July 09, Issue #7-09

NEWS

HOWARD PAPERNER RECEIVES CZECH AWARD … Howard Paperner, city attorney for Maryland Heights and Winchester, received the Missouri Municipal Attorneys Association’s annual Lou Czech Award for outstanding contributions to municipal law. Congratulations, Howard!

NEW MMAA OFFICERS … The Missouri Municipal Attorneys Association recently elected the following new officers: President, City Attorney Chris Williams of Oak Grove; Vice President, City Attorney John Mulligan of University City; and Treasurer, City Attorney Dan Wichmer of Springfield.

CASE OUTLINES (MISSOURI)

KANSAS CITY NON-SMOKING ORDINANCE CAN EXCEED WHAT IS PERMITTED UNDER STATE LAW. Kansas City (City) enacted an ordinance (Ordinance) that banned smoking in enclosed public places and places of employment with some exceptions for hotels and casinos.  JC Sports Bar (Sports Bar), a bar and billiard parlor, posted signs, “Non-smoking Areas are Unavailable.”  The City filed charges in its municipal court alleging that Carlson, the operator of the Sports Bar, violated the Ordinance.  Carlson filed a motion to dismiss the charges on the grounds that the Ordinance was preempted by the Missouri Indoor Clean Air Act, (MICAA).  The municipal court convicted Carlson and he appealed to the circuit court asserting the preemption defense.  The trial court denied the motion and found Carlson guilty based on stipulated facts and Carlson appealed to the Western District which affirmed on the grounds that there was no conflict even though the definition of public place excluded billiard parlors that seat less than 50 persons that post conspicuous signs stating, “Non-smoking Areas are Unavailable.” The court reasoned that the City could expand the prohibitions in the MICAA so long as it did not prohibit what the MICAA permitted.  It reasons that if the General Assembly wanted to limit the power of the City it could have expressly provided for this, therefore; the Court would not read into the MICAA an implied limitation on the power of the City to have an ordinance broader than the MICAA.  The MICAA does not affirmatively grant to a billiard parlor a permit to smoke.  City of Kansas City v. Georgia Carlson, (WD70576, 06/23/09).

      Comment Howard. I think this is a very close case and until this decision is final I would urge caution.  In addition, if the Supreme Court does not take this case I again urge caution in the Eastern and Southern Districts because a strong argument can be made that the ordinance prohibits what the state permits.

NO DUTY TO INSPECT SEWERS UNLESS NOTICE OF DEFECTIVE CONDITION AND NO LIABILITY FOR CONDITION OF PRIVATE SEWERS THAT CAUSE THE BACKUP OF CONTAMINATED WATER. Michael and Leslie Christ (Owners) filed a petition against the Metropolitan St. Louis Sewer District, (MSD) alleging an inverse condemnation action against MSD for causing a backup of contaminated water into their residence thereby damaging their property.  MSD filed a motion for summary judgment that was granted by the trial court and Owners appealed to the Eastern District.  The Owners assert on appeal that the trial court improperly interpreted the law of inverse condemnation that is based on nuisance by requiring notice and duty in an inverse condemnation case. Nuisance is defined as an unreasonable, unusual, or unnatural use of one’s property so that it substantially impairs the right of another to peacefully enjoy his or her property.  The Eastern District held that notice was required of the condition before the governmental agency would be held liable.  In addition, there was no duty to inspect for defects nor was there any duty, if the condition was caused by the private lateral connecting, to the public sewer system.  Christ, et al., v. The Metropolitan St. Louis District, (ED92123, 06/02/09).

      Comment Howard.  This case is a must read case as it brings together and analyzes all of the recent cases on this subject.  It also makes it clear that there is no duty to inspect on a regular basis to discover defects unless you have notice (even though this might be a good practice) and, no duty with respect to private laterals that cause the backup.

PROCEDURAL CHANGES IN LAW APPLY RETROSPECTIVELY. Defendant was arrested for DWI and when tested at the scene his blood alcohol was over .08.  The defendant was transported to a hospital where they drew blood samples.  The first time they drew a blood sample, an insufficient sample was taken so he was tested two additional times.   All three samples showed he was over .08; therefore, the Director of Revenue (DOR) revoked his license and he appealed to circuit court.  At trial the state showed that prior to testing, the defendant was swabbed for a second and third test with a non-alcoholic swab; however, the state did not produce any evidence showing if the first test (which was not valid due to an insufficient sample) was administered with a non-alcoholic swab as required by law at the time he was arrested.  Prior to the trial in circuit court, the General Assembly repealed the requirement that the swab had to be non-alcoholic.   The trial court ruled that the second and third tests were invalid based on the law at the time of the arrest, due to the possibility that the second and third samples might have been contaminated if the state used a swab that contained alcohol for the first test.  The state appealed to the Western District which held that the change in state law was procedural and laws that are procedural apply retrospectively. The circuit court decision was reversed.  Roberson v. Vincent, Director of Revenue, (WD69581, 06/23/09).

