February Newsletter (Issue 02-2020)

We apologize for the delay.  Due to unforeseen circumstances beyond our control we were delayed.  We appreciate your patience and will work hard to deliver you much need information in the future.

No Free Lunch, City Pays  Attorney Fees When It Files a  Declaratory Judgment In Order To Protect City  From Willful Or Purposeful Violation of Sunshine Law, Court Discusses Relationship Of Discovery Under Civil Rules And Sunshine Law
Facts and Procedure: The City of Byrnes Mill (City) received a letter alleging criminal conduct by an officer of the City’s Police Department, which it referred to the Arnold Police Department to investigate and produce a report.   Limesand, (Citizen) submitted a request under the Sunshine Law seeking police logs and reports for August 3, 2018,  as well as any correspondence within the City and Arnold concerning the investigation of the City’s police department.  The City informed Citizen that no documents memorialized its oral communications with the City of Arnold and provided Citizen a copy of the requested police log.  Citizen then filed another Sunshine Law request which sought a roster of the City’s police officers and a copy of the Report by Arnold.  The City then supplied Citizen with the roster of its employee and synopsis of the Report.

The City immediately filed a declaratory judgment action requesting that the trial court conduct an in camera review of the Report to determine if redacted portions of the Report were exempt from disclosure under the  Sunshine Law.  Citizen filed a motion to compel discovery of the record under the  civil rules pertaining to litigation.  The  trial court conducted an in camera  review of the Record and concluded that portions of it were   protected from disclosure under the Sunshine Law, that the civil rules for litigation did not control under the facts in this case and that citizen was not entitled to attorney fees.  Citizen appealed to the Eastern District.

Analysis: Was the Redacted  Portion of the Record Protected Under the Sunshine  Law: The  Eastern District begins its analysis by noting that the Sunshine Law specifically provides that when a public record contains both exempt and nonexempt material the governmental body is obligated to separate the exempt and nonexempt material and make the nonexempt material available for examination and copying.  In addition, Section 610.100.3 specifically allows for the closure or redaction of otherwise open investigative records where disclosure creates a safety risk, jeopardizes an investigation, or reveals information about law enforcement techniques and procedures.  The Sunshine Law also provides that when a governmental body is in doubt about the legality of closing a particular record it may bring suit at the expense of the governmental body to ascertain the propriety of any such action or it may seek a formal opinion of the Attorney General, or an attorney for the governmental body.  These “safe harbor” provisions allow governmental bodies several legal avenues to resolve any ambiguity as to its disclosure requirements to avoid noncompliance with the  Sunshine Law.

Citizen claimed that the trial court did not conduct a hearing on the question of whether or not the redacted portion of the record was subject to protection.  The  Eastern District held that the in camera inspection by the trial court was in effect a  hearing.  Furthermore, Citizen claimed that the trial court erred because the City had not closed the record prior to Citizen requesting the record under the Sunshine  Law.  The Court made short work of these arguments, noting that the statute specifically allows the City to bring a preliminary action to determine what information may lawfully be protected from disclosure based upon certain statutory exemptions;  therefore,  the Eastern District  affirmed the trial court’s decision with respect to these issues.

Motion to Compel Production of the  Record  Using Civil Rules for Discovery: Citizen  claimed that the trial court erred  in denying his motion  to compel discovery of a full un-redacted Report under the civil rules  for discovery when  litigating, claiming that the City did not assert any legitimate privilege to  pretrial discovery of the Records’ content.  Citizen argued that the Sunshine Law did not protect the Record from discovery because it did not create a privilege to withhold relevant documents that can preclude or otherwise limit discovery in the context of litigation using civil rules of procedure.  Even though the Sunshine law does not protect records from discovery under the civil rules of procedure, in this case, the matter before the court was a  Sunshine Law request in which the ultimate issue was whether or not  the  unredacted copy of the Report was public; therefore, the disclosure of the Report using a motion to compel under civil rules of discovery was a not a  proper subject in the Sunshine  lawsuit.

