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    

http://www.mocities.com

February 2010, Issue #2-10

CASE OUTLINES (MISSOURI)

QUO WARRANTO IS NOT THE EXCLUSIVE REMEDY TO CHALLENGE CITY BOUNDARIES.  In 1982, the City of Lake St. Louis (Lake St. Louis) annexed property to establish its northern boundary; the property annexed was the northern right-of-way of Interstate 70 from O'Fallon Dr. westward.  O’Fallon disputed the location of the boundary and claimed to have subsequently annexed the property, issued permits, and taken other actions within the boundary.  Lake St. Louis filed a declaratory judgment against O’Fallon challenging the boundary location and alleged annexation by O’Fallon.  Lake St. Louis attached to its petition its annexation ordinance, a current plat depicting the boundaries, and a narrative description of the property.  It alleged that it had a right to enforce its ordinances, collect and administer taxes, and to protect the rights of Lake St. Louis and its residents in the disputed area.  The trial court sustained O’Fallon’s motion to dismiss on the grounds that the exclusive remedy to contest a boundary between two political subdivisions was a quo warranto action.  It also sustained the allegations that the Lake St. Louis action was barred by the statute of limitations and laches.  Lake St. Louis appealed the dismissal to the Eastern District.  The Eastern District reversed the decision and held that Lake St. Louis could bring a declaratory judgment.  The focus of the opinion is whether or not quo warranto is the exclusive remedy to contest a boundary between two political subdivisions or if it can be contested by a declaratory judgment.  The court distinguished cases brought by citizens versus the right a political subdivision has to challenge the boundaries of another political subdivision based on a petition for a declaratory judgment.  Citizen suits must be brought by a quo warranto action.  Lake St. Louis successfully distinguished cases between two political subdivisions and citizen suits.  The reason for the exception to the rule that quo warranto is the exclusive remedy is that when the action is brought by a political subdivision against another political subdivision it does not violate the underlying reason for requiring a quo warranto action.  The underlying reason is that corporate franchises are grants of sovereignty and if the state acquiesces in their usurpation individuals would not be heard.  Public policy emphasizes the importance of stability and certainty in such matters when there exists serious consequences; therefore, individuals cannot call into question the corporate existence because individuals do not have an interest in the matter separate and distinct from the State itself.  The Eastern District concluded that allowing a declaratory judgment to be brought when the action involves a boundary dispute between two political subdivisions does not violate the underlying rationale for the rule.  The suit may however, be brought as a quo warranto action or by declaratory judgment.  The court notes that laches and the statute of limitations are affirmative defenses and that a motion to dismiss cannot reach these claims unless the pleadings on their face show that the claim is barred, which was not the case.  As a result, the court at this time could not rule on O’Fallon’s motion to dismiss based on laches and the statue of limitations.  City of Lake St. Louis v. City of O’Fallon, (ED93289, 01/26/10).

  Comment Howard: Obviously this decision stands on its head our thinking that a quo warranto action is the exclusive remedy to challenge boundary disputes between two political subdivisions.  The court takes great care to examine all of the case law in this area and concludes that the recent 2007 decision involving Lee’s Summit and Lake Lotawana was not decided properly.  This opinion was extremely well written providing what seems to be the complete analysis of all of the cases involving this issue making it the starting point for local government lawyers when researching whether or not to file a declaratory judgment or a quo warranto action (provided the opinion stands).  Since Kevin O’Keefe represents O’Fallon, I would expect a vigorous effort to have this decision reheard or transferred to the Missouri Supreme Court.  

PROHIBITION AGAINST “FOR SALE” SIGNS OF PROPERTY IS INVALID. The city of Bellefontaine Neighbors (City) passed an ordinance that prohibited the advertisement of real estate “without first applying for the issuance of a certificate of compliance by the code official.”  In practice, the ordinance requires a person selling property to request inspection of the property to determine compliance with building codes.  If the property is in compliance with the code a certificate of compliance is issued.  However, if the property is not in compliance with the code a report is issued describing the conditions to be corrected before the property can be sold or leased.  The Defendant advertised property for sale without first filing an application for the issuance of a certificate of inspection.  The City charged the Defendant with advertising the property without applying for an inspection.  The trial court found the ordinance to be constitutional and imposed a fine of $100.  That decision was appealed by the Defendant to the Eastern District.  On appeal, the Defendant argued that the ordinance violates the Defendant’s right of free speech under the First Amendment of the United States Constitution and state law.  The court applied the four-part analysis required by the United States Supreme Court to determine if the ordinance was constitutional.  This test requires that the speech must concern a lawful activity and not be misleading; that the governmental interest is substantial; that the regulation directly advances the governmental interest asserted; and that the regulation is not more extensive than is necessary to serve that interest.  The speech passed the first two parts of the test however the court found that the regulation failed to advance directly in the least restrictive manner the City’s goal of safe housing.  Looking upstream at the regulatory process the court noted that the City neglected to explain how this impediment is no more restrictive than necessary.  The court noted that the City’s interest was fully protected elsewhere in the ordinance because occupancy or transfer of the property cannot occur until after a certificate is obtained based upon an inspection of the property showing compliance with city codes.  The court also found that the ordinance violated Section 67.317 RSMo, which limits political subdivisions from enacting any ordinance that forbids or restricts the right of the owner from displaying on the property a sign (advertising the property is for sale) of reasonable dimensions, as may be determined by local ordinance.  The requirement that the owner submit an application before advertising real property for sale violated Section 67.317.  City of Bellefontaine Neighbors v. Mark Scatizzi, (ED92965, 01/2 6/10).

