March 2014 Newsletter

Proof That Each County Commissioner Applied Their Own Standard With Respect to Granting Of A Permit Showed That The Decision Was Arbitrary And Capricious.



Scotland County (County) adopted an Ordinance that regulated the construction and operation of concentrated animal feeding operations (“CAFO”).  The Ordinance requires individuals seeking to operate a CAFO facility to obtain a health permit from the County. The Ordinance contains guidelines for the setback of the CAFO from a populated area, specifically stating, “no CAFO shall be located within two miles of a populated area.”  A “Populated area” is defined as “an area having at least 10 occupied dwellings not on CAFO property, as measured in a straight line from the occupied dwelling to the nearest CAFO confinement building, confinement lot, or other confinement area.”

Hauk applied for a county health permit to operate a CAFO, which was denied because his proposal did not meet the setback requirements of the Ordinance, specifically the provision requiring a two-mile distance between the CAFO and a populated area.  Hauk appealed the decision by filing a petition in Circuit Court for judicial review, as a non-contested case.

Commissioner Paul Campbell testified regarding his evaluation of Hauk’s health permit application stating that he believed if the setback provisions of the Ordinance were enforced as written to include residential dwellings within the entire two-mile radius surrounding the property in considering whether a “populated area” existed, there could not be any CAFOs in the County.  He further testified that this was not the County’s intent, and therefore, he attempted to find a balance between the health concerns of the residents and the operation of CAFOs within the county.  Commissioner Campbell testified that the night before the Commission voted he drove to the area and it looked like a populated area because there were several homes that were fairly close together causing him to conclude he had to enforce the Ordinance based on that interpretation.  Commissioner Campbell also testified that whether or not a populated area existed precluding the grant of a health permit had not been an issue with previous applications.

Commissioner Harris testified that there were no defined parameters for the size of a “populated area” in the Ordinance and that he did not believe the Ordinance’s definition of “populated area” for purposes of the setback provision was “all inclusive of a two-mile radius.”  Commissioner Harris acknowledged the Ordinance did not define the parameters for a “populated area,” and therefore, he believed one had to “look back at the overall knowledge of our community and the density of population, the type of homes, the type of lifestyle that people live in areas such as this.” His definition of “populated area” within these parameters meant if there is a “cluster of homes of which the closest one if less than two miles from that CAFO the CAFO can’t be located in that area.” Commissioner Harris acknowledged he and Commissioner Campbell did not agree as to their interpretation of the Ordinance with respect to the definition of “populated area” within the two-mile setback.  One Commissioner did not vote since she was related to Hauck, the applicant.

Following trial, the court entered judgment in favor of Hauk, finding that the County’s denial of a county health permit was arbitrary, capricious, and an abuse of discretion because each Commissioner “applied their self-determined, unwritten standard” to make the determinations regarding the setback provision and awarded Hauck $178,000 in damages.  The County appealed to the Eastern District, which upheld the trial court’s decision.

The Eastern District ruled that the testimony supported the trial court’s conclusion that the County’s decision was arbitrary because each Commissioner ignored the language of the Ordinance, and “each applied their self-determined, unwritten standard” to make their determination with respect to the application of the setback provision.  The Eastern District also ruled that the county regulations did not conflict with state law because they merely supplemented what State law permitted. CAFO’s.  Hauk v. Scotland County Com’n, 2014 WL 707170 (Mo. App. E.D.) (ED99724,  2/25/2014)

Comment Howard: I thought that the trial strategy showing that each Commissioner had their own standard as to what constituted a populated area was very effective since it was obvious that the regulations adopted by County – if applied literally – would have not allowed any CAFO’s in the County. The fact that the Commissioners had granted previous applications without determining whether or not the facility was within 2 miles of a populated area showed that they had no understanding of their regulations and applied them on an ad hoc basis without regard to making one of the fundamental determinations under the regulations as to whether or not issue a permit. It would seem that a written standard as to how to apply the rule might have forced the county to recognize that the rule as written was unworkable and could have saved the County money and embarrassment with the adversely affected citizens.

