November

Creve Coeur Red Light Camera Ordinance Conflicts With State law

In Edwards v. City of Ellisville, the court held that the Ellisville red light camera ordinance conflicted with state law because it regulates the same conduct as section 304.281 RSMo.  The Ellisville ordinance provides: “1. Violation.  It shall be unlawful for a motor vehicle to be present in an intersection controlled by a traffic control signal when: a. The signal is emitting a steady red signal for the direction of travel or orientation of the vehicle in or through the intersection; or b.  The signal is emitting a steady red signal for the direction of travel or orientation of the vehicle in or through the intersection and the vehicle fails to stop prior to making a right-hand turn as provided in Section 315.060(3) of this Code.”

The court concluded that “being present” in an intersection during a red light is the equivalent of running a red light. “Logically, a vehicle cannot travel into an intersection or fail to stop when the traffic signal is red without movement – i.e., running a red light.” Judge Odenwald did get some help from the notice provided by Ellisville to the alleged violator, which stated that: “your vehicle has proceeded into an intersection by crossing the stop line when the traffic control signal, for the direction in which your vehicle was travelingwas emitting a steady red signal” and that red light running endangers both drivers and pedestrians.” (Emphasis added by the court).

In addition to finding a conflict with state law that prohibits running a red light the court found that the ordinance conflicts with state law that makes running a red light a moving violation, which requires the assessment of points under 302.302.  A moving violation is plainly defined by state statute as “that character of traffic violation where at the time of violation the motor vehicle involved is in motion.” Section 302.010(13). “The definition of a moving violation is fundamental to the interpretation of Section 302.302, which establishes Missouri’s point system for the suspension and revocation of licenses.” The court notes that:  “Both the Ordinance and the accompanying Notice of Violation state that an infraction of the Ordinance constitutes a non-moving violation.” As a consequence, based on the determination that the ordinance is really “running a red light” the offense is a moving violation, in conflict with state law because the ordinance prohibits notification of the Department of Revenue.  The court overruled its October 25, 2011 holding in City of Creve Coeur v. Nottebrok, which held that the Creve Coeur ordinance was not a moving violation.  An appeal to the Missouri Supreme Court is expected.  Edwards v. City of Ellisville, (ED99389, 11/5/13)

Stormwater Charge Based On Area Of Impervious Surface By MSD Is A Tax. 

The Missouri Supreme Court in Zweig, et al., v. The Metropolitan St. Louis Sewer District, held that the impervious stormwater charge made by the Metropolitan St. Louis Sewer District ( MSD) was a tax.  It is difficult to find anything positive for local government in this decision other then analytical framework, which the court carefully lays out to determine whether or not a charge is a fee or a tax under article 10, Section 22 of the Missouri Constitution.  The court goes to great lengths in it 52 page opinion to “demythologize” this process.

Facts and Procedure: MSD imposed a stormwater user charge generally based upon the amount of impervious surface that was on the property against certain persons within the District.  Plaintiffs, (Ratepayers) on behalf of themselves and a class of similarly situated ratepayers sued MSD seeking declaratory, injunctive, and monetary remedies on the ground that MSD violated Article X, Section 22(a) of the Missouri Constitution when it implemented its stormwater user charge without prior voter approval.

The trial court declared MSD’s action unconstitutional, enjoined future collection of the charge, and ordered MSD to pay the ratepayers’ attorneys’ fees and other expenses.  The trial court, however, refused to order MSD to pay damages or refund charges already collected.  MSD appealed the trial court’s decision on Ratepayers’ constitutional claim and the award of Ratepayers’ attorneys’ fees and expenses.  Ratepayers cross-appealed, claiming that the trial court erred in refusing to enter a money judgment against MSD for the amounts already collected.  The Missouri Supreme Court affirmed the trial court’s judgment in all respects.