CLAIM FOR PAY INCREASE DURING TERM BARRED BY SOL.  Citizens of Gasconade County sued two county commissioners who received mid-term pay increases that were authorized by the General Assembly which they refused to pay back.  An earlier case decided by the Missouri Supreme Court involving Laclede County held that the statute that authorized mid-term pay increases for public officials was unconstitutional.  The trial court ruled for the citizens requiring the commissioners to pay back the pay increases. The commissioners appealed to the Eastern District which reversed on the grounds that the claims were barred by the five-year statute of limitations.  The citizens argued that they did not know about the pay increases until the state auditor noted the violation in her audit of the county.  The court held that the statue of limitations begins to run when the damages are sustained and capable of ascertainment and if there is more than one item of damage, then from the last item.  In this case, the last item for damages was the increase the commissioners accepted for the second mid-term pay increase.  The argument that the citizens did not know and the damages were not ascertainable until the State Auditor’s report was rejected.   Trial court decision is reversed.  State of Missouri ex rel., Gasconade County v. Larimore, (ED91493, 06/23/09).

COURT QUESTION SOLE CAUSE RULE IN RETALIATORY DISCHARGE CASES. Daniel Margiotta an at-will-employee (Employee) filed a whistleblower claim against Christian Hospital (Employer) alleging he was terminated because he reported unsafe medical practices.  The trial court granted the Employer motion for summary judgment and the Employee appealed to the Eastern District.  The Employer contended that the Employee was terminated because of two violent outbursts while at work.  The Employer filed a motion for summary judgment that was granted.  On appeal, the Employee contended that there were contested issues of fact as to the whether or not the complaint of violation of unsafe medical practices to the Employer was the sole reason for the dismissal.  The Eastern District found that the evidence in support of the motion for summary judgment was disputed and reversed the granting of summary judgment.  The Eastern District questioned the current status of the law that required the employee to prove that the reporting of the wrongdoing was the exclusive cause for the termination concluding that the Employee had not preserved this question leaving the court with no alternative but to deny review of this issue.  Nevertheless the court transferred this case to the Missouri Supreme Court on the sole issue.  Margiotta v. Christian Hospital Northwest, (ED91466, 06/30/09).

      Comment Howard.  Obviously there is a lot going on here.  The court outlined the rationale for overruling the long standing rule of law which the Employee had the burden to show that the whistleblower complaint was the exclusive cause for termination and refused to take this issue up because it was not preserved and then transferred the case to the Missouri Supreme Court. 

TAX SALE INVALIDATED BY FAILURE TO GIVE NOTICE.  The court found that the failure to comply with notice requirements as required by Jones v. Flowers invalidated a tax sale. Opinion discussed at length – the notice requirements in delinquent tax sales.  Cedarbridge, LLC., v. Eason, (ED91544, 05/26.09).

ONE ACCIDENT RESULTS IN THREE CHARGES OF VEHICULAR ASSAULT AND TEN-YEAR MOTOR VEHICLE LICENSE REVOCATION.  On July 20, 2006, Akins was driving his vehicle while intoxicated and collided with another vehicle injuring three people. He was charged with and convicted of three incidents of vehicular assault. The Director of Revenue revoked his license for ten years on the grounds that he was “convicted more than twice for offenses relating to driving while intoxicated” pursuant to 302.060(9) based on the July 20, 2006, incident. Adkins appealed to the Eastern District which affirmed on the grounds that precedent requires this interpretation. The Eastern District noted that its opinion conflicts with the Western District and certified the case to the Missouri Supreme Court.  Akins v. Director of Revenue, (ED92173, 06/02/09).

