MUNICIPAL ATTORNEYS NEWSLETTER

Missouri Municipal Attorneys Association

1727 Southridge Drive, Jefferson City, MO 65109                       Editor Howard C. Wright

573-635-9134, Fax: 573-635-9009                                                Asst. Editor Ragan Wright

November 08, Issue #11-08

CASE OUTLINES (MISSOURI)

Implied Right to Use Streets Granted When Plat Filed Even Though Streets Were Not Dedicated. Bryan recorded Bryan’s subdivision plat in August of 1966. The platted property was divided into blocks 1-5 (north to south) with east-west roads 40 feet wide between the blocks. All of the lots in block 5 abut the platted road known as Road 5140. Over three years Bryan sold off most of the lots. In September of 1969, Bryan purported to dedicate the roads in Bryan’s subdivision to the public as public streets. The owner of a trailer park (Plaintiff) located on lots in block 4 placed a culvert to connect lots in block 4 to Road 5140 that was disputed by the defendant – one of the owners of a lot adjacent to road 5140 in block 5. Defendant removed the culvert and after conferring with county officials, the owner of the trailer park again placed a culvert which the defendant again removed. The owner of the trailer park sued claiming that the recording of the plat constituted a statutory dedication of the roads in Bryan’s subdivision and that the property owner had no right to block the access. The circuit court ruled that there was a statutory dedication and the matter was appealed to the Southern District. The Southern District held that there was no statutory dedication since conveyance of the lots adjacent to the road prior to the dedication of the road conveyed the underlying fee to the center of the road based on the common law. Nevertheless when property is deeded by reference to a plat upon which streets are shown, even though there is no statutory dedication, there is an implied grant of an easement to the grantee to use the road. Case remanded to the circuit court to enter a judgment in accordance with the opinion. Pomona Mobile Home Park, LLC, v. Jett, (28817, 10/08/08).

Ordinance by Itself Not Sufficient to Constitute Contract. The county of St. Louis (County) negotiated a long-term agreement with The Division Cavalry Brigade (DCB) a not-for-profit corporation that was established to enhance the public’s understanding of historical events through living history programs at the Bissett House, barn, and park grounds. The director of the county park system wrote to St. Louis County Chief Executive Dooley (Dooley) asking that the County Council enact legislation allowing the County to enter into a lease with DCB for the Bissett property setting forth in his letter the basic terms. Dooley addressed a letter to the County Council in which he restated the proposed terms and the County Council on October 19, 2004, passed legislation authorizing Dooley to execute a lease based on the proposed terms. The actual lease was not attached to the enabling legislation. Everyone proceeded as though the lease would be executed even to the point where the County gave DCB the keys to the property. The lease was drafted and a copy of the lease was sent to DCB, which was executed by DCB and returned to the County for execution. The lease was never executed by the County and thereafter the County took steps to secure the property from any further use by DCB who sued the County for breach of contract or in the alternative to require execution of the lease as set forth in the ordinance. The circuit court ruled for the County sustaining its motion to dismiss on the grounds that DCB failed to produce a lease that complied with Section 432.070 RSMo that requires agreements to be fully executed. DCB appealed to the Eastern District, which held that the ordinance authorizing the lease was not sufficient to constitute the lease even though it contained the basic terms. In addition, the execution of the lease was not a ministerial act and the county executive could not be compelled to execute the lease. The Division Cavalry Brigade v. St. Louis County, (ED90693, 10/07/08).

     Comment Howard. On the surface, this case appears to be a plain vanilla reiteration of the requirements of Section 432.070; however, it does have an excellent discussion of a number of other issues such as when different documents can constitute a contract and if mandamus lies to compel execution of the agreement based on the terms set forth in the authorizing ordinance.

St. Louis County Required to Give two Years Notice of Intent to Provide Services for the Collection of Solid Waste. In December of 2006, St. Louis County, a charter county operating under Article VI, Section 18 of the Missouri Constitution changed its code to enable the County to establish collection districts and to commence trash collection services. At that time, private haulers provided waste collection service throughout St. Louis County. In 2007, after the County changed its code to provide collection services and before the County accepted any bids for collection services the State amended Section 260.247 RSMo requiring all political subdivisions (not just cities) to give two years notice of their intent to provide trash collection services. The County requested bids and in April of 2008 the County awarded a contract for waste collection services without providing notice as required by Section 260.247 RSMo. Thereafter a group of haulers (Haulers) sued the County requesting the circuit court issue a writ of mandamus compelling the County to provide notice as required by Section 260.247 or in the alternative to declare that the statute required the County to give notice. In response to a motion to dismiss by the County, the trial court dismissed the lawsuit concluding that St. Louis County as a charter county was not required to provide notice as set forth in Section 260.247. The Haulers appealed to the Eastern District which reversed concluding that the trial court’s statutory interpretation was procedurally inconsistent with the dismissal for failure to state a cause of action. The Eastern District also determined that while the County may have broad authority under the Constitution as a home rule county to provide health services dealing with collection of solid waste, that the notice was a procedural step intended to give haulers notice so they could adjust thereby making the notice a matter of statewide interest; therefore, the County was required to provide the notice as required by the statute. State of Missouri ex rel. American Eagle Waste Industries, et al., v. St. Louis County, (ED91677, 10/21/08).

