Impairment During Interrogation Of DWI Suspect Was Not Coercion
In support of a motion to suppress a defendant’s confession as involuntary, defendant alleged that he was impaired during interrogation by “intoxication, abuse, and mental illness [.]” The Southern District ruled that these allegations do not constitute an allegation that the confession was involuntary. Those allegations, if found as facts, go to the weight of defendant’s confession and not to the confession’s admissibility. The confession supported a finding of deliberation, (gun had a double safety lock requiring defendant to release both locks; admission of pre-existing hostility between defendant and victim; and flight from the scene). STATE OF MISSOURI, Plaintiff-Respondent v. MICHAEL ANTHONY NUGENT, Defendant-Appellant, (SD37396, 04/18/23)
Failure To List Employment Claim In Bankruptcy Did Not Bar Employment Claim
Kevin LaBranche appealed the circuit court’s grant of summary judgment to Kansas City Public Schools on Employer’s contention that judicial estoppel bared LaBranche’s employment discrimination/retaliation claims against Employer because he failed to list the employment claim in his bankruptcy schedules. The Western District ruled there was no judicial acceptance of an inconsistent position and LaBranche did not derive an unfair advantage because the nondisclosure of his claim was inadvertent and resulted from a good faith mistake rather than an attempt to mislead the court. Reversed and remanded. Labranche v. Kansas City Public Schools, (WD84914, 04/18/23)
Self-Standing Natural Gas Generator That Runs 24/7, 365 Days A Year And Produces 55 Decibels Of Sound Violated Zoning Ordinance
Facts and Procedure: Price Chopper applied for a building permit to construct a natural gas-powered generator on the land where the Price Chopper grocery store is located. The proposed generator would have self-generated all of the electricity required to operate the grocery store. The proposed generator and chilling and cooling tower, would consist of a 400kW natural gas generator approximately 30 feet x 10 feet in size and a 100-ton chiller and cooling tower approximately 6 feet x 10 feet in size, located behind the Price Chopper building.
The City advised Appellants that the Price Chopper site was not zoned for an electrical generation facility designed to supply all of the electricity for the site, and that the City could not issue a building permit because the construction was not authorized by the City code. Price Chopper appealed to the BZA and it held a hearing and then denied the request based on a report prepared by the City, which stated:
“the City believes that a reasonable interpretation of the Zoning Code is that [] privately-owned power generating units providing 100 percent of the electricity for a building on a 24/7, 365 days a year basis are a ‘Private Utility Facility’ and appropriately allowed as permitted uses in the M-1 and M-2 industrial zoning districts and not allowed in any commercial zoning district, including the CP-2 zoning district in which Price Chopper is located.”
The report also concluded that, “Noise is a major issue with primary power generation. To use the proposed 400kW generator as an example, the airborne weighted average at all frequencies is 113 decibels []. Placing this generator inside a sound attenuation box, such as is proposed at Price Chopper, the projected noise is 55 decibels.” The report cited Section 405.320 of the City code which identifies the “Performance Standards” in a CP-2 zoning district: “No noise . . . shall be produced that is perceptible outside a building . . .”
The report went on to explain in contrast that “although the City permits the installation of standby (backup) generators even though they exceed Performance Standards, they do so because backup generators are “accessory uses that operate intermittently due to [the] failure of primary grid power sources.”
The report also explained that “although solar panels are permitted by the City in all zoning districts as accessory uses, they do not emit noise in violation of Performance Standards.”
Price Chopper filed a Verified Petition for Writ of Certiorari pursuant to Section 89.110 (“Writ”) in the Circuit Court of Cass County, Missouri, requesting the circuit court to review and reverse the BZA’s denial of the BZA Appeal. The circuit court denied the Writ. Price Chopper (Appellants) appealed to the Western District.
Analysis: The Western District concluded that Appellants point # 2 is dispositive of the five points raised by Appellants on appeal. In its analysis, the Western District applied a rule of statutory construction, that seems particularly applicable when analyzing a zoning ordinance: “When interpreting a statute, no portion of it is read in isolation, but rather is read in context to the entire statute, harmonizing all provisions.”
