October Newsletter

October Newsletter

Drug testing policy for students enjoined

Policy – In the fall of 2011 Linn College decided that it would start a drug-screening program for all students who are newly classified as degree or certificate seeking and students returning after one or more semesters of non-enrollment at the College.  The Policy states that the purpose of the program is to provide a safe, healthy, and productive environment for everyone who learns and works at the College by detecting, preventing, and deterring drug use and abuse among students. Furthermore, drug screening has become an increasingly important part of the work environment.  Part of the mission of the College is to prepare students for actual  working conditions.  The President of the Board stated that the Policy would increase enrollment because parents would send their children to a school with a drug free environment.  As a condition of admission to the College students were required to sign a form acknowledging the new drug-testing policy and that refusing to be screened would result in administrative or student-initiated withdrawal.

 Earlier Proceedings – The ACLU and a number of other groups hotly contested the drug-testing program from day one.  Initially, in 2011 the Federal District court granted a preliminary injunction to the Plaintiffs who challenged the policy as overly broad, based on the likelihood of success, which was reversed by the 8th Circuit on the grounds that a challenge based on the facial invalidity of the Policy required that the Plaintiffs must show that “no set of circumstances exists” in which the drug-testing would be valid.  As a consequence the Plaintiffs amended their petition challenging the Policy “as applied” to current students and the case was tried before the district court.

 Facts – The evidence showed that the College offers a number of programs for about 1200 students with about five hundred new students entering each year.  Programs were divided into four primary categories: each of which have further specialty areas some of which involve manual exercises that can be dangerous.  For example, students in the aviation maintenance program spend roughly 62% of their time doing hands-on training, where students work in close proximity to active propeller blades.  These students are also required to taxi airplanes.  Students seeking accreditation in the heavy equipment operations program spend between 51% and 72% of their time engaged in hands-on training.  This work involves operating Caterpillar D6R bulldozers and other heavy equipment weighing up to twenty-five tons.  An instructor in the industrial electricity department testified that students in his department spend about half their time engaged in hands-on functions.  This training involves dealing with live electricity and performing electrical services.  However for most students their training does not involve dangerous equipment or activities since they may be just sitting at a computer or a drafting table with a sharpened pencil.  When the College adopted the Policy it did not cite any particular problems with drug use by its students and in fact during the College’s 50-year history it could not identify drug use among its students as a significant problem nor could the College show that drug use caused or contributed to any accident in Linn State’s history.  The College does not have any greater prevalence of drug use among its students than any other college.

 Analysis – The drug testing Policy was a mandatory, suspicionless drug-testing program constituting a search within the meaning of the Fourth Amendment, requiring the College to demonstrate a legitimate special need for drug testing that is sufficient to outweigh the students’ individual privacy expectations against the state.  In order for the Policy to be valid the opinions by the District Court and the 8th Circuit stated that the safety risks must pose such a threat that “even a momentary lapse of attention can have disastrous consequences.”  In addition, in order to override the ordinary requirements of the Fourth Amendment, the safety risks at issue must be of a unique or unusual degree.  Finally, the safety risk must be to others, as opposed to the individual student performing the task.

After the trial, Judge Nanette Laughrey issued a 62 page opinion that enjoined Linn State Technical College (College”) from implementing the unprecedented drug-testing Policy for nearly all students at the College.  The district court determined that an injunction was warranted with respect to those Plaintiffs whose Fourth Amendment rights were, or would be, violated by the application of Defendants’ drug-testing Policy except for students enrolled in the Aviation Maintenance, Electrical Distribution Systems, Industrial Electricity, Power Sports, and CAT Dealer Service Technician programs.  In addition, the College was ordered to return the fees collected by Defendants in connection with the unconstitutional application of Defendants’ drug-testing policy.  Barrett, et al., v. Claycomb (Case 2:11-cv-04242-NKL Document 234 Filed 09/13/13)

 Comment Howard: The opinion literally covers the waterfront with respect to drug testing of students for different types of student training programs/activities (and for that matter public employees who engage in similar activities). This opinion is a must read for anyone who is considering the adoption of a drug testing policy involving a government agency or for those who are concerned about suspicion less searches in violation of the Fourth Amendment. http://www.aclu-mo.org/download_file/view_inline/1010/315/