Citizen further argued that not having a copy of the unredacted copy of the  Report  put him at a disadvantage in arguing in favor of disclosure because he was not able to review its contents.  This argument flies in the face of the purpose of the in camera review of the Record, which cannot be achieved if counsel for Citizen is present for the inspection.  The Eastern District concluded that compelling discovery of the full Report, even if limited to Citizens attorney, would have defeated the very purpose of the declaratory judgment action, therefore there was no abuse of discretion by the  trial court denying Citizens motion to compel discovery.

Attorneys’ Fees: The trial court denied Citizens request for attorneys’ fees.  The Eastern District noted that the City brought its action for declaratory judgment to determine whether or not a portion of a record  was protected under the Sunshine  Law from disclosure.  The  statutory provisions specifically provide that when a public governmental body brings suit to determine whether or not a record of a governmental body is subject to disclosure that such an action it is “at the expense of that governmental body.”  Therefore, the trial court erred when it denied Citizens request for attorneys’ fees in the amount of approximately $16,000.  The trial court may however limit the award of attorney’s fees to the amount reasonably generated at trial court when responding to a straightforward declaratory judgment action confined to seeking, review  of a record.  Therefore the matter was remanded to the trial court to determine reasonable attorney’s fees and costs.  City of Byrnes Mill v.  Limesand, (ED107 847847, 02/04/20)

Comment Howard: This is a very well written opinion, which discusses options by local government in responding to Sunshine Law in light of the safe harbor provisions of the statute.  The Eastern District hints that filing suit under the statute for declaratory judgment may not have been the best remedy (after all city pays the attorney fees) considering it could have used the safe harbor provisions by asking for an opinion of the Attorney General or counsel for the local government agency without triggering the provision in the Sunshine law requiring the City to pay the expenses of the party it sued.  The opinion also discusses the relationship of the exemption provisions under the Sunshine law and the rules for discovery, which I have not seen in other cases.  We have not heard the last word on this case because Roland, attorney for Citizen, has promised that he will appeal the decision.

In Case Of First Impression Court Concludes That Application And Issuance Of Driver’s License Constitutes Implied Consent To Test Driver’s Blood Alcohol 
Facts and Procedure: Shortly after 1:00 a.m., the Belton Police Department received a call from a Taco Bell employee about a man in a black GMC Yukon parked in the restaurant’s parking lot.  The employee reported the man had previously fallen asleep in his vehicle while in the restaurant’s drive-through lane.  When a law enforcement officer arrived, the GMC Yukon was parked at the north end of the restaurant’s parking lot, with its headlights and taillights on, and the driver’s window rolled down, even though it was cold and raining.  The officer observed a man, later identified as Goforth, asleep in the driver’s seat.  The officer smelled a strong odor of intoxicants coming from within the vehicle.  Goforth was the vehicle’s only occupant.  The vehicle was registered to Goforth.

The officer woke Goforth, at which point Goforth explained that he was waiting for his food order from Taco Bell.  Goforth denied falling asleep in the restaurant’s drive-through lane.  The officer asked Goforth where he was coming from three times. Goforth ultimately answered “home.”  The officer asked Goforth whether he had been drinking.  Goforth gave a rambling answer about having a series of drinks, including two glasses of wine and 3-4 beers at Buffalo Wild Wings.  The officer observed several indicators of intoxication and arrested Goforth for driving while intoxicated.  Goforth was transported to the Belton jail, where the officer read Goforth the implied consent warning.

Goforth refused to submit to a chemical breath test and was given written notice of the revocation of his license and privilege to drive.  At the time of the revocation, Goforth had a valid commercial class A license issued by the state of Missouri.

Goforth then filed a petition to review the revocation of his license and privilege to drive.  Goforth argued that the trial court should set aside the Director of Revenue’s revocation of his license because there was no evidence that he had ever operated a motor vehicle on a public highway.  The trial court sustained the Director of Revenue’s revocation of Goforth’s license and privilege to drive.  Goforth appealed to the Western District.

Analysis: Goforth argued that before his consent can be implied under the implied consent law, the Director of Revenue must present evidence that he had operated a motor vehicle on a public highway.  Goforth argued that the trial erred because the Director failed to present any evidence that Goforth had ever operated a motor vehicle on the public highways.