It was agreed by the parties that the use, a grocery store, was the principal use and that the accessory use provision of the ordinance applied. The accessory use provision provided: “Buildings and structures may be erected and land may be used for purposes which are clearly incidental to and customarily and commonly associated with the main permitted use of the premises.”
The definition of accessory use allowed other “similar uses” putting into play as to whether or not the energy producing facility specifically described in the zoning ordinance was a similar use and therefore, a permitted use. Here, the court applied a rule of statutory construction “ejusdem generis” which, provides that where “general words follow specific words, the general are construed to include only objects similar in nature to those enumerated specifically.” The specific examples of “other uses” included only facilities that were back up generators that ran occasionally when other electricity was not available, whereas the energy facility under consideration ran all the time or were wind generators or solar panels that were specifically authorized; therefore, the standalone generator was not comparable.
Furthermore, the court found support in the fact that when the zoning ordinance authorized such energy producing facilities the ordinance specifically noted that it was authorized as a permitted use or as an accessory use in the zoning district. In addition, the energy producing facility produced a constant noise of 55 decibels, outside of its noise attenuating enclosure, thereby violating the city noise ordinance.
The Western District, concluded that Appellants failed to sustain their burden to demonstrate that the generator proposed in their application is an authorized accessory use under the zoning ordinance.. In addition, there was sufficient evidence to show that the BZA hearing, was supported by competent and substantial evidence.
The ruling on Point #2 effectively precluded the other four arguments made by the Appellants. Harrisonville Market Place v. City of Harrisonville, (WD85332 and 85421, 04/18/23)
Comment Howard: While no new law was established by this case, the opinion is one of the best I have seeing demonstrating numerous rules of statutory construction and how different parts of the zoning ordinance are interrelated. It was a magnificent display by the attorneys who represented the City. If you are looking for a case showing how the zoning ordinance is interconnected and how to effectively use rules of statutory construction, this case is for you.
City Can Not Retroactively Deny Claims For Tax Refunds
Facts and Procedure: During 2019 and 2020, Kim Huebert worked as a licensed practical nurse for Maxim Healthcare Services, a company located in Overland Park, Kansas. Huebert lived in Amoret in Bates County, Missouri. While employed by Maxim, Huebert did not perform any services within the City of Kansas City; she primarily worked in Kansas. Although Huebert did not live or work in Kansas City, Missouri, Maxim withheld a total of $565.04 in Kansas City earnings taxes from Huebert’s wages in 2019 and 2020, and paid the money to the City.
On March 27, 2022, Huebert filed wage-earner tax returns with the City for 2019 and 2020, seeking a refund of the $565.04 withheld by Maxim from her paychecks.
Huebert’s refund requests would have been timely under the law in effect prior to March 14, 2022, which allowed taxpayers to request refunds of overpaid earnings taxes “within five years from the date when the return for the taxable year was due.” On March 3, 2022, however, the City passed Ordinance 220164, which became effective on March 14, 2022. Ordinance 220164 amended City Code § 68.393(a) to deny taxpayers a refund “in the absence of a protest made and sustained pursuant to the requirements of RSMo § 139.031.” Under § 139.031.1, a taxpayer seeking to protest their tax liability must “make full payment of the current tax bill before the delinquency date and file with the collector a written statement setting forth the grounds on which the protest is based.” Although Huebert still had two or more years within which to file her refund requests under the version of City Code § 68.393(a) in effect prior to March 14, 2022, Huebert’s refund requests were rendered untimely, and were completely extinguished, on the day the new ordinance became effective.
The City denied Huebert’s refund claims stating that the new ordinance (Ordinance No. 220164) was effective when your [2019 and 2020] Wage Earner return[s] w[ere] received, your refund request[s] ha[ve] been denied.
Huebert filed her Petition for Declaratory Judgment and Order for Refund in the Circuit Court of Cass County claiming that Ordinance 220164 could not be applied to bar her refund requests, because to do so would violate the prohibition on retrospective laws found in Article I, § 13 of the Missouri Constitution.
The City filed a motion to dismiss, arguing that at her refund claims were untimely under the new March 2022 ordinance, which motion was granted. Huebert appealed to the Western District.
