November Newsletter (Issue 11-2016)

Bill Geary Is Retiring:  Thank You For Your Dedication And Service

retirement-2After serving his country in the Navy JAG Corps, Bill began his career with the Office of the City Attorney in Kansas City, Missouri in 1979, eventually rising to become the Managing Attorney of Corporate Legal Services.  He served in that role until he was appointed City Attorney in 2012.   While serving in the City Attorney’s Office, Bill’s willingness to help others in the office and to take on extra, challenging assignments resulted in his  mastery of a wide variety of substantive areas of law.

 Bill handled difficult and often novel issues involving the First Amendment and substantive and procedural due process issues.  As a result of Bill working on the Missouri Knights of the Ku Klux Klan v. Kansas City litigation which addressed First Amendment issues in the context of a public access channel, Bill shared the stage with Caroline Kennedy as her book “In Our Defense: The Bill of Rights in Action” was being discussed.  Bill also developed an expertise in other substantive areas of law, including the following:  sales taxation of cellular phone services, election law, including the law surrounding initiatives and referendums, municipal sovereign immunity, anti-trust, public access law, Missouri Sunshine Law, municipal contracts and code enforcement.    Because of the breadth of Bill’s understanding of municipal law and the working of the City, Bill has provided the legal counsel and been the primary drafter of all of the City Charter changes over the past three decades.  Bill successfully defended the City against tort claims arising out of the Hyatt Skywalk disaster.  Bill drafted the legislation that created the Metropolitan Ambulance Services Trust that provided emergency medical care to the citizens of Kansas City for years.   Bill’s work is widely known across the municipal and constitutional law community to be amongst the highest order.  His efforts have benefited not only Kansas City, but often municipalities and political subdivisions statewide.

In 2005, he was awarded the Lou Czech Award for outstanding contributions to municipal law by the Missouri Municipal Attorneys Association and in 2016, he was awarded the prestigious James H. Epps III Award for significant achievements and distinguished service to the same community by the International Municipal Lawyers Association.  His colleagues in the KCMO Law Department and the MMAA, offer their sincere admiration and gratitude for his leadership and service.

Annexation Cannot Be Sustained Based Upon Desire To Control Zoning Of The Area To Be Annexed

landfillFacts: Village sought to annex approximately 347 acres of unincorporated land located in Buchanan County, adjacent to its existing city limits (“Annexed Territory”).  City of St. Joseph, Missouri (“City”) owns approximately 238 acres of the Annexed Territory.  City owns and operates a landfill that is located west of the Annexed Territory.

City has previously attempted to expand the landfill into the Annexed Territory by applying for conditional use permits from Buchanan County.  Though Village has successfully opposed these applications, it decided in May 2013 to initiate involuntary annexation proceedings pursuant to the Sawyer Act to control how the Annexed Territory would be developed in order to maintain the character of Village and the quality of life enjoyed by Village residents.

The plan of intent provided that the Annexed Territory would remain zoned agricultural.  The Village authorized the annexation, and a majority of the electors in both the Village and the Annexed Territory approved the annexation.  Village then filed a petition seeking a declaratory judgment authorizing the annexation.  The trial court found that the Village failed to put forth substantial evidence to establish that the reasonableness and necessity of the proposed annexation was fairly debatable; therefore, the Village could not proceed with annexation of the Annexed Territory. Village appealed to the Western District.

Opinion: The Village argued that it established by substantial evidence that the reasonableness and necessity of the annexation was fairly debatable.  Village also argued that the trial court erred because it refused to consider the desire of the Village to regulate the Annexed Territory to prevent a noxious use.

The Western District , noted that in determining the reasonableness and necessity of an involuntary annexation it is necessary to decide each case on its own unique circumstances.  Missouri applies twelve nonexclusive factors in weighing and determining the reasonableness and necessity of an involuntary annexation (Centralia factors).  The Village argued that the trial court erroneously imposed the burden of persuasion on the Village; thereby substituting the court’s judgment as to the reasonableness and necessity of the annexation.

Under the Sawyers Act, the test as to the reasonableness and necessity of the annexation is “whether the evidence shows it was fairly debatable.”  If this is proved the annexation stands.  In this case the Village failed to provide any evidence with respect to the Centralia factors.  The evidence at trial showed that the decision to annex the property “…was based exclusively on concerns about, and a desire to prevent, City’s efforts to expand the landfill.”  Missouri law is clear that “a desire to control the zoning of the area sought to be annexed does not in and of itself provide a sufficient basis to approve annexation.”   The Sawyers Act does not recognize competition among cities for unincorporated land as a permissible reason for annexation.  In addition, the Sawyers Act requires consideration of a determination of reasonableness of the needs of both the annexing city and the annexed area.  Village of Agency v. City of St. Joseph, (WD79220, 10/25/16)

Comment Howard: This case provides a very good analysis of involuntary annexations making it a good starting point for your research.  In addition, footnote number 6 stated that the judgment did not address the third statutory factor, which is that the Village did not and could not provide municipal services to the Annexed area within a reasonable period of time.  Because the court affirmed the trial court’s judgment on the second statutory factor it saw no reason to address this issue.