The Western District started with  an analysis of the  Implied Consent law, Section 577.020.1( he1) which  provides that:

Any person who operates a vehicle upon the public highways of this state . . . shall be deemed to have given consent, subject to the provisions of Sections 577.019 to 577.041, to a chemical test or tests of the person’s breath, blood, saliva, or urine for the purpose of determining the alcohol or drug content of the person’s blood pursuant to the following circumstances:

In addition, Section 302.574.4 provides that in order to revoke a license for failure to submit to the Breathalyzer test that the court, shall determine only:

  • Whether the person was arrested or stopped; (2) Whether the officer had: (a) Reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated or drugged condition;. . . ; and (3) Whether the person refused to submit to the test.

The Court  concluded that all of the above three elements were proven at the hearing and that as a general proposition, refusal to submit is not valid (the third essential element of Section 302.574.4) unless the driver has impliedly consented to chemical testing.  This analysis put at issue whether or not the driver had consented to chemical testing.

The Western District disagreed with Goforth’s argument concerning whether or not implied consent had been given, concluding that implied consent to chemical testing can be inferred by the driver applying for and receiving a driver’s license (which Goforth did).  The Court concluded that application and receiving a driver’s license permits the inference that a driver is assuming all obligations associated with operating a vehicle on the public highways, including implied consent to the chemical testing.

“The theory behind the Implied Consent Law is that the use of the public highways is a privilege, not a right, and ‘a motorist by applying for and accepting an operator’s license “impliedly consents” to submission to a chemical analysis of his blood alcohol level when charged with  driving while intoxicated.'”

Furthermore, the Court stated that no Missouri case has directly addressed whether a valid refusal to submit requires proof that the driver has ever operated a vehicle upon the state’s public highways although two Missouri cases have indirectly addressed the subject; therefore, this  issue is one of first impression.

Nevertheless, even if you conclude that implied consent was not given there was  ample evidence in the record to show that Goforth operated a vehicle on the public highways.

Goforth was found in the driver’s seat of a running vehicle which was parked in the parking lot of a fast-food restaurant.  The vehicle was registered to Goforth, and Goforth was the vehicle’s only occupant.  Goforth told the responding officer he arrived at the Taco Bell from his home.  Goforth’s driver’s license showed a residence address in Pevely, Jefferson County, Missouri, more than 250 miles from the point of his arrest in Belton, Jackson County, Missouri.  He told the responding officer that he had been drinking earlier in the evening at a different restaurant.  The trial court could reasonably infer from this evidence that Goforth impliedly consented to submit to chemical testing because he operated a vehicle on the public highways in the state of Missouri at some point prior to his arrest.  Goforth v. Director of Revenue, (WD82604, 02/11/20)

Comment Howard:  This is a very important case helping law enforcement, with respect to proof of implied consent, in those rare situations where is hard to show that the motor vehicle had ever been operated on a public highway.

Independence Ordinance Restricting Location Of Medical Marijuana  Dispensary  Within 500 Feet Of Residential Property Challenged  Because It Was Unduly Restrictive
Missouri Lawyers Weekly on February 27, 2020, published an article concerning a temporary restraining order (TRO) issued by the Cole County circuit court with respect to the license application of HCKC for a Medical Marijuana Dispensary License.  The TRO issued by the court blocks the Missouri Department of Health and Senior Services (Department) from denying a medical marijuana dispensary license to HCKC based upon ordinance of the City of Independence (City), which prohibits a medical dispensary facility within 500 feet of any residential district or residential dwelling, measured from property line to property line (Ordinance).

Under the Constitutional Amendment for medical marijuana (Amendment) local government is allowed to enact ordinances or regulations pertaining to time, place, and manner of operation of any medical marijuana facility provided they are not in conflict with the Amendment or unduly burdensome.  HCKC contends that the City ordinance  reduced the  percentage of land available and the C2 and C3 zoning districts so that out of the 18 applicants at least 10 have proposed locations within 500 feet from a residential property (leaving eight applicants who were able to locate property available under the 500 foot restriction in the Ordinance).  Furthermore, the Ordinance reduced the amount of available property for medical marijuana facilities by 88% of the total space that would otherwise be available for the operation of a Dispensary, leaving 12% of the land available for Dispensaries.

