November 2014 Newsletter (Issue 11-2014)

Turkey 10

 The Turkey Edition

Case Not Sent Back To Starting Line When You Fail To Properly State The Extent Of The Taking And Include Homestead Value In The Initial Offer.

The City of Kansas City (City) condemned property to facilitate the construction of a police station and crime lab (Project).  Proceeding under the state condemnation statutes the City sent a letter to the owners of the property (Owners) stating that the City needed to acquire part of their property for the project.  The City appraised the property in accordance with the statute and made an offer in January 2012 in the amount of $55,000 to the Owners.  The Owners did not accept the offer and the next month the City made a second offer, which included in addition to the original $55,000 a homestead value of $13,750 for a total of $68,750.  Between the first and second offer the City learned that the Owner lived on the property and was therefore entitled to Homestead value and thereafter included in its offers Homestead value.

The Owners did not accept the second offer, which led the City to make a purported “final” offer, which included the previous property appraisal, Homestead value and an additional $11,250 for a total of $80,000.  The Owners did not accept the third offer but suggested in an email that if the city raised the offer by $10,000 the owner would accept the offer.  The City agreed to the Owners terms and in April 2012 sent her a “final total offer” of $90,000.  The Owners again refused to accept the fourth offer and in May 2012, the City withdrew the $90,000 offer and returned to the $80,000 offer, which was not accepted.

On June 28, 2012, the City adopted an ordinance authorizing the condemnation of the property and thereafter filed its condemnation action.  The court conducted a hearing on the appointment of commissioners and thereafter appointed the commissioners who returned their report finding that the fair market value of the Owners property was $65,000 and that she was entitled to homestead value of $16,250.  Both parties filed exceptions and a jury trial was held with the jury returning a verdict in the amount of $55,000 for the fair market value of the property.  The Owners appealed to the Western District.

The Owners argued that there was insufficient evidence to demonstrate that the city complied with the statutory and constitutional prerequisites for exercising the power of eminent domain.  Even though the initial offer stated that it was for part of the property the evidence showed that the City corrected this mistake and that after the initial letter was sent all of the correspondence, the condemnation petition, and trial were based on a complete taking of the property.  The opinion contains an extensive discussion of procedures to condemn property finding that the City followed the statutory procedures in providing notice, preparing an appraisal, advising the Owner’s of the opportunity to have an independent appraisal of the property and the right to suggest an alternative location for the Project.

The Owners argued that the Commissioners were biased and prejudiced because the court appointed the same commissioners to appraise the Owner’s property and those commisioners appraised other properties in the Project.  The court rejected this argument because there was no evidence in the record suggesting that any of the commissioners were interested or prejudiced.

The Owners also argued that the trial court erred in excluding evidence showing the recent increase in the value of the property.  The court rejected this evidence based upon exclusion of the increase or decrease in the value of the property based upon the “project influence” doctrine.  This doctrine allows the court to exclude evidence of sales that are influenced by a project for which the property is being acquired which can increase or decrease the value of the property.  City of Kansas City v. Powell, (WD76861, Oct. 7, 2014)

Comment Howard: The court describes with meticulous care the condemnation process providing a template for local government lawyers showing the court’s analysis of the statutory requirements that must be followed in order to condemn property. Years ago condemnation of property was a pretty simple process but now it is loaded with lots of procedures that must be followed with the exactitude. The strategy of the property owners was to delay (send the City back to the starting line) in order to enhance the price, which is a common tactic forcing the condemner to pay higher values in order to get the project underway.

Turkey Dancing Fun Turkey Fact

1)Benjamin Franklin never proposed the turkey as a symbol for America, but he did once praise it as being “a much more respectable bird” than the bald eagle.

2)Henry VIII was the first English King to enjoy turkey and Edward VII made turkey eating fashionable at Christmas.Turkey Dancing

State Law Allows Police Officer To Require Two Separate Tests For Person Arrested For Driving While Intoxicated.

An officer in the Overland Police Department (City) was dispatched to respond to a report of careless and imprudent driving.  When the officer arrived at the scene, the vehicle was sitting on top of two large landscaping boulders. Henderson, the driver of the vehicle told the officer that another vehicle ran him off the road.

police-cars-2The officer detected an odor of alcohol coming from Henderson and performed some field sobriety tests with his consent.  During the test, Henderson swayed and both of his eyes appeared bloodshot and glassy.  Henderson refused to participate in the walk-and-turn test, refused to perform the one-leg-stand test, and refused to submit to a preliminary breath sample at the scene and admitted to the officer that he had one or two beers earlier in the night.

