February Newsletter (02-2023)

Missouri Supreme Court Upholds City Charter Provision That Requires Notice Within 90 Days Of The Place, Time, Character And Circumstances Of Injury Caused By The City Concluding There Is No Conflict With State Law

 Facts and Procedure: In June 2019, Zang fell off his bike and injured himself while crossing an open-grated metal bridge in St. Charles, Missouri.  Approximately nine months later, Zang filed suit against the City of St. Charles (the “City”) alleging negligence and premises liability.  Zang claimed the property was owned and/or controlled by the City.  Zang did not provide written notice to the City within 90 days of his accident or at any point prior to filing suit.

The City responded by filing a motion to dismiss in which it argued Zang’s premises liability claim was barred because he failed to give proper notice as required by Section 12.3 of the St. Charles City Charter, which provides:


No action shall be maintained against the city for or on account of an injury growing out of alleged negligence of the city unless notice shall first have been given in writing to the mayor within ninety days of the occurrence for which said damage is claimed, stating the place, time, character and circumstances of the injury, and that the person so injured will claim damages therefor from the city.

Zang argued that the Charter’s notice requirement was unconstitutional because it irreconcilably conflicts with state statutes and the Missouri Constitution. The trial court sustained the City’s motion and dismissed Zang’s premises liability claim. The trial court found the Charter provision mirrored four similar state statutes that require notice and, therefore, “is not inconsistent or in conflict with state law.” The Defendant appealed to the Missouri Supreme Court.

Analysis: Zang argued that that the trial court erred because Section 12.3 of the Charter conflicted with Sections 537.600.1, 82.210, and 516.120 RSMo. Furthermore, the Charter’s notice requirement must be invalidated because in the absence of a notice requirement, he complied with Section 516.120’s five- year statute of limitations, the only other time restraint lawfully imposed upon him.

Preemption and Home Rule Powers – The Supreme Court starts its analysis by noting that home rule cities, under Article 19, Section 19(a), have such powers that “…are consistent with the constitution of this state and are not limited or denied either by the charter so adopted or by statute.” It adds that – ‘“Notably, there is no conflict if the local law merely enlarges or supplements the state law, ‘such as when the locality prohibits more than the state prohibits.’”

The Court goes on to explain that there are two types of implied preemption –“conflict preemption” and “field preemption.” Conflict preemption occurs when ‘“the [local law] ‘permits what the statute prohibits’ or ‘prohibits what the statute permits.’” Field preemption occurs “…when the General Assembly has created a state regulatory scheme that is so comprehensive that it reasonably can be inferred that the General Assembly intended to occupy the legislative field, leaving no room for local supplementation.”

Conflict Preemption – Zang argued that there was a conflict with Section 537.600.1(2) even though the statute applied only to cities with a population over 100,000, which St. Charles was not one, since the population of the City was less than 100,000; therefore, by its express terms the statute did not apply. Furthermore, an expanded interpretation could not be provided based on the principle expressio unius est exclusio (omissions shall be understood as exclusions) except when the legislature’s intent is self-evident within the statute limited the power. There was “…no indication section 82.210’s applicability to certain constitutional charter cities is to the exclusion of those that do not satisfy its population requirement.”

Additionally, the Opinion noted that while Charter section 12.3 limits Section 537.600.1(2)’s waiver of sovereign immunity, the Charter’s notice requirement does not prohibit what Section 537.600.1(2) permits. Concluding, the Court noted that: “Notice requirements have been held constitutional even when they limit a municipality’s waiver of sovereign immunity.”   

