September Newsletter (Issue 09-2015)

Nonbinding Recommendation By the P and Z Commission Was Not a Contested Case

Property owner applied for a conditional use permit with the City of Creve Coeur (City) to construct and operate an assisted- living care facility.  A public hearing was held before the planning and zoning commission (Commission), where sworn statements were made and exhibits presented on the record with respect to a request for a use permit.  The Commission made a nonbinding recommendation of approval to the City Council, which thereafter approved the use permit.

Opponents of the use permit brought an action for judicial review of the decision of the City Council as a contested case under Sections 536.100-536.140 of the APA.  The trial court dismissed the petition and the plaintiffs appealed to the Eastern District.

The question on appeal was whether or not this matter was a contested or non-contested case.  One of the keys to determining if a matter is contested or non-contested is whether or not a public hearing is required; however, not all matters requiring a public hearing are contested cases because in order to constitute a contested case, the public hearing “… must actually determine the legal rights, duties or privileges of specific parties.”

The Eastern District held that the hearing did not meet the procedural requirements of a contested case because it did not provide that witnesses could be examined and cross-examined, that formal rules of evidence be followed and that the agency render written findings of fact and conclusions of law.  Furthermore, the hearing did not determine the “the legal rights, duties or privileges of any party” because nothing in the city code required the City Council to follow the recommendation of the Commission and as a result the City Council made the final decision.  The public hearing did not determine “the rights, duties and privileges of any party” because it was a non-binding recommendation; therefore, judicial review could not occur under Sections 536.100 – 536.140. pertaining to contested cases.  450 N. Lindberg Legal Fund, LLC, et al., vs. City of Creve Couer, (ED102404, 6/16/15)

Comment Howard: The requirement that “rights, duties and privileges” must be determined is often overlooked.  Obviously, and agency that simply makes a recommendation does not determine the rights, duties, and privileges of a party.

Expungement of Arrest Record

In April 2014, Doe filed a petition for expungement of arrest records pursuant to § 610.122.  Doe’s petition alleged he had been arrested on three counts of third-degree assault.  MSHP filed its answer and motion to dismiss.  MSHP argued that Doe was not eligible to have his arrest record expunged because Doe could not prove that the arrest was based on false information or that there was no probable cause to believe he committed the offense because Doe pleaded guilty to “an offense stemming from the arrest now sought to be expunged.”  MSHP also contended that Doe could not prove that he was “actually innocent.”

At the expungement hearing, Doe testified that he and his younger brother were driving in University City in 2008.  Doe was driving the car, and “before [he] knew what had happened,” his younger brother leaned out the window and, using an air gun, shot a man walking down the street.  Doe testified that he did not shoot anyone and that, to his knowledge, his younger brother gave a statement to the police that he was the one who shot the air gun.  Doe indicated he did not know that his brother had the air gun until he shot it.  Doe recalled that he was arrested for a weapons violation, as well as three counts of assault.  One count of assault arose from the air gun incident; the two other counts arose from an previous incident that Doe’s younger brother was involved in.  Doe testified that he was not with his brother at the time of the other incident.

The weapons violation was amended to illegal parking on a residential street, to which Doe pleaded guilty.  The three assault charges were nolle prosequi.  MSHP did not present any evidence at the expungement hearing.  The trial court granted Doe’s request to expunge the records of his arrests.  The court found that the arrests were based on false information and that there was no probable cause at the time of the hearing to expunge that the individual committed the offense.  MHSP appealed to the Eastern District.

Statutory Requirements: Any record of arrest recorded pursuant to § 43.503 may be expunged if the court determines that: “(1) the arrest was based on false information; (2) there is no probable cause, at the time of the action to expunge, to believe the individual committed the offense; (3) no charges will be pursued as a result of the arrest; and (4) the subject of the arrest did not receive a suspended imposition of sentence for the offense for which the arrest was made or for any offense related to the arrest.”

Actual Innocence: An individual proves he is actually innocent by satisfying the false information and probable cause requirements of § 610.122. The “actual innocence” standard in the context of expungement proceedings contemplates the petitioner establishing that the arrest was based on false information and that there is no probable cause for the arrest at the time of the expungement action, as well as the other requirements of the statute, not the production of “new evidence.” Since expungement is a remedial remedy it is to be liberally construed to affect its beneficial purpose.