Cannot ban distribution of bibles at Twin Cities Pride festival

Local government is engaged in all sorts of partnerships with groups who have festivals or other activities on public property.  The city can get directly involved by drafting regulations for the use of the property and/or a contract signed by the user and indirectly involved by the actions of the person who is sponsoring the event.  Since these activities may generate large crowds they attract others who want to distribute information by walking through the crowd, persons who want to set up booths to sell or distribute their products, street performers, or persons handing out bibles as was the case in   Johnson v. Minneapolis Park and Recreation Bd., (8th Cir. No. 12-2419, September 11, 2013).

Facts and Procedure – The Minneapolis Park and Recreation Board (“the Board”) oversees Loring Park, a 42-acre public park in downtown Minneapolis.  For more than thirty years, Loring Park has been the site of the two-day Pride Festival.  Twin Cities Pride, a nonprofit organization, whose mission is to create experiences that bring the gay, lesbian, bisexual, and transgender community hosts a two-day festival in Loring Park. Twin Cities Pride’s use of the Park during the Festival is nonexclusive, and admission to the park remains free and open to the public.  Participants must apply to Twin Cities Pride to operate booths from which they may distribute or sell their wares.  The organization will sanction participants only if they sign a “non-discrimination statement,” providing that the applicant does not “discriminate in hiring, employment, participation or services rendered based on the fact or perception of a person’s race, color, creed, religion, national origin, ancestry, age, sex, sexual orientation, gender identity, domestic partner status, marital status, disability, or Acquired Immune Deficiency Syndrome or HIV status.”

Johnson a self-described “professing Evangelical Christian,” distributes copies of the Bible “essential to his expression” and distributed bibles at the Festival starting around 1995 and thereafter, he secured an exhibitor’s booth from Twin Cities Pride.  In 2009 Johnson signed an application and the non-discrimination statement, but the Festival Manager asked him three more questions: whether his activities at the Festival would “meet the intentions” of the non-discrimination statement; whether he believed that homosexuality or homosexual sex acts are sins; and whether he believed that sexual intercourse between persons of the same sex is a perversion.  Johnson replied that he would “gladly hire a homosexual at my business if he/she could do the job,” but expressed his belief that the Bible specifies homosexual conduct as a sin.  He elaborated that he tries to avoid the subject of homosexuality when passing out Bibles at the Festival, and he does not believe that homosexual or heterosexual temptations, in and of them, constitute sin.  The Festival Manager was not satisfied by this reply and declined to approve the application.  Having no booth, Johnson attempted to distribute Bibles while walking through the park during the Festival, but Minneapolis police arrested him for trespassing when he refused to leave.  The charge was later dismissed.

In anticipation of the 2010 Festival, Johnson requested and received from the Board assurances that he would not be forbidden to distribute literature within Loring Park during the Festival.  After learning that the Board intended to allow Johnson to distribute Bibles, Twin Cities Pride brought an action against the Board pursuant to 42 U.S.C. § 1983, alleging that allowing Johnson to distribute literature during the Festival violated Twin Cities Pride’s rights under the First Amendment.  The district court granted Johnson’s motion for permissive intervention, and denied Twin Cities Pride’s motion for a temporary restraining order ruling finding the festival a public forum.  Johnson was entitled to speak and hand out literature, quintessential activities protected by the First Amendment, so long as he remains undisruptive.  Johnson attended the 2010 Festival and distributed Bibles without incident.  In a footnote to its 2010 ruling, the district court responded to Twin Cities Pride’s request for “guidance” and suggested that “a compromise may be available.” by designating  ‘free speech zones’ on the Pride Festival grounds in which anyone who wishes to distribute literature or display signage may do so.”  Litigation resumed after the 2010 Festival resulting in the Board and Twin Cities Pride prohibiting the distribution of literature and the display of signage not authorized by Twin Cities Pride, except in booths and “free speech zones.”  The Board than adopted a resolution that prohibits an attendee like Johnson from personally distributing literature in Loring Park during the Festival except from a booth.

