December Newsletter (Issue 12-2021)

Game Changer – Certification Of Class Action To Collect Fees For Failure To Obtain Municipal Bail Bonds And Pay Fines

Missouri Lawyers Weekly reported in its December 6, 2021 Edition, that a federal district court judge recently certified a class action to collect fees that were paid by defendant’s for failure to obtain municipal bonds and pay fines. The class action converts a small and difficult to collect claim into an action that is going to result in a very large judgment against the City of Maplewood.  The district court said that “the City’s established policy, practice or procedure of not considering a person’s ability to pay at all renders the presumptively reasonable 48 hour of detention meaningless.”  Heads up! There may be other actions like this lurking out there.

A recent book, “Profit and Punishment: How America Criminalizes the Poor in the Name of Justice,” by Tony Messenger, a St. Louis news reporter lays out how America criminalizes the poor through never-ending court fees is sure to stir interest in lawyers pursuing these claims.  The former News-Leader columnist used his Pulitzer-prize winning columns on the topic as the basis for the book.  To read more click here. The district court opinion is Webb v. City of Maplewood, 4:16-cv-01703.         

Articles On Responding To Subpoenas, For Protected Health Information And The Recently Passed COVID-19 Legislation

The November/December Edition of the Journal of the Missouri Bar has a number of excellent articles that may be of interest to local government attorneys.  There is an article on responding to subpoenas, for protected health information and how the recently passed COVID-19 legislation opens up questions about retrospective legislation. Events/Journal_of_the_Missouri_Bar.aspx

If The Court Has Subject Matter Jurisdiction Judges Are Entitled To Judicial Immunity

Judges are entitled to judicial immunity so long as he or she has subject matter jurisdiction.  Stalnacker v. Dolan.

In this case, Judge Dolan was a circuit court judge and presided over a case in which Stalnacker was charged with a criminal offense and was placed on probation.  Judge Dolan erroneously ordered that “[n]o earned compliance credit (“ECC”) in this case will be allowed [,]” revoked Stalnacker’s probation, and ordered her sentence to be executed after the probation period had expired.  As a result, Stalnacker served 26 months in the Missouri Department of Corrections before a habeas court ordered that Stalnacker be released from confinement.  Stalnacker sued Judge Dolan for false imprisonment, seeking $2,000,000 in damages, and alleged that Judge Dolan “lacked authority and jurisdiction” when he disallowed ECCs, revoked her probation, and ordered her sentence to be executed after her term of probation had expired.

The Southern District ruled that in this matter,

“Even if we treat every allegation in Stalnacker’s petition as true, Stalnacker cannot recover because her petition demonstrates that Judge Dolan had subject matter jurisdiction to decide probation revocation cases, and thus, the doctrine of judicial immunity applies to shield him from liability.”

Stalnacker v. Dolan, (SD36954: 07/29/21)

Tenants Collect A Small Part Of 62.5 Million Dollar Judgment For Landlord To Provide Habitable Housing

Recently an extremely large default judgment in the amount 62.5 million dollars was awarded for tenants against against KMTEH realty and Michael Fein for failure to provide sanitary living conditions.  Of course, my initial reaction to this that this is fool’s gold since you would think the defendants are more than likely judgment proof.  A news article describes their business model as designed to be judgment proof.  Well, I was surprised by an article in the November 29, 2021 Edition of Missouri Lawyers Weekly announcing a settlement in the amount of $145,000 with some of the defendants.  The attorneys for the plaintiff’s stated that they are continuing on multiple fronts to try and get the judgment satisfied.  The case is Fuentes v. KM-T.E.H. Realty 8 LLC, 1916-CV29273.

Comment Howard: I really like the idea that landlords can by liable to tenants for failure to provide safe and clean housing.  Based on this case, I would consider including in your notice to landlords that they might be liable for damages to tenants that includes rent paid by tenants in a civil action for failure to provide housing that is uninhabitable under the Missouri Consumer Protection Act.  Landlords appear to be buying large blocks of rentals and putting them into trusts in an effort to make themselves judgment proof.  This looks like war.  Local government should consider aligning themselves with allies like tenant groups.   See news article by clicking here

Does The County Clerk Have A Duty To Extend Taxes For The City Of Boonville?

Facts and Procedure: After the Clerk of Cooper County (Clerk) was elected she extended the taxes for Boonville in 2019 believing that she would be compensated for the work pursuant to a 1991 contract. However, the Cooper County Commission (Commission) took the position that the 1991 contract with the Clerk was no longer in effect and that Clerk’s statutory duties required her to extend Boonville’s taxes without additional compensation.  The Commission issued an order to the county treasurer directing that any compensation paid by Boonville to the county for the Clerk’s efforts related to the extension of Boonville’s taxes be returned to Boonville.

Clerk then filed a lawsuit against the Commission seeking a declaration 1) that extending Boonville’s taxes was not within her statutorily defined duties; 2) that she was authorized to contract with Boonville to extend the city’s taxes for additional compensation; 3) that the 1991 contract remained in effect; and 4) that she was entitled to compensation for the taxes she extended for Boonville in 2019.