     Comment Howard: Home rule counties continue to enjoy some autonomy from state legislation based on a distinction between state laws that have a general application and laws that deal with municipal matters of local interest. Home rule cities lost this distinction in 1972 when Article 6, Section 19(a) was amended to allow the state law to override local laws. While this case illustrates how arcane and arbitrary this distinction can be at times, I have been nostalgic for the pre-1972 analysis for home rule cities thinking that we ended up with the worst end of the 1972 amendment to the Missouri Constitution. All the 1972 amendment needed to accomplish was to eliminate the requirement to find a grant of power in the charter or in state law. In retrospect, allowing the General Assembly to micro manage home rule cities was a big mistake.

Kansas City Charter Requires the Mayor and the City Council to Concur in Order to Remove the City Manager. The City Council of the city of Kansas City (City) and the mayor had a dispute regarding the continuation of the employment of the city manager. The mayor wanted to terminate the services of the city manager so he could start the process to select a new city manager. The City Council wanted to continue the services of the city manager. All of this led to a dispute bringing into question the role of the City Council and the mayor with respect to the employment of the city manager as set forth in the city charter. The City Council extended a new employment contract with the city manager, which was challenged in court. The trial court found for the city of Kansas City holding that the City Council had the authority to extend a new contract to the city manager and that decision was appealed to the Western District. The Western District held that under the city charter the city manager does not have a fixed term; that he serves at the pleasure of the mayor; and the city manager continues in office until his employment is terminated in accordance with the charter which requires the mayor and City Council to concur in the removal of the city manager. Skaggs v. City of Kansas City, (WD69436, 09/30/08).

     Comment Howard. This case illustrates how different provisions of the charter can be woven into a coherent argument showing the intent of the drafters of the city charter. Charter sections show that the drafters of the charter intended to protect the city manager from political pressure by requiring the City Council and the mayor to concur in the city manager’s removal.

     Comment Ragan: As covered by NPR the saga of Mayor Funkhouser is becoming a rich source of litigation.

Video Worth a Thousand Words. Police officer arrested Ms. Rozier after being stopped at a sobriety checkpoint. The Department of Revenue (DOR) notified Rozier that her license would be suspended pursuant to Section 305.505.1 and she appealed. The trial court ruled that the officer did not have probable cause to arrest Ms. Rozier. On appeal, DOR contended that the trial court’s decision was against the weight of the evidence and won. The Western District noted that the entire proceeding was videotaped and that the video was admitted into evidence. The videotape showed Ms. Rozier swaying, slurring words, staggering, constantly repeating herself, she had problems remembering the instructions given to her by the officer, plus her inability to perform the walk-and-turn test and the one leg test was readily apparent. Rozier v. Director of Revenue, (WD68534, 09/30/08).

     Comment Howard: Before the days of video the trial court’s decision would have been affirmed based upon the judgment of the credibility and demeanor of the witnesses by the judge. The introduction of the video acts as a good check on judges.

Metabolic Curve Shows Driver Was Not Intoxicated. Driver finished her last drink at a bar, left the bar, drove her vehicle, and was stopped based on erratic driving at 9:42 p.m., some three to four minutes after leaving the bar. The officer concluded the Driver was intoxicated based on her poor performance on a number of field tests. Officer arrested her and took her to the police station where she was administered a breath test at 11:13 p.m. (about one and one-half hours after the arrest) to determine if she was intoxicated. Her blood alcohol registered a level of .09 percent. At trial, the Driver presented expert testimony on a person’s metabolic curve based on the above information. The expert concluded she was not intoxicated when she was stopped. The trial court found for the Driver, and the director of revenue appealed to the Western District which affirmed based on the grounds that the trial court had discretion to determine creditability of the witnesses. Krieger v. Director of Revenue, (WD68864, 10/28/08).

     Ragan Comment: Hmmm. This case forms an interesting contrast to Rozier where the court said that after the appeals court reviewed the video they found the trial court got this case completely wrong. If you are trying a case in the Western District it may be very important to introduce video into evidence if you have good video.  

Substantial Evidence Supports Administrative Decision to Suspend. Police Officer was suspended for improper touching of a prisoner while taking a urine sample. The Board of Police Commissioner (Board) heard the evidence and upheld the suspension based on the evidence. The circuit court reversed and the Western District upheld the Board’s decision since the evidence as a whole showed there was substantial evidence to support the decision. Lagud v. Kansas City Missouri Board of Police Commissioners, (WD68763, 10/07/08).