Blinking Lights To Warn Oncoming Motorists Of A Speed Trap May Be Protected Speech.


Michael Elli was charged with a violation of an ordinance of the City of Ellisville based upon his blinking of his headlights to oncoming traffic allegedly to signal to the oncoming traffic that there was a speed trap ahead. He was specifically charged with “flashing lights on certain vehicles prohibited.  Warning of RADAR ahead.”  After appearing in court and pleading not guilty the charges were dismissed.  Elli then brought a civil rights action under Section 1983 alleging that the ordinance violated his First Amendment rights under the freedom of speech clause.  The U. S. District Court for the Eastern Division issued a preliminary injunction enjoining enforcement of the ordinance because of its chilling effect on speech. Elli Plaintiff, v. City of Ellisville, Mo., et al., Defendants. (4:13CV711 HEA. Feb. 3, 2014, 2014 WL 409103.) Note: Only the Westlaw citation is currently available.

Comment Howard: This case poses a significant free-speech question concerning whether or not citizens have a right to warn others of the presence of police officers so that they might alter their behavior by reducing their speed in order to avoid a speed trap.  We will be watching this Federal District Court case to keep you updated.


Lifetime Security For Police Chiefs Who Are Not Elected Because It Is Almost Impossible To Fire A Police Chief For Incompetence Under New State Law.

A recent opinion from the Attorney General (OP– 2013–0109) answers a number of questions concerning the application of Section 106.273. RSMO adopted by the General Assembly in 2013 with respect to cause for dismissing a police chief.  This section applies to any non-elected chief law enforcement officer of any political subdivision by prohibiting a political subdivision from terminating the services of a non-elected police chief except for ”just cause.”

The opinion opines that a political subdivision may not limit the application of the statute through an employment contract; that a city ordinance, which provides for terms of appointment for a police chief different than the statute that conflicts with the state statute and is prohibited; that the statute applies to home rule cities because it does not fix the powers, duties or compensation of a home city employee or official; and the Missouri Constitution prohibiting laws that are retrospective in their operations does not prevent the legislature from passing laws having the effect of altering an employment contract going forward.  Therefore, the constitutional provision with respect retrospective laws does not prevent the statute from being applied retrospectively.

The statute narrowly defines what constitutes just cause. 2) “Just cause”, exists when a chief: (a) Is unable to perform his or her duties with reasonable competence or reasonable safety as a result of a mental condition, including alcohol or substance abuse; (b) Has committed any act, while engaged in the performance of his or her duties, that constitutes a reckless disregard for the safety of the public or another law enforcement officer; (c) Has caused a material fact to be misrepresented for any improper or unlawful purpose; (d) Acts in a manner for the sole purpose of furthering his or her self-interest or in a manner inconsistent with the interests of the public or the chief’s governing body; (e) Has been found to have violated any law, statute, or ordinance which constitutes a felony; or (f) Has been deemed insubordinate or found to be in violation of a written established policy, unless such claimed insubordination or violation of a written established policy was a violation of any federal or state law or local ordinance.

Comment Howard: This is micromanagement at it’s worst by the General Assembly. Since the reasons for “Just cause” are so nearly defined it looks as though you could not dismiss a nonelected police chief for incompetence because dismissal for incompetence is limited to a mental condition or alcohol or substance abuse. Reasons for “just cause” are absurd because they are so narrowly defined so as to limit the ability of the elected representatives to change policy. Of course as long as things are going fine no one’s going to worry about this statute but when things are going wrong elected representatives voted into office by the local citizens will find that their hands are tied with respect to taking action.  The real question is why is a police chief any different than any other department head?  You may want to alert your city officials to the problems with the statute if they are not already aware of this since this statute needs to be changed.  There are potentially several ways around this statute. First, you could elect the police chief, which in my opinion is not a good option but may be better than suffering with an incompetent fool.  Second, you may want to consider limiting the term of the appointment to an annual basis or several years.  There may be other ways but ultimately the statute needs to be changed.