This case (one of the first)  directly challenges the authority of local government to  enact ordinances or regulations pertaining to the location of medical marijuana dispensaries under the time, place, and manner of operation provisions of the Amendment.  This case is complicated by the fact that the State had not issued licenses for medical marijuana dispensaries  (at the time when the lawsuit was filed) and by the availability of administrative remedies, under the Amendment and regulations.  It seems like HCKC was using the lawsuit as a placeholder so it will not be disqualified from consideration based upon the Independence ordinance.  Obviously, everything is in a state of flux, when the lawsuit was filed.

The City was represented by Paul Campo, who filed Suggestions in Opposition to the TRO.  He  argued that based upon current case law the question of whether or not the Ordinance is unduly burdensome falls within a line of cases  (think adult bookstores) that examine similar ordinances in the context of zoning laws.  Applying well established zoning case law the City of Independence ordinance would appear to be valid since the courts have routinely upheld distance requirements that are more restrictive than the Independence ordinance.  In this case, the ordinance would appear to be not unduly burdensome because there is adequate land available, in the C-2 and C-3 zoning districts, outside of the 500 feet area (8 of the 18  applicants and 12% of the land were not restricted by the Ordinance).  Even though, the TRO was granted the suggestions filed by the City lay out the basic contours of the case suggesting that the Ordinance will ultimately be upheld .  All of the documents filed with the court may be located at the following https://mogreenway.com/2020/01/18/court-rules-dhss-delays-hckc-license/ along with a brief explanation of the case and a number of caveats concerning the impact of  the filing.  The Plaintiff, HCKC argued that the Ordinance constituted an undue burden thereby violating the Amendment.  HCKC, LLC v.   Missouri Department of Health and Senior Services, ( Cole County Circuit Court Case No. 19AC-CC00519)

Update: Paul Campo reported that Plaintiff’s dispensary application with DHSS was denied based on the criteria used by the State; therefore,  non-compliance with the City’s residential buffer ordinance was not an issue.  Plaintiff dismissed its case on February 7, 2020.  Around that same time, the City ended up repealing the residential buffer provision in the ordinance.

I thought Paul did a very good job briefing the issues and that his work on this topic would be a good  place to start your research if local time and place restrictions is challenged.

Missouri Supreme Court Clarifies Law With Respect to Incidental Crossing Of  Fog Line
Facts and Procedure: Smith was stopped by the Missouri State Highway Patrol on the side of Interstate 70 in Montgomery County.   According to Sgt. Johnson, the arresting officer, Smith’s vehicle drew his attention because he noticed that, on several occasions, the vehicle’s turn signal was turned on but then was turned off before the lane change was fully completed.  Shortly thereafter, Sgt. Johnson observed the passenger-side tires of the vehicle appear to completely cross the “fog line” on the right side of the roadway.  He could see pavement between the fog line and the tire, and he observed the tire was “no longer within the lane of traffic.”  Sgt. Johnson initiated a traffic stop, and Smith pulled over to the side of the road.

During the stop, Sgt. Johnson smelled marijuana.  When asked by Sgt. Johnson, Smith admitted he had smoked marijuana in the vehicle the prior week and there was marijuana in the vehicle.  Sgt. Johnson searched the vehicle and found marijuana cigarettes in a backpack in the passenger compartment and approximately four pounds of marijuana in the trunk.

Smith was charged with felony possession of a controlled substance.  Smith filed a motion to suppress physical evidence and incriminating statements, arguing “[m]erely crossing the fog line is insufficient probable cause to initiate a traffic stop in Missouri” and “[l]legally signaling an intention to change lanes creates no reasonable suspicion or probable cause” for detention.  The circuit court overruled the motion to suppress, and Smith was found guilty of felony possession of a controlled substance.  His seven-year sentence was suspended, and he was placed on probation for five years.  Smith appealed, claiming the circuit court erred in overruling his motion to suppress because the traffic stop was unreasonable and a violation of the Fourth Amendment of the United States Constitution and Article I, Section 15 of the Missouri Constitution.  After an opinion by the Court of Appeals the Missouri Supreme Court granted transfer.