False Information: Doe presented evidence that he was not the person who shot the air gun and that his brother shot it unbeknownst to him.  In addition, the Petitioner testified he was not present for the two prior incidents of assault.  MSHP did not present any evidence to counter these statements; therefore, the trial judge was free to believe Doe’s evidence.

Probable Cause: Probable cause is established at the time of the expungement hearing, not at the time of arrest.  Probable cause under the expungement statute is also different then probable cause to arrest a person.

The evidence showed that Doe did not shoot the air gun, nor was he involved in two prior incidents of assault at the time of the expungement; therefore, the trial court’s decision to expunge the records was affirmed.  John Doe vs. Missouri State Highway Patrol Criminal Records Repository and City of University City, (ED 102092, 8/18/15)

Comment Howard: This is a great case to review the elements required to expunge a record.  I always thought that expungement was extremely difficult, but this case seems to make it easier.  Also, because MSHP did not present evidence nor did it preserve a claim of issue preclusion because Doe pled guilty, issue preclusion was not considered. Given the facts, it seems that the issue preclusion argument by MSHP could have had some merit.

Definition of “ Law Enforcement Services”

Jasper County voters approved a law enforcement sales tax “for the purpose of providing law enforcement services for County funded public safety officers that are: the Jasper County Sheriff’s Office, and Prosecuting Attorney’s office.” The ballot title submitted to the voters asked: “Shall the County of Jasper impose a countywide sales tax of one quarter of one percent on all retail sales for the purpose of providing law enforcement services for the County?”

Former County Sheriff (Dunn) filed a petition alleging that the County violated the Enabling Ordinance by using law enforcement sales tax funds for improvements to the county jail, inmate healthcare and housing.  The trial court dismissed this claim for failure to state a cause of action and Dunn appealed the decision to the Southern District, which affirmed concluding that the phrase “law enforcement service’s’ is “broad by design” and “inclusive of many things.” Certainly, the phrase does not specifically exclude any of the challenged uses (e.g., inmate healthcare, housing and improvements to the county jail) about which Dunn complains.  Dunn v. Jasper County, (SD33380, 8/17/15)

Comment Howard: If you are looking for what constitutes “law enforcement services” this is the case for you. The court also has a good discussion of taxpayer standing to bring this lawsuit.

Motion To Quash Subpoena of High Ranking Public Official Is Quashed

Randolph Wilkins (Plaintiff) worked in the consumer fraud division of the Attorney Generals Office (OMAG).  Plaintiff was dismissed as an employee of the 0MAG for interpersonal problems and insubordination.  Thereafter, Plaintiff brought a lawsuit against the OMAG and the Attorney General (AG) alleging discrimination and wrongful discharge in violation of the MHRA Missouri, common law and Missouri Constitution, which grants hiring preference to former members of the United States armed services.  The AG was dismissed from the lawsuit.

The Plaintiff sought to depose the AG, which was quashed by the trial court.  The Plaintiff subpoenaed the AG to testify, which also was quashed by the trial court.  A jury returned a verdict for the OMAG.  Thereafter, the Plaintiff filed a post trial motion arguing that the trial court erred in granting the motion to quash the subpoena to take the deposition of the AG and the trial subpoena issued to the AG.  The trial court overruled the motion and Plaintiff appealed to the Eastern District.

Analysis: Missouri courts have not addressed whether Missouri law limits the right to subpoena high ranking executives to testify at trial, although in the context of pretrial discovery it has recognized that even if the top level employee has discoverable information, the organization or its top level employee may seek a protective order.  In determining whether or not to grant a protective order for pretrial testimony trial courts consider: “whether other methods of discovery have been pursued; the proponent’s need for discovery by top-level deposition; and the burden, expense, annoyance, and oppression to the organization and the proposed deponent.”

OMAG’s motion to quash was supported by the assertion that the AG had no involvement in or knowledge of employment decisions affecting Plaintiff.  Plaintiff did not contradict this contention in his memorandum.  Plaintiff argued that the AG improperly delegated his statutory authority to appoint, compensate, and terminate the OMAG’s investigators and “only Chris Koster can provide the testimony needed to resolve the legal issue of his delegation of authority.”