Analysis: MSD characterized the stormwater charge as a user fee paid to ensure the ”continuous and ongoing” availability of the storm water drainage system rain or shine. Despite this characterization the basic flaw in MSD’s argument was that a user fee must be charged in exchange for, based upon, an individuals use of the service. “A tax need not be tied to the payer’s use of a political subdivision service, but a user fee must be.”

Before launching into the five-part Keller test the court takes apart Keller going back to basics by focusing on the key distinction from which the holding in Keller is based.  What article 10, section 22 prohibits without a vote of the people is a political subdivision from levying new or increased taxes.  A levy is “… to impose or collect (as a tax or tribute) by legal process or by authority.” A tax creates an obligation to pay that is not contingent upon the actual use of the political subdivisions service.  In the Keller case the ambulance district was not levying a tax because it was just increasing the price it could charge a patient for using its services.  Furthermore, the five criterion in Keller are only intended to adopt the pre-Hancock test for a tax in a new constitutional context, not replace it completely.  In Arbor Inv. Company v. City of Hermann the court emphasized that the “… Keller criteria are to be used only as reliable indicators, not constitutional divining rods.” When determining whether or not a charge is a fee or tax first look to Leggett, to determine if the charge was a tax or fee prior to Keller.

In applying the Keller criterion the court starts with hey Keller criterion No. 4What services does MSD provide in exchange for the fee? MSD took the position that the users were paying for the availability of the stormwater system.  The court concludes that MSD did not impose a charge in exchange for the individual’s actual use of those services making the charge more like a tax.

Keller criterion No. 2:  Who pays – owners or users? MSD tied the payment for the stormwater charge to the ownership of the land thereby assuring that overtime the charge would be paid regardless of any individual use of the stormwater services. This made the charge more like a tax then a fee.

Keller criterion No. 1: When is it paid– Regular or after use? The charge is paid periodically for the use of the storm water system based on ownership of the land regardless of whether or not the services are used indicating that the political subdivision had levied a tax.  There is no way to tell when such services are actually used weighing heavily in favor that MSD was not imposing a stormwater charge as a user fee.

Keller criterion No. 3: How much to pay–fixed amount or based on usage? MSD charges based on each landowners contribution to the overall need not for stormwater services, not the owners actual use of storm water services.  Because there is no individual user availability for such services any possibility that the stormwater charge is a valid user fee is precluded.

Keller criterion No. 5: Is the service historically and exclusively governmental? There was no evidence that any private entity provides (or ever has provided) availability of a stormwater system for individual landowners as MSD claims to do; Therefore, the Application of the fifth Keller criterion suggests that MSD was imposing a tax not really setting a price for the storm water user charge.

Additional factors:  The court considered the lien for nonpayment as a factor that made the charge a tax. In addition, the remedy of shutting off water utilities was not related in any way to be stormwater charge; therefore the charge looked like a tax.

Refunds. The court affirmed the trial courts ruling that payment of the stormwater taxes  were not refundable. This is consistent with the general rule that a taxpayer is not entitled to a refund of illegal taxes unless a law authorizes the refund. There is no refund provision in section 22(a) of the Hancock amendment.

Attorney fees. The court affirmed the trial court’s decision allowing for attorneys fees in the amount of $4.3 million (includes a multiplier of 2) and an additional amount of $470,000 in expenses based upon an earlier decision.  With respect to the attorneys fees the court noted that the fees were regrettable since the parties could have easily stipulated to most of the facts thereby avoiding expensive expert witnesses and prolonged litigation.

Common Howard: Regrettably this decision will have enormous consequences in the St. Louis Metropolitan area leaving a huge funding gap for stormwater improvements mandated by the federal government.  With a multiplier available to fees incurred by attorneys challenging whether or not a charge is a fee or tax there will be an extra incentive for lawyers to file these claims.  Correspondingly local government attorneys will be incentivized to correctly determine whether or not a charge passes muster under the Hancock Amendment.  Naturally this will make for cautious decision-making.  The opinion of the court provides a well-defined process for analyzing whether or not a charge is a fee or a tax helping us advise local governmental agencies.  Zweig, et al., v. The Metropolitan St. Louis Sewer District, (SC92581, 11/12/13)

Forwarding Unopened E-mail Supporting Political Candidates Violated Civil Service Rules Constituting Cause For dismissal. 