The 2011 Festival proceeded according to the settlement and corresponding Board resolution.  On a map of the 2011 Festival grounds, produced and distributed by Twin Cities Pride, the area designated for Board-sponsored booths contained an image of the word “Pride” in a red circle with a red line through it. Johnson dubs this a “No Pride Zone”; Twin Cities Pride says it used the image to indicate that the area was not part of the Festival; the Board responds that it had nothing to do with the design of the map and did not approve the inclusion of the symbol. Twin Cities Pride also placed a sign next to the material drop area stating that the area was for “individuals and groups that do not support the message of Twin Cities Pride”; the Board removed the sign during the Festival.  In 2011, Johnson declined to seek a Board-sponsored booth and placed no literature in the drop area.

Analysis – Johnson then sued based on a violation of his First Amendment right of free speech requesting a preliminary injunction against enforcement of the regulation on literature distribution.  The district court ruled for the Board and Twin Cities Pride by refusing to grant a preliminary injunction and Johnson appealed to the 8th Circuit.  The 8th concluded that the Board presented little evidence that forbidding literature distribution furthered a significant governmental interest at the Festival.  The 8th Circuit held that the regulation was also underinclusive because it restricted a medium of speech in the name of a particular interest but leaves unfettered other modes of expression that implicate the same interest.  There was evidence that performers are permitted in the park during the Festival, but the district court concluded that the literature distribution regulation is “not so underinclusive as to be unconstitutional,” because performers are less likely to cause congestion than literature distributors.  The 8th Circuit debunks this notion concluding that it is obvious, that a street performer’s very purpose is to draw a crowd.  Buskers like mimes, musicians, and living statues aim to attract an audience, and passersby’s may stop to listen or observe. With literature distribution, by contrast, a recipient “need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone’s hand.” ‘The distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead, the recipient is free to read the message at a later time.” The distribution regulation was not narrowly tailored to serve a significant governmental interest therefor it was invalid.

Comment Howard: The time energy and money spent on this case had to be enormous since someone (Twin City Pride or the Board) was paying the attorney fees for Johnson over the course of several years of extended litigation.  It seems that the contract should have reserved to the Board the absolute right to adopt regulations governing the activity and should have required Twin City Pride to accept such regulations as a condition of use of the property, which might have been sufficient to deter them from suing the Board based on its questionable free speech claim.  Almost always there will be some little nugget in the case that helps your case or destroys it like the three questions the Gay Pride representative asked Johnson.

St. Louis street performer ordinance enjoined

For a similar result involving regulations of street performers a district court granted a preliminary injunction against City ordinance licensing street performers where the public works licensing officials asked street performers to come to the office to audition (which was said but did not happen). See Pence et al., v. City of St. Louis, (United States District Court, Eastern District of Missouri, Eastern Division, No.  4:13-cv-871 CDP) http://www.aclu-mo.org/legal-docket/buskers-v-city-st-louis/

 

Payment for heritage value is constitutional

Facts – Property Owners family have owned 15 acres of real property (Property) for more than 50 years and claim heritage value under Missouri statutes that were part of the eminent domain reform in 2006 after Kelo.  St. Louis County (County) determined that it was necessary to condemn the Property.  The County filed its petition in condemnation and the trial court entered an order of condemnation, authorizing the acquisition of the Property.  Because the Property Owners and the County were unable to agree on the proper compensation, the trial court appointed three commissioners who held a hearing and filed a report.  The condemnation commissioners awarded the Property Owners $320,000 as damages.  The Property Owners filed exceptions to the commissioners’ award and requested a jury trial.  Prior to the jury trial, the commissioners filed an amended report with the finding that the Property Owners had owned the property for more than 50 years.  The Property Owners then filed a motion for assessment of “heritage value,” pursuant to sections 523.061 and 523.039.  The trial court sustained the motion and awarded heritage value in the amount of $160,000, resulting in a total award of $480,000.  The Property Owners exceptions were tried by a jury, which assessed damages in the amount of $1.3 million.  The Property Owners then filed a motion for assessment of heritage value and entry of judgment.  The trial court sustained the motion over the County’s objections that the statutes defining “heritage value” and governing its assessment were constitutionally invalid and added $650,000 for heritage value to the jury’s verdict and assessed interest.  The County appealed to the Missouri Supreme Court challenging the constitutional validity of the statutes authorizing an award of heritage value when the property has been owned by one family for 50 or more years.  St. Louis County v. River Bend Estates Homeowners’ Association, et al., (SC 92470, 09/10/13)