Filed Preemption – In addition, the Court further held that Sections 82.210 and 537.600.1(2) do not indicate or  show a legislative intent to occupy the field and prevent constitutional charter cities with populations of less than 100,000 inhabitants from creating notice requirements. “State law occupies an area when it has created a comprehensive scheme on a particular area of the law, leaving no room for local control.” Zang argued that the four notice statutes cover the majority of cities in Missouri, but the Court noted Zang failed to explain how that creates a reasonable inference that the legislature intended to occupy the field and leave no room for local supplementation. “Had the legislature intended to occupy the field by limiting notice requirements to only the cities qualifying under the notice statutes, it could have said so.” Zang v. City of St. Charles, (SC99419, 01/31/23) 

Comment Howard:  The Court of Appeals opinion in this case was reviewed in the MMAA October 2021 Newsletter, in which it was noted that the Eastern District held that the City charter provision was in conflict with state law.  The Supreme Court’s opinion in this case takes on special importance because local government obtains additional protection from expensive and time consuming litigation that is not timely filed.  In addition, timely notice allows for prompt investigation of accidents on city roadways. Imagine trying to go back and reconstruct an accident that occurred almost five years ago when you have hundreds or thousands of miles of roads as well as other city property.

Interestingly, we have very good judges examining the same law, reaching completely different conclusions basically relying on the same body of law.  So, what it is the secret sauce that makes the difference? Let’s start with Judge Ransom, who wrote the Supreme Court’s opinion. She provides the best examination that I have seeing on preemption by providing a quantum theory, breaking down the types of preemption into distinct categories. This is where I would start my analysis of whether or not there is a conflict with state law. She also obliterates the field preemption argument based on common sense application of rules of statutory construction. Like when she brushes aside state law, which has a threshold of 100,000 when St. Charles does not have a population over 100,000. She gets right to the fallacy and ends that argument.

Class Action For Calcium In Water System Leads To 6-Million-Dollar Settlement

The February 2023, Edition of Missouri Lawyers Weekly discusses a recent 6-million-dollar settlement of a class action lawsuit with Missouri-American Water Company, concerning excessive calcium deposits in the water, which allegedly clogged pipes and faucets of its water customers.  The Water Company did not admit any fault and there were no allegations that the water was in any way unsafe to drink. The details of what might have constituted excessive calcium is not disclosed but plaintiff’s lawyers indicated there are other systems that have these same problems. Since Missouri has a karst topography it is likely that there is calcium in most water. You may want to look at your local water company to be sure the water does not have excess calcium and if it does you should determine what steps the local water company takes to treat the water to prevent calcium deposits.  Strohm v. Missouri -American-Water Company, Platte County, Case Number 16AE-CV01252, May 13, 2022 

Liability For Failure To Maintain And Sign Low Level Water Bridge

The February 2023, Edition of Missouri Lawyers Weekly discusses a two-million-dollar jury verdict against Bollinger County for the wrongful death of two children who drowned when their father’s car was swept from a low water bridge while crossing the bridge.  The mother of the two children alleged that the County created a dangerous condition and was negligent because it did not have adequate warning signs, guardrails, and that there was inadequate maintenance of the bridge that led to higher water levels. In addition, there was no depth gauge and there were improper vents under the bridge. Plaintiff’s lawyer noted that inspection of other low water bridges in the County showed similar defects.  This sounds to me like another lawsuit waiting to happen and nothing was done to avert the first tragedy. You may want to send your inspectors out to check low water bridges to be sure they are properly signed and there are no other defects. Underwood v. Bollinger County, Cape Girardeau County, Case Number 2080-CC00011-01/Oct.25,2022

Failure To Maintain Shoulders On Road 

The February 2023, Edition of Missouri Lawyers Weekly discusses a binding arbitration award involving MoDot in the amount of 3 million dollars for the death of two Willow Springs football players who were ejected from a motor vehicle when the driver over corrected on a two-lane road. When the road was built years ago it had a two-foot shoulder. The two-foot shoulder had disappeared over the years due to lack of highway maintenance and was in violation of highway guidelines.  Smith v. Missouri Highway and Transportation Commission, Douglas County – Case Number 20DG-CC00040/Oct 19, 2022

Case Reversed For Failure To Obtain Statutory Waiver Of Counsel

Facts and Procedure: Cox was charged with three misdemeanors and one infraction. At a bench trial, Cox represented himself. Before trial, Cox signed a waiver-of-counsel form, but the form did not state the offenses for which he was on trial, nor the possible maximum punishment for those offenses. There was no record of the hearing at which Cox waived his right to counsel.