Court Upholds Power Of The Ethics Commission To Issue Investigative Subpoenas

Facts: Respondent was elected mayor of Jennings.  The Missouri Ethics Commission, which is responsible for administering Missouri’s campaign finance disclosure laws, received a citizen complaint regarding the mayoral election.  The complaint alleged that Respondent failed to file a committee disclosure report and financial summary for the campaign as required by law.

The Commission initiated an investigation and issued a subpoena duces tecum to Respondent to provide “[a]ll documents related to the April 2015 [municipal] Mayoral race,” including bank statements, cancelled checks, debits and credits associated with [Respondent’s] campaign’s account, receipts for campaign expenditures, and records for all monetary and in- kind contributions.  Respondent produced no documents.  The Commission filed an application to enforce the subpoena.

The circuit court ordered Respondent to show cause why the subpoena should not be enforced.  Respondent argued that the Commission lacked authority to issue the subpoena because the Respondent was exempt from the law.  After a hearing on the matter, the circuit court ruled in a one- page, handwritten order:

“Respondents not required to produce records in response to the subpoena. Citizen complaint . . . did not allege sufficient facts showing that [Respondent] received over $325 in contributions from a single contributor, more than $11,000 from all contributors, or $1,000 in expenditures.  Petitioner’s application for enforcement of subpoena duces tecum denied.”

The Commission appealed to the Eastern District.

Opinion: On appeal, the Commission argued that the trial court erred because the request by the Commission comported with all controlling law.  The court noted that generally courts will enforce a subpoena during an administrative investigation if the inquiry is within the agency’s authority; the demand is not to indefinite; and the information sought is reasonably relevant.  The Commission has authority to investigate alleged violations and pursuant to statute it has authority to issue a subpoena to produce documents, which the investigator deems relevant.

The Court found that the request complied with the statute because the need for the records was necessary to determine if the Respondent was required to form a committee and file financial disclosures.  By examining the materials the Commission will be able to discern whether contributions and expenditures are exempt under the statute.     Missouri Ethics Commission vs. Yolanda Fountain–Henderson, (ED103968, 10/25/16)

City Administrator Is Not Final Decision-maker For Termination of Employee

Facts: This case involves an employment dispute between the City of Wentzville, (City) and its former building commissioner, Diane Bolderson.  Bolderson’s employment proceeded without incident for about twelve years, but significant difficulties arose when she criticized changes to the city’s building code, requested an advisory opinion on the bidding process for purchasing computer equipment, and asked for an audit of the city’s procurement department.  Difficulties came to a boil when Bolderson criticized the City’s handling of an aquatic-center project.  She sent a memo voicing her concerns to the city administrator, the mayor, her immediate supervisor, and others.  About two weeks later, Bolderson forwarded a formal report to the mayor, city attorney, and others, accusing the City’s board of aldermen, the city administrator, and the city’s procurement director of fraud and acting with conflicts of interest.  The city administrator fired her four days after she submitted the report.  He gave Bolderson a list of reasons for her termination, which included her disparagement of city officials, criticism of the board’s decisions, and insubordination by communicating directly with the mayor, baseless accusations of fraud, misuse of work time, and disruption of city operations.

Bolderson sued the city under 42 U.S.C. § 1983, alleging that it fired her in retaliation for engaging in protected speech.

The district court granted summary judgment for the City, holding that, though Bolderson spoke on a matter of public concern, she did so in her official capacity as building commissioner and not as a private citizen, thereby making her speech unprotected under the Free Speech clause will.  The district court also concluded that, even if Bolderson had spoken as a private citizen, her claims would have failed the Pickering balancing test.  The district court noted that the City would be able to demonstrate that it would have terminated Bolderson anyway, even if she had not engaged in the allegedly protected speech.  Bolderson appealed the district court’s decision to grant summary judgment for the City to the Eighth Circuit.