Plaintiff failed to explain how the trial court’s finding of good cause was against the logic of the circumstances or arbitrary and unreasonable; therefore, the trial court could reasonably have determined that the AG’s testimony on the issue of statutory authority was of limited probative value and potentially outweighed by the risk of juror confusion.  The trial court also could reasonably conclude that, even if AG’s delegation of statutory authority was relevant to Plaintiff’s case, Plaintiff was able to present this evidence by less burdensome and oppressive means (such as Ms. Meyer’s testimony).  Wilkins v. Office Of The Missouri Atty. Gen. and Chris Koster, (ED101493, 6/16/15)

Comment Howard: It always seemed to me that the other side sought to subpoena top officials who knew little or nothing about the matter for their annoyance value. When the mayor or city manager or other top public official walks into your office and tells you to get rid of this subpoena you now have a great roadmap for a motion to quash.

Clean Water Regulations Stayed in Missouri

On August 27, 2015, a federal district court in North Dakota issued a preliminary injunction against a new Obama administration rule that would extend federal Clean Water Act jurisdiction to irrigation ditches, isolated ponds, prairie potholes, and other non-navigable waters.  In blocking the rule, the court stated that the “risk of irreparable harm to the states is both imminent and likely.”  Thirteen states asked the court for immediate relief from the rule: Alaska, Arizona, Arkansas, Colorado, click Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Dakota, and Wyoming.  Implementation of the Rule is blocked in those states pending further judicial proceedings.  For a copy of the opinion and order click the following link. https://www.ag.nd.gov/NewsReleases/2015/PI Order.pdf

Automated Traffic Enforcement By Cameras

For the last five years or so a lot of energy, time and public treasure have been spent dealing with automated camera enforcement of traffic laws.  This all came to a head on August 18, 2015, when the Missouri Supreme Court issued three separate opinions, which are analyzed below.  But first, a brief overview may be useful in sorting out the bigger picture by focusing on the principal holdings in these cases.

• A Moving Violation Is A Moving Violation No Matter What You Call It.

• A Rebuttable Presumption Cannot Be Used To Shift The Burden Of Proof For Moving Violations Because The Potential Loss Of A Drivers License Is Severe And Sufficient To Make The Charge Criminal In Nature.

• Carefully Follow Rules Established For The Municipal Court By The Missouri Supreme Court.

• The Courts Will Give Deference To Severability Clauses.

Rebuttable Presumption In St. Louis Ordinance Is Unconstitutional

The City of St. Louis (City) adopted a red light camera ordinance (Ordinance) that purported to establish a rebuttable presumption with respect to whether or not the owner of the motor vehicle was the driver at the time the violation took place. Defendants were charged with violating the Ordinance and thereafter filed a declaratory judgment challenging the validity of the Ordinance on the grounds that the Ordinance was unconstitutional because the rebuttable presumption shifted the burden of persuasion to the Defendants.  A bench trial was held and the court ruled that the Defendants were entitled to an injunction because the Ordinance was void. Thereafter, the City appealed to the Missouri Supreme Court.

Before reaching the question of whether or not the Ordinance was invalid the court had to first determine if there was an adequate remedy at law and if the matter was moot because the city had dismissed the charges for violating the ordinance thereby depriving Defendants standing to bring the declaratory judgment action.

Standing: Generally, there is an adequate remedy at law to challenge the validity of an ordinance if you are being prosecuted, which is sufficient to preclude a declaratory judgment; however, since the City dismissed the pending prosecutions before filing its motion to dismiss, there was no longer an adequate remedy at law.

Even though the Defendants were not facing prosecution, their claim that the rebuttable presumption was unconstitutional presented a legal question that did not require additional factual development; in addition, previous prosecutions had already affected the Defendants and the Ordinance was still in effect presenting the possibility of future prosecutions.  Therefore, Defendants had standing because there was a substantial controversy that was ripe for review under the Declaratory Judgment Act.

