Outline
City Law 101: The Basics
NOTE: Text includes citations printed in red; opinions, comments, and references to the web
printed in blue; and references to the appendix or other parts of the text, printed in green.
Improvements and corrections are welcome and should be sent to wpcronan@aol.com.
This outline is a collective effort of all the members of the Missouri Municipal Attorneys
Association. It is published on the web for the benefit of all city officials, but specifically for
new city attorneys. As with all publications, it is subject to error (including subsequent
changes in the law). This publication will not substitute for a lawyer. Any reference in this
publication to “I” or “my opinion” refer to Patrick Cronan, retired city attorney and
coordinator of this project. These opinions should be disregarded, unless your city attorney
agrees with me.
Contents
1.
Congratulations – Now What?
2.
Type and Authority of a Cities
3.
Who Votes and How Often – Technicalities
4.
Meetings
5.
Finances
6.
Contracts and Cooperative Agreements
6A.
Real Estate
7.
Torts
8.
Planning and Zoning
9.
Taxation and Revenue
10.
Basic Election Law
11.
Employee Discharge Rights
12.
Employee Right to Wages
13.
First Amendment Problems
14.
Administrative Procedure Act and the Cities
15.
Economic Development Techniques
16.
Annexation
17.
Regulation of Businesses
18.
Water, Sewer, Electricity and other city-owned Utilities
19.
Police and Traffic Regulations
20.
Streets and Sidewalks – Privately owned utilities
21.
Public Nuisances and Public Health Regulations
22.
Creating a New Village or City
23.
Ethics and Conflicts of Interest
Appendices
Page 1 of 149
I.
CONGRATULATIONS!! – Now what?
A.
B.
Look at statutes first, then cases – because city is a creature of the state, created
by statute. Index to RSMo is better than index to Vernon’s. Internet search is the
wave of the future, but has limitations which you should understand.
1.
We are trained in law school by the “casebook method” which has the side
effect of emphasizing the importance of judges and decided cases. You
need to set aside that training when dealing with local governments,
because many statutes are never interpreted by a court, and many
questions can only be answered by reference to the statutes.
2.
May be worth your time to sit down with statute book and read the chapter
in RSMo that applies to your city. Perhaps every couple of years.
3.
It is also a good idea to read the state constitution, especially Articles VI
and VII, from time to time.
4.
Consider purchasing (and reading from cover-to-cover) the Missouri Bar
CLE publication on Local Government Law. (However, this publication
also tends to de-emphasize statutes.)
History – it is sometimes very difficult to understand the statutes and the cases
unless you remember medieval European history. Cities developed independently
of the feudal system, and depended upon money (coin) in order to function,
because the specialists who inhabited a city could not accept goods in trade –
there wasn’t enough room to store the goods, nor enough time (if one was busy as
a dressmaker, for example) to dispose of the bartered goods. Counties are a direct
descendant of the feudal system, and were originally based upon a barter
economy. In fact, the English word “county” is a direct descendant of the word
that used to describe the land of a Count, one of the lesser members of nobility.
1.
Although the common law has had over 400 years to develop in the
United States, cities and counties are still quite different things and are
treated differently in the law. Cities are more independent of state control.
2.
One can hope that eventually all local governments become less subject to
feudal vassalage and oversight from the state government, it is still true
that city governments are remarkably independent of the state, and in
some locations are even more important than the state government. (I am
thinking of the status of New York City in New York state, Chicago in
Illinois, or Los Angeles and San Francisco in California.)
Page 2 of 149
C.
Some general principles of statutory interpretation, that probably you were not
taught in law school:
1.
“Statute” does not include the bold face caption at the beginning, nor the
chapter name, both of which have been added by the revisor of statutes.
§§3.030 , 3.050 RSMo Most attorneys and most judges are ignorant of
this, however.
2.
Any statute that says “no person or corporation” shall do something does
not apply to a local government. For example, state minimum wage.
Wright v. State, (Cole co. circuit, opinion on MML web page). Webster
Groves v. Smith, 102 SW2d 618.
3.
COMPLICATION: “Once saved, always saved” ? §1.100 RSMo; State ex
rel. McNeal v. Roach, 520 SW2d 69; State ex rel. Woods v. Connett, 525
SW2d 69
“....Any law which is limited in its operation to counties, cities or other
political subdivisions having a specified population or a specified assessed
valuation shall be deemed to include all counties, cities or political
subdivisions which thereafter acquire such population or assessed
valuation as well as those in that category at the time the law passed.