Boonville intervened, and an amended petition was filed naming both Clerk and Boonville as plaintiffs. Cross-motions for summary judgment were filed by the parties.  The three counts raised in the petition sought declarations that the Clerk does not have a ministerial duty to extend Boonville’s taxes and performance of such work must be by contract that may provide for the payment of additional compensation; that the Clerk is entitled to compensation for tax-extension services performed in 2019 and 2020 for Boonville under either the 1991 or 2018 contract; a stay of the Commission’s 2020 order that required any payments from Boonville to compensate Clerk for tax-extension services be refunded.  A hearing was held on the cross-motions, and the trial court granted summary judgment in favor of the Commission on all three counts.  An appeal to the Western District followed.

Analysis: – Statutory Duty to Extend Taxes – The Western District begins its analysis by first looking at the statute defining the clerk’s duties.

Section 137.290, RSMo, states, in relevant part:

“The clerk of the county commission in each county, upon receipt of the certificates of the rates levied by the county commission, school districts and other political subdivisions authorized by law to make levies or required by law to certify levies to the county commission or clerk of the county commission, shall then extend the taxes in the assessor’s book, in proper columns prepared for the extensions, according to the rates levied.”  (Emphasis by Howard)

The Court then applied rules of statutory construction.

“While Boonville is a political subdivision authorized by law to make levies, Plaintiffs emphasize that Boonville is not a political subdivision authorized by law to “make levies . . . to the county commission or clerk of the county commission[.]” (emphasis added). Plaintiffs additionally argue that Boonville is not required by law to certify its tax levies to Cooper County, rendering the latter part of the provision equally inapplicable.”

Applying the last antecedent rule to the statute and how the legislature has defined duties of the Clerk when the Clerk extends the taxes on behalf of a political subdivision in other statutes it is clear that the legislature has specifically done so with “clarity of purpose and specificity” as shown by the fire protection statutes, the metropolitan sewer district and other statutes.  For example, a fire protection district is directed to:

“…certify to the county commission of each county within which the district is located a rate of levy so fixed by the board as provided by law, with directions that at the time and in the manner required by law for the levy of taxes for county purposes such county commissions shall levy a tax at the rate so fixed and determined upon the assessed valuation of all the taxable tangible property within the district, in addition to such other taxes as may be levied by such county commissions.”

The Western District held based on the foregoing, that the term “to the county commission or clerk of the county commission” applied only to and modifies the phrase “authorized by law to make levies.” Therefore, the Western District held that a county clerk has no statutory duty to extend the taxes of a municipality under Section 137.290, RSMo.

Was There an Existing Contract to Collect Taxes? – If there is no duty to extend the tax rolls on behalf of the City of Booneville Section 70.220 RSMo allows government agencies to contract to provide mutual services.  A review of past contracts of the City with the County showed that there was no existing contract.  Cooper County Clerk v. Cooper County Commission, (WD84351, 11/23/21)

Water Rights and Ground Water

Water battles are not new and there have been many battles over water but we can expect more battles with population growth and climate change.  In Mississippi v. Tennessee the Supreme Court unanimously decided that Mississippi must rely on a doctrine known as equitable apportionment if it wants to sue Tennessee over the Middle Claiborne Aquifer.

Facts: Mississippi brought an action against Tennessee due to the City of Memphis pumping groundwater from the Middle Claibron Aquifer.  All of the wells at issue are located in Tennessee but Mississippi argues that the wells siphon water away from Mississippi.  Tennessee’s pumping has contributed to a cone of depression that extends miles into northern Mississippi, and Mississippi itself contends that this cone of depression has reduced groundwater storage and pressure in northern Mississippi.  The special master in the matter determined that the aquifer is an interstate water resource and that equitable apportionment is the exclusive judicial remedy.  The special master granted Mississippi leave to amend its complaint since it did not seek equitable apportionment.  Mississippi declined to amend its complaint and filed and appeal.  The Supreme Court rejected Mississippi’s contention that it has a sovereign ownership rights to all water beneath its surface and that precludes application of equitable apportionment.  The Court denied the proposition that a State may exercise exclusive ownership or control of interstate “waters flowing within her boundaries.”  Mississippi v. Tennessee, (SC 143, 11/22/2021)

Employment Discrimination  

In Torres v. Texas Department of Public Safety, the justices will weigh in on a lawsuit brought against the department by a former state trooper who resigned from his job when the department would not provide accommodations for a respiratory condition resulting from his service as an Army reservist in Iraq.  A Texas state court ruled that the federal law under which Torres brought his suit, the Uniform Services Employment and Re-employment Rights Act, which allows members of the military to sue to remedy employment discrimination based on their service, is unconstitutional.  The issue is whether Congress could authorize suits against non-consenting states through congressional war powers.

Vaccination Mandate

The Supreme Court will hear arguments on January 7, 2022 on the vaccine mandate ordered by the Biden administration.  SCOTUS Blog has a great article on the issues before the court.  Click Here