Analysis: Huebert argued that Ordinance 220164 could not be applied retrospectively to extinguish her right to seek a refund of overpaid earnings taxes because it violated Article I, Section 13 of the Missouri Constitution, which prohibits laws that are retrospective in nature. The Western District explained that:
A law is retrospective in operation if it takes away or impairs vested or substantial rights acquired under existing laws or imposes new obligations, duties, or disabilities with respect to past transactions.
The Court noted that procedural and remedial statutes “not affecting substantive rights, may be applied retrospectively, without violating the constitutional ban on retrospective laws. Furthermore, the Court explained that the statute of limitations, which was the case in this matter are procedural and can be applied retroactively; however, they cannot extinguish causes of action which were viable on the date the new statute became effective, unless the new statute gives existing claimholders a reasonable time within which to assert their rights after the new statute’s effective date. In this case the Ordinance did not provide for a reasonable time for claimholders to assert their rights after the new statute’s effective date; therefore, it was unconstitutional. Huebert v. City of Kansas City, (WD85737, 04/18/23)
Comment Howard: While only $565 dollars was at stake in this case the failure to include a reasonable time for filing claims could cost the City dearly including a potential class action lawsuit. Hopefully, enough time has expired to mitigate these claims. The Opinion noted that under the due process clause of the United States Constitution a similar analysis would be followed. What constitutes a reasonable time in order to allow for claims was not decided but is obviously very important. The shorter the better from the city’s standpoint.
Is It Time To Strip Legislators From Sovereign Immunity When They Have Been Advised By Legal Counsel And A Law Is Clearly Unconstitutional And Is Adopted With Reckless Disregard Or Gross Negligence
In the April 2023 newsletter Ragan suggested that Missouri needs to devise a law that strips legislative immunity under circumstances where it is clear a law is inconsistent with the United States or Missouri Constitutions. The law should make the legislator personally responsible for the legal fees and the cost if the court finds the law was adopted with some type of reckless disregard or gross negligence. Obviously, not everyone would like this and it is complicated as to how to establish limits so it is well defined but maybe it is time to get this out there for discussion.
Ballot Initiatives Filed To Protect Reproductive Right For 2024 Election
Eleven versions of the ballot petition have filed with the Secretary of State to protect the right to reproductive freedom for the 2024 general election. Jason Hancock reporting for the Missouri Independent in a March 9, 2023 article reports that the versions differ substantially.
“Each version of the proposed amendment says there must be a “compelling governmental interest” for abortion restrictions to be put in place. But while some allow the legislature to regulate abortion after “fetal viability,” others draw the line at 24 weeks of gestation.”
“Some versions make it clear the state can enact parental consent laws for minors seeking abortions. Others leave the topic out entirely.”
Local government would be affected by the ballot initiative because the definition of “government” – includes “any municipality, city, town. Village, township, district, authority, public subdivision or public corporation having the power to tax or regulate, or any portion of two or more such entities within the state of Missouri.
News reports make it clear that republican office holders will do whatever they can within their powers (and more) to make this process as difficult as possible. Local government attorneys and officials will be expected to provide information, whatever version is selected for collecting signatures no matter your political beliefs. See version # 1 click here.
Ragan Comment: While my previous comment about stripping legislative immunity was not related to this subject this raises a similar fundamental issue. From what I have read there are games being played by public officials with these petitions. Our government was built from the foundations of the enlightenment and a belief that each person posses the ability to reason. If leaders construct a system and or adopt policies that permits them to deny voters the ability to choose the rules by which they govern themselves then that itself is an attack on the foundations of our system of government. If you want to score political points at the expense of our system of government or the will of the people then the tax payers should not pay the cost for your choices.
Top 4 Ranked Choice Voting Ballot Initiative For 2024 Election
A bipartisan ballot initiative is now circulating for top 4 ranked choice voting (RCV), which is slated for the 2024 election cycle, if there are sufficient signatures. RCV petitions have been approved for circulation so you may see this on the 2024 ballot election cycle. This measure would establish open primaries and top four ranked choice voting for statewide offices, Missouri General Assembly, county offices, and the United States Congress. Of particular note for attorneys who represent county government is that county officials who are elected would be subject to the ranked choice voting system. A very good nonpartisan source of information is Ballotpedia, which explains in detail how this system works and the process for voting on the initiative. The big argument for ranked choice voting is that it would likely result in more moderate candidates, eliminating candidates who many consider extreme (like recent results in Alaska and Maine). The National Conference of State Legislators has a white paper explaining in considerable detail how this has worked in practice. Fair Vote an advocacy group for rank choice voting also has an excellent paper on how ranked choice voting has worked in states and communities that have adopted this system. There was a movement in Kansas City to adopt RCV for city elections, which home rule cities can do under the Missouri Constitution.