Analysis: Smith  argued  that the traffic stop was unreasonable because it was not based on a constitutionally sufficient reasonable suspicion and the subsequent discovery and seizure of marijuana and statements made by Smith are  the ”fruit of the poisonous tree” and  should be suppressed.  The analysis of the court turned on whether or not crossing the fog line and driving on the shoulder is a violation of Missouri law,  no matter how insignificant the violation. Specifically, Smith contended that barely touching or crossing the  fog line does not give reasonable suspicion that any crime or traffic offense was committed.

The Court’s analysis begins with  a review of the fundamental rules pertaining to traffic stops by noting “that a temporary, noncustodial traffic stop constitutes an “unreasonable” “seizure” under the Fourth Amendment, unless the stop is supported by reasonable suspicion or probable cause.  As a general matter, the decision to stop an ‘automobile is reasonable when the police have probable cause to believe that a  traffic violation has occurred.  Section 304.015, states that a vehicle shall be driven upon the right half of the roadway, which is defined as “that portion of a state highway ordinarily used for vehicular travel, exclusive of the berm or shoulder.”  The fog line is the marked delineation separating the shoulder from the traveled portion of the highway.

The majority opinion recognized that Missouri and other jurisdictions have reached different conclusions,  as to whether or not there is a violation of the state traffic  laws, with respect to whether or not crossing the fog line is a traffic violation.  The majority opinion notes that these contradictory decisions demonstrate the importance of resolving this issue in Missouri law.  The Court held that a motor vehicle that crosses the fog line,  no matter how minor, is a violation of the state traffic law.   State of Missouri v.  Smith, (SC97811,  01/14/20)

There was a  vigorous 15 page dissent in this case by Judge Stith,  which was joined in  by Judge Draper.

Comment Howard: The majority opinion is particularly useful for law-enforcement since police officers and the courts no longer have to engage in subjective calls as to whether or not a violation was  significant enough to constitute a traffic violation.  This eliminates guesswork by the courts, prosecutors and police officers.  The dissent emphasized also that they read the facts very differently than the majority opinion.  The dissent described this case as an opinion of first impression because it fully settles the law.   In my opinion, the big elephant in the room was the delay by the officer pulling the vehicle over, which strikes me as time used by the officer to gather information about the driver and then decide based on that information as to whether or not to pull over the car for an extremely minor violation.

Deed Titled As Right of Way Conveyed Fee Simple – Despite Non Public Use For 16 Years Adverse Possession Did Not Lie
The Donovan’s, acquired Lot 3 in 1983.  In 1989, the Donovans erected a wooden privacy fence that extended approximately 40 feet beyond what was originally platted as the rear property line of Lot 3.  The area enclosed by the fence is situated outside the original property line for Lot 3 and is approximately 1,800 to 2,000 square feet.  The recorded plat for Wornall Homestead, showed the rear property line of Lot 3 abuts the Kansas City and Westport Belt Railway Right of Way (“Right of Way”).  The Right of Way is a 100-foot-wide strip of land; railroads had previously operated upon the Right of Way, but now it is home to the Harry Wiggins Trolley Track Trail (the “trail”), a six-mile-long trail for walkers, runners, and bicyclists.  The KCATA is the current record titleholder of the Right of Way.  The KCATA installed the trail and maintains it by providing trash removal, mowing, utilities, and general upkeep.

The chain of title showed that in 1892, the Wornall family acquired the “Wornall property, which included what is now Lot 3 and the portion of the Right of Way that abuts Lot 3.  In 1901, by a “Deed of Right of Ways,” the Wornall family “d[id] grant bargain and sell” to the Kansas City and Westport Belt Railway Company “a strip of land Fifty feet in width on each side of the Center line of the Railroad of said Company as the same is or may be located over and across” the Wornall property, for consideration of $3,250 in 1909, by “General Warranty Deed.”  The J.C. Nichols Land Company later acquired and platted the Wornall property dividing the property into various tracts, including Lot 3.  It did not acquire the right of way property.

In 1962, the Kansas City and Westport Belt Railway Company (the “Railway”) transferred all of its property to James Ashley, Sr. and James Ashley, Jr.  The Ashleys operated a railroad on the Right of Way until 1968.  In 1970, James Ashley, Sr. passed away, leaving the Right of Way to James Ashley, Jr.  In 1981, by Quit-Claim Deed, James Ashley, Jr. and his wife Pamela Ashley conveyed their interest in the Right of Way to the KCATA.

