MUNICIPAL ATTORNEYS NEWSLETTER

Missouri Municipal Attorneys Association

1727 Southridge Drive, Jefferson City, MO 65109                

Editor Howard C. Wright 417-569-0386

Asst. Editor Ragan Wright

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

June 09, Issue #6-09

CASE OUTLINES (MISSOURI)

SAFETY REQUIREMENTS FOR DAM ARE NOT RETROSPECTIVE. Rainbow Lake Dam is 40-feet high and 500-feet long, and was constructed in 1974. In 1979, Missouri enacted the Missouri Dam and Reservoir Safety Law (Act). In September of 1997, the Olives purchased the land on which the dam is located. The Missouri Department of Natural Resources (DNR) notified the Olives that they needed to obtain a registration permit for the dam. The Olives contended they were not obligated to obtain a permit but did file for an agricultural exemption. DNR denied the request and filed suit to compel the Olives to obtain a permit requesting the Olives to submit a complete and acceptable permit detailing “construction, repairs, monitoring, and improvements to eliminate all observable defects of the dam.” The Olives filed a motion for summary judgment contending they were exempt from the Act because the Act was “retrospective” and violated the Missouri Constitution that prohibited “retrospective” laws, but if the Act did apply, they were entitled to an agricultural exemption. The trial court in Greene County granted the motion for summary judgment and DNR appealed. The Missouri Supreme Court reversed holding that the Act did not violate the Missouri Constitution against retrospective laws because the Act applied to the current safety conditions of the dam and there is no vested right that exempts property from laws that reasonably relate to public health and safety. The issue is not the past construction of the dam, but its present ability to hold back substantial amounts of water. The duty to obtain the permit is based on the current existence, operation, and safety of the dam. The reference to “this section” in the section that allows an agricultural exemption, exempts the dam from the initial construction permit but does not exempt the dam from the requirement to have a safety plan which is in another section. State ex rel. Koster v Olive (SC89752, 5/5/09)

THERE IS NO RIGHT IN THE MISSOURI CONSTITUTION REQUIRING LOCAL GOVERNMENT TO HAVE A PROCESS FOR INITIATIVES. Citizens of Kansas City collected signatures to require the City Council of Kansas City to enact an ordinance that would impose a transportation tax of three-eighths of 1 percent to be used solely for the construction of and maintenance of a proposed city light rail system to run from the airport through Kansas City to the city zoo. The City Council refused to pass the ordinance and the initiative was submitted to the voters for their approval. The voters approved the tax, and after the first year, the City Council passed an ordinance to repeal the light rail initiative ordinance under provisions of the Kansas City charter which provided that the City Council could not take any action to repeal or amend the initiative ordinance for the first year after the voters approved the ordinance. The Charter also provided that a voter approved initiative could thereafter be “amended or repealed as any other ordinance.” Citizens challenged the repeal of the ordinance on the grounds that under the Missouri Constitution the City Council could not repeal the ordinance because such repeal violated the Missouri Constitution with respect to initiatives. The City filed a motion to dismiss which was granted by the trial court which was appealed to Western District. The Western District upheld the dismissal determining that there was no right to initiate laws at the local level in the Missouri Constitution. The citizens of Kansas City provided for the initiative in its City Charter that specifically allowed a voter approved initiative to be amended or repealed one year after its adoption by the voters. State of Missouri ex rel., Chastain et al., v. City of Kansas City, (WD70100, 05/12/09).

        Comment Howard: While there is no right to a local initiative in the Missouri Constitution, the Missouri Supreme Court has held that Article III, Section 51, of the Missouri Constitution pertaining to state initiatives, prohibits a local initiative that requires the local government to fund the project without a revenue source in the initiative.