NON-OPERABLE HEADLIGHT ESTABLISHED PROBABLE CAUSE TO MAKE ARREST. Barrett was stopped by a state trooper (Trooper) after the Trooper had noticed that the vehicle Barrett was driving had the left headlight out.  The Trooper noticed that Barrett had a moderate odor of intoxicants on his breath, his eyes were bloodshot, and there was a smell of intoxicants from the inside of the car.  Barrett told the Trooper he had one drink.  Barrett was arrested and when tested his blood alcohol was .06.  Barrett was 19 at the time of his arrest and was cited for failure to have two lighted headlamps and for “a minor visibly intoxicated while driving a motor vehicle.” The Director of Revenue suspended his license and Barrett appealed to the circuit court which directed that the DOR reinstate his license because the conviction was not supported under the language of 302.505.1 that provides that a license shall be revoked if the person is under 21, violated a state, county or municipal traffic offense, and was driving with a blood alcohol content of more than two-hundredths of 1 percent.  The trial court determined that the headlight violation was not a traffic offense but was instead an equipment violation; therefore, the trial court reinstated the defendant’s license.  The DOR appealed to the Eastern District, which reversed on the grounds that there were other grounds to support the suspension without deciding whether or not the non-operable headlight was a traffic or equipment violation.  The court sidestepped this issue by holding that all the Trooper needed was probable cause under 302.505.1 to make the arrest and that the non-operable headlight established probable cause to make the stop and the conviction could be supported under section 302.505.1 which provided that the license of a person under 21 years of age was subject to suspension if there was probable cause to believe the person was driving the vehicle while intoxicated. Barrett v. Director of Revenue, (ED91762, 05/26/09).

PROBABLE CAUSE MUST BE BASED ON EVIDENCE OBTAINED PRIOR TO THE ARREST. Failure to obtain evidence prior to making an arrest for driving while intoxicated that the person arrested was driving the vehicle, is insufficient basis for probable cause.  Probable cause to prove driving must be based on evidence obtained prior to the arrest.  Mullin v. Director of Revenue, (WD69874, 06/09/09).

CHEWING TOBACCO INVALIDATES BREATHALYZER TEST.  Hurt was arrested for driving while intoxicated and was given the breathalyzer test that registered .121.  At the time of his arrest and during the time when the test was administered, Hurt had chewing tobacco. The Department of Revenue (DOR) issued a notice that Hurt’s driver’s license was suspended and Hurt appealed to the circuit court that held the breathalyzer test was not valid because Hurt had chewing tobacco during the 15 minute observation period and at the time the test was administered.  State law requires a 15-minute observation period prior to taking the test and prohibits any oral intake of any material during this time.  The trial court found that the presence of chewing tobacco violated the law and the Southern District affirmed.  Hurt v. Director of Revenue, (SD28988, 05/07/09).  

FEDERAL SEX OFFENDER REGISTRATION LAW IMPOSES INDEPENDENT OBLIGATION TO REQUIRE REGISTRATION.  The trial court held that the Missouri law that required sex offenders to register under Missouri’s Sex Offender Registration Act was unconstitutional as it violated Article I, Section 13 of the Missouri Constitution (prohibits retrospective laws).  That decision was reversed by the Missouri Supreme Court on the grounds that federal law imposes an independent obligation requiring sex offenders to register as sex offenders in Missouri.  John Doe I, et a., v. Keathely, (SC89727).

FEDERAL CASES

STATE WAIVES ITS DEFENSE TO SOVEREIGN IMMUNITY BY JOINING AS PLAINTIFF IN CASE UNDER THE CLEAN WATER ACT. The United States and the state of Missouri (State) filed an enforcement action against the Metropolitan St. Louis Sewer District (District) in federal district court seeking civil penalties and injunctive relief against the District.  The District filed a counterclaim alleging that the District was limited as a political subdivision from raising revenues needed to comply with this judgment by the Hancock Amendment.  Section 309(e) of the Clean Water Act states that when a municipality is a party to a civil action brought by the United States under this section, the State in which the municipality is located shall be joined as a party.  It further provides that if as a result of complying with any judgment entered against the municipality to the extent the laws of the State prevent the municipality from raising revenues to comply with the judgment, the state is liable.  The District alleged that the State was required to indemnify the District for the costs of complying with any adverse judgment under 309(e) because the Hancock Amendment limited the ability of the District to raise revenues.  The State filed a motion requesting the court strike the Districts counterclaim and asserts as a defense that the State was not liable because of sovereign immunity under the Eleventh Amendment to the Constitution of the United States which motion was denied by the district court.  On appeal to the 8th Circuit, the State asserted that the reason for filing this case along with the United States was to avoid the indignity of being “tarred with the same brush” as the District if it were joined as a defendant in an enforcement action brought by the United States.  The 8th Circuit held that the State had waived the defense of sovereign immunity by bringing this action as a plaintiff.  United States and State of Missouri v. Metropolitan St. Louis Sewer District, (8th Cir. No. 08-3399, 06/09/09)

      Comment Howard. This case has some very significant financial implications with broad statewide application.  The costs to comply with the CWA for the District and Kansas City, is several billion dollars each with the costs to other political subdivisions in the hundreds of millions of dollars. Since the State cannot impose a new mandate that costs a political subdivision under the Hancock Amendment it is facing a major dilemma on how to proceed. Stayed tuned for round two. 