The trial court found Cox guilty of all the charges and sentenced him to two terms of one- year of imprisonment in the county jail for the first two misdemeanors, which ran concurrently. He was sentenced to fifteen days in jail for the third misdemeanor, which ran consecutively to the others. Finally, the trial court ordered Cox to pay a $400 fine for the infraction. Cox appealed to the Southern District.      

Analysis: On appeal Cox argued that the trial court erred in allowing Cox to proceed to trial without counsel because Cox’s written waiver did not strictly comply with the statutory requirements of Section 600.051 and the hearing on his waiver of counsel was not held on the record.

The Opinion starts with an analysis of the Sixth Amendment to the United States Constitution, which provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” This right extends to all offenses for which imprisonment may be imposed, including misdemeanors. The constitutional right to counsel implicitly embodies a correlative right to waive counsel and represent oneself at trial but for a waiver to be effective it must be made knowingly and intelligently. Without a knowing and intelligent waiver, no person may be imprisoned unless he was represented by counsel at trial. The State has the burden to prove a waiver of counsel is valid and that the defendant waived the right to counsel with a clear understanding of those rights and the consequences of waiving those rights.

In order to waive the right to counsel the record must disclose that the defendant’s waiver of the right to counsel was a knowing and intelligent one. Second, the defendant must be given the opportunity to sign the written waiver-of-counsel form mandated by Section 600.051, which requires that the written waiver contain the nature of the charges and the maximum possible sentence for those charges. A violation of Section 600.051 constitutes a manifest injustice or miscarriage of justice.

In this case, the waiver-of-counsel form signed by Cox did not list the offenses for which he was charged or the maximum punishment for those offenses, as required by Section 600.051.1 (1) and (3). Nor is there any record reflecting Cox was apprised of his right to counsel and the difficulties that come with self-representation at trial. The Southern District concluded that not conducting a sufficient hearing on the record and not providing Cox with a waiver-of-counsel form that complied with Section 600.051, that it failed to ensure that Cox’s waiver of counsel was knowing and intelligent. State of Missouri v. Cox, (SD37513, 01/31/23).

Expungement Of Drug Related Criminal Records

Request for Expungement – N.M.C. filed his petition seeking expungement of criminal convictions for 2013 and 2016 under Section 610.140, which governs the expungement of drug related criminal records. The petition sought expungement of three felony offenses and two ordinance violations in St. Louis County. The trial court granted the request for expungement.

The Highway Patrol appealed to the Eastern District arguing that the trial court erred in determining that N.M.C. was entitled to expungement of all records identified in his petition because the trial court expunged more than one criminal conviction in violation of Section 610.140.12(2), which limits expungement to no more than one felony offense during a person’s lifetime.


Expungement Statute – The Eastern District starts its analysis with the expungement statute, which states that a person may be granted no more than one expungement of a felony offense in his or her lifetime, except when multiple offenses charged in the same indictment or information or multiple offenses that are part of the same course of criminal conduct, which may be counted as a single offense for purposes of Section 610.140.1

N.M.C.’s petition identified multiple charges he wanted expunged, including a 2006 charge of possession of a controlled substance and a second 2006 count of possession of a controlled substance charged in the same case, as well as  a 2013 possession of a controlled substance charge.

2006 Charges – The Court reasoned that the two felony offenses charged in 2006 arose out of the same course of conduct and thus comprise a single offense for purposes of Section 610.140, falling within the exception for multiple offenses charged in the same indictment that are part of the same course of criminal conduct.

2013 Charges –The 2013 charges showed possession of a controlled substance and unlawful use of drug paraphernalia. He pled guilty to misdemeanor unlawful use of drug paraphernalia in response to the 2013 charges, and received a sentence of six months of confinement in the county jail, execution suspended, and two years of supervised probation.