Wilson, an employee with the City of St. Louis (City) received an e-mail with an attachment and forwarded as requested to 45 to 60 other people including fellow coworkers with the city.  The attachment to the e-mail, which Wilson claimed he did not open, before forwarding it solicited support for Irene Smith a candidate for Mayor of the City of St. Louis on the March 3, 2009, Democratic primary election, as well as three candidates for the St. Louis Board of Education.  A fellow coworker called Wilson and expressed concern that the e-mail was political soliciting support for a candidate for a primary election as well as the three candidates for the St. Louis Board of election.  Wilson then opened the e-mail attachment and deleted the e-mail.  City officials learned of the e-mail from coworkers of Wilson and determined that the E-mail attachment violated the City Charter and the civil service rules, which prohibit employees from engaging in partisan politics.

Wilson met with city officials and claimed that he was not aware of the contents when he forwarded the e-mail believing that it was religious in nature. Wilson was notified that he was being placed on leave pending a pre-termination hearing.  Wilson was provided with written notice of a summary of the charges, a brief description of the offending behavior, and his rights to representation at the review.  Wilson was then terminated from his employment for having distributed/forwarded through the City Group e-mail system an e-mail, which contained an attachment soliciting support for candidate in a partisan election, which was a violation of the City Code that prohibits partisan political activity and for violating the City information systems e-mail policy.

A hearing was held before the Civil Service Commission (Commission) where Wilson testified he was not aware of the contents of the attachment when he forwarded the e-mail to persons he thought might be interested in it because it was probably religious in nature.  The Commission found that Wilson’s testimony was not credible and upheld the termination of Wilson finding the actions of Wilson in participating in political activities violated the civil service rules.  In addition, the actions of Wilson justified dismissal because participation in partisan political activities was an exception to the progressive discipline policy of the City.  Wilson appealed to the Circuit court, which upheld the dismissal and than to the Eastern District, which found that the City Charter and civil service rules prohibiting political activity were constitutional.  The fact that Wilson did not know the content of the attachment prior to forwarding the e-mail was not sufficient to overrule the decision because the Commission found the testimony of Wilson to not be credible.  Wilson v. City of St. Louis, (ED 99288, 10/29/13)

Comment Howard: The finding by the Commission that the testimony of Wilson was not credible is extremely important since there would be no way to prove that Wilson knew the contents of the attachment.  In addition, the concept of progressive discipline described in the case provides a comprehensive program for progressive discipline with exceptions to the policy when justified.  It is worth a peek.

Listening To Music In Front Driveway Of House With Engine Of Vehicle On Is Sufficient To Establish Probable Cause To Arrest The Operator Of The Vehicle For Driving While Intoxicated

Highway Patrol Trooper, Elizabeth Lusk (Trooper) was on patrol in Higginsville when she noticed a car parked in a driveway with the rear lights on. She stopped her patrol car and observed no movement in or around the car.  She made a MULES inquiry and discovered the vehicle was registered to a Raul Elizarraras, whose address was listed as 716 W. Broadway, Higginsville, Missouri.  Based on the time of night, lack of movement around the car, and the fact the vehicle was registered to an owner living at a different address, she decided to investigate further, activated her rear emergency equipment, and approached the car.  When she saw that the engine was running and that a person appeared to be sleeping or slumped over in the driver’s seat the Trooper tapped on the door, and the person (Lara) woke up, looked around in a confused manner, and turned the engine off. Lara rolled down the window, and the Trooper asked Lara where he was coming from.  He answered that he had driven from his girlfriend’s house and that he lived at the house where he was parked.