  Comment Howard: Of course, the City is trying to advance a legitimate interest by preventing the sale of property that does not meet city codes in order to ensure that the property is brought up to code.  Putting prospective purchasers on notice of these defects is also a legitimate goal so I would urge those who have this concern to consider how to build a better mousetrap to accomplish this objective.

QUANTUM THEORY TO ANALYZE RETROSPECTIVE LAWS. The recent flurry of cases involving challenges to retrospective laws has prompted the Missouri Supreme Court to issue an extensive opinion concerning how to determine if a law is retrospective.  Two cases were consolidated and provided the backdrop for this extremely important Missouri Supreme Court opinion.  The first case involved F. R. who was alleged to have violated the “school residency law” that prohibited him from residing within 1,000 feet of any school or childcare facility.  F. R. was convicted of five sex offenses in 1999.  Missouri enacted the law prohibiting sex offenders from residing within 1,000 feet of a school or childcare facility in August of 2004.  It was determined in 2008 that the residency of F. R. violated the 1,000-foot requirement and he was required to move.  The second case, involved Charles Raynor who was charged with a violation of state law which prohibited sex offenders on Halloween from going outdoors, turning on their outdoor lights, handing out candy, and required that a sign be posted stating “no candy or treats at this residence.”  This law was passed in 2004; however, he was convicted of state law involving indecent liberties with a child younger than 14 years of age in 1990.  On October 31, 2008 (Halloween), he did not post at his residence a sign stating “no candy or treats at this residence” and was charged with a Class A misdemeanor for failure to post the sign at his residence.  In analyzing a question of whether a law is retrospective, the court states that it is best to first deal with the particular facts of a case rather than attempting broad pronouncements.  Both cases, based on the above facts, show that the laws were passed after the initial violation of the sex offender law, and operate retrospectively as applied to F. R and Raynor.  A retrospective law is defined as those that take away or impair vested rights acquired under existing laws, creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already passed.  This principle has been in Missouri law for almost 100 years having been decided by Squaw Creek Drainage in 1911.  This definition is in the disjunctive requiring a separate analysis for vested rights and a separate analysis to determine if the law in question creates a new obligation, imposes new duty or attaches a new disability with respect to transactions or considerations already passed.  Because the phrase is in the disjunctive, there is no need to show that a new obligation, new duty or a new disability goes any further than one of these phrases.  When analyzing these phrases there is no need to determine if a vested right is involved.  The court used an example where the hiring of teachers who are sex offenders is prohibited as an example of a law that operates prospectively and does not violate the retrospective provision of the Missouri Constitution.  A law that requires everyone previously convicted of the law to pay the school district $500 would be retrospective.  Other examples abound in the decision as the court analyzes the facts of different situations within the context of retrospective laws.  In this decision, both cases involved a violation of the retrospective law provision in the Missouri Constitution because they were being punished for acts that they were convicted of prior to the enactment of the law. F. R. v. St. Charles County Sheriff’s Department and State of Missouri v. Charles A. Raynor, (SC89834 and 90164, 01/12/10).

  Comment Howard:  Obviously, every local law practitioner will need to understand the analytical framework provided in this opinion.  I do not expect the floodgates of challenges based on retrospective laws to stop immediately.

FEE FOR FUTURE SERVICES NOT RETROSPECTIVE.  On the same day the above opinion was delivered, the Missouri Supreme Court issued a short opinion discussing the requirement that a parolee paying a fee authorized in 2008 for a prison sentence in 1977, who was released on parole in 2001. The court held that the fee is for current and future services rendered and affirmed the trial courts decision.  Jackson v. Members of the Missouri Board of Probation and Parole, (SC90113, 01/12/10).

CASE OUTLINES (FEDERAL)

