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

Asst. Editor Ragan Wright                                                                

June 08, Issue #6-08

JOHN DODS, A GIANT IN THE PROFESSION HAS PASSED AWAY. Joe Gall writes: “As many of you may know John Dods of Shook, Hardy & Bacon died on June 2 at age 74. He was previously very active in the MMAA and was the city attorney for Gladstone and Grandview. He was a great attorney, a wonderful man, a superb mentor for me, and the reason I still work for Grandview today.” I really appreciate you bringing this sad loss to our attention so we can share the news.

LOU CZECH’S GRANDSON TO PARTICIPATE IN AWARD. Rick Kroeger, Lou Czech’s grandson and a recent law school graduate, will participate in the award ceremony for the announcement of the 2008 recipient. We look forward to welcoming him to the Summer Seminar.

CASE OUTLINES (MISSOURI)

TEST FOR DANGEROUS CONDITION OF PROPERTY IS POSSESSION AND CONTROL. The Clay County Election Board (Board) was conducting an election at a church. A voter slipped on ice, after parking her car on the church parking lot, while walking to the church to vote. The area where she slipped was more than 25 feet outside of the entrance to the polling place, which is defined by state law as within the exclusive control of the election authority. She sued the Board, and the Board filed a motion for summary judgment on grounds of sovereign immunity since the parking lot was not the Board’s property. The circuit court granted the Board’s motion for summary judgment based on state statute that gives election authority exclusive control of property only within 25 feet of the polling place entrance. The plaintiff appealed to the Western District which reversed, holding that the appropriate test is not whether the Board had exclusive control of the property, but whether the Board exerted possession and control rising to an ownership interest. Thomas, et al., v. Clay County Election Board, et al., (WD68514, 06/03/08).

       Comment Howard. Application of this test will make it difficult to obtain a summary judgment in these situations. The government must show it did not exercise possession and control rising to an ownership interest. It seems that it will not be difficult to develop facts showing a dispute.

AGREEMENT TO PROVIDE SEWERS RUNS WITH THE LAND. In 1999, a property owner and the city of O’Fallon (City) entered into a consent annexation agreement that provided that the City would extend sewers to an 80-acre tract of undeveloped property along a portion of Highway 40/61 by providing three residential or commercial sewer tap-ons. In 2000, the property was annexed into the City. In January 2001, some 17 months after the property was annexed into the City, the property owner entered into an agreement to sell the property to National Paper. Due in part to the lack of sewers the sale price was reduced by $700,000. Prior to the sale of the property National Paper entered into an agreement with the City releasing the City from any obligation relating to the sewer provision in exchange for a sewer line development credit and grant of sewer easement rights. This agreement provided that the property would be served by a connection to the Duckett Creek Sanitary sewer line instead of the sewer line along Highway 40/61. Thereafter, the property was sold in July of 2001 by the property owner to National Paper by special warranty deed that conveyed title including “all rights and appurtances to the same belonging” without any reservation of any rights. The property owner sued the City claiming that the City breached its agreement by failing to provide sewers in accordance with the agreement resulting in a loss of $700,000. The circuit court found that the City breached the agreement and awarded the property owner $700,000, plus interest. The City appealed to the Eastern District which held that agreement to provide that, sewers was a real covenant that runs with the land that was transferred to National Paper when the property was sold. There was no breach of the agreement because the agreement did not have a time period for making the sewer improvements; therefore the court determined that the City had a reasonable time in which to perform. The property owner lacked standing to challenge the actions of the City since its rights were sold to National Paper when it conveyed the property. Hemsath v. City of O’Fallon, (ED89776, 05/20/08).

       Comment Howard. Considering the extensive use of voluntary annexation agreements which in many cases are tied to public improvements, you may want to review your standard voluntary annexation agreement in light of this case. State law provides that a city must provide similar services to those provided within the city within three years after a municipal initiated annexation, which in my mind seems to be a reasonable time in which to make the improvements. In this case, the property was sold by the property owner within the three-year period after the property was annexed.

NEW CAUSE OF ACTION FOR PRE-CONDEMNATION DELAY AND UNTOWARD ACTION. The city of Gladstone (City) blighted property owned by Clay County Realty Company and Edith Investment Company (Property Owners) in May of 2003 under Chapter 353. In May of 2004, the City entered into a development with a developer, but by August 2005 the City withdrew its designation of the developer and cancelled the agreement. Starting in August of 2005, the City began soliciting tax increment financing (TIF) proposals from other developers. In October of 2005, the City adopted an ordinance designating the property as blighted under the TIF statute and approved a TIF plan that provided for the use of eminent domain to acquire the property for economic development. The City never completed formal condemnation of the property nor did it approve a TIF project ordinance for the property. The Property Owners filed suit against the City alleging that the City engaged in undue delay or untoward activity in implementing the condemnation proceedings. They alleged that they lost numerous tenants who did not renew their leases and that the City harassed them with inspections and code violations that interfered with their ability to get new tenants. They further alleged that the actions and/or inactions by the City constituted an unconstitutional taking of their property under the Missouri Constitution. The City filed a motion for summary judgment alleging that the issue was not ripe and it did not state a claim for an unconstitutional taking which was sustained by the circuit court. The case was appealed to the Missouri Supreme Court, which held for the first time that a property owner could state a claim for pre-condemnation damages when the condemning authority was alleged to have caused undue delay or committed untoward acts in implementing the condemnation proceedings. In determining if there has been undue delay, consideration of the limitations established by the legislature should be considered and any delay falling within the statutory period would not be actionable. In addition, they must prove their damages were caused by the condemning authority’s actions or inactions. Clay County Realty Company and Edith Investment Company v. City of Gladstone, (SC88924, 06/10/08).