https://fairvote.org/resources/data-on-rcv/
DWI Conviction Is Not A Crime Of Moral Turpitude
In Kubiak v. Missouri State Board of Nursing, the Western District held that a DWI conviction was not a crime of moral turpitude. I mention this case because many actions for discipline of employees or public officials provide that “crimes of moral turpitude constitute a basis for disciplinary action”. Whether or not conviction of three DWI’s was sufficient to make him unqualified to be a nurse was a separate matter for disciplinary action, that had to be that had to first be determined by the State Administrative Hearing Commission.
Plea Of Guilty By Driver Of Vehicle Does Not Preclude Passenger From Being An Accomplice
Facts and Procedure: Callaway and James C. Merlenbach (“Merlenbach”) were arrested following a high-speed vehicle chase by Pike County Sheriff’s Deputies who had been investigating a report of a theft in progress on private property. Callaway and Merlenbach were charged with twelve counts in nearly identical Felony Informations, which included nine counts related to fleeing from the sheriff’s deputies in a motor vehicle. Merlenbach pled guilty to leaving the scene of a motor vehicle accident. Callaway then filed a motion to dismiss all charges against him relating to the operation of a motor vehicle, arguing that the State’s continued prosecution of these charges violated his right to substantive due process. Specifically, Callaway argued that it was inherently factually contradictory to prosecute him for the identical offenses because only one person can physically “operate” a motor vehicle, and by pleading guilty, Merlenbach had admitted to “operating” the vehicle. The circuit court sustained the motion and dismissed all nine counts relating to the operation of a motor vehicle against Callaway.
The State appealed to the Eastern District arguing that the circuit court erred in dismissing these charges because it was not improper to charge both defendants with crimes related to the operation of a motor vehicle because Missouri law permits the State to charge co-defendants using principal and accessory theories of liability. Furthermore, the State was not required to specify in the Felony Information whether Callaway was being charged as a principal or as an accessory and that Callaway has not shown that the State was pursuing inherently factually inconsistent theories of prosecution.
Analysis: The Eastern District noted that Missouri eliminated the distinction between principals and accessories in 1979, and it is now the law that all persons who act in concert are equally guilty.” “All persons who act together with a common intent and purpose in the commission of a crime are equally guilty.” § 562.036, “provides that “[a] person with the required culpable mental state is guilty of an offense if it is committed by his or her own conduct or by the conduct of another person for which he or she is criminally responsible, or both.” § 562.041, provides, that “A person is criminally responsible for the conduct of another when: …”(2) Either before or during the commission of an offense with the purpose of promoting the commission of an offense, he or she aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.”
The Eastern District, noted that in order to make a submissible case of accomplice liability, “the State must show that the defendant associated himself with the venture or participated in the crime in some manner.” Missouri courts no longer require the State to prove “dual accomplice intent” (i.e., proving that the accomplice purposely promoted the underlying offense and possessed the requisite intent for the underlying offense). Furthermore, the charging document is controlled by Rule 23.02(g), which provides that an indictment or information need not allege whether the defendant is being charged as a principal or as an accessory.