Opinion: Bolderson argued that the decision to terminate her employment made the city liable because her harm stemmed from an official municipal policy since the City Administrator was the chief administrative assistant to the Mayor and had general superintending control of the administration and management of the officers and employees of the City subject to the direction and supervision of the mayor.  The Eighth Circuit reasoned that Bolderson did not show the mayor played an active role in her termination; therefore, she failed to show that the city administrator was the final decision-maker because the city ordinances showed conclusively that the mayor was the final decision-maker.

With respect to Bolderson’s claim that the mayor and city administrator violated the City’s anti-fraud policy in the way they handled her report did not prove a municipal custom.   The evidence offered by Bolderson was insufficient to demonstrate a reasonable dispute about the presence of a continuing, widespread and persistent pattern of unconstitutional misconduct that led to her termination.  Bolderson v. City of Wentzville, (8th Cir., 15–3846, 11/1/16)

Comment Howard: This case holds that before the City is liable there needs to be proof that the final decision-maker was involved which was the mayor.  Because Bolderson failed to provide sufficient facts to show that the Mayor was involved in the decision to fire.  It would seem that Bolderson’s complaint of fraud could have fell within the anti-fraud ordinance of the City (ordinance not shown in the record) leading me to think that the city administrator was acting on his own.  It seems that there was more going on in this case then what is reflected in the opinion.  Compare this case to an earlier decision by the Eighth Circuit in Morrow v. Zale Corporation, (8th Circuit No. 15–2321, 03 /15/16) in which a supervisor, who was involved in the investigation leading up to a termination of an employee, was considered to be a decision-maker.

Preliminary Injunction Versus Permanent Injunction

Filing injunctions is pretty much standard fare for local government attorneys.  A recent article (Preliminary Versus Permanent Injunctions) in the September–October 2016 issue of the Journal of the Missouri Bar provides an excellent summary of the law in this area.  The Article offers a guide to readers to make it clear “when preliminary relief should be avoided in lieu of seeking an immediate permanent injunction.”

Failure to Check Box that the Driver Was Informed of Revocation of License Did Not Invalidate Breathalyzer Test

intoxilyzer-8000-2Facts: On August 1, 2015, Missouri State Park Ranger, Terry Shaw (“Ranger Shaw”), stopped Driver in Bennett Spring State Park for driving while 
intoxicated.  During the course of the stop, Driver stated he had been drinking, showed several indicators of intoxication on each field sobriety test administered and refused to complete a portable breath test.  Driver stated, “Well, I’m not going to blow. I’m not going to blow at the jail either.  You can just arrest me then.”  At the jail, Ranger Shaw read Driver the provisions of the implied consent law from a form, and Driver again refused to take a breath test.  Ranger Shaw issued Driver a revocation notice for refusal to submit to the breath alcohol test.

Driver filed a petition for review of the revocation. A trial was held after which the trial court upheld the revocation. Driver appealed to the Southern District

Opinion: On appeal the Driver argued that he was not advised of the purpose of the test because Ranger Shaw failed to check one box on the influence report form.  The box that was not checked states that the suspect was informed that the purpose of the breath test is to determine the alcohol content of the suspect.  The Driver argued that because the box was not checked his refusal was not a valid statutory refusal.

A revocation is conditioned upon an officer making a statutorily sufficient request that the driver submit to chemical testing.  No particular words are needed so long as officer accompanies a request with the requirement out the statute as to the reason for the request and the possibility of license revocation if the request is refused.  An inference may be sufficient if the officer conveyed the necessary information inferred from the fact that the officer explained the test procedure to the driver.  The facts in the case showed ample evidence from which the trial court could infer Ranger Shaw read the Driver the statement that the purpose of the test was to determine the alcohol content of the driver’s blood notwithstanding the fact that the box was not checked.  Trial court’s decision is affirmed.  Simon vs. Director of Revenue, (SD34304, 10/27/16)

Police Can Search Magnetic Tape on Credit Card Without a Search Warrant

1966_corp-cardSergeant Vance stopped DE L’Isle for following too closely to a semi-tractor trailer. When the officer approached DE L’Isle’s car, he smelled burnt marijuana and saw air fresheners inside the car.  DE L’Isle accompanied Sergeant Vance to his police cruiser where DE L’Isle was given a warning citation for following too closely.  Sergeant Vance then deployed his canine, which alerted to the presence of controlled substances inside the vehicle.  When Sergeant Vance began searching the vehicle, DE L’Isle approached him and told him he could not search the vehicle.  After a brief struggle between DE L’Isle and Sergeant Vance, DE L’Isle was handcuffed and placed into the backseat of the police cruiser.

