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                                                

February 09, Issue #2-09

CASE OUTLINES (MISSOURI)

Maintenance Clarified Under Important Prevailing Wage Law Opinion. Steve Chinn has provided the MML with an important Cole County Circuit Court decision concerning whether or not certain aspects of a “water tank maintenance contract” with Monroe City were covered by Missouri’s prevailing wage law. The court reviewed the work and services under the contract and concluded that they are not covered by the prevailing wage law because the work did not change or increase the size, type, or extent of the existing facility; the addition was not a permanent part of the existing facility and was used only for safety purposes (a lock); or that the item was removed after the work was completed (relief value). This opinion was very well written and examined in detail all of the elements of the contract work providing a basis to determine if similar work items might be covered under the prevailing wage law. If you have a question concerning whether or not maintenance is covered by Missouri’s prevailing wage law, this is the place to start. A copy of the opinion is available from Steve Chinn or the MML Web site (Attorneys Newsletter/MMAA Materials). Congratulations to Stinson Morrison Hecker for the very important decision and thank you Steve for providing a copy to the MML.

Court Upholds Statute that Limits Employees of the Juvenile Office from Belonging to THE County Retirement Fund. Juvenile office employees challenge statute that limits their eligibility for membership in the County Employees Retirement Fund (CERF). The Missouri Supreme Court held there was no violation of equal protection, special laws, or separation of powers. The test is whether or not the classification is “rationally related” to a legitimate state interest. Under this standard, a classification is constitutional “if any state of facts can be reasonably conceived that would justify it.” The circuit court’s decision that the employees’ rights were not violated was affirmed. Alderson v. State of Missouri al., and County Employees’ Retirement Fund, (SC89370, 1/13/09)

MISSOURI SUPREME COURT DISCUSSES THE DIFFERENCE BETWEEN CONTESTED AND NONCONTESTED CASES. In 2004, Valley Park sought to annex Peerless Park and submitted its proposal to St. Louis County’s boundary commission. The boundary commission rejected the proposal and the decision was appealed to circuit court. The circuit court found that the boundary commission’s action was arbitrary and unreasonable, and remanded the case to the boundary commission for referral to the county board of elections commissioners for an election on the annexation proposal. The boundary commission appealed and the case was transferred to the Missouri Supreme Court. The Court examined the standard for review by initially determining if this was a contested or noncontested case. While a public hearing was required, the case had none of the attributes of a contested case since each side was only allowed 15 minutes to present their case to the boundary commission. The case had no formalities of a contested case such as notice of the issues; oral examination upon oath, affirmation, and cross examination of witnesses; the making of a record; adherence to evidentiary rules; or written decisions including findings of fact and conclusions of law. Having determined that this was a noncontested case, the standard of review is de novo. Applying the standard of review, the Court concluded that the circuit court’s decision was supported by the evidence. The City of Valley Park v. Armstrong, et al., (SC89186, 1/13/09).

Land of No Jurisdiction. We all deal with jurisdictional questions in our municipal law practice. Recently, the Missouri Supreme Court provided us with the definitive discussion on this question in which Judge Wolff discussed the problem of the “Land of No Jurisdiction.” No doubt legal scholars will be writing articles examining this opinion in depth. Until then, I advise that this opinion is the place to start and in all likelihood, where you will finish. J.C.W. and T.D.W., Minors and their next friend Kelly Webb v. Wyciskalla, (SC9804, 1/27/09)

Federal Sex Offender Registration Law Requires Registration of Prior Sex Offenders thereby Mooting Appeal. John Doe was convicted in Iowa on April 24, 1994. In 1995, Iowa enacted its sex offender registry law that required him to register as a sex offender for ten years following the date he was placed on probation. In May of 1994, he moved to Missouri but continued his registration requirements in Iowa. Missouri enacted a sex offender registry law that became effective on January 1, 1995. On July 28, 2006, he filed a suit seeking a declaration that he was not obligated to register in Missouri. In 2006, U.S. Congress enacted a sex offenders registration and notification law which was subsequently interpreted by the U.S. Attorney General to apply to all sex offenders including those who were convicted prior to the enactment of the registration law by Congress. The Eastern District held that the passage of the law by Congress requiring registration of prior sex offenders moots John Doe’s appeal since he is required by this law to register since the federal law takes precedence over Missouri law under the Supremacy Clause. John Doe V. Keathley, (ED90404, 01/06/09).

FEDERAL CASES

Fifth Amendment Self Incrimination Not Violated by Requiring Employee to Answer Questions. Moten appealed her conviction for aiding and abetting the theft of public funds on the grounds that the conviction violated her Fifth Amendment privilege against self incrimination, because the government failed to prove that it did not use statements she was compelled to give during an internal investigation by her employer, the state of Arkansas, into the theft of federal funds. During the investigation she was questioned about her role in the theft of federal funds. She was terminated as an employee after a hearing. The Fifth Amendment privilege against self incrimination extends to statements a government employee is compelled to make under the threat of removal from public office. The privilege does not however, bar the government from compelling a public official from answering – rather it is violated only if the compelled statement or the fruit of the statement is used against the officer in a subsequent criminal proceeding. If the official charged can show that he or she was forced to answer, the government must show that any evidence used or derived has a legitimate and independent source for the compelled testimony. In this case, the government showed that the evidence came from a “legitimate source wholly independent of the compelled testimony.” United States of America v. Moten, (073760, 12/24/08).

     Comment Howard: A public employer has the right to compel employees to answer questions in a civil investigation of employee conduct provided if the employer compels testimony. It cannot use the compelled testimony in a criminal matter. This case has a short simple explanation of this important rule and shows its application to avoid any impact on the criminal matter.