Judgment of the circuit court is reversed with directions to proceed in accordance with the opinion. State of Missouri v. Callaway, (ED110964, 05/09/23)
Painting Of Water Tower Was A Propriety Function And City Was Not Entitled To Official Immunity Defense
Vicki Shade-Schaefer, Christopher Schaefer, and Stephanie Schaefer claim they suffered serious inhalation injuries arising from the painting of large water tanks owned by the City of Eureka which occurred on property adjacent to Appellants’ home. The trial court entered summary judgment in favor of defendant City of Eureka on sovereign immunity. Robert Wade, a Eureka employee, on official immunity, and Richard Green, the painter, on statute of limitations. The Eastern District held the painting of the municipality’s water tank was in furtherance of a proprietary function and thus, the City of Eureka was not entitled to official immunity. Schaeffer v. City of Eureka, (ED110581, 05/09/23)
Restrictive Covenants May Be Waived When There Are Persistent Violations Of The Covenants
Restrictive covenants are strictly construed in favor of free and open use of property. In RIVERWOOD ESTATES HOMEOWNERS ASSOCIATION v, Taylor the Eastern District held that the Trustees waived their right to object to the trash enclosure because “the evidence established that other homeowners in the Subdivision erected structures that have walls and tops, such as Gazebos and tent structures. Such acquiescence constitutes a waiver.” The Court held that “A restrictive covenant . . . may be waived and abandoned by a conscious acquiescence as evidenced by persistent violations of the covenant.” Riverwood Estates Homeowners Association v. Taylor, (ED110838, 05/09/23)
Case Attacking Automatic Assault Rifle Ban Can Continue
The City of Naperville, Illinois banned the sale of most assault rifles and the State of Illinois passed a law that bars the sale and purchase of assault weapons and high-capacity magazines. The federal district court upheld the restrictions, explaining that assault-style rifles and high-capacity magazines are the kind of “particularly dangerous” weapons and accessories that the government has historically regulated. After the U.S. Court of Appeals for the 7th Circuit turned down the challengers’ request to block the law while their appeal continued, the challengers came to the Supreme Court, asking the justices to step in, which they refused to do allowing the case to continue at district court. For a more detailed discussion of this case see Amy Howe’s article, Court rejects request to temporarily block Illinois assault-weapon bans, SCOTUSblog (May. 17, 2023, 12:32 PM).
No Liability For Platform For Aiding And Abetting International Terrorism By Posting Of ISIS Content
Most local government agencies have media platforms making Gonzalez v. Google LLC, Twitter, Inc. v. Taamneh, of interest to local government. Gonzalez v. Google LLC, sought to hold Twitter, Facebook, and Google liable for aiding and abetting international terrorism. Justice Thomas, writing for a unanimous court opinion noted that the “mere creation of” social-media platforms “is not culpable,” even if “bad actors like ISIS are able to use” those platforms for “illegal and sometimes terrible ends. But the same could be said of cell phones, email, or the internet generally.” The court sidestepped the question of the breath of Section 230 of the Act, noting that it “shelters more activity than Congress envisioned it would,” remanding Twitter, Inc. v. Taamneh to the 7th Circuit for further consideration. For further analysis see Amy Howe’s, Supreme Court rules Twitter not liable for ISIS content.
City Of Maplewood Settles 3.25 Million Dollar Suit For Debtors Imprisonment Prison
The May 2023 Edition of Missouri Lawyers Weekly reported that the City of Maplewood settled a class action suit for 3.25 million dollars. The suit alleged that the City wrote thousands of tickets to raise millions of dollars in revenues using the threat of without inquiring into the ability of the defendants to pay. The allegation was that black individuals were jailed for days at time until the City extorted an much money as possible. The City did not admit fault. Yates v. City of Maplewood, St. Louis County Case # and date 4:16-cv01703/April 5,2023.
Kansas City Settles Fatal Shooting for Record 5 Million Dollars
The May 2023 Edition of Missouri Lawyers Weekly reported that the Kansas City Board of Police Commissioners settled a police wrongful death case for a record 5 million dollars. The plaintiff was unarmed and had his hand in his front hoodie pocket when the officer shot the man, who was fleeing from the scene of a disturbance with his girlfriend. Bridges v. Pifer, Case and date – Jackson County 1916-CV23309/April10, 2023.
Nuisance Property Hit With 5 million Dollar Verdict in Downtown Kansas City
The May 2023 Edition of Missouri Lawyers Weekly reported that a Jackson County jury awarded one million in actual damages and four million in punitive damages against the owners of the property located in the 700 block of Grand Avenue for nuisance and negligence. The property was the former site of the Grand Avenue Garage that was demolished. In preparing the property for future use the owners used soil that was unsuitable for the foundation that caused the site to collapse in a mudslide damaging the adjoining property. Interestingly, the Plaintiffs lawyers made big on the fact that the property was on the route of the Chiefs Superbowl parades in 2020 and 2023. Wow, good for 4 million punitive damages. Nice work. Racket Merchandise v. 717 Grand, 1916CV16508/April 6, 2023
MML Information On Key Bills That Passed The General Assembly – 2023
FY 2024 budget – $49 billion budget that includes $2.8 billion to widen I-70 across the state; $20 million for the environmental impact study for I-44; $40 million for low-volume roads; a 7% funding increase for the state’s colleges and universities; $250 million for the broadband grant program; $56 million for pre-K programs; and $78 million to increase rates for childcare providers.