DEMOLITION OF BUILDING WITHOUT GIVING NOTICE THAT IS REASONABLY CALCULATED TO INFORM OWNERS OF ADMINISTRATIVE HEARING VIOLATES DUE PROCESS CLAUSE AND WAS A TAKING. After the building burned, the owners (Owners) of the burned building (located on Quincy) moved out and filled out a form with the postal service showing a new address on Cherokee. On several occasions, notices mailed to the old Quincy address were returned to the City with a statement showing the new address of the Owners on Cherokee. The Owners worked on repairing the building; but, plywood used by the Owners to board up the building was removed and at times squatters occupied the building. The City finally decided to institute condemnation proceedings under its building code to demolish the building and mailed a notice to the Owners at the old Quincy address, informing the Owners that they were entitled to an administrative hearing which notice was returned as being undeliverable. The City also posted a notice on the property which notice was removed. The Owners did not know about their right-to-request a hearing. The City proceeded to demolish the building and the Owners filed an inverse condemnation suit against the City. The Owners testified that they were unaware of the notice of the hearing to contest the demolition. The jury returned a verdict against the City in the amount of $65,000 and the City appealed to the Eastern District. The City defended its actions on the grounds that the Owners failed to exhaust their administrative remedies by not requesting a hearing. The Eastern District upheld the verdict because the City did not use procedures that were reasonably calculated to reach the Owners. In this case, the City was aware of the new address of the Owners, but nevertheless continued to send the notice to the old address, which was returned by the postal service. The notice posted on the property was torn down. The City’s attempt to give notice failed because the City was aware prior to the demolition that its attempt to give notice had failed; therefore, “due process required the City to take further reasonable steps if they were available.” Abrogast v. City of St. Louis, (ED90137, 05/19/09).

        Comment Howard: Considering what is at stake (in this case $65,000 plus attorney fees) it behooves local government to take additional steps once you are alerted that a notice has been returned as not being delivered by the postal service when a property right is impacted. For an extensive discussion of this issue see Schlereth v. Hardy, recently decided by the Missouri Supreme Court which is discussed in the case below.

TAX SALE INVALIDATED BY FAILURE TO DELIVER NOTICE. James Schlereth (Buyer) bought a piece of property that Jefferson County sold because the owner, Hardy, was delinquent in payment of her property taxes. After buying the property, the Buyer sent a notice to the former owner two times by certified mail of her redemption rights. The notices were addressed correctly to the former owner at her residence but were returned by the postal service as not delivered. The former owner acknowledged that she knew of the attempts to deliver the certified mail, but stated she did not know of its contents. There was published notice of the sale, but there was nothing in the record to show that the former owner was aware of the notice. In March of 2004, about a year and one-half after the sale, the former owner Hardy appeared at the collector’s office and paid real estate taxes for 2002 and 2003. Hardy did not redeem the property within the two years of the tax sale so in August of 2004 the new owner recorded the deed and the next month brought a quiet title suit against the former owner. The trial court entered summary judgment for the former owner on the grounds that the notice was insufficient under Jones v. Flowers and the new owner appealed to the Missouri Supreme Court that upheld the judgment. The Court noted that under Jones v. Flowers, the government must act on information received after the notice was sent. In this case, the notice showed that the former owner did not receive the required notice; therefore, additional steps were required to be taken to ensure adequate notice. Schlereth v. Hardy, (SC89402, 3/31/09)

        Comment Ragan: This clearly is an issue that requires additional education and precaution, but the court system or the General Assembly clearly needs to address the issue where a person intentionally avoids service and notice. In this case, the party clearly was aware of the certified letters but willfully chose to ignore them hoping that there would be some potential benefit to avoiding the service of the letters.

SALES TAX STACKING. The MML reports that the city of Purdy recently lost a circuit court case in Barry County that involved the stacking of an additional 1 percent city sales tax on top of an existing 1 percent city sales tax that was enacted pursuant to Section 95.500 to 94.550 which action was brought by Tom Burcham. Penberthy v. City of Purdy, Barry County, Case No. 08BR-CC00127. No appeal is planned. More suits are expected and the MML will continue its efforts to obtain remedial legislation.

SAFE HARBOR FOR CITY WHEN IT ASKS THE ATTORNEY GENERAL FOR AN OPINION CONCERNING THE SUNSHINE LAW. On July 26, 2007, Great Rivers Environmental Law Center (Great Rivers) requested records from the city of St. Peters (City). The City responded to the request and then on August 15, 2007, invoked its right to seek an opinion from the Attorney General regarding whether or not certain records were open or closed. The City stated it would provide the documents consistent with the opinion of the Attorney General. Great Rivers filed suit and the Attorney General declined to issue an opinion due to pending litigation. The City and Great Rivers submitted the matter to the trial court on a stipulated record and the trial court ruled in favor of the City. Great Rivers appealed to the Eastern District which held that Great Rivers was not able to prove that the City violated the Sunshine Law either knowingly or purposefully. After all, the City stated it would abide by the opinion of the Attorney General and was thwarted by the actions of Great Rivers. Judgment affirmed for the City. Great Rivers Environmental Law Center v. City of St. Peters, (ED91964, 05/26/09).

