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                                                

September 09, Issue #9-09

CASE OUTLINES (MISSOURI)

COMPUTER PROGRAM AVOIDS ZONING ORDINANCE VIOLATION. Titlemax sought to open three loan offices in Bridgeton that were located in a B-2, community business district. A loan office is a permitted use in the B-2 district. A “loan office” is defined as: “An institution in which the primary or a substantial portion of its business is the provision of consumer credit loans of at least $500 and a minimum loan term of 12 months. Such institution shall be licensed or hold a certificate of registration from the appropriate state agency.” Titlemax applied for and was denied a license by the zoning officer for Bridgeton on the grounds that Bridgeton’s zoning ordinance did not include uses set forth in Sections 408.500 and 367.500 RSMo (loans less than $500 and title loan company). Titlemax appealed the decision of the zoning officer to the board of adjustment (Board), which denied the appeal. The evidence before the Board showed that all of the loans were over $500 (their computer does not allow for a loan less than $500) and that the loan contracts were for 24 months although the average time in which the loan was paid was 10 months. Titlemax also showed that it was licensed and was not organized as a car title lender or title loan company. The Board denied the request and Titlemax appealed to circuit court which reversed the Board’s decision. Bridgeton appealed to the Eastern District, which affirmed the circuit court’s decision. In reviewing the evidence, the Eastern District determined that Titlemax use fell within the definition of a loan office. City of Bridgeton v. Titlemax of Missouri, Inc., (ED92205, 08/25/09).

INVESTIGATORY STOP DOES NOT CONSTITUTE AN ARREST. Police officer (Officer) for the city of Moberly (City) saw a maroon Cadillac traveling toward him. He waited for the car to pass so he could identify the driver, whom he believed to be Redifer because the car was similar to Redifer’s car and he had checked Redifer’s license a few days before, learning that Redifer’s license had been revoked. The officer turned his car around and followed the maroon Cadillac, which pulled over, and the Officer saw Redifer exit the vehicle. The Officer told Redifer to stop at which point Redifer bolted and ran. The Officer testified that after he stopped and Redifer had bolted, he was going to check with the dispatcher to determine if Redifer’s license was still revoked, which was confirmed by the dispatcher. Later Redifer was charged with driving a vehicle without a license and resisting arrest. A jury found that Redifer was guilty on both counts and he appealed to the Western District, the count charged him with resisting arrest. The Western District reversed on the grounds that the testimony of the Officer showed he did not call to determine if Redifer’s license was revoked until after Redifer bolted and after he tried to stop Redifer. The Western District held that in order to resist arrest you must first be under arrest. Telling Redifer to stop did not constitute an arrest since the Officer lacked the necessary information to make the arrest; therefore, the actions of the Officer were like an investigatory stop. Judgment is set aside and decision is reversed. State of Missouri v. Redifer, (WD69708, 08/14/09).

U. S. DISTRICT COURT FOR THE EASTERN DISTRICT UPHOLDING RED LIGHT CAMERA ORDINANCE IS NOW FINAL. I may not have given proper due to the importance of the recent decision by the U. S. District Court for the Eastern District in Kilper v. City of Arnold decided July 23, 2009. This decision has not been appealed and is now final. When you beat the other side so bad that they decide not to appeal, that is a real victory. A special thanks is due to the great work by Dudley McCarter and the team that defended the city of Arnold. I would like to stress that this case is a very important decision of enormous interest to many of our members considering the large number of communities (around 35 and counting) that have some form of automated camera ordinances to improve safety on our streets. The opinion is 48-pages and was challenged on just about every ground imaginable including a criminal conspiracy under the Racketeering Act that was included no doubt so they might grab the proceeds from the enforcement of this law. The two main issues in the case involve a challenge to the presumption that the owner was the driver, which is rebuttable, and the fact that no points are assessed. Of considerable interest was the court’s discussion of the due process issue. The court reasoned that since there were no points for a violation and the civil penalty was small the claim did not implicate the due process clause. A copy of the opinion and a three-page summary can be obtained from www.behrmccarterpotter.com. If your community has a similar ordinance or is considering an ordinance, a thorough reading of this case is required since this will be the starting point for any challenge or defense to a red light camera ordinance or some other form of automated camera ordinance.

        Comment Howard. For those who are interested in following this topic there is a very good article in the July/August 2009 IMLA edition of the “Journal of Local Government” by Carrie Torrence on automated traffic enforcement issues.

