MUNICIPAL ATTORNEYS NEWSLETTER

Missouri Municipal Attorneys Association

1727 Southridge Drive, Jefferson City, MO 65109

573-635-9134, Fax: 573-635-9009      

Editor Howard C. Wright 417-569-0386

Asst. Editor Ragan Wright

May 09, Issue #5-09

NEWS FOR YOU

MMAA SUMMER SEMINAR. The Missouri Municipal Attorneys Association Summer Seminar will be held at Tan-Tar-A Resort on July 17-19. Please make your hotel reservations as soon as possible by calling 1-800-Tan-Tar-A.

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 17-19, 2009, 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 by June 15, 2009.

CASE OUTLINES (MISSOURI)

ROUNDING ERROR THAT IS CARRIED FORWARD INVALIDATES TAX LEVY THAT EXCEEDS THE TAX CEILING LID. The Library District (District) in Franklin County in 2000, rounded up its levy from 0.0979 cents to 0.100 cent based on advice from the Missouri State Auditor that political subdivisions could round up to the nearest cent. Subsequent litigation found that rounding up violated provisions of the Hancock Amendment. Taxpayers filed protest for the levy in years 2003 through 2006 contending that the rounding error in 2000 was carried forward. The Missouri State Auditor computes the tax rate ceiling lid based on the prior years levy allowing the rounding up error to be carried forward resulting in an improper levy for years 2003-2006. The trial court ruled for the District and the taxpayers appealed to the Eastern District which held that the levy was improper resulting in higher levies than the Hancock Amendment and Section 137.073 RSMo authorized. The District could not rely on the advice of the Missouri State Auditor when that advice was contrary to the statute and the Constitution. While the court recognizes the need for finality of tax rates it also recognizes that if a protest is timely that the courts must rule on the protest. Rohrer v. Linda Emmons, Collector of Franklin County et al., (ED90669, 04/07/09).

 Comment Howard: At first blush this case seems pretty routine but in thinking about the implications of a rounding error that gets carried forward one has to wonder how often this occurred. The court reasons that if there was a rounding error years ago, taxpayers can still challenge the current levy or levies within the time to protest the levy. It would be very easy in filling out the form for the tax ceiling lid to carry forward an old rounding error used as the base for the current levy. I assume this does not happen very often, but you might check to see if your community rounded up and if they did, was it carried forward like it was in this case.

STATUTE THAT PROVIDES FOR OUSTER BY BOARD MEMBERS OVERRIDE QUO WARRANTO AS EXCLUSIVE REMEDY. Quo warranto is not the sole exclusive remedy to oust a member of the fire protection district board when the statute provides an alternative means to oust a board member if the fire protection district itself brings the action. The Western District distinguished this case from an earlier case that held that citizens were limited to a quo warranto action and could not avail themselves of the statute that allowed board members to be ousted since the board itself in this case brought the petition. Some meaning must be given to the statute, which on its face, allows for the board to institute an action to oust a board member for good cause. Inter City Fire Protection District v. Depung, (WD69822, 04/07/09).

CONDITIONAL OFFER TO BUY PROPERTY IS GOOD FAITH OFFER UNDER EMINENT DOMAIN STATUTE. The city of Richmond Heights (City) established the Hadley Township Redevelopment Area and selected a developer for the project. The City sought to acquire property owned by the Seller and made an offer to the Seller of $175,000 as set forth in a purchase agreement that had a liquidated damages clause that provided in the event the City failed to perform, the Seller was entitled to retain the $1,000 earnest money deposit and $5,000 as liquidated damages. The parties continued to negotiate and after failing to agree on terms the City condemned the property. The Seller opposed the condemnation on the grounds that there was not “good faith negotiations” as required by Missouri condemnation law because the offer if accepted did not create a binding offer to purchase the property and was not enforceable because the City could refuse to complete the transaction and pay liquidated damages. The trial court in St. Louis County denied the request to appoint commissioners and dismissed the condemnation petition on the grounds that the liquidated damages provision in the purchase agreement offer did not make the offer binding. The City appealed and the Eastern District reversed holding that the liquidated damages provision is binding applying rules of contract law. The General Assembly in enacting eminent domain reform, codified the rule that an offer must be made and rejected by the seller. The court distinguished this case from an earlier MODOT case that focused on the conditional nature of the MODOT offer. City of Richmond Heights v. Waite, (ED91353, 04/07/09)

     Comment Howard: While the outcome of this case is favorable to local government, I would be hesitant to rely on this decision except in the Eastern District since this is a very close case and other courts might take a different view. The idea that the City can hedge its bets and walk away from the agreement to buy the property by paying just liquidated damages seems to run counter to the concept that the government has made an offer to buy the property.