GENDER STEREOTYPING IS UNLAWFUL.  Brenna Lewis (Employee) was employed by Heartland Inns around July of 2005.  (She successfully filled several positions for a year and a half before the actions took place that are at issue in this case.)  Prior to the incident, she received merit based pay raises, and customers and fellow employees praised her work and attitude.  Around December 7, 2006, she began working part-time shifts at Heartland Inns at the front desk where she took reservations and met with customers.  She proved to be a valuable employee based on evaluations by her direct supervisor and was offered a full-time position.  She was told that she did a great job and fit into the front desk position really well, was liked by customers, and was hired for a full-time, A shift position.  The Employee’s positive experience at Heartland changed after Barbara Cullinan, the director of operations (Manager), saw the Employee working at the front desk.  After seeing the Employee, the Manager told her supervisor that she was not a “good fit” for the front desk.  Several days later, she called and raised the subject of her appearance as “slightly more masculine” and characterized it as an “Ellen DeGeneres kind of look.” The Employee wore loose fitting clothing, including men’s button-down shirts and slacks, no makeup, and her hair short to the point where she had been mistaken as male and referred to as “tomboyish.”  The Manager told the Employee’s supervisor that Heartland took “two steps back” when they replaced Morgan Hammer with the Employee, and that Heartland staff should be “pretty,” and that the Employee lacked the “Midwestern girl look.”  The personnel manual of Heartland did not mention appearance and only states that a guest representative shall create a warm inviting atmosphere.  The Manager directed the supervisor to move the Employee back to the overnight shift, which he refused to carry out because the Employee had been doing “a phenomenal job at the front desk.”  Thereafter, the Manager insisted the supervisor of the Employee resign and that the front desk position would require a second interview.  The Manager met with the Employee one month after the Employee was officially hired for the front desk job and nearly a month after, the Manager gave her initial approval to hire the Employee for the position.  Heartland thereafter terminated the Employee asserting that the Employee thwarted the interview procedure and exhibited hostility towards Heartland’s recent policies.  The Employee sued under Title VII of the Civil Rights Act 1964.  Heartland filed a motion for summary judgment, which was granted. The Employee appealed to the Eighth Circuit, which reversed on the grounds that sex gender discrimination or stereotyping based on gender was unlawful.  In addition, the court held that Heartland was not entitled to summary judgment on the Employee’s claim of retaliation.  The Eighth Circuit notes the United States Supreme Court has previously held that gender stereotyping is discrimination and is unlawful.  The court cited cases holding that the fact that an employee does not wear dresses or make-up shows discrimination against women if there is an adverse employment decision based on this consideration because the discrimination would not have occurred but for the victim’s sex. Lewis v. Heartland Inns of America, (8th Cir., 083860, 01/21/2010).

QUALIFIED IMMUNITY FOR FAILURE TO NOT INVESTIGATE. Missouri State Highway patrol officers have qualified immunity with respect to a civil rights allegation that they failed to investigate an incident.  The Eighth Circuit reversed the district court’s decision and granted summary judgment to the highway patrol officers.  Akins v. Epperly, (8th Cir., 0A3753, 12/18/09).

OTHER MATTERS OF INTEREST

SIGN OF THE TIMES.  A recent news article in the Springfield News Leader indicated that the Branson City Council may not appropriate funds for a private airport constructed in the Branson area based upon an annual appropriation clause in the contract between Branson and the private airport operators.  The use of annual appropriations to fund many activities in lieu of voter-approved bonds is a common practice.  The theory that supports annual appropriation financing has been based upon widespread acceptance by the financial markets that the municipality will appropriate funds annually because failure to do so risks the credit rating of the municipality.  A default based upon failure to make an annual appropriation probably survives a legal challenge but the credit rating of the municipality could be seriously affected.  Considering the overall economy the potential failure by one community to make an annual appropriation might make lenders weary of financing other local community projects based on an annual appropriation.

SALISBURY WINS IN FEDERAL COURT. The Moberly Monitor-Index reported on Monday, January 18, 2010, the following - “A federal jury has returned a verdict clearing the city of Salisbury, its mayor, and six current and former aldermen on a civil, First Amendment retaliation claim by former city police officer, Bill Wright.  The jury returned its verdict at the end of a three-day trial in Hannibal, in the U.S. District Court for the Eastern District of Missouri, the Honorable Audrey G. Fleissig, presiding. Wright claimed he was fired for writing letters accusing Mayor Joseph Fehling of threatening to fire him for stopping intoxicated drivers on the streets of Salisbury.  Wright’s letters were followed by numerous complaints from citizens about his aggressive behavior and using a variety of pretexts for detaining motorists.  The eight-member jury’s verdict was unanimous for Fehling, the aldermen and the City. “I’m glad this is behind the city of Salisbury and for those of us who were just doing the best we could as elected representatives,” said Fehling.  Wright’s case gained attention in news coverage when KOMU TV aired a story in December 2007.  “This just reinforces how important it is for people to reserve judgment about things until the judicial process is finished,” said Michael Berry, the City’s lead trial counsel in the case, who was assisted by his partner, Marshall V. Wilson. Berry added, “Serving in local government is a challenge and these people did the right thing for the city of Salisbury,” “They were skillfully guided in handling Mr. Wright’s situation by their City Attorney, Bill Daily of Glasgow, and I’m pleased for all of them that this case turned out as it did.’” Congratulations to Michael Berry, lead attorney for Salisbury.

LAWYER OF THE YEAR. For the last ten years we have listened to John Mulligan’s annual update on the telephone tax litigation wondering how long the telephone companies can protract this litigation.  Now after recovering millions of dollars for local government, John gets his due by being selected as “Lawyer of the Year” by Missouri Lawyers Weekly for his work in securing settlement of the lawsuits against cell phone and landline providers for underpaid gross receipts taxes. Mulligan initiated the class action lawsuits almost ten years ago, and persevered against great odds. The settlements have helped Missouri municipalities balance budgets in recent years. Congratulations, John!