- Ban on texting while driving. Also includes language allowing auto dealers to collect sales tax at the time of purchase. HCS SS SCS SB 398
- Tax relief for seniors that includes a property tax freeze and elimination of state tax on Social Security benefits. SS SB 190
- Healthcare fared very well this year with a number of issues passing in omnibus bills, including: SS HCS HBs 115 & 99; SS HB 402; CCS HCS SCS SBs 45 & 90; SS SB 51; CCS HCS SS SCS SB 157; and HCS SS SCS SB 106
- A wide-ranging crime package with a host of provisions, including steeper penalties for recklessly discharging a firearm in a celebratory fashion within, or into, a municipality. SS SCS SBs 189, 36 & 37
- Two financial services bills which make a number of changes within the Missouri Division of Finance and also allows the Missouri Department of Health and Senior Services to share the information of licensed marijuana facilities with banking institutions. SCS SB 13 and SB 63
- An omnibus public records bill that contains the Personal Privacy Protection Act, as well as changes to the Sunshine Law that protect police GPS and security measures, data provided to a tip line, or information in a suspicious activity report provided to certain public entities. CCS SB 28
- Numerous public safety provisions, including workers compensation for first responders and a voluntary critical illness benefits pool for firefighters. CCS HCS SB 186 and HCS SS SB 24
- A massive retirement bill that includes numerous provisions, including the creation of the Show-Me MyRetirement Savings Plan that creates new provisions relating to retirement savings plans for private-sector employees. CCS SB 20
- A constitutional amendment that, if approved by the voters, exempts from property tax all real and personal property used primarily for the care of a child outside of his or her home. SJR 26
MMAA Scholarship
The MMAA Board of Directors is pleased to offer members of the MMAA a scholarship to attend the International Municipal Lawyers Association’s 2023 Annual Conference. This year’s conference will be held in La Quinta, California, September 27 – October 1, 2023. The Board of Directors strongly believes that IMLA provides a valuable complement to the CLE programming provided by the MMAA. As such, the Board would like to give MMAA members who have never attended an IMLA Annual Conference the opportunity to try it first hand and figure out for themselves if IMLA programming would be a valuable addition to their regular municipal law training. (Click here for a link to the IMLA 2023 conference page.)
- The scholarship is only open to attorneys of IMLA member municipalities, including municipalities who are members through the IMLA Lite program.
- The scholarship is only open to MMAA members who would be first time attendees of the IMLA Annual Conference (members who have attended only the IMLA Spring Seminar are eligible).
- The scholarship covers the cost of the Annual Conference registration; lodging, transportation, etc. will be the responsibility of the recipient; HOWEVER, the scholarship recipient will receive a $300 stipend to help defray travel expenses if they register to attend in person.
- In consideration for the scholarship, the recipient will commit to making a presentation to the 2024 MMAA Summer Seminar, either on a topic he/she learned about at the 2023 IMLA Annual Conference, or on another relevant topic of their choosing.
Application for the IMLA Annual Conference Scholarship can be made by emailing MML staff member, Stuart Haynes (shaynes@mocities.com) stating that you would like to apply for the IMLA Annual Conference scholarship and providing the name of your IMLA-member municipality. Applications will also be taken during the MMAA Summer Seminar at the registration desk. Applications will be received until the 3:20p break during the Saturday afternoon session. The recipient will be chosen at random at the 5:00p business meeting on Saturday.
Questions can be directed to me at the below contact information.
Thanks,
-Ryan
MMAA President & IMLA Missouri State Chair
Ryan A. Moehlman
City Attorney
City of Jefferson, Missouri
Office: (573) 634-6314
MMAA Newsletter 