 Claims – The County claims that it should have been able to inform the jury that the Property Owners would in addition to receiving the fair market value of their property would receive an additional 50% based on “heritage value.”  The County also asserts that sections 523.039 and 523.061, implementing an award of heritage value, violates the Missouri Constitution because the General Assembly impermissibly altered the judicial definition of “just compensation” by permitting the addition of heritage value to fair market value, in violation of article I, section 26 of the Missouri Constitution; that  the heritage value statutes require that the county expend public funds without a public purpose in violation of article III, section 38(a) and article VI, sections 23 and 25 of the Missouri Constitution; and, the statutory requirement that a judge compute heritage value invades the province of the jury to determine just compensation for land taken by eminent domain, in contravention of Article I, section 26 of the Missouri Constitution.”

Analysis – The County asserts that the trial court erred by refusing to let the jury know that the Property Owners would receive an additional compensation of 50 percent of any jury award to compensate them for the “heritage value” of the property.  When the jury finds that the property was owned by the same family for 50 or more years, the judge computes heritage value as 50 percent of the amount the jury found to be the fair market value of the condemned property.  The definition of “fair market value” permits the jury to consider only the “value of the property … based upon its highest and best use….” Consequently, the heritage value statute was irrelevant to the jury’s given task of determining the fair market value of the property.

 The U. S. and the Missouri constitutions provide “…that private property shall not be taken or damaged for public use without just compensation.” The term “just compensation” is not defined but the courts long have interpreted it to mean the “fair market value” of the property at the time of the taking.  In 2006, the Missouri General Assembly “enacted a statutory definition of just compensation” codifying the judicial determination that “just compensation” means fair market value, which is what a reasonable buyer would give who was willing but did not have to purchase, and what a seller would take who was willing but did not have to sell.  The General Assembly also provided for additional compensation in the amount of 50% of the fair market value for the taking of homesteads and properties held within the same family for 50 or more years (Heritage Value).

The County asserts that these statutes were ultra vires because article II of the Missouri Constitution prohibits the legislature from enacting a law contrary to the Court’s interpretation of the constitution and that constitutional interpretation is a function of the judicial, and not the legislative branch.  The court reasons that: “This constitutional principle is not implicated in the General Assembly’s enactment of sections 523.039 and 523.061Sections 523.039 and 523.061  and do not alter this Court’s definition of “just compensation,” which serves as a constitutional floor below which the legislature cannot descend;” “The statutes instead promote the legislature’s intended policy of providing additional benefits to certain property owners whose real property is taken for public use.”  “While the Legislature is powerless to diminish the constitutional measure of just compensation there is no rule, which stands in the way of an extension of it, within the limits of equity and justice, so as to include rights otherwise excluded.”

The County also asserts that the payment of heritage value uses public funds to confer an unconstitutional private benefit because it fails to serve a public purpose. The test to determine whether there is a sufficient purpose behind a grant of public money, is “primary effect” test, which provides that if the primary object of a public expenditure is to subserve a public municipal purpose, the expenditure is legal, notwithstanding it also involves as an incident an expense, which, standing alone, would not be lawful. In the case of “heritage value” the primary purpose of the public expenditure is to acquire the property, for a public purpose and the payment for Heritage Value is incident to the primary purpose.