The Trooper smelled intoxicants and asked Lara to exit the vehicle and submit to field sobriety tests.  Lara agreed, and the Trooper administered the horizontal gaze nystagmus (HGN), the walk-and-turn, and one-leg stand tests.  She also administered alphabet and counting tests.  Based on the odor of alcohol on Lara and his performance on the field sobriety tests the Trooper determined that Lara was under the influence of alcohol and arrested him for driving while intoxicated.  A subsequent breath test revealed a blood alcohol content of .115 of one percent.  Lara testified at the hearing that he was listening to music in the car because he did not have a stereo in his house.  He said that the car was running because the car had died the previous night when he was listening to music and he didn’t want that to happen again.  Lara said that he went to his girlfriend’s house after work and then bought a 12-pack of beer on the way home.  He drank a few beers inside his house, went outside to listen to music in his car, and fell asleep.  He testified that he was in his car a couple of hours before Trooper Lusk approached him.

Following Lara’s arrest for driving while intoxicated, the Director of Revenue suspended Lara’s driving privileges pursuant to section 302.505.  Thereafter, Lara filed a petition for trial de novo in circuit court.  Following the hearing, the trial court entered its judgment reinstating Lara’s driving privileges finding that Director failed to meet his burden of proof that the Trooper had probable cause to arrest Lara for an alcohol-related offense where Lara was asleep in a vehicle in his own driveway and simply turned off the ignition.

The Director appealed to the Western District, where the sole issue on appeal was whether or not the arresting officer has probable cause to believe that Laura was operating the vehicle.  The uncontested facts showed that the Trooper found Lara sleeping or unconscious in the driver’s seat of the car with the rear lights on and the engine running.  This evidence showed that Lara caused the car to function and gave the Trooper probable cause to believe that Lara was operating the vehicle. The Western District applied the ordinary meaning of the word “operating” concluding that the actions taken by Laura were sufficient to constitute “operating” the car.  The trial court, therefore, erroneously declared and applied the law; however since the trial court made no findings on the issue of intoxication the matter was remanded to address the intoxication issue.   Laura vs. Director of Revenue, (WD75989, 10/15/13)

Comment Howard: The attorney for me Director of Revenue asked the trial court to make specific findings of fact and conclusions of law. The trial court used the preprinted form provided by the Directors attorney marking several boxes on the form and inserting some language on a line in the preprinted line relative to probable cause by adding three short paragraphs at the end of the form. The statements added by trial court to the preprinted form allowed the appellate court to clearly identify the errors made with respect to the conclusions of law.

There Is No Presumption Of A Duty Connected Disability If There Is Any Evidence Of Lung Disease In A Physical Examination Five Years Prior To The Request For The Disability. 

Beckemeyer (Firefighter) was appointed to the City of St. Louis Fire Department (City) in 1990 at which time he was given a physical. In 2008 when he was tested the results indicated that he was capable of performing the duties of a firefighter but the doctor notes showed “mild obstruction” of the lungs and a diagnosis of “moderate obstructive airways disease.” Dr. Kistler concluded that while the Firefighter was capable of performing the active duties of a firefighter that a repeat pulmonary function test was needed in four to six months. The Firefighter later indicated that he failed to submit to a repeat pulmonary test as recommended by the Doctor because he “was afraid of what it would show.”

In 2011 the Firefighter reported to Dr. Ponzi concerns that he might not meet the requirements for the next physical examination because he was unable to complete fire fighting training exercises due to shortness of breath. Dr. Pozzi tested the firefighter and assessed that the firefighter suffered from a mild obstruction and encouraged another visit with Dr. Harris, who indicated that the Firefighter had a history of nicotine abuse, history of asthma/intermittent wheezing over the last few years and suggested he had progression of the disease since 2008 due to nicotine abuse. The firefighter was referred to a second Doctor who concluded that the firefighter should no longer work as a fire fighter.