Sergeant Vance and two other officers completed the search.  No narcotics were found, but they seized a large stack of credit, debit, and gift cards located in a duffle bag in the trunk of DE L’Isle’s car.  DE L’Isle was subsequently arrested for assault and resisting arrest.  United States Secret Service agents then scanned the seized cards and discovered that the magnetic strips on the back of the cards either contained no account information or contained stolen American Express credit card information. Ten of the cards were American Express credit cards with DE L’Isle’s name on the front. The magnetic strips on the back of these ten cards, however, were “empty;” (there was no information on the magnetic strips).  The magnetic strips on some of the cards contained credit card information from legitimate American Express customers.  Cards 48 through 58 were Visa debit cards, Visa gift cards, and a MasterCard.  Account information on the American Express cards was DE L’Isle’s even though; he had no existing accounts with American Express.

As a result, DE L’Isle was charged with possession of fifteen or more counterfeit and unauthorized access devices, in violation of 18 U.S.C. §§ 1029(a)(3) and (c)(1)(A)(i).  He pled not guilty, De L’Isle filed a motion to suppress asking the district court to suppress any evidence discovered when law enforcement scanned the magnetic strips on the seized cards.  He argued that the search of the information on the magnetic strips was done without a warrant or a warrant exception and thus violated his Fourth Amendment right to be free from unreasonable searches.  The district court ruled that even though the motion to suppress was untimely it would considered the merits of the motion.  Thereafter the district court denied the motion to suppress and DE L’Isle appealed to the Eighth Circuit.

Opinion: DE L’Isle argued that the search of the magnetic strips on the back of the cards violated his Fourth Amendment right to be free from unreasonable searches because the magnetic strips contained information about the account in which he had a reasonable expectation of privacy.  Under current law, a physical intrusion or trespass by the government constitutes a search within the meaning of the Fourth Amendment; however, in order to show a violation there must be a showing of an actual expectation of privacy that society is prepared to recognize as “reasonable.”

Was There a Physical Intrusion?: The court reasoned that the magnetic strip on the back of a debit or credit card is an “external electronic storage device” that is designed to record the same information that is embossed on the front of the credit card. Therefore, sliding a credit card through a scanner to read the virtual information does not invade a person’s private property because it was identical to the information on the front of the card that is plainly visible.

Was There a Reasonable Expectation of Privacy?: The court reasoned that DE L’Isle did not have a reasonable expectation of privacy because he could not show a subjective or objective expectation under the law.  The nature of a credit card is to enable the holder of the card to make purchases and in order to accomplish this the holder must transfer the embossed information on the front of the credit card that is stored on the magnetic tape by swiping or inserting the card into a scanner to make the purchase.  When the holder of the card makes a purchase the holder knowingly discloses information on the magnetic strip of the credit card to a third party; therefore, the holder cannot claim a reasonable expectation of privacy with respect to electronic information stored on the credit card. “Society is not prepared to recognize as legitimate an asserted privacy interest in information in plain view that any member of the public may see.”

Comment Howard: This is a very interesting case and based on the citations it would appear to be the leading case in the Courts of Appeals. The District Court ruled on the matter as a matter of law without taking any evidence, which led to a dissent based on the grounds that the District Court should have heard evidence.  United States of America v. DEL’Isle, (Eighth Circuit 15–1316 , 06/08/16)

Exigent Circumstances Justifies Pinging Your Cell Phone to Determine Your Location Without a Search Warrant

cell-phone-icon-png-xw9byk-clipartFacts: Officers of the Vermont State Police responded to a report of a woman’s body near the town limits of Brattleboro, Vermont.  This area was “off the beaten path,” in a wooded area approximately 30 yards from the road.  When the officers arrived, they found the woman’s body.  She had a gunshot wound to the back of the head and she was on the ground in a kneeling position with her hands clasped in front of her.  Based on the body’s position, it was apparent that the woman had not committed suicide. Moreover, the lack of a blood trail indicated that she had been shot there.  As a result, the officers suspected that the woman was a victim of a homicide and that her assailant could still be armed.

The officers identified the woman as Melissa Barratt who had recently come to the attention of Vermont State Police when she was arrested in Brattleboro for selling drugs.  At the time, Barratt told her arresting officers that she was “extremely nervous and afraid of Frank Caraballo,” with whom she worked dealing drugs.  In particular, she stated  that “if he knew that she was talking to the officer, he would hurt her, kill her.” This, she indicated, was not an idle threat, as she knew Caraballo to have access to multiple firearms, and  to have committed assault or even homicide on previous occasions.  Though the arresting officers sought to have Barratt cooperate with them in an investigation of Caraballo, she refused,  largely out of fear that she would “basically be killed” if she cooperated.  The officers at the scene subsequently learned that Barratt had continued to work for Caraballo after her release.