The officer arrested Henderson for driving while intoxicated and transported him to the police department where he advised Henderson of Missouri’s Implied Consent Law, which Henderson acknowledged that he understood.  Henderson agreed to submit to a chemical test of his breath, which showed a blood alcohol content of .023%, within the legal limit. The officer then asked Henderson to submit to a urine test, which Henderson refused.

The Director of the Department of Revenue (DOR) revoked the license of Henderson based on his refusal to submit to a second test, the urine test.  The trial court reinstated Henderson’s driving privileges and the DOR appealed to the Eastern District, which reversed based upon section 577.020 .1 and .2 that specifically provides that the driver “shall be deemed to have given consent to … a chemical test or tests of the person’s breath, blood, saliva or urine….” and that the test “…shall be limited to not more than two such tests arising from the same arrest, incident or charge.” Based upon existing case law interpreting the above language the Eastern District reversed the trial court upholding the decision of the Director to revoke Henderson’s driving privileges.  Henderson v. Dir. of Revenue, 434 S.W.3d 536 (Mo. Ct. App. 2014).

Fun Turkey Factturkey2

3)Turkeys can run at speeds of up to 25 miles per hour and fly as fast as 55 miles per hour.

4)In 1920, U.S. turkey growers produced one turkey for every 29 persons in the U.S. Today growers produce nearly one turkey for every person in the country.turkey2

State Law That Penalizes False Statements With Respect To Ballot Issues Violates The Free Speech Clause.

Minnesota has a long history of regulating knowingly false speech about political candidates going back to 1893.  In 1988 Minnesota began regulating knowingly false speech with respect to ballot issues, however the only one method for megaphone-clip-art-3enforcement was mandatory criminal prosecution of alleged violators by county attorneys.  In 2004, Minnesota amended the statute by providing that alleged violations must first be filed as a civil complaint with a three-judge panel (Panel) to determine if there is a prima facie violation and probable cause to support the complaint.  The Panel, whose action is subject to judicial review, could impose a civil penalty of up to $5,000.  Only when the Panel finally disposes of a complaint is it subject to criminal prosecution by the County Attorney under the following statute:

“A person is guilty of a gross misdemeanor who intentionally participates in the preparation, dissemination, or broadcast of paid political advertising or campaign material … with respect to the effect of a ballot question, that is designed or tends to … promote or defeat a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.” (FCPA)

Two Minnesota-based grassroots advocacy organizations (Advocacy Organizations) were established to oppose school-based funding ballot initiatives, which Minnesota law authorizes individual school boards to propose.  The Advocacy Organizations claimed that the provisions of the Fair Campaign Practices Act inhibited their ability to speak freely against school ballot issues, violating their First Amendment right of free speech.

The Advocacy Organizations sued two Minnesota County attorneys and the Minnesota Atty. Gen. (collectively referred to as “County Attorneys”) in Federal District Court.  The District Court held that the statute was unconstitutional even under the less rigorous intermediate scrutiny test applied to First Amendment free-speech claims.

The County Attorneys appealed to the Eighth Circuit, which held that the statute was unconstitutional because it violated the Advocacy Organizations right of free speech applying strict scrutiny to determine the validity of the statute because it involved core political speech.

“Even if we were to assume that the asserted compelling interests discussed herein pass muster for purposes of this constitutional analysis, no amount of narrow tailoring succeeds because § 211B.06 is not necessary, is simultaneously overbroad and underinclusive, and is not the least restrictive means of achieving any stated goal.”

An Amicus brief filed by the Attorney General for the State of Ohio was particularly persuasive since Ohio operated under a similar statute.  As explained by the Attorney General for the State of Ohio the filing of a criminal complaint in the middle of a political campaign was never resolved prior to the end of the campaign making the felony charges futile and counterproductive.  In addition, political opponents used the filing of charges as a political weapon against their opponents.