COMMENTS, LEGISLATIVE, AND OTHER MATTERS

Paul Rost provided the following information regarding funeral protests. Thank you Paul.

“U.S. SUPREME COURT DECLINES TO HEAR MISSOURI ATTORNEY GENERAL’S APPEAL OF FUNERAL PROTEST PRELIMINARY INJUNCTION – STEMS NEW CHALLENGE TO MAPLEWOOD ORDINANCE,” REPORT NO. 2009-02.
“On the last day of its term, the U.S. Supreme Court denied certiorari to the Missouri Attorney General’s appeal of a preliminary injunction temporarily prohibiting enforcement of §578.501 RSMo <http://www.moga.mo.gov/statutes/C500-599/5780000501.HTM>, which bans “picketing or other protest activities in front of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral.” The case originated when the funeral protest statute was challenged by a member of the Westboro Baptist Church, a group that protests at funerals of United States soldiers pursuant to its belief that the death of Americans, including soldiers, is divine punishment for the “sin of homosexuality.”  See Phelps-Roper v. Nixon, 509 F.3d 480 (8th Cir. 2007), modified on rehearing, 545 F.3d 685 (8th Cir. 2008).

      Because the Supreme Court declined to hear the case, the 2007 preliminary injunction imposed by the 8th Circuit Court of Appeals that prohibits enforcement of the funeral protest statute, will remain in effect while the case returns to the federal court in the Western District of Missouri for a trial on the merits regarding the statute’s validity under the First Amendment. Neither the 8th Circuit’s decision nor the Supreme Court’s denial of certiorari is a final determination as to the constitutionality of the funeral protest statute. A trial on the merits is expected to take place in July 2010.

      In the wake of the Supreme Court’s refusal to hear the State’s appeal, the plaintiff has continued her attack on funeral protest legislation by filing suit in federal court in the Eastern District of Missouri on Tuesday, July 7, 2009, against the city of Maplewood, Mo., challenging that City’s ordinance that also prohibits protests at funerals.  The plaintiff’s complaint does not allege that the City has enforced its funeral protest ordinance, but rather claims that the ordinance has caused Westboro Baptist Church members to be “chilled in their efforts to engage in protected speech activities inspired by their religious beliefs” and that the ordinance is “unduly vague.”  Phelps-Roper v. City of Maplewood, No. 4:09-cv-1061 (E.D.Mo.  July 7, 2009). While the preliminary injunction issued by the 8th Circuit only prevents enforcement of the State’s funeral protest statute, local government officials should consult legal counsel regarding the implication of these cases on any existing or proposed local ordinances that prohibit or limit the ability of individuals to protest at or near funerals.”

LIABILITY FOR USE OF TASER.  The Columbia Tribune reported in its June 23 edition that the city of Moberly settled a taser death case for $2.3 million after Moberly police officers used a  taser some three times on a 23 year old.  Moberly now has a moratorium on the further use of tasers until town hall meetings are held on a revised taser policy.  On-duty police officers will be assigned at least one automatic external defibrillator and provided additional training on the topic of recognizing and responding to medical distress.

EMINENT DOMAIN INITIATIVE. Congratulations to Bob Hess and JoAnn Sandifer from Husch Blackwell Sanders on their important victory in Cole County Circuit Court challenging the proposed Constitutional amendments to Article I and VI, dealing with eminent domain and nuisance law under the Missouri Constitution.  Members need to keep in mind that this issue is not going to go away in the near future and that the MMAA meeting at Tan-Tar-A provided an opportunity to discuss this and how to respond individually and as a group to this threat.

ROLE OF GOVERNMENT IN URBAN REVITALIZATION.  The ABA Section of Local Government Law presents a live program on Friday, July 31 and August 1, 2009, on “The Appropriate Role of Government in Urban Revitalization: BIDS, TIFS and other IFS” at 9:00 a.m. to 10:30 a.m. eastern time. You may register by contacting the ABA on their Web site. 

AG OPINION CONCERNING DUTIES OF POLITICAL SUBDIVISIONS WITH RESPECT TO IMMIGRATION LAWS. A municipality’s duties under 67.307.1(1) is fulfilled when it gives written notice to each of its law enforcement officers of their duty to cooperate with state and federal officials enforcing the immigration laws and by revoking any permit or license of a person upon notice from the Attorney General that the permittee or licensee has been found to employ illegal aliens. Att. Gen Op. No. 125-2009, June 5, 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.