Legislation and Other Matters

History of Missouri Zoning Law. The September issue of Journal the Missouri Bar has an excellent article on the history of land use controls, titled “Zoning as a Tool of Land Use Control,” by Stephen Kling, Natalie Nichols, and Katherine Welch.

ADA Amendments Act of 2008. IMLA reports that changes brought about by the Amendments to the ADA may be found in Introducing the New and Improved Americans with Disabilities Act: Assessing the ADA Amendments Act of 2008, by Alex B. Long, Forthcoming 103 Nw. U. L. Rev. Colloquy __ (2008) To download a copy from a shorter summary of the major changes, see the K&L Gates LLP Labor and Employment Law Alert (Oct. 1, 2008) at

http://www.klgates.com/newsstand/Detail.aspx?publication=4955.

Attorney-Client Privilege: IMLA reports that on September 19, Bill S. 2450 was enacted as Public Law No: 110-322. The measure adds a new Rule 502 to the Federal Rules of Evidence, to address the waiver of the attorney-client privilege, page 14 of 15, and the work product doctrine in respect of certain inadvertent or unintentional disclosures when producing documents in discovery. The amendment was prompted by the greatly increased risk of inadvertent disclosures caused by electronic discovery. The new rule will apply in all proceedings commenced after the date of enactment and, insofar as is just and practicable, in all proceedings pending on such date of enactment. You can access a copy of the law, along with additional information, at http://www.uscourts.gov/rules/evidence502.html.

Redevelopment Law. The ABA has a new book on Redevelopment: Planning, Law and Project Implementation. The cost is $89.95. You may order this book online at www.ababooks.org.

State Law Preemption of PEG Channels Before FCC. John Prestle from Varnum Law reports that a federal district court in Detroit issued a decision stating that the Federal Cable Act requirements for public, educational, and government (PEG) channels supersede state laws relating to such channels and referred a number of questions regarding Comcast’s proposed transition of PEG channels to a digital format to the FCC. In this case, Comcast sought to enforce provisions of a new state law relating to PEG channels in local cable franchise ordinances that were inconsistent with or in addition to the new state law. This decision is considered significant since many new state laws “level down” the existing cable franchises. For information on this decision see: http://www.varnumlaw.com/serviceGroups//cableTV/cableFranchising/.

Model Code for Public Infrastructure Procurement. The ABA has recently published the 2007 Model Code for Public Infrastructure Procurement (2007 MC PIP) in print and CD-ROM version. You may view information about the 2007 MC PIP and purchase it online at www.ababooks.org.

ABA Videos on Local Government. The ABA has a series of audio tapes on topics of interest to municipal lawyers from school violence, preventing workplace violence, emergency preparedness, local immigration law, sustainable infill development that can be accessed at the ABA Center for CLE.

Electronic Billboards. Stafford Publications has a CLE program scheduled for Thursday December 11, 2008, from 12:00 p.m. to 1:30 p.m. on “Local Regulation of Electronic Billboards.” You may register Online at: http://www.straffordpub.com/order/?product-abbr=tlsmca or call toll free 800-926-7926, ext.10.

CORRECTION AND COMMENTS FROM READERS

The following is from the most recent Newsletter; however, it should refer to a Missouri Ethics Commission opinion rather than an AG opinion.

MAYOR OF FOURTH CLASS CITY CANNOT BE PAID FOR DUTIES OF CITY ADMINISTRATOR. The (Attorney General) Ethics Commission in Opinion Number: 2008.09.CL.008 answers a series of questions pertaining to the mayor of a fourth class city who considered applying for a position of city administrator. The Attorney General opined that a fourth class city cannot pay the mayor any consideration for his/her work as a city administrator while holding both offices. If the mayor resigns he/she cannot be paid for any service for a period of one year as city administrator after his/her resignation. Even if no consideration is paid, the opinion questions, but does not answer, whether the duties of the two offices conflict making them incompatible so that one person could not hold both positions. A copy of the opinion may be obtained from the Attorney General’s office.

     Ed a reader writes: “This issue was also mentioned at the most recent MMAA Conference. It makes no sense to me to say that a mayor or councilmember cannot resign and take a paid position when that position may attempt to influence decisions of the city. I wonder if MML has ever considered attempting to get the statute clarified. I would think this issue arises often.”

More Than One Free Backflush. In the September issue of the Newsletter I described Harvard Properties, LLC. v. City of Springfield, (28601, 08/29/08) as giving the City one free back flush. Tom Rykowski the attorney for Springfield who skillfully handled this case commented that the City got free back flushes until the property owner corrected the defect by installing a sump pump and back flow valve. Got to also admire Tom for his spunk.

HOW TO OBTAIN OPINIONS