The Court explained that the remedy to prohibit intentionally false statements about ballot issues resulted in less speech because the potential for filing charges inhibited speech.  A less intrusive way to deal with false statements was to allow full and vigorous debate showing that the statements were false.  The Eighth Circuit recognized that the statute was not workable and counter productive thereby violating the First Amendment rights of the speakers.  281 Care Comm. v. Arneson, 766 F.3d 774, 785 (8th Cir. 2014)

Comment Howard: This was a relatively simple case to resolve as a First Amendment violation because it involved core political speech in the middle of a campaign requiring the application of strict scrutiny. The decision contains an excellent discussion involving statutes that are over inclusive while simultaneously being under inclusive and is not narrowly tailored leading me to conclude that you should never volunteer to write a law involving free speech issues. When you look at the gauntlet facing the difficulties in writing laws that may touch on free speech you have to wonder why anybody would even try.  It also seemed that standing was questionable (there was not even a threat of a lawsuit nor a plausible complaint involving a particular ballot issue election); however the court resolved this issue based upon a credible threat of prosecution and a recent decision by the United States Supreme Court in the Ohio false statement law.

Non-members Of The Union Who Are Part Of The Bargaining Unit Do Not Have A Right To Vote On The Collective Bargaining Agreement.

There is a long history in Missouri with respect to representation of teachers by two separate and distinct unions leading to the question of which union would represent the teachers in a school district after the Missouri Supreme Court held that public employees had the right to engage in collective bargaining.

The Springfield R–12 School District (District) established rules for the selection of the bargaining unit to represent teachers.  Included in the bargaining unit were all full-time and regular part-time classroom teachers, counselors and librarians employed by the School District who were full time employees but excluding administrators, managers and, supervisors, and all other District employees.

Pursuant to rules established by the District an election was held giving the members of the bargaining unit the right to vote for exclusive representation by one union, multiple representation by the Springfield Missouri State Teachers Association (SMSTA) or the Springfield National Education Association (SNEA) or no representation by any union.  The majority of the members of the bargaining unit voted for exclusive representation by one union and then a vote was held to determine whether or not SMSTA or the SNEA would be the exclusive bargaining representative for the teachers in the bargaining unit.  At the second election the majority of the members of the unit voted for exclusive representation by SNEA.  The District then recognized SNEA as the exclusive representative for the collective bargaining unit.

In 2011, the District and the SNEA reached an agreement covering the school years 2011-12 and 2012–13.  The agreement was ratified by the District and the SNEA.  In 2013, the District and the SNEA again conducted meetings and negotiations to address another two-year agreement.

The SNEA then held a meeting with the teachers in the bargaining unit, including nonmembers of the SNEA, to discuss the 2013-15 agreement.  The 2013–15 agreement would have eliminated the funding for a full-time paid representative of SMSTA with respect to the affairs of SMSTA.  During the meeting the SNEA conducted a vote to determine if the agreement should be ratified, limiting the right to vote on the ratification to only members of SNEA.  Not all teachers are members SNEA although nonmembers are entitled to the benefits of the negotiated contract, whether or not they are member of any teacher organization.

Teachers who were not members of SNEA were invited to attend the meeting to discuss the 2013-15 agreement. Two of the nonmember teachers elected not to attend the meeting knowing that they would not be allowed to vote on the 2013-15 agreement. After a successful vote approving the agreement two nonmember teachers (Non-Members) – including the one whose position was eliminated as a SMSTA representative sued in Circuit Court alleging that the District and SNEA violated the constitutionally duty to bargain in good faith by not allowing nonmembers to vote on the collective bargaining agreement and requesting that the court order the District and SNEA to submit the collective bargaining agreements for ratification to a vote of all members of the Unit.

The trial court ruled in favor of the District and SNEA holding that the Non-Members did not have standing because they did not attend the meeting, voiced no objections, failed to show that the results would have been any different if they had attended and that they were not damaged as a result not being able to vote.