ANNEXATION BY SEWER/WATER DISTRICT UPHELD OVER OBJECTIONS OF CITIES. Camden County Public Water Supply District (Water District) filed its petition to annex unincorporated property into the Water District in accordance with Section 247.030.3 RSMo that sets forth procedures for annexing property into the Water District. The village of Sunrise Beach (Sunrise Beach) and the city of Lake Ozark (Lake Ozark) filed exceptions to the annexation case brought by the Water District in accordance with the statute. The trial court found that neither Sunrise Beach nor Lake Ozark provided any water or sewer services nor had they installed any fire hydrants in the annexation area. The trial court determined that the Water District met all of the jurisdictional requirements for annexation and that the annexation was in the “public’s interest.” Sunrise Beach and Lake Ozark appealed to the Southern District. On appeal, the Southern District affirmed holding that there was no gerrymandering of the Water District lines even though they were highly irregular and were drawn to accommodate the residency of the board members of the Water District. In addition, there was no conflict of interest sufficient to defeat the annexation even though there were interpersonal relationships between board members of the Water District, directors, and employees of the lake region – a privately owned water company that provided water to the Water District. Although Sunrise Beach had enacted a Resolution of Intent to Annex the area in 1999, it failed to take steps to complete the annexation within a reasonable time; therefore, it did not have prior jurisdiction over the area to be annexed. Camden County Public Water Supply District #4, et al., v. Village of Sunrise Beach, City of Lake Ozark, et al., (SD28984 and SD28969 Consolidated, 04/01/09).

HOG FARM ESCAPES REGULATION. Richland Township (Township) in Barton County passed zoning regulations by a majority vote of its citizens. The Township attempted to apply the zoning ordinance to a 30-acre, 4,800-head sow farrow-to-wean operation that had a single cell lagoon to store effluent from the hog operation. When Kenoma started to bulldoze dirt for the construction of the sewer lagoon, the Township brought suit against the operator Kenoma in circuit court for violating the zoning handbook. When completed, Kenoma’s operations would include an isolation building for incoming gilts, a gestation barn, and a farrowing (birthing) barn. The zoning handbook required livestock sewerage lagoon systems to maintain a minimum setback distance of 5,280 feet from an adjacent residence or dwelling. After suit was filed, the Township amended the zoning handbook to require “concentrated livestock operation” or feedlots where swine are raised in a concentration of 800 head of confined or unconfined hogs per 160 acres, and to require “concentrated livestock operation” to be 5,280 feet from any residence or dwelling. “Concentrated livestock operation” is defined where … swine … are held or raised in a concentration of at least 600 confined or unconfined hogs of all ages and weights per 160 acres. The parties filed cross motions for summary judgment and the trial court granted Kenoma’s motion for summary judgment ruling that livestock operations were exempt from Township regulations under Section 65.677 and that the Township’s attempt to enact zoning regulations did not comply with the law. The Township appealed to the Southern District that ruled that the Township did not have authority to regulate livestock operations under Section 65.677 which provided that the Township did not have authority to “impose regulations or require permits with respect to land, used … for … the erection, maintenance, repair, alteration, or extension of farm buildings or farm structures,” including sewer lagoons. Based on this language and an earlier Missouri Supreme Court decision, the court of appeals held that the Township did not have the authority to regulate farm buildings including sewer lagoons. The Board of Directors of Richland Township v. Kenoma, LLC, (SD29080, 03/19/09).

REFERENCE TO ROAD IN DEED IS AMBIGUOUS. Billy Massey sold his property in 2002 to trustee Robert Plaster except for the “one acre … now used for a cemetery” and “any part of the [Massey property] deeded, taken, or used for road or highway purposes.” The Orla Homan Cemetery, Inc. and Susan Rector (Plaintiffs) sued the village of Evergreen (Village) that had blocked access to the cemetery from Highway 5 along a one-half mile road known as Road Crop Road a road built by Laclede County around 1955. The Village claimed that the road was entirely within the Village and blocked the road. Plaintiff’s motion for summary judgment was granted and the Village appealed to the Southern District that reversed on the grounds that the affirmative defense of the Village (that the description of the road described above is ambiguous) created a fact question in dispute thereby making summary judgment inappropriate. Orla Holman Cemetery, Inc. v. The Robert W. Plaster Trust and Village of Evergreen, (SD28304, 03/31/09).

