Retirement Fund 

A change has occurred and municipal courts have been told to start collecting money for the Sheriff’s Retirement fund.  Over the past several years, there has been a battle over whether or not municipal courts are required to collect court cost for the Sheriff’s Retirement Pension.  The issue first arose when the Attorney General’s office wrote a legal opinion that municipal courts should collect this cost. This particular court cost would appear to be a violation of the Hancock Amendment and the access to the courts clause in the Missouri Constitution. Municipal courts will start collecting the additional $3 per case charge at the end of August 2013. There are some efforts underway to file a challenge to the charge in court.  In Harrison v. Monroe County, 716 S.W.2d 263 (Mo banc 1986, the Missouri Supreme Court held that an assessment imposed on civil cases to pay for additional compensation for county officials violated the access to the courts provision of the Missouri Constitution.

Search based on anonymous tip without any corroborating evidence not valid. 

A jury returned guilty verdicts against Ricky E. Flowers (Defendant) on the charges of possession of drug paraphernalia with intent to use and possession of methamphetamine, a controlled substance.  The trial court entered judgment and sentenced Defendant to concurrent, three-year terms on each offense. Defendant contended that the trial court erred in denying his motion to suppress, and subsequently admitted evidence at trial that the police found on Defendant’s person and inside his duffel bag because the officer who stopped him lacked reasonable suspicion to conduct a warrantless search of his duffle bags, which contained evidence that was admitted into evidence after a motion to suppress was sustained.  On appeal to the Southern District, the case was reversed and remanded because the officer lacked reasonable suspicion for the search.  The crucial evidence in this case used to justify the search was based upon the dispatch information that he had received because when the officer first observed the Defendant, he was standing alone outside on a deck talking on the phone, and he was unable to corroborate the tip coming from an unknown source that the Defendant was threatening to assault another male and to do damage to a vehicle.  In other words, this was nothing more than an anonymous tip without any corroborating evidence strictly forbidden by the law.  State v. Flowers, 2013 WL 3027866 (Mo. App. S.D., 2013). (SD32073, 6/18/2013)

Comment Howard: This case has a pretty good summary of the law that police officers should know front and back.  You have to scratch your head as to why a case like this was not triaged early in the process.

Cannot condition issuance of use permit on the removal of nonconforming signs. 

MLB Holdings filed an application with the Board of Zoning Adjustment of Kansas City (BZA) requesting a special use permit to operate a pawnshop in Kansas City, Missouri.  The landowner, Curry Investment Company, leased its building and parking lot to MLB.  The building and parking lot were previously leased to a business known as “Max Speed and Sound,” a car audio and performance center.  The property where the building and parking lot are located contains two nonconforming outdoor advertising signs that Curry Investment leases to CBS Outdoor.  The BZA held a hearing on July 12, 2011, on the MLB’s application.  The BZA staff submitted a report at the hearing stating that all of the code criteria are met with the proposed application, but went on to state that in recent years staff has had a general policy that as property is redeveloped, any existing billboards that are on the site are removed within five years of the approval of the development.  The report further stated that the City Planning Commission has affirmed that position several times in the last several months, and that staff believes as part of the approval process for a pawnshop that this development be held to the same standard as other developments within other areas of the City; therefore, the BZA required as a condition of the use permit that the two nonconforming signs be removed.  MLB Holdings appealed the decision to the circuit court that reversed the BZA on the grounds that the decision was not supported by competent and substantial evidence.  The BZA appealed to the Western District, which also held that the BZA erred when it conditioned the permit on the removal of the nonconforming signs.  Under the nonconforming use doctrine, zoning restrictions adopted by a municipality may not be applied so as to require removal or cessation of an established use of land that does not conform with a use authorized by the zoning law.  The city code recognizes vested rights associated with nonconforming signs subject to such issues as sign maintenance and repair, sign abandonment, compliance with electronic/video technology and relocation. The BZA made no contention that the outdoor advertising signs in question violated the code such that their nonconforming nature had been compromised.  Instead, the BZA argued that certain aspects of the proposed site for the pawnshop did not comply with the code’s standards, and that conditioning approval of the special use permit for the pawnshop on removal of the nonconforming signs was within the BZA’s authority.  The BZA contended that its authority to require removal of nonconforming signs as a condition for a special use permit comes from its mandate to determine if a proposed special use complies with the standards of the code, whether it is in the interest of the public convenience, and whether or not it will not have a significant adverse impact on the general welfare of the neighborhood or community, and whether it is compatible with the character of the surrounding area in terms of building scale and project design.  The court refused to decide whether or not such a condition might be justified given different facts, holding that it is not allowable in this case because it is unsupported by the record.  Curry Inv. Co. v. Board of Zoning Adjustment of Kansas City, Missouri, 399 S.W.3d 106, 107 (Mo. App. W.D., 2013)(WD75479, 5/7/2013).

Three year SOL applies to claims against officers of the City. 

