the Second Circuit, reversed in part, vacated in part, and remanded. The United States Supreme Court granted certiorari to determine if a “charge” had been filed. The Age Discrimination in Employment Act of 1967 (ADEA) requires that “[n]o civil action ... be commenced ... until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission but does not define the term ‘charge.’” The Supreme Court held that: (1) in addition to information required by implementing regulations, i.e., allegation of age discrimination and name of charged party, if filing was to be deemed a “charge” under the ADEA, it had to be reasonably construed as a request for the EEOC to take remedial action to protect employee's rights or otherwise settle dispute between employer and employee and (2) EEOC's determination that an “Intake Questionnaire” and detailed affidavit was a “charge,” was reasonable exercise of its authority to apply its own regulations and procedures in course of routine administration of ADEA. Federal Exp. Corp. v. Holowecki, (128 S.Ct. 1147) (U.S., No. 06-1322, 02/27/08).

LEGISLATION, NEWS, AND OTHER MATTERS

NATOA REPORTS ON SURVEY OF STATE VIDEO FRANCHISING LAWS. Susan Littlefield, state chair for MONATO reports that NATOA has just released the results of a preliminary survey conducted among its members to obtain a snapshot of the impact that state video service legislation has had on communities and subscribers. Since state video franchising is still a relatively new concept it may be too early to reach definitive conclusions but the preliminary results of the study show that many of the so called benefits have not materialized. For example rates have not decreased and 82 percent of those responding believe that the legislation is not having a positive impact. Thank you very much for this report Susan. A copy of the report may be found at NATOA Survey: Impact of State Video Services Legislation at http://www.natoa.org/2008/03/natoa-survey-impact-of-state-v.html.

READING MATERIAL: America Votes! A Guide to Modern Election Law and Voting Rights, by Benjamin E. Griffith. America Votes!, provides a snapshot of America's voting and electoral practices, problems, and most current issues. The book was edited and written by widely knowledgeable practitioners who explore a variety of fundamental areas concerning election law from a federal perspective. The book is an invaluable resource for lawyers as well as law school professors, election officials, state and local government personnel involved in election administration, election workers, and poll workers.

HOW TO OBTAIN OPINIONS

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