        Comment Ragan: Part of the due process issue is the claim that the presumption undermines the owner’s constitutional rights. That argument is problematic for the violator because that presumption is also found under Section 304.050 RSMo, which governs school bus stop arm violations. The Missouri Supreme Court has had 12 years or more to deem that presumption violates a criminal defendant’s rights and it has not struck down that provision. When handling these cases, please keep in mind that this type of presumption has existed for traffic violations in Missouri for at least 12 years, if not longer. Even under the standard of “proof beyond a reasonable doubt” in a criminal infraction the courts have not struck down that presumption.

NO RIGHT TO JURY TRIAL TO APPORTION COMMISSIONERS AWARD. There is no right to a jury trial with respect to the apportionment of the commissioner’s award in a condemnation case. The only right to a jury trial in a condemnation case is when exceptions to the commissioner’s award have been filed. The only issue for a jury in a condemnation case is the question of the value of the property. Once a condemnation petition is filed, a court loses jurisdiction over a pending quiet title case that is the subject of the condemnation action. Procedures with respect to the apportionment of the commissioner’s award are described in detail. City of Branson v. Branson Hills Master Association, Inc. (SD29577, 08/05/09).

GREENWOOD WINS $11.9 MILLION JURY VERDICT AGAINST OPERATORS OF QUARRY. Greenwood (City) is a fourth class city of 4,000 in southern Jackson County. Located near the City is a quarry that has operated for more than 50 years. The route used for transporting crushed rock from the quarry runs approximately 1.25 miles from the quarry to Highway 150, using Second Street, Walnut or Fifth or Sixth Street (referred to collectively as “Second Avenue”). Once on Highway 150, the route proceeds through a residential area of the City where some of the homes are situated 30 feet from the highway with direct highway access. The next quarter of mile, the homes are on larger lots or there are properties put to agriculture uses and on the last quarter of the mile in the City there are business uses. The case was tried to a jury on a negligence theory and a public nuisance theory, which awarded the City $1.9 million for negligence and nuisance and $10 million for punitive damages split between Martin Marietta – $7 million and $3 million against Hunt Martin. The City had a valid ordinance restricting all commercial traffic on city streets after some significant earlier litigation. The defendants appealed the verdict to the Western District, which affirmed the jury verdict. The only issue preserved by the defendant was whether or not traffic alone could create a nuisance. This issue is examined in the context of public nuisance law that starts with the proposition that a public nuisance is “any unreasonable interference with a right common to the general public.” A public nuisance “interferes with, or obstructs the rights of property of the whole community, or neighborhood, or of any considerable number of persons.” The evidence to support the public nuisance claim was horrific and its impact on the community and its citizens was extremely detrimental. Starting at 8:00 a.m. to 5:00 p.m., there was one truck every two minutes creating dust and noise. On weekends, truck traffic continued although to a lesser extent. At its peak during 2001, the quarry produced some 1.65 million tons and during 2005 production was at 1.42 million tons. Residents living along the road were deprived of the use of their property, and the dust and noise from the constant traffic made living conditions very harsh. The road was totally inadequate for the truck traffic and if two trucks met from opposite directions, one truck had to pull over to the side to allow the other truck to pass. The city streets were reduced to shambles due to the weight and impact of the trucks. Based on the evidence the court concluded that a jury could find that the defendants made an unreasonable use of the city streets to the detriment of the residents and the public. Defendants argued that the trucks hauling the materials were contract haulers and that the defendants were not responsible for their actions since they were not the agents of the defendants. The court found that the haulers were acting as agents of the defendants. The defendants also argued that there was error in the instructions and that the finding of negligence and nuisance was improper. The court found that the judgment on the nuisance theory was sufficient and that any error with respect to a finding of negligence was harmless. Judgment affirmed. City of Greenwood v. Martin Marietta Materials, Inc. et al., (WD69787, 08/11/09)

        Comment Howard In the course of two months, we have had two very important cases involving nuisance law – hog farms are a public nuisance and this case involving the use of public streets and the consequences to adjoining property. What is going on here? First both cases require significant commitment by the plaintiffs of time and resources; but, both resulted in significant damages against large corporations that were impacting private and public property. If these cases stand, I would expect to see a lot more public nuisance cases. It is also pretty obvious from the size of these verdicts that jurors will award significant damages that may help to curtail bad corporate behavior and encourage similar lawsuits.

PROSECUTOR HAS ABSOLUTE IMMUNITY. Prosecutor is protected by absolute immunity when filing charges against defendant for violation of criminal law. Carden v. Courtney M. George, (SD29623, 08/10/09).