Officer Valentine (Officer) a police officer with the city of Independence (City) was in a marked police patrol car watching for illegal drug activity in an area of Independence known for such activity.  The Officer observed several traffic violations by a red Oldsmobile.  After observing the violations, the Officer initiated the overhead emergency lights on his patrol car in an attempt to execute a traffic stop.  Both the Officer and the red Oldsmobile were in the city limits.  When the Officer activated his emergency lights, the Oldsmobile did not yield but accelerated and fled from the area.  The Officer then activated the siren on his patrol car and pursued the Oldsmobile.  His emergency lights and siren remained on for the duration of the pursuit.  The pursuit continued into the city limits of Kansas City, Missouri.  As the fleeing vehicle approached the intersection of 40 Highway and Van Brunt, it was traveling at approximately 50-55 miles per hour.  At the intersection, the fleeing vehicle collided with a minivan driven by the plaintiff, Stephanie Dilley, who was injured.  At the time of the impact, the Officer’s car was approximately 30-40 yards behind the fleeing vehicle.  The entire pursuit lasted less than two minutes at night on wet roads.  Officer Valentine was informed by dispatch that no warrants were associated with the license plate on the suspect’s vehicle.  Once the chase moved into Kansas City, the Officer and the suspect were traveling at speeds in excess of 65 miles per hour.  The officer conceded that he was unfamiliar with the area once the pursuit moved into Kansas City, but that he was aware that several roads converged creating a large and confusing intersection. He also conceded that he had been involved in one other chase where the suspect had been involved in a collision.  As a result of the collision, the fleeing suspect was rendered unconscious and later died in a local hospital.  At no time during the pursuit did Officer Valentine know the identity of the driver of the fleeing vehicle. There was no physical contact between the patrol car and the Oldsmobile at any time during the pursuit.  The Officer was in contact with the Independence police dispatcher during the pursuit, and at no time was he told to terminate or discontinue the pursuit.  Ms. Dilley filed a three-count petition for damages against Officer Valentine and the City.  Her theories of recovery were that Officer Valentine was negligent (Count I) and reckless (Count II) in initiating the pursuit and continuing to pursue the fleeing suspect, and that the City was vicariously liable for the Officer’s actions (Count III).  Ms. Dilley further alleged that the City was negligent in failing to properly train and supervise Officer Valentine, and failed to implement appropriate policies and procedures (Count III).  The Officer and the City filed their motion for summary judgment, arguing that the pursuing officer was not the proximate cause of a collision between a fleeing suspect and an innocent third-party.  The trial court granted the defendant’s motion for summary judgment on all counts finding that Ms. Dilley failed to present a factual basis to support a finding of proximate cause based on current case law.  Ms. Dilley appealed to the Western District, which held that under current case law that the Officer was not the proximate cause, and sustained the ruling on Count I (the negligence Count).  With respect to Count II (the recklessness count), the court concluded that the trial court erred in granting the summary judgment because Missouri recognizes a cause of action for recklessness based on knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involved a high degree of probability that substantial harm would result.  The court also considered on its own, the issue of whether or not the statute of limitations limited the right to bring this cause based on the trial court denying the Defendant’s motion to dismiss on the grounds that a court will sustain a trial courts verdict if there is any legal basis to sustain the decision.  In a case of first impression, the court held that the three-year statute of limitations in 516.130.1 applies and limits actions against a police officer incurred in his or her duties based upon cases holding that other local officials have been held to be included with the term other officers.  Since the record showed that the lawsuit was filed after the three-year statute of limitations it was dismissed.  Dilley v. Valentine, 2013 WL 2990659(Mo. App. W.D. 2013).(WD74790(6/18/2013)

Comment Howard: There is no mention in this case about whether or not the City had a policy with respect to high-speed chases, which seems strange. If your police department does not have a policy with respect to high-speed chases, you may want to consider adopting one based on policies developed by other communities and tailoring it for your community. 

Elements of a continuing violation. 