The Missouri constitution states that the “just compensation” shall be ascertained by a jury. The County asserts that the heritage value statute violates this section of the constitution because, under section 523.061, it is the judge’s responsibility to determine heritage value and not the jury’s. This argument is based on the County’s claim that the language of section 523.060, referencing “just compensation,” mandates that all amounts paid under the statute are constitutional compensation that must be ascertained by a jury. Article I, section 26 requires the payment of “just compensation,” which has been defined by the Court as “fair market value.”  The legislature has provided for payment of heritage value compensation in addition to the constitutionally required payment of “fair market value.” Because heritage value compensation is not part of the “just compensation” mandated by the constitution, there is no constitutional mandate that a jury ascertain heritage value.  St. Louis County v. River Bend Estates Homeowners Association, et al., (SC 92470, 09/10/13)

Disappointed bidder may have standing to challenge bid

Public Communication Services, Inc. (“PCS”) filed suit in the Circuit Court of Cole County to challenge the lawfulness of the State’s award of a contract to Securus Technologies, Inc., to provide telephone services to inmates in Missouri prisons.  PCS was the incumbent contractor at the time of the award.  PCS alleges that the award to Securus was unlawful because the State failed to solicit competitive bids with respect to certain optional services Securus offered to provide, at an additional cost.  PCS also contends that, in selecting Securus as the lowest and best bidder for the offender telephone services contract, the State acted arbitrarily and capriciously by failing to consider Securus proposed per-transaction fee for prepaid accounts.  Following a bench trial, the circuit court rejected PCS‟ claims, and entered judgment for the State and for Securus.  PCS appealed. 

Facts – From 2005 to 2011, PCS had the contract to provide telephone services for inmates housed in facilities run by the Missouri Department of Corrections (“DOC”). The contract serves more than 30,000 inmates; it also serves the friends and families of those inmates.  Prior to the expiration of the PCS contract in May of 2011, the Office of Administration’s Division of Purchasing and Materials Management (the “Purchasing Division”) issued a request for proposals (“RFP”).  The RFP required that inmates be able to pay for telephone calls in three ways: by placing collect calls for which the recipient would agree to pay; by debit to an inmate account; or by debit to a prepaid account established by persons outside the prison.  The RFP stated that after determining that a proposal satisfies the mandatory requirements, the evaluator(s) shall use both objective analysis and subjective judgment in conducting a comparative assessment of the proposal in accordance with the evaluation criteria stated below.  The RFP then listed four evaluation criteria: Cost Evaluation (90 points); Experience/Reliability of Organization (20 points); Proposed Method of Performance, Solution Functionality and Expertise of Personnel (80 points) (the “Method of Performance” factor); and MBE/WBE Participation (10 points).  The RFP also provided a preference of ten “bonus points” for bidders that were, or proposed to utilize, organizations for the blind and sheltered workshops.  The RFP specified formulae for the Cost Evaluation, MBE/WBE Participation, and Organization for the Blind and Sheltered Workshop criteria; it also specified, however, that evaluation of the Experience/Reliability of Organization, and the Method of Performance factor, “shall be subjective based on fact.”

Analysis – Missouri cases have held that a disappointed bidder competing for a government contract does not have a special pecuniary interest in the award of the contract to it, and therefore generally lacks standing to challenge the award of the contract to another bidder.  Despite the general rule Missouri does recognize that members of the public have standing to challenge a contract award where the contracting authority solicits and evaluates bids unlawfully or capriciously because the public official has a duty to the public to honestly and fairly exercise his or her discretion to award the contract to the lowest and best bidder.  Applying this standard PSC as an unsuccessful bidder has standing to challenge a contract award under Missouri law “if the bidding procedure did not permit all bidders to compete on equal terms.”

In awarding the contract the DOC “accepted in its entirety” the bid of Securus.  While this phrase might seem ambiguous suggesting that the DOC was accepting the optional services when construed in light of the RFP it meant only those services that were required by the FRP, not optional services, even though the DOC was very interested in obtaining optional services from Serurus.  To award the contract based on acceptance of optional services would mean that the bidders would be competing on an unequal basis. If an individual proposal varies from the standard specifications, the proposal must be rejected if the variance is material, meaning that “it gives a bidder a substantial advantage or benefit not enjoyed by other bidders.  The record made it clear that the Division of Purchasing was the agency controlling the bidding process and that its pre-award representations made it clear that optional services were not accepted.