Once a city not located in a county has come under the operation of such a
law a subsequent loss of population shall not remove that city from the
operation of that law....”
4.
Statutes don’t always means what they say. Statutes may be mandatory,
or may be directory. A statute that is directory, there is no significant
consequence if you fail to follow it. (If no penalty, usually directory.)
McQuilllin § 10.32
a.
5.
This is a difficult concept for criminal or probate lawyers to
understand. And for probate judges to comprehend. I have a
general prejudice against letting a probate judge decide a
municipal law case, because I don’t think they can overcome the
“civil law” nature of their general work, and don’t seem willing to
learn much about the “common law.” (Remember: Probate was
established by the Church, and was based upon church law, which
is basically European civil law and generally doesn’t provide much
wiggle room.)
All of us have been taught in law school that the most important thing in
interpreting a statute is INTENT. What did the legislature intend?
Unfortunately in Missouri there is no record kept from which one can
Page 3 of 149
devise legislative intent. The legislature does not keep a journal of its
proceedings that includes debates between members, and it is very rare
that a legislative committee prepares a report about a bill it is considering.
6.
7.
a.
So, in Missouri, it is next to impossible to establish what the
legislature intended.
b.
War stories of individual legislators put on stand to testify as to
what the legislature intended?
Would newspaper reports be
relevant?
c.
About once every 10 years there is a court decision which
“shocks” all the politicos in Jefferson City (and sometimes many
attorneys), because they remember what was intended, while the
court enforced what was written.
Conflicting statutes
a.
When conflicting statutes exist, first consider if both of them might
be “directory” rather than “mandatory” and thus don’t conflict at
all.
(See above) For example, there are several statutes
authorizing cities to deal with debris and junk. All are valid in my
opinion, even if the statutes say different things.
b.
If statutes do conflict, last one passed is generally considered to
have repealed or amended the other statute.
c.
If both statutes were passed at the same session of the general
assembly, courts will attempt to harmonize the two versions, and if
that proves impossible will toss both statutes. (Reason: Missouri
does not publish or record any legislative history, so one cannot
determine what the legislature intended).
Context. Statutes don’t exist in a vacuum, but an electronic search
assumes they do. Take time to read (or at least scan) the statutes and
precede and follow the one you are interested in.
a.
For example, consider §115.350 which says:
“No person shall qualify as a candidate for elective public
office in the state of Missouri who has been convicted of or
found guilty of or pled guilty to a felony under the laws of
this state.”
Page 4 of 149
This means that the local convicted child predator cannot run for
Mayor in your town, right?
b.
But § 115.305 says:
“This subchapter [115.305 through 115.405] shall not apply
to [local elections]...”
So maybe the local child predator can be mayor? Consensus
answer among city attorneys is “yes,” although I was prepared to
argue “no” if Ken Storla had actually filed for the office of Mayor
in the City of Clark.
D.
Inaccuracies in the Revised Statutes of Missouri
1.
Revisor of Statutes is an employee of the legislature, and is more
concerned with enhancing the power of the legislature than with an
accurate rendering of the statutes.
2.
Statutes which have been declared unconstitutional by the highest court in
the state are routinely included in the published statutes, often without a
notation that the statute is unconstitutional.
3.
Injunctions which are outstanding against the state of Missouri which
forbid the state from enforcing statutes are never honored by the Revisor
of Statutes, who considers those injunctions to be a problem for the
executive branch. Example: recent circuit court ruling that minimum
wage statute does not apply to local governments and enjoining
enforcement (and which the executive department decided it would not
appeal) isn’t mentioned in the Revised Statutes.
a.
b.
4.
There is no central repository of outstanding injunctions and/or
adverse circuit court decisions against statutes. AG Office
considers it the responsibility of individual executive departments
to be aware of injunctions, adverse rulings.
Municipal league web site has a few such injunctions – would be a
good place for others to be posted.
Hammerschmidt problems: The Missouri Constitution requires legislation
to concern only “one subject.” The legislature constantly ignores this
requirement. If you find a statute troublesome, it may be worth your while
to examine the original session law and see if you can get rid of the
statute.
Page 5 of 149
E.