CASE OUTLINES (FEDERAL)

DENIAL OF USE PERMIT FOR CELL PHONE TOWER MUST BE IN WRITING AND MUST SHOW SUBSTANTIAL EVIDENCE TO SUPPORT DENIAL. The 8th Circuit joins other circuits in holding that a denial of special use permit by a local governmental agency for telecommunications tower must be in writing and must show that there is substantial evidence to support the denial. It does not have to contain formal findings of facts and conclusions of law to be sustainable. Sprint Spectrum v. Platte County, (8th Cir., 08-1965).

NEWS AND ADDITIONAL INFORMATION

STATE LAW PROHIBITING TEXTING PREEMPTS LOCAL LAWS? Tim Fischesser, executive director of the St. Louis County Municipal League recently noted that St. Louis County Municipal League has developed a model ordinance that prohibits texting while driving a motor vehicle. A copy can be secured from the St. Louis County Municipal League. Tim notes that there is a lot of interest in prohibiting texting while driving although HB 62 preempts “the field of regulating the use of hand-held electronic wireless communications by the driver of a motor vehicle.” Can local government mimic the state law without violating the preemption language? Seems to me that this is one of those feel good state laws that when examined is ridiculous on its face and probably passed with the support to the telecommunications industry. In my mind, the cell phone industry is laughing all the way to the cell phone bank. Why distinguish between persons who are under 21 years of age and older drivers? The reason is that this hides the real purpose of the state law, which is to preempt local government from acting to outlawing any form of cell phone use while driving a motor vehicle including texting.

        Ragan Comment: Even with all the hoopla on this issue I strongly advise everyone from staying away from any type of ordinance with an age prohibition like the state law and any type of ordinance prohibiting this type of behavior. There are simply too many issues and hurdles in this type of case. How does an officer determine a person is under the age of 21 when determining if he should conduct a stop? Do we really want officers stopping people because they believe a person is under the age of 21 when that vehicle travels past them at 30-40 mph? The constitutional standard for an investigative stop is reasonable suspicion. I am not sure how an officer could have more than a hunch that the person he/she observed in a car for a very short period of time is under the age of 21. Consider the rules of evidence. The evidence rules may require that you produce the cell-phone, preserve a record of the communication, produce a record of the communication at trial, and even worse you may need to seize the cell phone. In addition, you should consider all the features available on a phone that could be confused with reading or sending an electronic message. Maybe I was not texting but I was trying to watch a movie, listen to a song, take a photo, calendar an event, answer a phone call, dial a phone number, read CNN news, or maybe I was just looking at my phone that was receiving a text message but not reading the text message.

ONE STOP SHOP. The MML has recently launched a new feature called the “One Stop Shop” that includes sample ordinances, attorney general opinions, and links to state statutes and court cases organized by topic. Go to the MML’s Web site and clink on “One Stop Shop.” (http://www.mocities.com/OneStopShop.htm.)

RENEWABLE ENERGY PROJECTS. The ABA has a teleconference program on municipal financing or renewable energy projects and green expenditures on Wednesday September 30, 2009, from 1:00 p.m. to 2:30 p.m., EST. The program will explore ways municipal bonds can be used in connection with public and private financing of new energy and renewable projects including tax incentives and grant programs. For more information or to register visit: http://meetings.abanet.org/meeting/tax/TX0909T/ http://maestro.abanet.org/trk/click?ref=zpqri74vj_3-a969x3d564x127184&

GREEN BUILDINGS AND SUSTAINABLE DEVELOPMENT: THE PRACTICAL LEGAL GUIDE. This book was just published by the ABA and covers this subject that may be of interest in your practice. For more information visit: www.ababooks.org.

BLOG REGARDING OZARKS LAW AND THE ECONOMY. Henry Styron, a member of the MMAA publishes a blog that is very interesting called “Ozarks Law and the Economy: How people, business and nature compete.” He discusses recent cases and uses many good examples written with a municipal perspective. He also has many excellent links to other valuable sources of information. Thank you Henry for calling this to my attention. The link for his blog "Ozarks Law & Economy” is <http://olp09.wordpress.com>.

CONFIDENTIAL, BUT NOT PRIVILEGED FROM DISCOVER. Robert Hess has written a comprehensive analysis of “Closed Records: Confidential, But Not Privileged From Discover” that was just published in the July-August 2009 edition of the “Journal of the Missouri Bar.” The question that Bob addresses comes up all of the time since it is very common for parties who are litigating to file a Sunshine Law request as a means to back door their litigation discovery or even to use third parties to assist with the request for records. Bob is actively involved in the MML case challenging the ballot language over the initiatives to amend the Missouri Constitution with respect to eminent domain. Thank you Bob for this very useful article.