CASE OUTLINES (Federal)

SEARCH OF VEHICLE INCIDENT TO A TRAFFIC VIOLATION VIOLATES THE FOURTH AMENDMENT WHEN ARRESTEE IS ALREADY IN CUSTODY. The United States Supreme Court recently ruled that it violated the Fourth Amendment for police to search a vehicle when the sole occupant of the vehicle has been arrested for a traffic violation and detained in a police vehicle. A warrantless search of a vehicle incident to the occupant’s arrest, can only occur when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Arizona v. Gant, (U.S. No. 07-542,04/21/09).

     Comment Howard: This case significantly changes police department practices; therefore, if you are advising a police department you will want to read this case and immediately inform the police department. A quick response is necessary because of the potential for the police continuing to conduct searches and seizures based on the law prior to April 21, 2009. Failure to follow this case after April 21, 2009, creates the potential for civil rights violations under, 42 U.S.C. 1983.

COURT CAN IGNORE UNSUBSTANTIATED ALLEGATIONS OF EXCESSIVE FORCE WHEN THEY ARE BASED ON MERE SPECULATION THAT NO REASONABLE PERSON WOULD ACCEPT. Police Officers (Officers) responded to an emergency call reporting a domestic violence disturbance in progress. When the officers arrived at the scene, they found Reed in the backyard of the residence straddling and beating Edgar who resided at the property. When the Officers announced their presence, Reed jumped up and fled Edgar’s property and hid under a bush in a neighbor’s backyard. The Officers testified that when they found Reed he refused to come out of the bush and show his hands, which were hidden under his body. The Officers testified that they had to drag Reed out, administer a number of baton strikes to his body and finally spray mace in his face. Reed’s testimony contradicts the officers in that even though he cooperated, the officers kicked, hit, sprayed him with mace, and hit him on the head with a metal flashlight. After the arrest Reed complained of injuries and was taken to the emergency room of a hospital where he was examined and determined to be fit for confinement. Reed brought an excessive force action under 42 U.S.C. 1983 for violation his civil rights. The Officers and the City filed a motion for summary judgment, which the district court sustained even though facts were disputed because Reed’s statements contradicted the officer’s statements; however, Reed’s statements are unsupported by specific facts or evidence beyond his own statements. The trial court is not required to “accept unreasonable inferences or sheer speculation as fact.” The 8th Circuit affirmed on the grounds that the district court did not have to accept unreasonable inferences or sheer speculation as fact. Reed v. City of St. Charles, et al., (8th Cir. No. 07-2713, 04/06/09).

     Comment Howard: This is a good case if you are looking for a case that sustains a motion for summary judgment when no person could reasonably conclude based on the material facts that the officers were guilty of using excessive force. This case illustrates the basic skepticism that the courts have with this type of claim when there is no other evidence to back up mere allegations of excessive force.

UNFETTERED DISCRETION IN LEGISLATIVE COMMITTEE TO ACCEPT OR REJECT SPECIALTY LICENSE PLATE APPLICATIONS IS UNCONSTITUTIONAL. Missouri has a state sponsored program that allows groups to create their own specialty license plates. There are two ways you can create a specialty plate. First, the Missouri General Assembly can pass a bill that creates a specialty plate or second, private organizations can apply to the Missouri Department of Revenue pursuant to Section 301.3150 RSMo that sets forth the requirements and procedures for obtaining a specialty plate. Section 21.795(6) provides that a joint committee of members of the General Assembly must approve the application and cannot approve the request if the committee receives a petition from five or more members objecting to the creation of the specialty license plate. Choose Life of Missouri, Inc., brought suit against the state of Missouri and the joint committee members after their request for a license application was denied. The federal district court declared Section 21.795(6) unconstitutional and the defendants appealed to the 8th Circuit. The 8th Circuit affirmed the holding that a specialty license plate was private speech, not government speech. A reasonable and fully informed person would consider the speaker to be the organization that sponsors the plate and the vehicle owner who displays the plate. Some 200 specialty plates have been issued that lends support to the view that the speaker is not the state but individuals. However, Section 21.795(6) was unconstitutional as it granted unfettered discretion with no standards in the joint committee to grant or deny a request for a specialty license plate. This section was severable from the rest of the Act; therefore, the specialty plate program can continue based on other nondiscriminatory provisions of the Act. Roach v. Stouffer, et al., (8th Cir. No. 08-1429, 03/26/09).