Treatise: McQuillin on Municipal Corporations (about 30 volumes) – about
$1,800 per year. Available on Westlaw. Find a copy at large law libraries, and
in law departments of larger cities. This treatise is often cited by Missouri courts,
especially on questions where there is no Missouri precedent. Also this book
professes to cite every published case relevant to its discussion, and it is an
excellent place to begin research. The original author of this treatise was a
Missouri lawyer, so original versions were heavy on Missouri authority. Some of
that continues into the current version of McQuillin.
F.
Sources of assistance:
1.
MML: (573) 635-9134 or www.mocities.com
2.
IMLA (or IMLA “lite”) www.imla.org
3.
APA and “Planning Advisory Service” www.apa.org. The publications of
the Planning Advisory Service generally include a detailed legal analysis
of the leading cases as of the date of the publication.
4.
Election questions: Secretary of State – Secretary of State’s people are not
attorneys, but generally know more about elections than most attorneys –
they often do have a staff attorney in the elections department who might
be consulted. In those places with a Board of Elections, there is generally
one or two attorneys retained to advise the Board – and those individuals
are usually quite helpful.
5.
Finance questions: State Auditor. Generally the deputy state auditors and
senior employees are quite knowledgeable, quite helpful, and do not
generally change with elections, even when a different party takes control
of the office.
6.
Purchasing and contracting questions: National Institute for Governmental
Purchasing, www.nigp.org and its Missouri chapter, www.mapp.org.
These organizations are particularly helpful in providing sample contract
specifications.
7.
Other city attorneys. See list at Appendix 1.
8.
On-line ordinance codes and other resources
a.
Missouri Municipal League. Www.mocities.com Useful links to
city codes. Newsletter for city attorneys. List serve for city
attorneys. Call 573/698-3074 to arrange for list serve, and for
IMLA “Lite” membership (cities under 2,500 population)..
Page 6 of 149
b.
International Municipal Lawyers Association. Www.imla.org.
Offers an Imla-lite membership for Missouri cities under 2,500
popullation. Contact MML for enrollment information in Imla-lite.
c.
Municipal ordinance codes – Note that the MML website above
has links to member city websites, many including the ordinance
code of the city.
d.
1)
Municipal Code Corporation – codifies ordinances of cities
of
all
sizes,
but
mostly
mid-size
cities.
Www.municode.com.
2)
Sullivan Publications – codifies ordinances of Missouri and
some
other
Midwestern
communities.
Www.sullivanpublications.com.
3)
American Legal Publishing Co. – codifies ordinances,
mostly larger cities. Www.amlegal.com.
4)
Municipal Research and Services Center – centered in
Washington state, has a extensive internet library and
numerous city codes.
Affiliated with University of
Washington. Www.mrsc.org.
Internet “think tanks” and “public interest law firms” with useful
material (but with risk of a decided political bias) that you might
consult:
1)
First Amendment Center. Www.firstamendmentcenter.org.
This group provides much information about limitations on
speech and assembly. Decidedly anti-regulation in its
political orientation, but its material seems to be relatively
unbiased.
2)
Community Defense Center.
Www.communitydefense.org. This group is obsessed with
pornography and obscenity, and want to see it limited as
much as possible. Legal material relatively unbiased.
3)
Constitutional Accountability Center.
Www.theusconstitution.org.
Describes
itself
as
“progressive,” this group has absorbed the former
Community Rights Reporter. It opposes the burgeoning
Page 7 of 149
“property rights” movement.
9.
Rutherford Institute. Www.rutherford.org. A conservative
group, concerned with religious freedom (particularly for
conservative Christians).
5)
Traffic Calming
Www.trafficcalming.org As its name
implies, this site provides information about speed bumps
and other measures to reduce traffic speed. Not much law
contained on website.
6)
Signlaw.com. Www.signlaw.com. Website maintained by
attorney Randal R. Morrison. All about billboard and sign
regulation, by an attorney who started out working for
billboard companies, but who appears willing to switch
sides.
7)
National Public Employer Labor Relations Association and
its Missouri Chapter.
Www.npelra.org. Membership
required to access web site.
DO NOT ASK ATTORNEY GENERAL if you want a correct answer.
When the AG’‘s office is advising their client (the state and its agencies)
they are quite good. When the AG is advising the public, you generally
get a politically expedient answer backed by minimal thought and
research.
a.