Rebuttable Presumption: Before addressing the question of the constitutionality of the Ordinance, the court needed to determine if the matter was civil or criminal.  The court concluded that even though the only penalty was a $100 fine the matter was criminal in nature because a conviction was a moving violation, which could lead to revocation of drivers license of the owner of the vehicle.  This is an important holding because in a civil matter a rebuttable presumption is permitted; however, in a criminal matter the prosecution always has the burden of proof and cannot shift that to the defendant.  The court concluded that based upon notice provisions in the Ordinance that it required Defendants to show a person other than the owner was operating the vehicle, or that the vehicle or license plate had been stolen, thereby impermissibly shifting the burden in a criminal matter to the Defendants. Tupper, et al., v. City of St. Louis, et al., (SC94212, 8/18/15)

Comment Howard: This case turns on the court’s conclusion that the rebuttable presumption was required to be analyzed under criminal procedures, which do not allow the burden to shift from the prosecution.  Since the ordinance only provided for a fine it would appear that the charge was an infraction.  In addition, cases have uniformly held license revocation is a civil proceeding; nevertheless, the court concluded that the burden shifting from the prosecution to the Defendants was impermissible because of the criminal nature of the charge.

St. Peters Ordinance Classifying A Moving Violation as A Non-Point Violation Conflicts With State Law

The City St. Peters (City) adopted an ordinance to authorize the installation and use of an automated red light camera enforcement system, which created a municipal offense that occurred when a “person fails to comply with the City Traffic Code and the violation is detected through the automated red light enforcement system.” (Ordinance) In addition, the City traffic code states that: “The driver of any vehicle shall obey instructions of any official traffic control device.”

The automated camera system is capable of producing images recording a motor vehicle running a red light that shows the offending vehicle, the vehicle’s license plate, the vehicle’s operator, and the traffic control signal.  An officer of the City Police Department reviews the images to determine if a violation occurred.  If there is a violation, a summons is served on the vehicle’s owner with a notice that states that the ordinance is classified as an infraction punishable by a fine no greater than $200 and states that “in no case shall points be assessed against any person… for a conviction of a violation of the City Traffic Code detected through the automated red light enforcement system.”

Bonnie Roeder was issued a notice of violation and summons that stated that a vehicle registered to her was in violation of the Ordinance.  In addition, the notice stated that the camera captured a picture of her vehicle at the time of the violation, running a red light and provided her with the option to pay a $110 fine, submit an affidavit of “Nonresponsibility” showing that she sold the vehicle or that it was stolen at the time of the violation, or she could appear in court to have the matter reviewed by a municipal judge.  The notice also stated that no points would be assessed against her driving record.

Roeder filed a motion to dismiss, asserting that that the notice violated her due process rights by not providing statements showing probable cause to believe she was operating the vehicle at the time of the violation, that the Ordinance violated her due process rights by creating a rebuttable presumption that the owner of the motor vehicle was the operator, and that the Ordinance conflicted with state law by not assessing points.

The trial court overruled the motion and a jury found Roeder guilty of violating the Ordinance and assessed a $110 fine.  Thereafter, the Court of Appeals issued a ruling in Unvferth v. City of Florissant, declaring a similar ordinance void.  Roeder then renewed her motion to dismiss on the grounds that at the Ordinance conflicted with state law by not assessing points based upon the decision in Unvferth, which motion was sustained.  The City appealed and the case was transferred to the Missouri Supreme Court.

Conflict With State Law: The Ordinance provided that no points will be assessed for a violation.  As in other cases, the court ruled that there was a conflict because the city ordinance prohibited what the state law permits; however, after an extensive review of the law pertaining to severability the court ruled that the no assessment of points provision was severable from the rest of the ordinance, overruling Unvferth v. City of Florissant on that issue.  In addition, the rebuttable presumption while invalid was also severable from the Ordinance.  These rulings had the effect of leaving the ordinance standing, however the court ruled that the notice provisions given by the City stating that no points would be assessed precluded any further action with respect to this proceeding because this would violate Roeder’s constitutional right of fair notice.  City of St. Peters v. Roeder, (SC94379, 8/18/15)

Comment Howard: This case has an excellent discussion of severability provisions making it a starting point with respect to an analysis of a severability clause in an ordinance.

The City of Moline Acres (City) adopted an ordinance that provided: “Every motor vehicle owner has a duty to ensure that their motor vehicle at all times complies with the prescribed speed limits.  It shall be deemed a violation of Public Safety on Roadways for the Owner to permit their motor vehicle to be operated at a rate of speed in excess of the posted speed limit where the violation is captured by an Automated Traffic Enforcement System….” (Ordinance)

The City also established an extrajudicial Automated Traffic Enforcement Division to administer the automated camera system, which provided notice and collected penalties paid to the City by persons who violated the Ordinance.  This Division existed outside the jurisdiction of the Municipal Court and in violation of Municipal Court Rules.