Legislation, Matters, Issues, And Discussion

Flag Annexations May Rise From the Dust. Last month, I declared that flag annexations were dead and gave them a proper burial on the heap of poor public policy. Jack Stewart wrote in defense of flag annexations that Hillsboro, aptly named, needs “down the road annexations” or so called flag annexations because it sits on the top of six ridges and in between the six ridges are six watersheds with abundant rock. I guess Hillsboro looks a lot like a daddy long-legs spider. Nancy Yendes, from Springfield, wrote that I (and a lot of other folks) forgot about a 1997 MML case in which the Cole County Circuit Court declared that the Section 71.012 of the bill repealing “down the road annexations” was unconstitutional because the title to the bill “economic development” was not related to annexation by cities. This decision was not appealed by the State therefore there is no way to find this in VAMS. I would add that this section has been amended numerous times which complicates the analysis. For example, in 1998 when the General Assembly repealed Section 71.012, they showed Section 71.012 as it was amended in 1997 without the “down the road” language. So what did they repeal and reenact in 1998? It seems like the State would be bound by the Cole County Circuit Court or based on that decision and further actions or inactions by the General Assembly on the “down the road” annexation language still exists. If your community’s flag annexation is challenged you may want to argue that the statute is unconstitutional, request the state be joined, and seek removal to Cole County asking the circuit court to dust off this old file or that the “down the road” annexation still exists and is on the books, despite its omission from RSMo. While this does not change my public policy argument, it does provide a legal argument for “down the road” flag annexations. A copy of the judgment can be obtained from the MML. Thank you Nancy and Jack for sharing this information and your views.

Does Heritage Value Discriminate Against Minorities, Women, and Persons who Relocate from another State? Last month we reported on a case involving a challenge to heritage value in which the Supreme Court held that the circuit court erred in not requiring the commissioners in a condemnation case to determine heritage value. Nancy Yendes, from Springfield, wrote that heritage value could discriminate against minorities, women, and persons who did not own property because there were no fair housing laws 50 years ago. This is an intriguing idea that would require the right set of facts and further development of this theory.

Ethics Opinion Creates Confusion. Eric Cunningham, city attorney for the city of Cape Girardeau wrote: I sent a question to the list serv to find other city attorney opinions as to whether or not the law partner of a city councilmember could represent a defendant in the Cape Girardeau Municipal Court. Eric’s opinion was that the law partners of a city councilmember could not represent municipal defendants in municipal court. The responses to his list serv question were consistent with his opinion and prior opinions on this question. Not satisfied with the response, the councilmember wrote to the Legal Ethics Counsel for the Missouri Supreme Court Advisory Committee and requested an opinion with respect to a series of questions and received a written informal advisory opinion that stated that the partners of the city councilmember may practice before the municipal court if the law partner is “screened in the manner set forth in Rule 4-1.11(a).” With respect to prior opinions on this matter, the Legal Ethics Counsel advised that these opinions predate Rule 4-1.11(a) and are not binding. The municipal judge then wrote to the Commission on the Retirement, Removal, and Discipline of Judges and was advised that under Rule 2 of the Code of Judicial Conflict that the municipal judge should recuse himself or herself from hearing any such case under these circumstances. Eric wrote that under these circumstances the case could not be tried by the municipal court judge and would have to be tried by an associate state court judge. Copies of the correspondence and the opinion may be obtained from the MML.

     Comment Howard: Eric thank you for providing information on this important issue. If you have a similar situation you will need the full set of documents. From my vantage point this is not a pretty situation. Law firm partners of a city councilmember can create the “screen” and enter an appearance in the case requiring the case to be tried before the associate circuit judge. I am not sure the person writing the opinion appreciated the perception created in this situation where the councilmembers vote on the salaries and budgets of the municipal court judges, and in the case of Springfield, is asked to confirm the city manager’s recommendation for appointing the municipal judge.

Heads-Up on New Round of Eminent Domain Initiative Petitions. We now have two eminent domain petitions by Ron Calzone, an opponent of eminent domain, that are being challenged in Cole County Circuit Court on the sufficiency of the ballot language and the fiscal note summary by the MML prior to the collection of signatures. While the petitions are slightly different than the last round they again seek to destroy the ability of local communities to redevelop. There seems to be no limit on the number of times that opponents of eminent domain will try to get this issue to the voters. It would appear that most if not all of the funding for these efforts comes from out-of-state organizations. This case is being handled by Joann Sandifer from Husch Blackwell Sanders. I wonder if a higher standard for submitting petitions to amend the Missouri Constitution makes sense. I thought the 1945 Missouri Constitutional Convention was headed by giants in the field of public policy and was well written. A copy of the proposed ballot and the petition challenging the ballot can be obtained from MML headquarters. We will keep you posted on developments.

Utility Easements in Right-of-way. Greg Dohrman, associate county prosecutor for St. Charles County wrote that he is involved in a case in St. Charles County in which Laclede Gas has refused to remove gas lines from a right-of-way without payment of relocation costs claiming a property right was created when the plat was filed. The plat stated that the street right-of-way is designated “as utility easement for the purpose of sanitary sewers, gas lines, water lines, and as easements for electric power lines, telephone poles and cable television lines.” Greg filed a petition for declaratory judgment asking that the subdivision plat just be dedicated to the roadway without having concurrently dedicated any independent utility easements. Apparently this practice had been followed for many years creating the potential for significant relocation costs and other issues for the County when they improve their streets plus questions concerning maintenance and access. Greg is wondering if any other cities or counties have a similar situation. Greg may be contacted at the St. Charles County Counselor’s Office, 100 North Third Street, St. Charles, Missouri, 63301 or 636-949-7541.

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.