G.
4)
In some areas an opinion (or AGO) is the only thing available.
These opinions are published on the web and can be searched by
topic or key word. Remember, however, that an AGO has no more
authority than the opinion of any other attorney, and you would be
better off following the opinion of the lawyer you are paying.
How to look competent to your clients – some deadlines to remember:
(Items marked with * may be adjusted to fit fiscal year of city)
1.
January
a.
Prior to Jan. 1 (or start of fiscal year) adopt budget.*
b.
Publish semi-annual financial statement*
c.
End of filing period for city office sometime around January 20.
For exact date, see “Election Calendar” for current year at
Page 8 of 149
Secretary of State’s web page.
d.
Notify election authority (county clerk or Board of Elections) of
form of ballot to be used in April election before sometime around
January 27. For exact date, see “Election Calendar” for current
year at Secretary of State’s web page.
e.
Send forms 1099s and W2 to IRS; distribute to taxpayers. (Note
form 1099 may be required to uniform or other expense allowance;
certain private use of public equipment; certain services provided
by city to taxpayers. I defer to city’s auditor for advice in these
areas.) Forms must be distributed to employees and others by
February 1, must be submitted to IRS by March 1 if sent on paper,
or March 31 if sent electronically.
2.
February
3.
March
4.
5.
a.
Campaign expenditure report due if spend over $500
b.
City attorney conducts class for candidates on election law,
elementary duties in office? I don’t do this, but one of my
colleagues does because the city has asked him to. He suggests
that these classes give him an opportunity to explain a bit about
campaign financial disclosure rules, and to provide preliminary
information about the city’s budget, and to generally try to
demonstrate to the candidates that he is indispensable. Of course
these candidates are not the “client” of the city attorney.
April
a.
Beginning in 2010, prepare estimate of taxes for later in the year,
send to county.
b.
Municipal election day, sometime around April 7 For exact date,
see “Election Calendar” for current year at Secretary of State’s
web page.
May
a.
6.
Financial disclosure reports due
June
Page 9 of 149
a.
7.
July
a.
8.
9.
Publish semi-annual financial statement.*
August
a.
New laws go into effect around August 28. Often it will be
necessary to adopt new city ordinances that mirror state
misdemeanor statutes, so you can prosecute these offenses in
municipal court, and (1) make more efficient use of police officer
time, and (2) retain the revenue for city coffers.
b.
City must conduct its “open window” tax rate public hearing, with
7 day newspaper notice. §67.110.2
c.
Delinquent tax sale – city has to conduct its own sale if city
collects its own taxes; county will add to the county’s tax sale if
the county has agreed to collect your city’s taxes. Regardless of
who conducts sale, city should buy everything within its
boundary(at least those properties offered for the third time) as a
way to prevent the creation of nuisance properties.
d.
City must set its tax rate, and notify county prior to September 1 if
county is collecting the tax. §67.110.1
e.
City may need to re-adopt its ordinance that reduces the required
financial disclosure, if it has an annual operating budget in excess
of $1 million.. This is actually only required every-other year, but
if you do it every year you have more room for error. Required by
September 15. §105.483(11) and §105.485.4
September
a.
10.
If city collects its own taxes, begin preparation for delinquent tax
sale.
City plans for municipal election, adopts ordinance (?), and clerk
publishes notice of election. May extend into October or
November.
October
a.
Budget preparation should be well underway
Page 10 of 149
b.
11.
November
a.
12.
II.
Filing for municipal elective office begins sometime around
December 20. For exact date, see “Election Calendar” for current
year at Secretary of State’s web page.
If you want to get paid when city is ready to fire you, prepare a contract.
§432.070
1.
G.
Beginning in 2009, any city with a TIF district must file an annual
report of the economic activity of the district with the state
Department of Economic Development. Generally these reports
are due around mid-month. Failure to file the report disqualifies to
the from having another TIF district for 5 years. §99.865
December
a.
H.
Adopt annual ordinance imposing tax liens for services such as
mowing, building demolition, unpaid sewer bills, etc. and record in
land records.
Then you need a new contract if you raise rates, etc.
See below, part VI
Ethics: More than “Code of Professional Responsibility.” See below, part XXIII.
Types and Authority of Cities
A.