Based on these assessments the Firefighter filed an application with the Fireman’s Retirement System of St. Louis for accidental disability benefits alleging his disability incurred in his actual duties indicating that the date of the injury was “n/a.”  Following the submission of this application the Firefighter was examined by three other doctors selected to be on the medical board in connection with his application for benefits. The Medical Board unanimously determined that the Firefighter was physically incapacitated for purposes of performing his duties as a firefighter, and that such incapacity was likely permanent and that he should be retired from firefighting. The report also stated that the firefighter was first diagnosed when he saw the doctor for the 2008 examination.

Following an informal hearing, the Board denied the firefighters application and the Firefighter thereafter appealed where a formal evidentiary hearing was conducted. The Firefighter acknowledged that his incapacity was not the result of a specific accident that occurred in the line of duty. Instead, he asserted that he was entitled to a duty-connected disability pursuant to section 87.160.2 RSMo. based on the presumption allowed by section 87.006. The Board found that the presumption did not apply because his 2008 examination revealed evidence of “a lung condition” or “some kind of lung condition.” Because the Firefighter relied exclusively on section 87.006 and produced no evidence to demonstrate that his incapacity occurred while in the actual performance of duty the Board concluded he was not entitled to accidental disability retirement benefits.

The Firefighter filed a petition in circuit court requesting review of the decision. The trial court affirmed the Board’s decision, and the Firefighter appealed to the Eastern District, which affirmed the Board’s decision because the 2008 examination revealed evidence of “a lung condition” or “some kind of lung condition,” application of the presumption under section 87.006 was precluded. The 2008 examination’s resulting diagnosis of moderate obstructive airways disease made it clear that there was evidence of obstructive airway disease. “More importantly, under section 87.006, application of the presumption will be precluded upon the 2008 examination revealing any evidence of the condition of impairment of health, regardless of whether the examination provided a specific diagnosis of asthma.” Beckemyer vs. The Retirement System of St. Louis (ED99484, 10/15/13)

Comment Howard: The key operative phrase in the statutory presumption is ”any evidence” thereby making the thoroughness of earlier examinations extremely important.

Vehicle Swerving Over The Fog Line Was Insufficient To Establish Probable Cause For A Stop. 

Officer Schisler was headed east on Highway 60 in Greene County when he noticed a pickup truck traveling in the opposite direction.  The pickup truck was driving over the fog line separating the shoulder of the road from the driving lane.  The Officer turned around and caught up with the pickup truck.  He activated his emergency lights.  The pickup truck pulled over, and the Officer discovered after investigation, that the Defendant was driving while intoxicated resulting in the arrest of the Defendant.  The trial court granted a motion to suppress, holding that, “mere touching or crossing the fog line by itself” does not justify a traffic stop.  The State appealed to  the Southern District.

The federal and state constitutions prohibit unreasonable searches and seizures unless they are within well recognized exceptions, one of which is the so-called “Terry stop.” Under that exception, officers may conduct a brief investigatory stop when they have a reasonable suspicion based on specific and articulable fact that illegal activity has occurred or is occurring.  In the case of a traffic stop, reasonable suspicion may be based on the officer’s observation of a variety or unusual operation of a motor vehicle; however, a traffic stop is not justified when the only articulable fact is that the tires of a motor vehicle crossed the fog line.  Judgment affirmed.  State of Missouri vs. Beck, (SD32651, 10/7/ 13)

Adjoining Property Owner States A Claim For A Private Nuisance. 

Bush is the owner of a residential property in an unincorporated area of Saint Charles County.  Aiello, owns an adjacent property in the City of Cottleville, (City) on which he operates, The Tinder Box, a cigar bar with a heated outdoor enclosure housing bocce ball courts.  Aiello obtained a series of zoning permits and variances from the BOA to expand his business, including a permit to operate a tobacco stand and package liquor store and a variance to build a permanent structure within the twenty-five foot rear-yard setback.