The Court noted that the 2006 and 2013 offenses were not charged in the same indictment, as shown by the unique case number assigned to each—2106CR-03033 and 13SL-CR08442, respectively. Furthermore, the 2006 case was disposed of years before the acts in the 2013 cases. Therefore, the 2006 and 2013 charges were not charged in the same indictment and the statutory exception for offenses charged in the same information or indictment did not apply. The Eastern District held that since more than one conviction was expunged the trial court’s action violated the provision that not more than one conviction can be expunged during a person’s lifetime. 

Definition of Offense or Charge – In 2013, N.M.C. pled guilty to misdemeanor unlawful use of drug paraphernalia in response to the 2013 charges, and received a sentence of six months of confinement in the county jail, execution suspended, and two years of supervised probation. In exchange for his guilty plea to the misdemeanor offense, the State dismissed the charge of felony possession of a controlled substance in the 2013 case.

N.M.C. argued that because the identified charges of possession of a controlled substance were dismissed, it did not qualify as “offenses” under the statute, and therefore, are not subject to the limit of expungement of one felony offense under Section 610.140.12. The statute does not define the terms “offense” or “conviction.” N.M.C. maintained that the term “offense” means a “conviction,” and any disposition not based on a finding of guilt—such as dismissal—does not result in an “offense,” and specifically not a “felony offense” for purposes of Section 610.140.12(2). The Eastern District rejected this argument based on statutory construction by first looking to the plain ordinary meaning of these terms in the dictionary and the language in the expungement statute:

The plain language of the statute provides that a person charged or found guilty of any offenses may seek expungement of the related records. This language indicates that an “offense” may be comprised of either a charge or a conviction, and that records of either a charge or conviction may be expunged, unless expressly excluded under Section 610.140.2.

The Court reverses the judgment, and remands to the trial court with directions to allow N.M.C. to choose which felony records he wishes to have expunged, those of case number 2106CR-03033 or those of case number 13SL-CR08442.  N.M.C. v. Creve Coeur, (ED110683, 02/21/23).

School District Wins on Sovereign Immunity Defense

In State of Missouri ex rel., The School District of Kansas City v. Zhang, (WD85738, 02/07/23) the Plaintiff argued that the mere purchase of the insurance policies waived sovereign immunity.  The Western District held that there was no waiver of sovereign immunity by the School District because it purchased liability insurance, when the policy specifically contained an exclusion for any claim where the School District was immune under sovereign immunity.

In addition, Plaintiff claimed that Section 432.070, requiring all city contracts to be executed made the insurance policy void because the School District did not execute the insurance policy. The Court did not have to address this issue because of its ruling that the School District was protected by sovereign immunity in any event. The Sovereign Immunity Exclusion Endorsement stated that the policy did “not apply to any Claim to which the Insured . . . [i]s Immune under the legal doctrine of sovereign immunity; or . . . would have been immune . . . but for the Insured’s waiver of such immunity[.]” Based on the Exclusion Endorsement the Court made the writ permanent.

No Expungement Of Sex Offender Conviction For Tier I Offenders

In a complex 5 to 2 opinion the Missouri Supreme Court held that a person who is a Tier I sex offender cannot have their records removed even though they otherwise met all of the statutory requirements for removal because Tier I sex offenders are required to register under the separate requirements of the Federal Sex Offender Registration and Notification Act, 34 U.S.C. §§ 20901, et seq. (“SORNA”). Smith v. Jim Buckles, Sheriff of St. Louis County, (SC99715, 01/31,23).

Comment Howard:  I do not get the analysis of the majority opinion. If Tier I, sex offenders, who otherwise qualify for removal of their name under Missouri law, cannot get their name removed it seems reasonably clear to me that Tier II offenders also cannot get removed, thereby, defeating the stated intent of  Representative Bahr, sponsor of the removal legislation in 2018. 