Thermadyne manufactures and markets metal welding and cutting products.  Thermadyne hired Appellant as a specialty markets manager.  Appellant was promoted to the position of national accounts manager, and this promotion made her the only woman employed in a sales or marketing position in the Americas Sales and Marketing Group.  Appellant’s job performance as a national accounts manager was exemplary and her evaluation stated that Appellant “has the overall best analytical mind within my team.”  “She is outstanding at identifying an opportunity and then taking the correct actions to close the deal or complete the project.”  Her annual reviews continued to be fantastic.  When there was an opportunity for a promotion, she applied. However, she was not selected even though she appeared to be significantly more qualified than the male who was selected.  After she was not promoted, Appellant discovered Thermadyne was and had been systematically paying her substantially less compensation over the years than the male (National Accounts Manager Eric Moore (Moore)).  Every year, Thermadyne’s Senior Management Group for the Americas Sales and Marketing division that included Mueller, determined the salaries of National Accounts Managers Appellant and Moore.  While both had the same job description, Appellant had more education and seniority than Moore, as well as greater job responsibilities, in that she handled accounts worth approximately $100 million in annual revenue with a much larger percentage of U.S. sales.  Moore handled accounts worth approximately $30 million in annual revenue with a much smaller percentage of U.S. sales.  Appellant discovered that in 2006, Respondents paid Appellant $18,700 less than it paid Moore; in 2007, $20,000 less; in 2008, $20,600 less; and in 2009, $20,000 less.  Respondents also provided Moore with a company car, while they did not for Appellant.  Appellant’s yearly base salary, bonuses, 401(k) match and company car allowance were all less than Moore’s.  In January 2010, after Appellant’s discovery of Thermadyne’s disparate treatment, she resigned from Thermadyne on January 22, 2010, and filed suit on April 9, 2012, for discrimination under the MHRA against Thermadyne alleging a continuing violation of the MHRA by discriminating against her for four years because of her gender.  Respondents filed a motion to dismiss Appellant’s petition on the ground that her claim of gender discrimination was barred by the MHRA’s two-year statute of limitations set forth in Section 213.111. That motion was sustained.  Appellant appealed to the eastern district that reversed determining that she pled sufficient facts to allege a continuing violation.  The requirements for timely filing under the MHRA are subject to the principles of waiver, estoppel and equitable tolling. Missouri courts recognize the concept of equitable tolling for a continuing violation in employment discrimination cases, but the plaintiff must show that the discriminatory acts were not isolated incidents, and that at least one incident occurred within the two-year statute of limitations.  Appellant had adequately alleged acts supporting a theory of continuing violation, and that at least one of the alleged discriminatory actions occurred within two years of the date Appellant filed her MCHR lawsuit.  Based on the pleading, the trial court should not have dismissed her petition.  Plengemeier v. Thermadyne Industries, Inc., 2013 WL 2402860 (Mo. App. E. D., 2013) (ED99193, 6/4/13).

Comment Howard: This case has an excellent analysis of the elements needed to show a continuing violation. It is a great place to start.

“Snuggles” and “Babe” are not exotic. 

Mr. Henderson (Defendant) lived in Columbia, and kept two pet alligators, “Snuggles” and “Babe,” for educational programs.  Defendant was charged on June 28, 2011, under the city of Columbia’s dangerous exotic animal ordinance.  Defendant stated that both animals had been raised in captivity and admitted that alligators could be dangerous.  After being convicted in municipal court, Defendant sought a trial de novo in the circuit court, where he filed a motion to dismiss, contending Section 5-29 was “unconstitutionally vague and/or overbroad” as applied to this case.  The trial court determined that the alligators were not within the ordinance’s definition of “exotic animals;” therefore, Section 5-29 did not bar the keeping of the alligators.  The City appealed to the Western District, which held that while the alligators did not fall within the enumerated list of exotic animals, the word including and the subsequent amendment to the ordinance allowed the court to determine that alligators, while not within the enumerated list, could be a dangerous reptile prohibited under the ordinance.  City of Columbia v. Henderson, 2013 WL 2179275 (Mo. App. W.D., 2013), (WD75559, 5/21/13) 

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Comment Howard: While I did not get all excited about the importance of this case, I thought the amendment to the ordinance was pretty clever that allowed the court to interpret the ordinance broadly.

Hiring son-in law to fix sign for $100 was nepotism.

A city sign was damaged in the city of Tracy (City).  Rhoads (Mayor) was the mayor of the City. Mayor hired her son-in-law, Matthew D. Spores, to repair the sign and agreed to pay him $100.  The Mayor made out a city check payable to her son-in-law, and signed the check in the amount of $100 from the general fund of the City.  The state of Missouri, by and through the Prosecuting Attorney for Platte County, filed a Petition in Quo Warranto to remove the Mayor from office.  The state alleged that the Mayor violated her official duties as mayor by hiring her son-in-law to perform work for the City in violation of the nepotism clause found in Article VII, Section 6 of the Missouri Constitution.  After the trial, the circuit court found that the Mayor’s son-in-law was a relative within the fourth degree by affinity and that the Mayor, in her capacity as a public officer, appointed her son-in-law to employment with the City thereby usurping the power of her public office by violating Article VII, Section 6, of the Missouri Constitution.  The circuit court ordered the Mayor be immediately removed from the office.  The Mayor appealed to the Western District.  On appeal, the only issue in the case was whether or not the Mayor’s appointment of her son-in-law to repair a city sign was “employment” within the meaning of Article VII, Section 6, of the Missouri Constitution that provides: “Any public officer or employee in this state who by virtue of his office or employment names or appoints to public office or employment any relative within the fourth degree, by consanguinity or affinity, shall thereby forfeit his office or employment.” The Western District applied the ordinary meaning of the definition of employment as used in Webster’s New International Dictionary in 1945, when the Constitution was adopted, concluding that the hiring of her son in law was “employment” thereby violating the nepotism provision in the Missouri Constitution.  State v. Rhoads, 2013 WL 2395982 (Mo. App. W.D. 2013). 

Comment Howard: This is an alarming case since I and several others construed this in the context of actually being a city employee instead of an independent contractor as appears to be the situation in this case.  I can see that this case might wreck havoc for many small towns where everyone seems to be related by blood or marriage within the 4th degree.