        Comment Howard: Strategically this decision is of enormous importance. It allows the City to proceed in those situations where there is doubt concerning whether or not a record is required to be produced under the Sunshine Law. Of course by asking the Attorney General, you have not necessarily selected the best forum since we can expect the Attorney General to favor the production of records. Be prepared to fall on your sword if you ask and you are required to produce the record.

PROBABLE CAUSE TO BE DETERMINED BY ALL THE FACTS AND CIRCUMSTANCES. Highway patrolman arrived at the scene of an accident where he found a Dodge pickup in the ditch at the top of a ramp. The pickup had struck and damaged a 40-foot section of chain link fence. The engine was still hot and the driver was towing a trailer with one all terrain vehicle on it. But, the driver was nowhere to be found. The officer checked the registration and determined that Hager was the owner of the vehicle. Hager’s wallet was on the dashboard and his driver’s license showed Hager was five feet seven inches tall and weighed 145 pounds. There was a motorist who had stopped on the shoulder of the road who saw a short white male, small in stature, with no shirt fleeing the scene of the accident. This description was provided to another trooper, Sergeant Tackett, who was assisting in the investigation. Sergeant Tackett drove 100 yards to the end of the exit ramp, turned right and drove 200 yards to Fiddlers Fish House, entered the restaurant, and found Hager behind the kitchen with brown shorts and no shirt at which time the officer took Hager back to the scene. At the scene, another driver pulled up and said that someone had lost an ATV on M Highway about ten miles down the road, to which Hager responded, “Oh s_ _t, there was a small four-wheeler on there, too.” He also stated he had been at the Bricks 4x4 farm that day. Hager was given the usual field tests and based on the tests, he failed. After being transported to the local highway patrol office for testing, Hager refused to take the breathalyzer test resulting in the revocation of his driver’s license by the director of revenue. Hager filed a petition for review and after hearing the evidence, the trial court determined that the State had not shown that Hager was driving the vehicle; therefore, the officer did not have probable cause to arrest Hager. On appeal, the director contended that the court’s decision resulted from a misapplication of the law. The Southern District reversed holding that the director was only required to prove that the officer had probable cause to believe the driver to be driving while intoxicated citing Missouri Supreme Court cases interpreting the statute. Probable cause may be shown by all the facts and circumstances of an individual case. Hager v. Director of Revenue, (SD29073, 04/29/09).

THERE IS NO CAUSE OF ACTION FOR EDUCATIONAL MALPRACTICE. In June of 2001, after taking off in Missouri, a Piper turboprop crashed in Tennessee killing the pilot and four passengers. Flightsafety International, a FAA certified flight training school that provided training to the pilot in the operation of a turboprop by way of a simulator was sued on the theory of educational malpractice, a theory of liability not recognized in Missouri. The petition alleged that Flightsafety failed to alert and warn the pilot of the known dangers of shutting down an engine in flight without the ability to properly feather the propeller and that the simulator used by Flightsafety did not accurately replicate the extreme drag experienced and that Flightsafety continued to use the simulator. Flightsafety filed a motion for summary judgment that was granted by the trial court. On appeal to the Western District, the judgment was affirmed on the grounds that there was no cause of action for educational malpractice. In educational malpractice claims, the plaintiff sues the academic institution for failing to provide adequate educational services. The Western District rejected this claim on the grounds that there was a lack of satisfactory standard of care to evaluate an educator; the inherent uncertainties of causation and the damages in light of such intervening factors as a students’ attitude, motivation, temperament, past experience, and home environment; the potential for a flood of litigation against schools; and the possibility that the claims would embroil the courts into overseeing the day-to-day operations of schools. Dallas Airmotive, Inc. v. Flightsafety International, Inc., (WD68784, 11/25/08).