“My goal wasn’t to recreate the wheel. It was simply to make sure that we are fully compliant with the federal law that is fully established and to make sure we have a clean and clear process that everybody knew and understood,” Bahr says. “We don’t necessarily need to be punishing people for an entire life because they happen to be peeing in public and got charged with indecent exposure. With everything, there has to be balance. I thought that adopting the federal law was the best balance we could do today.” Missourinet – Quote from Representative Bahr – https://www.missourinet.com/2018/08/20/new-law-expected-to-reduce-missouris-sex-offender-registry-count/

“Under the new law, first-level offenders can ask to get off the list after ten years and second-level offenders could petition the court to be removed after 25 years. Level three offenders will remain on the registry. The individuals on the list must petition the court in the jurisdiction where the crime occurred.” Missourinet – https://www.missourinet.com/2018/08/20/new-law-expected-to-reduce-missouris-sex-offender-registry-count/

It seems to me that the majority opinion in this case thwarts the goal of the author of the expungement bill to keep the numbers on the sex register low enough to be manageable by removing offenders who do not pose a risk, allowing law enforcement to concentrate on more serious offenders. Imagine you peed in public and you are charged and convicted of indecent exposure.  Under the majority opinion you are registered for life as a sex offender.  OMG, how do you explain this to your children or neighbors?

Comment Ragan: Public urination, indecent exposure, and a sex offense that requires a person to register as a sex offender have very different elements from the knowledge of the offense to the intent of the offense.  A person who publicly urinates in a pool is probably not going to be required to register as a sex offender.  If the Missouri Legislature wants to remove people from the sex offender list that are required to be listed by federal law then the legislature is going to have leave itself no wiggle room.  

Bill To Amend Home-Based Work

The MML supports HB 978, which makes much needed clarifications to legislation passed in the 2022 legislative session relating to home-based businesses. This bill amends provisions that prohibit counties, municipalities, and townships from enacting a zoning ordinance or regulation that prohibits certain aspects of home-based work.

The definition of home-based work is amended to clarify that the work performed can be done by the resident on the behalf of another person or entity or in connection with the resident’s self-employment as long as nonresident employees or coworkers are not regularly present and working at the residential property. Currently, a zoning ordinance or regulation cannot prohibit certain aspects of home-based work such as mail-order or telephone sales.

The bill adds other activities customarily related to an office to the list of things that cannot be prohibited. Furthermore, the hours of operation for home-based work cannot be restricted, but the bill adds an exception for work-related activities producing or requiring additional light, noise, or other offensive conditions detectable across property lines during the late evening or early morning time periods.

The bill establishes that application of this section does not curtail a political subdivision’s general ability to enact or enforce narrowly-tailored regulations to protect public health, safety, or welfare, or affect any person’s obligation to comply with a political subdivision’s nuisance, health, and safety ordinances, rules, and regulations.

This bill also repeals the section that provides that a political subdivision can not prohibit the operation of a no-impact, home-based business or require a person to apply for any permit or license to operate such a business, but allows a political subdivision to establish reasonable regulations on such businesses that are narrowly tailored for the purpose of protecting public health and ensuring the businesses are compliant with state and federal law.

Comment Howard: Considering the angst that the home-based legislation caused municipal attorneys one has to hope these changes will pass. Let your legislators know that these amendments are important to protect neighborhoods. Keep MML officials informed.

Use Of  In Camera Inspection By Court To Resolve Dispute Over Whether Or Not Records Are Protected Under Sunshine Law

Facts and Procedure: David Walters, a former employee of Williams and Co, sent a letter (the “Walters Letter”) to Carol Comer, the Director of the Missouri Department of Natural Resources (the “Department”) and copied the letter to the Chairmen the of Board of Trustees for the Petroleum Storage Tank Insurance Fund (the “Fund Board”) concerning the conduct of Eighmey, the Director of the Petroleum Storage Tank Insurance Fund (Fund).  The parties agreed that the Walters Letter concerned Eighmey’s conduct while she served as executive director of the Fund. The City also sought any correspondence regarding the Walters Letter. Next, the City made a second Sunshine Law request which sought correspondence between the Department and other public entities, such as the Missouri Attorney General’s Office and the Fund Board, which regarded the first request.