Bush filed suit in circuit court against the City, the BOA, and the adjoining property owner alleging that the BOA wrongly granted the permits and variance to Aiello, and that Aiello’s property emits smoke, noise, light, and glare which encroach onto Bush’s property creating a private nuisance.  The trial court held that Bush’s suit was an improper collateral attack on the BOA’s decision to grant Aiello’s permits and the variance, and that Bush’s claim was barred by the time limit for seeking judicial review under section 89.110, RSMo. (2000).  The trial court dismissed Bush’s petition for failure to state a claim upon which relief can be granted.

Bush appealed to be Eastern District, which affirmed the trial court’s decision against the City and the BOA.  The court held that Bush pleaded a cause of action for a private nuisance sufficient to withstand the dismissal for failure to state a claim.  Bush’s petition alleged that the adjoining property owner’s use is unreasonable because it emits smoke, noise, light, and glare, which encroach onto Bush’s property so as to substantially impair its use.  The court affirmed the trial court’s decision to dismiss for failure to state a cause of action against the City and the BOA, however it remanded the matter for further proceedings concerning the private nuisance claim against the adjoining property ownerBush vs. City of Cottleville et al., (ED99688, 11/22/13)

Comment Howard: Since local government cannot take sides in a battle between two property owners it seems reasonable to refer the complaining property owner to cases like the above, which gives the property owner a cause of action for a private nuisance.

Exclusive Control Over Property Is Not Required In Order To Apply Dangerous Condition Exception To Sovereign Immunity. 

On the evening of January 29, 2009, Plaintiff while walking from her car to  “Barney’s Kitchen,” a restaurant in Seneca (City) fell into a water meter vault located on the parking lot of the restaurant suffering a break at the lower portion of the knee.  No one witnessed Plaintiff’s fall, but her husband, heard her scream while he was locking the door to the car.  He went around to the front of the car, and found her on the ground with one foot in the water meter vault up to her knee with the other knee on the ground.

Plaintiff filed suit against the City alleging that the cause of her accident was the dangerous condition of City property.  The case was tried to a jury, which returned a verdict for the City.  Plaintiff appealed to the Southern District alleging that the trial court erred by giving an affirmative converse instruction that misstated the law.  She asserts the affirmative converse instruction erroneously defined “property” as “property over which [City] had ‘exclusive control, possession, authority and the ability to oversee, monitor and to exclude unauthorized persons’.”  She argued that under the sovereign immunity waiver statute it is sufficient if the public entity exercised possession and control rising to the level of an ownership interest in the property.

The affirmative converse instruction given to the jury stated: “Your verdict must be for [City] if you believe that the water meter lid was not the property of [City] as the term property is defined in these instructions.” “The term property as used in this instruction means property over which [City] had exclusive control, possession, authority and ability to oversee, monitor and to exclude unauthorized persons.”

The Southern District determined from its “… review of the applicable case law, … that, at the very least, an accurate definition of ‘property’ for purposes of a waiver of sovereign immunity by a public entity would include property actually owned by the public entity.”  Plaintiff also claims that she “offered substantial evidence of the City’s actual ownership of the water meter vault.”  Plaintiff’s exhibits detailing the following sections from City’s Municipal Code were admitted into evidence showing that the City had the ability to read all water meters; when service was discontinued, the department employees would take charge of the meter belonging to City; that the City could at all reasonable hours have full access to the consumer’s premises for the purpose of  examining the meter and to read said meter; that no unauthorized person shall uncover or disturb any public water system or appurtenance without a written permit; that a person could be arrested for tampering with equipment which is part of the public water system; and that the Superintendent and other duly authorized employees of City were authorized to enter onto “all properties” for certain purposes, including inspection and testing.

The court concludes that: “Apart from the impact of City’s closing argument, the jury was misdirected by the fact that the verdict director’s tail — “[u]nless you believe [Plaintiff] is not entitled to recover by reason of [the affirmative converse instruction]” — allowed the jury to find in favor of City without regard to whether Plaintiff had proven the elements of her claim on the basis of a condition that was erroneously defined.” Walton vs. City of Seneca, (SD32205, 10/7/13).

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