“Although standing can be based on an interest that is attenuated, slight or remote, in all cases there must be a showing of an actual personal interest or stake in the outcome of the litigation. The requirement of a personal stake in the outcome of the litigation means that the remedy sought must relate to the alleged injury. If the plaintiff’s grounds for relief and remedy sought cannot alleviate the alleged injury, then, by necessity, the litigation cannot vindicate the plaintiff’s alleged personal interest or stake in the outcome of the litigation. If that is the case, then the plaintiff has no standing to bring the claims alleged.” [Cites Omitted]

In addition, the court held that there is no violation of the duty to bargain in good faith by not allowing nonmembers of a union to vote when the union  has been certified as the exclusive bargaining unit based upon long-standing cases involving interpretation of Federal and other state laws.  Missouri State Teachers Association, vs. Springfield National Education Association, and School District of Springfield, R-12, Greene County Circuit Court, Division One, Case No. 1331-CC00904 https://www.courts.mo.gov/fv/c/Findings+of+Fact,+Conclusions+of+Law,+and+Judgment.pdf?l=CT31&di=1643948

Comment Howard: This Circuit Court opinion is loaded with citations with respect to the duty to bargain in good faith as the exclusive representative of members of the bargaining unit including nonmembers who do not belong to the union.  If this case is not appealed it may be the best resource with respect the duty to bargain in good faith in the context of members of the unit who do not belong to the union.

Great Resource For Attorneys

Do you have the City Council blues and are you looking for a great resource on Land Use and Economic Development? Please follow this link for some good resources. http://www.whitegosspublications.com

Draft Memorandum Made At The Time The Employee Was Hired Showing That The Employee Was Disabled Sufficient To Allow Punitive Damages In The Amount Of $500,001.

In October 2004, Bowolak (Employee) applied for the position of Supply Technician at Mercy.  This was a manual labor job that involved transporting supplies and equipment to nurses.  The Employee’s previous work experience was all in manual labor jobs and his education level was minimal.

When the Employee initially applied with Mercy in 2004, he was required to undergo a physical examination by one of its registered nurses.  As part of his physical examination he was asked about his prior medical history.  He indicated that he had suffered a work-related injury in October 2002, which resulted in a spinal fusion in 2003.  The Employee also indicated that he was presently taking pain medications, Hydrocodone and Methocarbamol.  The Employee passed the physical examination, and he was accepted into the job with “no restrictions.”  When the Employee was hired a draft memorandum dated December 10, 2003, was prepared by a Dr. Allen Gocio but was never presented to the Employee but it was retained only to be rediscovered after the Employee filed a workers compensation claim in 2010.

The Employee worked successfully for about eight years and received good ratings from his supervisors with a strong record of regular attendance while performing his duties.  In March 2011, the Employee was called into a meeting and presented with the “Draft” document discussed above which he had never seen, which showed that he had a prior back injury and the doctor placed work restrictions limiting the employee to lifting not more than 30 pounds on a repetitive basis and no greater than 50 pounds on an occasional basis.  The draft Memorandum suggested frequent breaks will be needed even though he was found suitable for work on an immediate basis.  As a result of a second meeting in March 2011, the Employee was dismissed and he thereafter filed a complaint under the disability employment provisions of the Missouri Human Rights Act (MHRA).

Pursuant to the MHRA the Employee filed an action in Circuit Court for disability discrimination.  Following a jury trial the Employee was awarded $50,000 compensatory damages and $500,001 in punitive damages, attorney’s fees in the amount of $81,500 plus interest.  Mercy appealed to the Eastern District, which upheld the jury verdict.

With respect to the punitive damages the court noted that the use of a seven-year-old document as a basis for termination of a good employee was at a minimum reckless misconduct by Mercy, therefore the jury’s award of punitive damages was not clearly erroneous or constitutionally excessive.

On an issue of first impression the court concluded that the proper rate of interest was 5% instead of 9% based upon the fact that the nature of claims under the MHRA it is like a tort, therefore application of the statute that establishes the interest rate for torts is correct.  Bowolak v. Mercy E. Communities, (ED 100502, Oct. 28, 2014)

Comment Howard: The employer in this case created some an egregious errors and paid the price in punitive damages of $500,001.  First, before dismissing an employee with an eight-year good track record the employer should stop and consider all of the facts and proceed with extreme care.  Second, it clearly appears even to the casual observer that this employee was under the radar screen until he filed a work compensation claim.  After the employee filed the workers compensation claim case the employer found long-lost records indicating that the Employer was taking a risk when it put this employee to work.  Third, relying on an eight-year-old test was foolhardy as noted by the court; therefore the employer should have retested the employee.  Fourth, it really looks like the employer is discarding an employee who has little or no prospects for future employment based upon his education and skill level making this situation ugly.  Juries are going to award the maximum amount of damages it can when confronted with facts like those in this case.