       Comment Howard. This is a sweeping decision that seems to go much further than necessary based on a very limited record. There will be lots of litigation in this area so get prepared. The decision creates a new cause of action for pre-condemnation delay or untoward activity a term that is not defined. The court cites Professor Whitman’s law review article for the second time in recent months suggesting that if you have a condemnation case on appeal it would be good to review his article to see if it has any relevance to your case.

EXHAUSTION OF ADMINISTRATIVE REMEDIES JURISDICTIONAL FOR ADMINISTRATIVE APPEAL. Exhaustion of administrative remedies is required under Administrative Procedures Act, Section 536.100, before applying to the courts for relief; therefore, a request for an injunction is denied. Laughlin v. Abney, (28443, 05/29/08).

REPEAL OF OFFENDING PROVISION OF CITY ORDINANCE MAKES APPEAL MOOT. Valley Park (City) passed two ordinances where the penalty provision conflicted with state law. Plaintiffs filed a declaratory judgment seeking to have the ordinances declared void and circuit court granted injunction enjoining enforcement. City thereafter repealed the ordinances and appeals. The Eastern District held that the subsequent repeal makes the appeal moot because there is no longer an actual controversy and dismissed the appeal. Reynolds v. City of Valley Park, (ED89659, 06/03/08).

MUST BE AN AGGRIEVED PARTY TO CHALLENGE ZONING DECISION. The City of Arnold (City) approved a rezoning of property to C-3 commercial. Thereafter, citizens opposed to the rezoning (Citizens) filed an application for declaratory judgment and injunction. Citizens alleged they owned property “in close proximity” to the rezoned property. The City filed a motion that the Citizens lacked standing to sue. The circuit court found for the City on the standing question and the Citizens appealed to the Eastern District. Decision was affirmed. In order to have standing as an “aggrieved person” to challenge rezoning, you must demonstrate a specific and legally cognizable interest and that the decision would have a direct and substantial impact on that interest. It cannot be merely a possible remote consequence. Plaintiffs failed to allege facts sufficient to show necessary interest. Miller v. Honorable Troy A. Cardona City of Arnold, (ED90425, 05/27/08).

CASE OUTLINES (FEDERAL)

CHAIR HAS AUTHORITY TO REMOVE SPEAKER WHO DEVIATES FROM THE TOPIC. Almost all of us have been at meetings where a speaker diverges from the topic before the public body. The chair first tries to get the speaker back on the issue but instead the speaker continues. Soon after, a confrontation develops and the chair, after several attempts to get control of the meeting, declares the speaker out of order – asking the speaker to sit down. The speaker refuses and continues. Next, the sergeant at arms is asked to remove the speaker from the meeting. Soon thereafter, the speaker files a Civil Rights lawsuit contending there was a violation of his or hers First Amendment right of free speech. Steinburg v. Chesterfield County Planning Commission, (4th Cir. No. 07-1181, 05/29/09), involved a situation like the one described above. In Steinburg, the court held that the meeting was a “limited public forum” which governmental agencies create for a limited use and so long as they do not impose limits in a manner that discriminates against the speaker’s viewpoint, the governmental body can enforce its rules and decorum. Steinburg v. Chesterfield County Planning Commission, (4th Cir. No. 07-1181, 05/29/08)

       Comment Howard. This is a must read case if you are wanting to review the analytical framework that allows a governmental body to control its meetings. The opinion has a transcript showing a word-for-word account of what happened allowing the reader to obtain a greater comfort level with how this would play out in another situation. Seemed like ground hog day.

SINGLE PURPOSE PARAMEDICS NOT SUBJECT TO FLSA. It is quite common for paramedics to be assigned to a fire department. Whether or not paramedics assigned to the fire department are entitled to overtime under the FLSA depends on whether or not they are trained to engage in fire suppression and have the “legal authority and responsibility to engage in fire suppression activities.” The Third Circuit answers this question for the first time in a 36-page opinion holding that Philadelphia’s single purpose paramedics were exempt from overtime under the FLSA. Lawrence v. City of Philadelphia, (3rd Cir. No. 06-4576, 05/28/08).

       Comment Howard. This opinion thoroughly examines the law in this area. Eighth Circuit cases are discussed leaving me to believe this is a great starting point for researching this question in our jurisdiction.