PCS also argues that the contract was void because the State failed to consider an important aspect of Securus‟ proposed pricing – its $6.95 per-transaction fee for prepaid accounts – before determining that Securus was the “lowest and best offer” under § 34.042.3. Securus‟ proposed prepaid account fee was the highest of any of the bidders; one bidder (Talk Telio) proposed no transaction fee at all.  The circuit court rejected PCS‟ claim concerning the prepaid account fees because in the RFP the State reserved the right to evaluate these fees as part of its subjective evaluation, and therefore “it was not obligated to exercise that right for the base contract to be valid.  Furthermore, the cost of this charge was hard to evaluate because you could not determine how often this service would be used and the impact of the charge on the use of the service.  While the Western district shared PCS concern with the trial courts stated rationale for rejecting PCS‟ prepaid account fee claim it deferred to the trial court findings on this issue because the court was entitled to “affirm the judgment of the trial court on any ground supported by the record.” Public Communiciations services,Inc et al., v. Simmons et al., (WD74740 Consolidated with WD74769, 09/24/13)

Comment Howard: It has always seemed to me that the government wins these cases and even though this case was very close the result was the same.  Nevertheless, the opinion has one of the better discussions of government bidding law, which could be useful in getting the door open or making sure it stayed closed.

Photo Red Light Camera cases

In the last several months we have had three cases involving photo red light cameras all from the Eastern District. Many of the important issues have been resolved in favor of local government but there have been some technical glitches and at least several major issues still to be resolved. Below is a summary of the three cases with my comments as to the status of the ongoing litigation.  

St. Louis Case  – The first case was Smith v. City of St. Louis (City). This case involved a challenge to a City ordinance, which authorized the installation and use of red light cameras at dangerous intersections to detect and prosecute violations of existing City traffic ordinances pertaining to traffic signals.  The Ordinance created a presumption that the owner of the motor vehicle was the operator of the vehicle at the time and place of the violation, thereby allowing prosecution against the owner of the vehicle.  A statement from the owner may rebut the presumption that the vehicle was being operated by a person other than the owner or that the vehicle or its license plate was stolen. The City filed a motion for summary judgment, which was denied and granted in part.  The parties appealed to the Eastern District.  The Eastern District held that there was no waiver of the right to challenge the ordinance by paying the fine as directed in the notice of violation because the notice provided to the motorist was insufficient to comply with state court rules by failing to give of the time and place as well as how to challenge the charge in court.  Notices should  follow exactly the rules that govern municipal court violations; therefore the ordinance was invalid as applied, although the voluntary payment doctrine precluded the motorist from receiving a refund of a fine.  The court further ruled that the City ordinance was a valid exercise of the city’s police power under the city charter and the state law (304.120.2) governing the rules of the road.  In addition, to the extent the petition claimed equitable there is an adequate remedy at law in municipal court, therefore there was no right to a declaratory judgment.  Smith v. City of St. Louis, (ED 98263, June 11, 2013)

City of Florissant Case  Appellants received red light camera tickets from the City of Florissant (Florissant) stating that they had committed a “Violation of Public Safety (Failure to Stop at a Red Light)” in violation of a Florissant municipal ordinance (“the Ordinance”). Appellants alleged the Ordinance violated their due process rights and the privilege against self-incrimination; sought declaratory judgment regarding the validity and constitutionality of the Ordinance and its enforcement; asserted a claim of civil conspiracy; and asserted claims of unjust enrichment.  Florissant and ATS filed motions to dismiss Appellants’ petition alleging, that Appellants’ constitutional claims should be dismissed on the basis of standing, waiver, and estoppel, which was sustained.  The trial court also addressed the Appellants substantive issues and dismissed each count with prejudice.  Appellants appealed part of the trial court’s judgment to the Eastern District.  Cusumano v. City of Florissant (ED98511, 9/10/2013)