Turkey DancingFun Turkey Facts

5) Wild turkeys spend the night in trees. They prefer oak trees.

6) Turkeys have heart attacks. When the Air Force was conducting test runs and breakiTurkey Dancingng the sound barrier, fields of turkeys would drop dead.

Housing Case In Ferguson Continues To Grind Away

In 2006, Ferguson enacted an ordinance imposing various new restrictions and requirements on residential rental property.  In 2008, SLAR challenged the validity of the ordinance on constitutional and statutory grounds and the case was dismissed based on lack of standing.  The Supreme Court of Missouri in 2011 reversed, holding that SLAR had associational standing and remanded the case for a trial on the merits.

In 2009, while the case was pending, Ferguson enacted an amendment that set the license fee at $50 and equated the term “residential rental property” with the term “rooming house.”  On remand Ferguson contended that the 2009 amendment along with existing code provisions going back to 2006 made the suit by SLAR moot.  The trial court agreed with Ferguson and dismissed SLAR’s petition as moot.

SLAR again appealed the trial court’s decision to the Eastern District, which held that the case was not moot because the record contained all of the provisions subject to SLAR’s challenge.  Further, SLAR presented three substantive points dealing with the merits of the ordinances, which had not been considered by the trial court.  These provisions would need to be reviewed by the trial court making findings of fact and conclusions of law before the Eastern District would consider the substantive matters.  St. Louis Ass’n of Realtors v. City of Ferguson, (ED100832, Oct. 28, 2014)

Mobile Home Park Is Nonconforming Use, Not The Individual Pads

The Hecks own a tract of land in the City of Pacific (“City”) and operate a mobile home park known as Pacific Mobile Home Manor (“Pacific Manor”) on that tract.  The Hecks have operated Pacific Manor on this tract of land since approximately 1983.  Within Pacific Manor is a mobile home pad with an address designated as 303 South Second Street (“the Pad”).  The Pad is positioned fourteen feet and ten inches from the mobile home pad directly to its south and fourteen feet and eight inches from the mobile home pad directly to its north.

The Hecks previously rented the Pad to renters who owned their own mobile home.  Two years after those renters moved out, the Hecks sought to install a new mobile home of the same size on the vacant Pad.  The City informed the Hecks that the new mobile home could not be placed upon the Pad unless they first obtained a variance from City’s pad spacing ordinance, which requires twenty feet of space between each mobile home.  The applicable ordinance adopted in 1996 provides:

“No manufactured home shall be placed in any manufactured home park existing on the effective date of this Chapter as a replacement to any existing manufactured home unless said manufactured home is placed at least twenty (20) feet from any other manufactured home or any other structure.”

In accordance with the City directive the Hecks applied for a variance from the City ordinance to reduce the 20-foot spacing requirement. The City Zoning Officer denied the application and the Hecks appealed to the Board of Zoning Appeals (BZA).  The Zoning Officer testified before the BZA that a strict application of the spacing requirement would oblige the Hecks to restructure the layout of the mobile home park, and that certain lots would not be usable until the new configuration was completed.  The Zoning Officer also testified that there is no common ground at Pacific Manor, so the space between mobile homes is the only area for green space.  The BZA denied their request for a variance and the Hecks appealed to the Circuit Court of Franklin County, which also denied their request leading to an appeal to the Eastern District, which reversed the BZA decision based on the fact that the mobile home park was a nonconforming use protected by the Constitution.

‘“Zoning ordinances must permit continuation of nonconforming uses in existence at the time of enactment to avoid violation of constitutional provisions preventing the taking of private property without compensation.”  At the same time, our Supreme Court has recognized that the spirit of zoning ordinances always has been and still is to diminish and decrease nonconforming uses.  Accordingly, Missouri courts have allowed municipalities to regulate and limit nonconforming uses by various means such as prohibiting the resumption of a nonconforming use after its abandonment or discontinuance, prohibiting the rebuilding or alteration of nonconforming structures or structures occupied for nonconforming uses, and prohibiting or rigidly restricting a change from one nonconforming use to another.” Heck v. City of Pac., (ED101157, Oct. 28, 2014)

Comment Howard: This case has one of the better discussions with respect to the law concerning nonconforming uses.

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