EQUAL PROTECTION “CLASS OF ONE” CLAIM DOES NOT APPLY TO PUBLIC EMPLOYMENT CASE. Engquist an employee (Employee) with the state of Oregon alleged that she was treated differently than another employee. Employee claimed that she was fired not because she was a member of an identified class (race, sex, and national origin), but as a member of a “class of one” thereby violating the Equal Protection clause. The United States Supreme Court granted cert to resolve a conflict between the circuits and determined that there was no right under the Equal Protection clause to bring a “class of one” claim in public employment matters. The Court distinguishes employment matters from other types of claims where the government is regulating. In employment matters, unlike situations where the government is regulating or licensing as lawmaker, the government needs to take into account “individual personalities and interpersonal relationships in the workplace.” The theory of equal protection is a poor fit in the public employment context. Engquist v. Oregon Department of Agriculture, et al., (No. 07-474, 06/09/08).

       Comment Howard. This is a very important case because it narrows equal protection claims in the public employment context. It takes away the argument that everyone has to be treated identical all the time when the person is not within a protected class like race, sex, and national origin. It gives the public employer much greater latitude to deal with the difficult employee who is not in a protected class without having to figure out if everyone was treated the same.

SUPREME COURT CONTINUES TO NARROW DORMANT COMMERCE CLAUSE APPLICATION. The United States Supreme Court upheld a Kentucky law that allowed income from Kentucky local and state bonds to be deducted from state income while out of state government bonds were subject to Kentucky income taxes. It was alleged that this violated the dormant commerce clause of the United States Constitution. The line up of justices voting to uphold the Kentucky statute was the same as in the United Haulers case decided a year earlier in upholding a flow control statute for solid waste against a similar dormant commerce clause challenge. It now seems clear the United States Supreme Court has a much more narrow view of the dormant commerce clause and has retreated from the expansive view of the dormant clause taken by the Rehnquist Court. Dep’t of Revenue of Kentucky et al., v. Davis, (No. 06-666 U. S., 05/19/08).

FOURTH Amendment seizurE upheld even though arrest not allowed under state law. The United States Supreme Court upheld the use of evidence seized by police officers when making an arrest based on probable cause even though the arrest was prohibited by state law. “When officers have probable cause to believe a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.” Virginia v. Moore, (U.S. No. 06-1082, 04/23/08).

LEGISLATION, NEWS, AND OTHER MATTERS

AQUILA. The General Assembly passed and the Governor signed legislation granting the Public Service Commission authority to retroactively allow Aquila the right to keep the electric plant. This has been described as reverse engineering. Private corporations violate the law and the legislature engineers retroactively a law giving them a free pass. This does not say much for the rule of law as it presently exists in our State.

DEVELOPMENT LAW BOOK. Planning, Law, and Project Implementation by Brian W. Blaesser and Thomas P. Cody explores the complex process of development for a single use or mix use; addresses important considerations in redevelopment planning; the applicable federal, state, and local laws; and implementing redevelopment ideas. The book will help readers gain a better understanding of the relationship between the various participants and institutions in the redevelopment process and the redevelopment process from land assembly through the entitlement process, to ultimate management of the redevelopment. Regular Price: $89.95. If you are an ABA member, log in to the ABA Web site at http://www.abanet.org/abanet/common/MyABA/home.cfm to edit your member profile. Otherwise, complete the form located at https://www.abanet.org/members/join/coa2.html.

H.R. 980 COLLECTIVE BARGAINING. IMLA reports there has been a recent flurry of activity on H.R. 980, the Public Safety Employer-Employee Cooperation Act of 2007. This legislation proposes to impose collective bargaining rights for all public safety officers employed by states or their political subdivisions; for states that currently have collective bargaining, the bill would require that the Federal Labor Relations Authority determine, within 180 days of the Act passage, whether each state labor law complies with certain specified requirements. As reported here earlier, IMLA has joined forces with other organizations like the IPMA-HR and NLC to oppose this legislation. Apart from the fact that the legislation interferes on a profound level with a municipal governments right to determine for itself whether the conditions of employment for its employees shall be subject to collective bargaining, the proposed legislation may also be a huge unfunded mandate for municipalities. (“On Funding,” a report by the Congressional Budget Office "estimates that implementing H.R. 980 would cost $44 million over the 2008-2012 periods, subject to appropriation of the necessary funds.") The House passed H.R. 980 on July 17, 2007. On May 15, 2008, a cloture motion on the measure was withdrawn by unanimous consent in the Senate, avoiding the need to have a vote on May 16. President Bush has promised to veto the bill, but it is possible that there is enough support in Congress to override the veto. Shortly before the Memorial Day recess on May 23, Senate leaders were trying to work out a compromise and bring the bill back to the floor. A similar Senate bill, S. 2123, the Public Safety Employer-Employee Cooperation Act of 2007, was introduced on October 1, 2007, and was referred to committees.

HOW TO OBTAIN OPINIONS

The material contained in this Newsletter is summarized as a service to MMAA members. Almost everything cited in the Newsletter can be found on the Internet. There are a variety of places to search for cases on the internet. Below are several sites that I use for searches. If you have questions or comments please feel free to e-mail me at howardcwright@mchsi.com or call us at 417-569-0386.

Missouri: http://www.courts.mo.gov/courts/pubopinions.nsf.,

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.