Campaign Contribution Initiated Survives Fiscal Note Summary.

An initiative petition was submittedby citizens to establish campaign contribution limits.  By statute the state auditor is required to assess the fiscal impact of a proposed initiative petition and prepare a fiscal note and fiscal note summary.  The Secretary of State then certifies the official ballot title, which includes the state auditors fiscal note summary.  The Auditor solicits information from various sources to assist in the auditor’s determination of the fiscal impact.

Section 116.190.3 provides that a party may challenge the official ballot title showing why the fiscal note or fiscal note summary is insufficient or unfair and if successful he or she is entitled to a different fiscal note or fiscal note summary.  As a general proposition the auditor has a wide degree of discretion in formulating his or her determination making it almost impossible to challenge the fiscal note.

In Sinquefield v. Jones, all of the information submitted to the auditor from various sources indicated that there was no fiscal impact or that it was unknown except for information submitted by Mark Ellinger.  The information submitted by Mark Ellinger showed that due to less campaign spending the state would receive about $6 million less in state and local sales tax revenues.  The Ellinger Submission conceded that there had not been a comprehensive study regarding the fiscal impact of state elections on Missouri State and local government and his submission contained no economic study.  The fiscal note provided by the state auditor to the secretary of state for the ballot stated that that there would be no fiscal impact or it was unknown.  Billionaire Rex Sinquefield challenged this statement.  In a rare trial court decision finding a fiscal note invalid the Cole County Circuit Court held that the fiscal note was not fair since it ignored the information submitted by Mark Ellinger.

That decision was appealed to the Western District, which reversed because the state auditor found that he Ellinger Submission was the only prognostication submitted and it was speculative therefore the auditor discounted the Ellinger submission.  The use of the word unknown in the fiscal note to characterize the potential impact on revenues for state and local government was considered sufficient and fair by the Western District; therefore the trial court’s decision was reversed.  Sinquefield v. Jones, 2014 WL 941477 (Mo. App. W.D.), 1 (Mo. App. W. D., 2014) (WD77056, 3/11/2014)

Railroad Only Had An Easement Therefore Land Reverted To Property Owner Of The Fee.


The recent United States Supreme Court in Marvin M. Brandt Revocable Trust v. U. S., 134 S. Ct. 1257 (U. S., 2014) held that the land granted to the railroad companies in the mid 19th century to encourage settlement and development by the General Railroad Right-of-way Act of 1875 granted to the railroad company its successors or assigns an easement. The right-of-way in this case was 66 miles long and 200 feet wide. Brandt contended that the right away granted under the 1875 Act was an easement so that when the railroad abandoned it, the underlying fee simply became unburdened of the railroad easement.

In 1976 the United States granted to Brandt a patent for an 83-acre parcel of land in Fox Park surrounded by the Medicine Bow–Routt National Forest. The patent granted all rights privileges and immunities and appurtenances thereto except it reserved to the United States right-of-way for ditches or canals constructed by the authority of the United States providing further that if these roads ceased to be used by the United States or it’s assigns for period of five years the easement shall terminate. Based on the original grant to the railroad under the Act of 1875 and the patent to Brandt in 1976 the Court ruled that United States did not reserve to itself any interest in the right away in the original plot and granted only a road easement over lands now owned by Brandt.

Comment Howard: Many local communities and the State of Missouri have benefited from the Rails to Trails legislation, which allows for banking of abandoned railroads so they can be converted into linear parks used as walking and bike trails thereby reserving the right to reuse the land for railroad purposes if needed in the future. Missouri has been the beneficiary of the rails to trails program having one of the largest trails in the United States following the Missouri River from Sedalia to St. Charles, Missouri.  The Rails to Trails Conservancy has provided information indicating that existing rails or trails projects are not affected by the decision if certain conditions are met such as the rail corridor was “railbanked.” Nevertheless in light of the decision by the Supreme Court you can expect there will be lots of litigation based upon specific fact situations.