The City then filed a “Petition for Damages” alleging that the Department knowingly and purposefully violated the Missouri Sunshine Law by delaying responses and hiding records sought in the City’s Sunshine Law requests, and knowingly and purposefully violated the Missouri Sunshine Law by withholding public records under inapplicable exceptions to the law.

The Department responded by asking the court to review the Walters Letter and other withheld records in camera, indicating that review of the records would allow the court to determine if they fell within an exception to disclosure under Missouri’s Sunshine Law. The parties then moved for summary judgment. The trial court granted the Department’s motion for summary judgment ruling that the Walters Letter and other records withheld by the Department were protected under the Sunshine Law. In its order, the trial court found that the Walters Letter “is by its nature an employment personnel record and relate[s] to personnel issues” and referenced “Sections 610.021.3 and 610.021.13 RSMo.” The court found “that the e-mails that were closed by Defendant related to a closed document and/or contained privileged communications not subject to disclosure” and that the Department did not commit a knowing or purposeful violation of the Missouri Sunshine Law. The City appealed to the Western District.

Analysis: The City argued that the Walters Letter is a public record because it was held by a public governmental body, and the Department had no discretion to close the Walters Letter under any Section 610.021 exception, including Section 610.021(3) or Section 610.021(13).

Section 610.021(3) of Missouri’s Sunshine Law provides that, except to the extent that disclosure is otherwise required by law, a public governmental body is authorized to close records to the extent they “relate to” the “[h]iring, firing, disciplining or promoting of particular employees by a public governmental body when personal information about the employee is discussed or recorded.” “Personal information” is defined within the provision as “information relating to the performance or merit of individual employees.” Section 610.021(13) provides, in part, that, except to the extent that disclosure is otherwise required by law, a public governmental body is authorized to close records to the extent that they relate to “[i]ndividually identifiable personnel records, performance ratings or records pertaining to employees or applicants for employment[.]”

The Western District held that based on it in camera inspection of the Walter Letter that was protected under Section 610.021(3) because it discusses Eighmey’s performance and merit as a state employee. The Walters Letter was sent to the Department director who serves, either personally or via a designee, on the Fund Board which hired, and could ultimately discipline and/or fire, Eighmey. The Walters Letter asks the Department director to intervene with regard to the behavior of the Department director’s “employee,” Eighmey. As such, the Walters Letter relates to the “hiring, firing, disciplining or promoting of particular employees by a public governmental body when personal information about the employee is discussed or recorded.” § 610.021(3).

No Disciplinary Action Required Argument – The City argued that if there was no disciplinary action taken that the record was not protected, which the Court rejected.

There are any number of situations in which a person’s work performance and/or merits as an employee will be recorded in the context of hiring, firing, discipline, and promotion, but the fact that a person is not hired, fired, disciplined, or promoted does not change the nature of the record, or mean that the record does not relate to hiring, firing, disciplining, or promoting.

Incident Report Analogy Argument  Fails – The City also argued that the Walters Letter was tantamount to an “incident report” under Section 610.100.1(4), like an internal investigation of a police officer.  The Walters letter did not fall within the definitions, which define the scope of incident or accident reports. Furthermore, incident and investigative report exceptions only apply to law enforcement agencies, and the Department was not acting as a law enforcement agency. City of Harrisonville v. Missouri Dept. of Natural Resources and Trustees For the Petroleum storage Tank Insurance Fund, (WD85091, 02/21/23)

Comment Howard: This was a pretty simple case. If you are alleging that the record is not subject to disclosure, just ask the court to make an in-camera inspection like the state did in this case.