A motor vehicle owned by Brennan was photographed traveling at 56 mph in a 45 mph speed zone.  The City sent Brennan a notice of the violation stating that as the registered owner or lessee of the vehicle that he was responsible for exceeding the speed limit and that he owed a penalty of $124.  The notice further stated that if did not wish to resolve the matter outside the municipal court system and remit payment as requested that an information will be filed in Municipal Court and a summons will be issued for you to appear, however no points will be assessed against your drivers license because the charge is a nonmoving violation.  Specifically, the City contended that the Ordinance did not punish speeding but the act of an owner giving someone else permission to use the owner’s vehicle to exceed the speed limit.

Brennan pled not guilty, demanded a jury trial and thereafter filed a motion to dismiss the charge, which was sustained.  The City appealed and the matter was transferred to the Missouri Supreme Court.

Moving Violation: The Missouri Supreme Court agreed with the City that the ordinance did not regulate speeding because the Ordinance only prohibited owners from permitting others to speed using the owner’s vehicle. However, under state law whenever a motor vehicle is in motion at the time of the violation it is by definition a “moving violation” requiring the assessment of points.  Section 302.302 .1(1) “Accordingly, section 302.302.1(1) requires that two points be assessed if an owner is convicted of or pleads guilty to violating the Ordinance.”

“But, it does not necessarily follow that the Ordinance in his case also is invalid. Unlike the ordinance in Roeder, the City’s Ordinance is silent concerning the assessment of points.  Accordingly, there is no conflict between the Ordinance and Section 302.302.”

The Court stated that “…a conflict between state and local law cannot exist with regard to an issue on which the local ordinance is silent” thereby overruling Unverferth v. City of Florissant on this issue.

Rebuttable Presumption: The Ordinance created a rebuttable presumption that the owner gave the driver specific permission to exceed the speed limit.  The City argued that this was a civil not a criminal matter and as a result a rebuttable presumption was lawful.  The Court held that the “…Ordinance’s presumption is not constitutionally permissible in any proceeding, civil or criminal” because the legislature “… may create such presumptions only within the limits of reason.”  It is “…essential that there is a rational connection between the fact proved in the ultimate fact presumed (or inferred) and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.”  The City cannot relieve itself of the burden of proving that the owner gave permission to drive the vehicle in excess of the posted speed limit by merely proving ownership. Nevertheless, the trial court’s dismissal of the charges cannot be affirmed because the ordinance creates an unconstitutional presumption that the city cannot use.

Notice Defects: The City created an extra-judicial proceeding by establishing a division completely outside of the Municipal Court for mailing notices and collecting penalties.  The notices that were given by the City did not conform to Rule 37.33 or 37.34.  There were no facts stated in the notice showing probable cause that Brennan violated the ordinance; instead the blank in the notice rarely contained the phrase “Violation of Public Safety on Roadways.”  This notice violated two of the laws most basic principles.  First, it violated the power to inflict the penalty imposed by the ordinance prior to a judicial determination that the ordinance had been violated.  Second, it violated the principle that a judicial determination requires due process because the City must prove the defendant’s guilt beyond a reasonable doubt.  Their purpose is to prevent a municipality from threatening prosecution as a means of forcing a person to pay the city with no due process and no proof of guilt.” Because the information violated Rule 37.34 and 37.33 (a) the trial court’s dismissal with prejudice was affirmed.

There simply is no legal justification or authority for the Ordinance and its process of demanding payments from vehicle owners in exchange for not bringing charges against them.  By implementing this extra-judicial process, the Notice runs so far afoul of the requirements of Rule 37.33 that it cannot serve as “support” for the information under Rule 37.34.  As a result, both the Ordinance and the Notice are invalid.  City of Moline Acres. Brennan, (SC94085, 8/18/2015)

Comment Howard: I thought the court went to extraordinary length to write a very carefully worded analysis with respect to the issues in this case. The Missouri Supreme Court also excoriated public officials (and by implication private persons or companies who participated in this ruse) by its statement that:

There is a word for threatening someone with legal claims or charges if they do not make a large and prompt payment, but that word is not “notice.” And there is a word for money paid to keep claims of wrongdoing from being made public, but that word is not “fine.”

This statement is also a stern reminder to other public officials that when drafting city ordinances involving the Municipal Court that care should be taken to carefully follow the rules.