Eight-minute Delay Is Reasonable When Deploying A Dog To Sniff.



Police officer observed a vehicle swerving slowly on the shoulder of the highway before jerking back onto the road.  The officer initiated a traffic stop at 12:06 AM.  At 12:27 a.m. after checking identification and discussing where the driver had been and doing a second records check the officer gave the driver a written warning.  The officer had called a second officer as a backup and asked the driver for permission to walk his dog around the driver’s vehicle, which was refused.  The officer then instructed the driver to exit the vehicle while they waited for the second officer.  At 12:33 A.M., after the second officer arrived the officer walked his dog around the vehicle when the dog alerted for drugs on the second pass.  From the time the officer handed the written warning to the driver to the time the dog alerted was approximately 7 to 8 minutes.  A search of the vehicle revealed a large bag of methamphetamine.

The driver was charged with one count of possession with intent to distribute 50 g or more of meth.  A motion was filed to suppress the evidence, which was denied by the District Court, and an appeal was taken to the Eighth Circuit.  The driver argued on appeal that the delay caused for the dog sniff was unreasonably prolonged in the absence of reachable suspicion to continue his detention.  The Eighth Circuit held that a delay of 7 to 8 minutes for a dog sniff was a de minimus intrusion on personal liberty and was therefore valid.  U.S. v. Rodriguez, 741 F.3d 905 (C. A.8 (Neb.), 2014)

Comment Howard: This case contains a very good summary of the circumstances under which a dog sniff is valid under circumstances involving a traffic stop.


Occupant Of Property Can Give Consent To Police To Search When Other Occupants Are Not Present.

Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams from one of the apartments.  The officers went to the apartment knocked on the door, which was answered by Roxanne who appeared to be battered and bleeding.  The officers asked her to step out of the apartment so they could conduct a protective sweep, at which time the Defendant came to the door and objected to a search of the apartment.  The officers removed the Defendant from the apartment and placed him under arrest.  He was later charged as a perpetrator in the earlier robbery and taken to the police station.  An officer returned to the apartment and after obtaining Roxanne’s permission to search the premises, he proceeded to conduct a search where he found several items linking the Defendant to the robbery.  A motion was filed to suppress the evidence, which was denied and the defendant was convicted.  Subsequent appeals followed and the case made its way to United States Supreme Court.

The Supreme Court undertook an examination of when consent searches are permissible without warrants. “While it is clear that a warrantless search is reasonable when the sole occupant of a house or apartment consents, what happens when there are two or more occupants?” “Must they all consent?” “Must they all be asked? “Is consent by one occupant enough?”

In this case, the court held that even though both the Defendant and Roxanne occupied the apartment, at the time the Defendant was arrested and objected to the search of the apartment the police could not conduct a search at that time.  However, when Defendant was not present because he had been arrested and the officer returned to the premises Roxanne as an occupant of the apartment could give her consent notwithstanding the earlier refusal of the Defendant; therefore there was a valid search without a warrant based upon permission given by one of the occupants even though the other occupant who is no longer present had refused earlier to give his permission. Fernandez v. California, 134 S. Ct. 1126 (U. S. Cal., 2014)

Comment Howard: It would appear that the Supreme Court took this case to clarify dictum in Georgia v. Randolph, 547 U. S. 103, 126 S. Ct. 1515 (U.S. Ga., 2006).  The court rejected the statement in Georgia v. Randolph as reading to suggest that improper motive by the police may invalidate objectively justified removal thereby clarifying it’s earlier decision by allowing a person who is occupying the premises to give consent for search when other occupants are not present.





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