WHAT ARE THE IMPLICATIONS OF (SUMMUM) THE FIRST U. S. SUPREME COURT CASE ON GOVERNMENT SPEECH? The 2009 decision by the United States Supreme Court in Pleasant Grove City v. Summum, the first U. S. Supreme Court case on the topic of government speech has of course created a lot of speculation about where this case might take us. The author of the IMLA amicus brief in the Summum case, which appeared to be influential in the decision, gives us a good peek at the ramifications of this decision. See the July/August 2009 IMLA edition of the “Journal of Local Government Pleasant Grove City v. Summum: The Supreme Court’s First Look at Municipal Government Speech” by Mary Dolan.

HEY, DIVISION OF LABOR, STOP INSULTING OUR INTELLIGENCE! Last month we reported on the Division of Labor’s action to enforce the Minimum Wage Law that was declared unconstitutional by the Cole County Circuit Court as applied to local government, and in particular, members of the MML. On August 27, 2009, the Division of Labor responded to earlier questions raised by the city of Hannibal stating that while it still believed that the Division was not bound by the Cole County Circuit Court, and that the Law was valid as applied to Hannibal, it would “close its files” and was going to advise the employees who are complaining that they have a private cause of action under Section 290.527 RSMo. They did not even have the decency to advise the employees of the Cole County decision. The city of Hannibal responded the very next day with a sharply worded letter noting the hypocrisy (my words) of these statements and the failure of the Division to give credence to the Cole County Circuit Court’s decision. One would hope for more but don’t count on it when we live in the world of politics and hypocrisy. What is wrong with recognizing the facts and the law, as they exist? Seems to me that would be good politics to call a spade a spade. It seems just like yesterday that Jay Nixon, as attorney general, appeared at the 2008 MML Legislative Conference and announced he was not going to appeal the Cole County decision to a cheering MML crowd. Surely Governor Nixon has control over the Division of Labor. It is an embarrassment to Governor Nixon to now have the Division of Labor totally undercut his earlier statements and the decision of the Cole County Court. The new attorney general has plenty of cover in that he can recognize the importance of the Rule of Law even though he does not agree with the earlier decision and that he feels bound by that decision until there is a new law on this subject. I assume the employees involved may pursue their cause of action since they were not parties to the Cole County decision; but, any attempt to collect under the Minimum Wage Law will quickly result in a challenge to its validity requiring the state of Missouri to be a party. I think letters calling for a better response from the Division ought to be directed to Governor Nixon with a reminder that reopening this can of worms for the State will be an embarrassment to himself personally with a real downside for labor in that the Missouri Constitution requires a funding source for an initiative when the initiative requires the expenditure of state funds.

PURDY JUDGMENT INVOLVING TOM BURCHAM LAWSUIT OVER STACKING OF SALES TAXES SET ASIDE. On August 28, 2009, the circuit court for Barry County set aside its earlier judgment in the Purdy case and has now set a hearing on all pending matters after the plaintiff has responded to the defendant’s recent filings. Congratulations to Dan Vogel and his team for this recent victory. Joplin has recently been sued by Tom Burcham, so we can now expect a lot more activity on this important issue that impacts a large number of our communities.

INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION AND MMAA.  The International Municipal Lawyers Association (IMLA) and the Missouri Municipal Attorneys Association (MMAA) has entered into an agreement allowing member cities with less than 2,500 in population to be enrolled as an IMLA member with limited membership benefits. These benefits include receiving the monthly publication “The Municipal Lawyer,” the bi-weekly electronic newsletter, and attendance at IMLA conferences and/or seminars at the member discount rate. IMLA holds two education meetings annually, a spring seminar in Washington, D.C., and an annual conference in early fall at various locations throughout the country. While the meetings are open to members and nonmembers, members enjoy a significantly lower registration rate. Local government attorneys value the networking capability to meet with other attorneys throughout the U.S. and Canada that share the issues and problems facing local governments. IMLA has also been holding regional seminars on various substantive programs such as construction law and code enforcement. IMLA is an approved CLE sponsor in all states with mandatory CLE requirements.

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/.

http://www.mocities.com/OneStopShop.htm

The opinions cited in this Newsletter may be subject to revision or withdrawal prior to publication.