Moreover, the investigating officers knew that, after Barratt’s arrest, Brattleboro police had conducted an investigation of Caraballo’s drug operation.  Through June and July, police  completed “at least three recent controlled buys of narcotics” with Caraballo, and that these sales required the participation of multiple undercover agents and confidential informants.  Through these sales, the police knew two phone numbers that Caraballo had used in connection with his operation.  They were similarly aware that Caraballo had no residence in Vermont, but instead traveled to and from Massachusetts and stayed in hotels.  Caraballo, the primary suspect was a man whom  the victim had told them not only had a significant propensity for violence but also possessed a number of firearms.  In addition, the investigation of Caraballo had separately indicated that he had taken over the drug operation of his brother, Michael, and was as such “armed and dealing  drugs.”  The officers also believed that the local police who had infiltrated Caraballo’s drug operation could be harmed if they came into contact with him.

Considering the need to protect the safety of undercover officers and informants the officers concluded that it was essential to locate Caraballo as soon as possible; therefore, the officers did not apply for a search warrant but instead contacted Sprint to request that Sprint locate Caraballo by using its GPS system to ping the GPS software in his phone to locate him remotely—a process called “pinging.”  After Caraballo was located, arrested (all within 90 minutes) and charged with a number of crimes Caraballo filed a motion to suppress all evidence based upon a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. The District Court overruled the motion to suppress and Caraballo appealed to the Second Circuit Court of Appeals.

Opinion: The Second Circuit noted that there is a well-established body of case law “that individuals have no reasonable expectation of privacy in the real-time GPS location of their cell phones.”  Despite the fact that there is no reasonable expectation of privacy the Second Circuit resolved the matter on the grounds that the request to Sprint fell within the exception to the Fourth Amendment based upon exigent circumstances.  The “core question” in applying the exigent-circumstances doctrine is “whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer to believe  that there was an urgent need to render aid or take action.”

In this case the officers had specific reasons to think that Caraballo  would commit acts of violence against undercover agents and confidential informants.  Barratt’s statement that Caraballo would “kill  her” if she were speaking to police took on an immediate importance because it suggested that the investigation had been discovered.  The threat that Caraballo might take action against others involved in the investigation satisfied the requirements for exigent circumstances.  United States of America v. Caraballo, (Second Circuit, 12–3839 and 14–203, 08/01/16)

Parties Cannot Unilaterally Change an Order for Child Support

missouri-seal1Facts: The Missouri Department of Social Services, Family Support Division (Division) issued an income withholding order to Swank, who was the employer of Silkwood for his current child support obligation and arrears.  Swank received the order and began to withhold from Silkwood’s paychecks.  The Division received payments pursuant to the order from Swank during January and February 2013.  Swank then received a document from Silkwood, allegedly written by the child support obligee and signed by both the obligee and Silkwood, which stated in part that Michael Silkwood, father and Melissa Johnson, mother mutually agreed that Michael Silkwood was released from all further child support payments.  Swank provided the document to his accountant and thereafter income was no longer withheld from Silkwood’s paycheck.  The order received by Swank from the Division included the following instructions:

“If you have any doubts about the validity of this order the sender.  If you fail to withhold income from the employee/obligor’s income as the [order] directs, you are liable for both the accumulated amount you should have withheld and any penalties set by State or Tribal law/procedure.”

Because Swank did not withhold and remit the income as ordered, the Division filed a Petition to Enforce Child Support Withholding Order.  Swank added Silkwood to this action as a third party defendant.  Silkwood, however, did not appear or participate in the proceedings.

The trial court found that Swank “did not willfully fail or refuse to comply with the withholding directives and that he acted in good faith, therefore, Swank did not “willfully fail or refuse to comply with the withholding directives;” therefore, Swank acted in good faith because the planned withholding was abandoned.

Opinion: The Division appealed the trial court’s decision to the Western District, which reversed based upon a plain reading of the statute that failure to comply with an order of the division with respect to withholding, subjects the employer to liability for failure to withhold or pay the amounts ordered.  There was no evidence in the record that Swank contacted the Division regarding the veracity of the document provided by Silkwood or its effect on the validity of the order.  The remedy of the employer for its losses is an unjust enrichment claim against the employee.  Judgment of the trial court is reversed and remanded.  State of Missouri, Department of Social Services, Family Support Division, v. Swank, (WD79244, 10/25/16)

Comment Howard: It might be good to let your finance department know that they should only honor the order of the Division and that individuals cannot unilaterally change child support obligations