The KCATA filed a declaratory judgment and quiet title action asserting that the property, enclosed by the Donovans’ fence, extends beyond Lot 3’s original rear property line and that this parcel of property is part of its Right of Way, and that it acquired a fee simple interest in the Right of Way in 1981.  The Donovans asserted that “the KCATA never received fee simple title to the right of way that abutted the [Donovans’] property because the right of way was merely an easement which had been abandoned prior to the attempted transfer to the KCATA.”  The Donovans further asserted that “[a]s a result of the abandonment, ownership of the property formerly burdened by the easement vested in [them] as abutting landowners.”

The parties filed cross motions for summary judgment.  The trial court determined that the KCATA owned the property at issue in fee simple; that the Donovans did not acquire title to the property by adverse possession; and the Donovans’ affirmative defenses of laches, waiver, and estoppel were inapplicable to the “issues in this case.”

Did the right of way deed convey a fee simple interest or an easement?: The Donovans argued that the 1901 deed, in the chain of title, from which the deed originated, did not convey a fee simple interest in the right of way; rather, it merely conveyed a right of way easement, which was abandoned in 1968 when the Ashleys ceased using the easement for railroad purposes.  The Donovans asserted that in 1968 , the property, upon which the easement was located, “reverted to the abutting landowners”; therefore the Ashleys did not convey, and could not have conveyed, a fee simple interest in the Right of Way to the KCATA in 1981, because the railroad easement ceased to exist when the Railroad company stopped using the easement.  The caption to deed the 1901 deed was titled as a “Deed of Right of Ways,” which they alleged showed intent to convey an easement, not fee simple.

First, the Court looked to the language of the 1901 deed noting that the language in the deed, “grant bargain and sell unto said Kansas City & Westport Belt Railway Company and its successors and assigns, a strip of land…” was fee simple language recognized by statute as conveying a indefeasible fee simple estate.  In addition, the phrase “a strip of land” supported the argument that the grantor intended to convey land not an easement.

The Court further noted, in order to convey fee simple title in land “…two elements must appear: first, the land must be conveyed for valuable consideration, and, second, no limitation on the quantum of the interest conveyed may appear in the deed by which title is transferred.”  In this case the Railroad paid $3,250 to the grantor for the property, which the Court deemed to be good and valuable consideration.  Furthermore, there were no limitations in the Right of Way deed, although the deed to the Grantor retained a privilege in the Railroad to cut and haul timber outside the Right of Way over the railroad property. The Court held this retention was not a limitation on the interest conveyed in the deed.

Based upon these facts the Court concluded that the 1901 deed conveyed fee simple absolute.

Adverse possession claim: The Donovans asserted that the trial court erred in finding their claim of adverse possession was not valid because the ten year statute of limitations(SOL) barred the claim.  Even though the statute on adverse possession has a ten year SOL, Section 516.090 provides that “[n]othing contained in any statute of limitation shall extend to any lands given, granted, sequestered, or appropriated to any public, pious, or charitable, or to any lands belonging to the state.”  Since the SOL does not apply to public lands, title to public property cannot be claimed on the basis of adverse possession.

The Donovans did not contend that the use of the Right of Way as a trail for walkers, runners and bicyclists is anything other than a public use.  Instead, the Donovans argued that the KCATA “cannot claim the public use exception to the 10-year statute of limitation in Section 516.090” because the Right of Way “was not put to a public use between 1981 and 1997.  They contended that the public use was not continuous and uninterrupted because of the 16 year gap in public use.  The Court noted that nothing in Section 516.090 required that the land be put to actual and uninterrupted public use for the statute’s protection to apply. The statute only requires that the land be “given, granted, sequestered, or appropriated to any public, pious, or charitable use;” therefore, the adverse possession claim failed.  Kansas City Area Transportation Authority v. Donovan, (WD82459, 2/4/20)

Comment Howard: Disputes over the validity of the title to trails that use abandoned railroad right away is common making this an interesting case.  The language in the deed, “grant, bargain and sell” clearly was sufficient to resolve the matter.  What makes the case interesting is exploration of other evidence to show that the deed for the right of away supported the claim that fee simple was conveyed.