Analysis – The Eastern District held that Appellants, Cusumanos had an adequate remedy at law to challenge the proceedings in municipal court because the summons they received provided the date and time and information concerning their rights to challenge the violation. With respect to the claims brought by Appellant, Unverferth, the petition alleged that the notice provided to Unverferth did not have the date to appear or how to challenge the charge; therefore the Eastern District reversed holding that Unverferth had standing to challenge the Ordinance and that she did not waive her claims, remanding these issues for further proceedings.  The Eastern District also reversed the trial court’s judgment declaring the Ordinance valid and dismissing Count I since the Appellants have plead that Florissant exceeded its authority by enacting the Ordinance for the purpose of raising municipal revenue and not to regulate traffic or promote safety, which is a fact question that cannot be decided by a motion to dismiss.  In addition, the judgment of the trial court dismissing Appellants’ claim for declaratory judgment was also reversed because the Ordinance conflicts with state statutes regulating moving violations by directing that Florissant not report to the DOR violations for running a red light. Appellants adequately plead that the Ordinance and its application denied them notice, a fair hearing and adequate procedural protections as required under Missouri Supreme Court Rules and Article I, Section 10 of the Missouri Constitution.  Whether the Ordinance, as enacted or applied, violated Appellants’ procedural due process rights is a factual question that is not appropriate for resolution on Respondents’ motions to dismiss. Appellants are entitled to pursue discovery and present facts in support of properly pleaded allegations.  The Eastern District affirmed the trial court’s judgment in all other respects.  Unverferth v. City of Florissant, (ED 98511, 10/01/13)

Creve Coeur Case – Respondents received violation notices from Creve Coeur alleging that they had violated Creve Coeur’s red light camera ordinance (“the Ordinance”) and challenged the Ordinance in a six-count, class action petition.  Appellants brought a declaratory judgment challenging the Ordinance’s constitutionality and conformity with state law, as well as Creve Coeur’s authority to enact the Ordinance.  Appellants also claimed the Ordinance violated procedural due process and the privilege against self-incrimination, and they alleged claims of unjust enrichment and civil conspiracy.  The City of Creve Coeur and American Traffic Solutions, Inc. (“Respondents”)filed a joint motion to dismiss, that was granted by the trial court, which was appealed to the Eastern District. 

Analysis  – Because Appellants can challenge the ordinance in the municipal court proceeding, there is an adequate remedy at law; therefor, equitable relief is barred. However whether or not the ordinance was properly enacted in accordance with Creve Coeur’s police power for regulating public safety cannot be decided on a motion to dismiss because the Appellants allege that the Ordinance was enacted as a revenue-generating mechanism advanced under the guise of Creve Coeur’s police power, which is a fact question that is not appropriate for resolution on a motion to dismiss; therefore, this portion of the trial court’s judgment was remanded for further proceedings.  In addition, voluntary payment of the fine bars a recovery of the payment and related claims.  Judge Mooney, authored a vigorous dissent based on the grounds that the ordinance as applied violated the rules of the road since the ordinance is a legal fiction that converts a moving violation into a non-moving violation in order to avoid reporting the violation to the Department of Revenue.  Ballard v. City of Creve Coeur, (ED 98320, 10/01/13)

Comment Howard: Red light camera ordinances have been one of the most hotly and frequently contested issues in recent times.  Lining up are proponents who believe that traffic safety can be improved by slowing down vehicles to the speed limit and by reducing the number of serious accidents at intersections where there are red light cameras.  Opponents are vociferous in their opposition arguing that red light cameras are just a way to raise revenue and deny citizens their rights.  With all of the litigation a number of well-established legal principles have been used to address some of the claims while there are still some certainties to be resolved.  Some general principles are as follows:

  • If notice is proper Plaintiffs are not entitled to declaratory and equitable relief because they have an adequate remedy at law in municipal court to challenge the ordinance.
  • Cities have authority (charter or 304.120 RSMo.) to enact traffic ordinance under its police power because traffic regulation is rationally related to public safety and welfare.
  • There is no claim for unjust enrichment or return of the fine when it has been paid voluntarily.
  • ·      There is no waiver of defendants right to challenge an ordinance in municipal court when the city fails to give notice of a court date and time and information on how to challenge the violation as required by Rules governing municipal court.
  • Rebuttable presumptions are valid in Missouri.
  • The photo red light camera ordinance adopted by Creve Coeur creating a “violation of public safety” as a non moving violation does not conflict with state law while the ordinance adopted by Florissant conflicts with state law since it is based on running a red light, a moving violation, which city officials are directed to not report to the DOR under state law, in an attempt to avoid assessment of points.
  • A challenge to a red light camera ordinance on the grounds that it was enacted just to raise revenue – not for safety purposes – is a fact question that may show that there is no rationale basis for the ordinance.

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