     Comment Howard: This is the first Missouri case that follows the “private speech” concept recently articulated by the United States Supreme Court in Pleasant Grove City v. Summun. You have to wonder when the General Assembly will learn that delegating the unbridled discretion to accept or refuse an application to speak is a clear violation of the Constitution. The next chapter in this saga will be hate groups asking for specialty plates for their members.

COMMENTS FROM MEMBERS AND OTHER INFORMATION

RED FLAG RULE. Thanks to Steve Chinn, from Stinson Morrison Hecker for providing an update on the FTC decision that delays implementation of the Red Flag Rule until August 1, 2009. This will allow cities more time to work through the application of this rule to certain municipal activities. Springfield is now in the process of establishing a Red Flag compliance officer and a Red Flag policy. The Rule would apply to activities that defer payment for goods and services like Springfield’s loan and grant programs and may apply to some activities of the public works department.

CITATION TO WIKIPEDIA DISCREDITED – SEWER DISTRICT SUCCESSFUL IN OPPOSING QUARRY PERMIT. Steve Mauer from Bryan Cave provided MML with a copy of a recent circuit court decision in Miller County involving a successful challenge to an administrative decision of the Missouri Department of Natural Resources Land Reclamation Commission by the Lake Ozark/Osage Beach Joint Sewer Board involving the permitting of a quarry. One of the principal questions in this case was the impact of blasting from the quarrying operation on sewer lines. Witnesses testified that blasting had an impact on sewer lines causing them to fracture and that ductile iron and PVC pipe had zero tolerance standards for vibration. The hearing officer and the commission ruled in favor of the issuance of a quarry permit that was appealed by the sewer district to the circuit court under Chapter 536, the Administrative Procedure Act. The circuit court reversed and remanded holding that the hearing officer and the commission relied on “unscientific” evidence from “Wikipedia” that showed ductile iron pipe was stronger than, easier to tap, and required less support than PVC, concrete, polyethylene, or steel pipe. The court cited a case showing the improper use of the citation of “Wikipedia” in an administrative hearing. The case is styled Lake Ozarks/Osage Beach Joint Sewer Board, et al., v. Missouri Department of Natural Resources Reclamation Commission, and Magruder Limestone Co., Inc., (Case No. 08ML-CC00106, Division 1, Miller County Circuit Court).

     Comment Howard: Thank you Steve Mauer for providing MML with a copy of this very interesting case and congratulations. Seems like we now have a new tool to oppose quarry operations in areas where sewers are located and an argument to knock down cites to Wikipedia. A copy of the decision is on file with the MML and is on the Web site.

MINIMUM WAGE LAW - MISSOURI DEPARTMENT OF LABOR. It has been reported that the Department of Labor (DOL) is attempting to narrow the victory that the MML achieved in the Missouri Minimum Wage Law litigation by now arguing that the Cole County Court decision only applies to cities that were parties to the lawsuit. This has been a shock to cities that have asked DOL questions. It is likely that this may have a lot to do with the change in administrations. Paul Martin who was the lead attorney for MML and other plaintiffs has written Mike Pritchett, who was the lead attorney for the AG’s office (now General Counsel for the DOL) an excellent letter noting for Mike that the State is barred from relitigating this with cities who were not party plaintiffs. I would add, there could be a significant downside for the DOL to relitigate this question again since there were claims not ruled on by the court that could invalidate the initiative as related to the state employees.

SUNSHINE LAW OPINION REGARDING COLLECTIVE BARGAINING. The Attorney General opined in a recent opinion that the Sunshine Law does not apply to negotiating sessions held pursuant to Section 105.520 RSMo, until the written terms or proposals are presented to the governing body for adoption, modification or rejection in an ordinance, resolution, or bill. This opinion does not answer the question as to whether or not it applies to collective bargaining when collective bargaining is not covered by the current meet and confer statute. Opinion No. 83-2009.

HOW TO OBTAIN OPINIONS

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

Missouri: http://www.courts.mo.gov/page.asp?id=12086&dist=Opinions

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.