EMPLOYEE WINS RETALIATORY DISCHARGE CASE. Probationary flight attendant (Employee) was fired after she complained of sexual harassment by airline employees. She brought a retaliatory discharge action against the airline (Employer) under Missouri Human Rights Act. The jury returned a verdict for the Employee in the amount of $53,500 and $325,000 in punitive damages. The Employer appealed to the Eastern District. The Eastern District affirmed on all grounds except for the award of attorney fees, where the trial court without explanation deviated from the submission made by the plaintiff, which was agreed to by the Employer. This case was hotly contested, resulting in a 20-page opinion. The Employer did not take immediate and decisive action with respect to the sexual harassment complaint made by Employee. In addition, the Employer’s record of progressive discipline with respect to the reasons given for the dismissal were weak. The Employee was only required to show that the sexual harassment complaint action was a “contributing factor” in the employer’s decision, which generally was a jury question. Williams v. Trans States Airlines, Inc., (ED91286, 03/24/09).

        Comment Howard: Taking disciplinary action against an employee after the employee has filed a complaint of discrimination is very difficult and must be done only after careful review of the entire record, not only of current complainant but other employees who might have been in a similar situation. In this case, the Employee showed one other case in which the Employer dismissed employee after the employee complained of sexual harassment. Zero tolerance for sexual harassment is the first step and building a solid record of progressive discipline of the employee is the second step.

CASE OUTLINES (Federal)

ADA DISABILITY NOT PRECLUDED BY RECEIPT OF SOCIAL SECURITY BENEFITS. Receipt of social security benefits does not prove Plaintiff was disabled under ADA because social security benefits were awarded after Plaintiff was terminated, and social security benefits were made on the basis that there were not a sufficient number of jobs in the economy that the Plaintiff could perform. In addition, there was no finding by the Social Security Administration that the Plaintiff could not perform the job from which he was fired. Question of whether or not the Plaintiff was fired because the employer regarded the Plaintiff as disabled, was a question for the jury. Judgment for the Plaintiff is affirmed by the 8th Circuit. Finan v. Good Earth Tools, Inc. (8th Cir. 08-2221, 05/19/09).

DISPARITY IN SALARY BETWEEN MALE COUNTERPART SUFFICIENT TO MAKE EQUAL PAY CLAIM A JURY QUESTION. Drum started to work for Lesson’s predecessor in 1990 and was promoted in 1999 to human resources manager with a salary of $41,548, then was promoted to another position with a salary of $45,600. The male counterpart replacement for human resources manager was hired at a salary of $62,500. Drum sued under the Equal Pay Act, Title VII and provisions of the Missouri Human Rights Act. The district court granted summary judgment for the employer and Drum appealed to the 8th circuit. The 8th circuit reversed on the grounds that the employer failed to prove as a matter of law that the disparity of pay was based on a factor other than gender. Under the MHRA, Drum need only to show that gender was a contributing factor to her lower salary. Drum v. Leeson Electric Corporation, (8th Cir. 08-1678, 05/15/09).                                     

Additional News and Information

OPPONENTS OF KANSAS CITY MAYOR FUNKHAUSER FALL SHORT OF SUFFICIENT SIGNATURES FOR RECALL. An article in the Kansas City Star notes that the proponents of a recall petition claimed to have sufficient signatures for the recall of the mayor. The mayor contended that he would not be recalled claiming that the petitions did not state sufficient reasons for the recall. The city charter provided that the City Council was required to call the election despite the inadequacies of the reasons given. It looks like we will have plenty of political and legal entertainment for a long time. The final count showed that the petition was 129 signatures short. Apparently the mayor knew something that others did not.

ANALYSIS OF ARIZONA V. GRANT AVAILABLE. Jeff Blaylock made a presentation during the spring meeting at the Missouri Bar Committee for Local Government on Arizona v. Grant, a recent United States Supreme Court decision discussed in the MMAA Newsletter involving 4th Amendment searches of vehicles incident to arrest. Nathan Nickolaus, chair of the Missouri Bar Committee on Local Government, has indicated copies of a paper handed out at the spring meeting could be obtained by contacting him at the city attorney’s office for Jefferson City (573-634-6315). The outline of the paper appears to be quite comprehensive and merits your attention since this decision will have an immediate impact on police officers search and seizure practices.

LAW OF PERFORMANCE BONDS. The ABA announced the publication of the Second Edition of The Law of Performance Bonds which is probably the most comprehensive analysis available, covering the topic in 924 pages. In my view, questions involving performance bonds and suretyship do not occur with sufficient frequency for the general municipal practitioner to master the details of this obscure area of the law. A primer on this area of the law could be very useful at a price of $129.95 or $99.95 for section members. You can purchase this book at www.ababooks.org.

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 e-mail 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.