Five kinds of municipalities: There is no logic to the classification of cities. Voter
approval is required to change from one class to another. It is probably “best” to
be a Home Rule (Constitutional Charter) City, but the classification is ordinarily
not very significant.
1.
Town or village – 5 “trustees,” no mayor, but “chairman” – Chapter 80
RSMo
a.
City council is called “Board of Trustees”
1)
Five trustees, elected at large
2)
If more than 2,500 population, voters may authorize 9
Page 11 of 149
trustees, also elected at large. §80.040
b.
c.
2.
Mayor is actually the “Chairman of the Board of Trustees” elected
by trustees for a 1 year term.
1)
No veto power
2)
However, must sign ordinance, or it is void – so in effect
court has given (mistakenly?) veto power to chairman
Chairman is supposed to “print and publish” ordinances.
1)
Is ordinance invalid if isn’t “printed and published”?
§80.120
2)
Is publishing on the web good enough?
d.
Maybe with a village administrator. No statutory authority.
e.
No wards (election districts)
f.
Village law seems strange to Missourians
1)
“Village common”
2)
“taxable inhabitants” (I presume this originally meant a free
white male. Now I think it is synonymous with “resident.”)
3)
Adopted in 1804 by Indiana Legislature (acting in its
capacity as the temporary legislature for the Missouri
Territory.)
Fourth class city – 4 or more “aldermen,” mayor, others – Chapter 79
RSMo
a.
City council is called “Board of Aldermen”
1)
Default is 2 year term §79.060 There is a problem with
§79.030, which says that elections are held every two years,
which is impossible if aldermen have staggered two year
terms. You must hold an election every year. It is my
assumption that §79.030 was amended at the same time that
fourth class cities were given the option of having 4 year
terms. So I suggest §79.030 may be safely ignored if your
Page 12 of 149
city has two year terms.
b.
2)
Two or more wards required – meaning must be at least 4
aldermen, with no maximum. §79.060 Most fourth class
cities have 4, 6, or 8 aldermen, in my experience.
3)
Qualifications for aldermen (§79.070):
a)
at least 21 years of age
b)
citizen of the United States
c)
inhabitant and resident of the city for one year next
preceding his or her election
d)
a resident, at the time he or she files and during the
time he or she serves, of the ward from which he or
she is elected
Mayor is called “mayor”
1)
Default is 2 year term
2)
Qualifications for mayor (§79.080):
a)
at least 25 years of age
b)
citizen of the United States
c)
A resident of the city at the time of and for at least
one year next preceding the election.
c.
Maybe with a city administrator §77.042 This is not a misprint.
Although this statute is located in the chapter relating to third class
cities, it expressly includes all cities under 30,000 pop., but not
villages.
b.
Maybe without wards (>1,000 pop.)
c.
Maybe 4 year terms for mayor and collector (by ordinance)
§79.050.2
d.
Maybe 4 year terms for aldermen (w/voter approval) §79.050.3
Page 13 of 149
e.
Maybe a combined office of collector & marshal §79.230
f.
Maybe with a chief of police; voter approval was required §79.050
i)
Can voters reverse decision? No, says Cronan
g.
City clerk: indefinite or fixed term?
h.
Maybe with an appointed collector; voter approval required
§79.050
i.
NOTE: May collect attorney fee for nuisance abatement §79.383
i)
j.
May a third class city charge for attorney fee?
Cronan: I have a third-class city that does so; will a court
agree it is permitted? Maybe, but I’m going to fold if
challenged.
Maybe with various independent or semi-independent boards (Pay
for board members? §79.365; §77.440)
1)
Board of public works §§ 91.450 to 91.550
a)
Often have their own check book and control their
money themselves, maybe separate attorneys
i)
2)
Cronan thinks this violates statutes on
money being in the custody of treasurer. No
case yet to confirm that opinion. But see
§91.520 for ammunition for contrary
argument.
b)
Operate some or all of city utilities
c)
Sets utility rates without reference to city council.
§91.540
d)
Cannot “sue or be sued”
Park board §§90.500-.570
a)
Separate checkbook?
Separate employees?
Separate attorney?
Cronan thinks checkbook
should be at city hall; city attorney is board’s legal
Page 14 of 149
advisor.
Cannot “sue or be sued”
b)
3)
4)
Library board – §§ 182.480 to 182.500
a)
Boundary frozen at 1964 city limits, or when county
library comes into existence. §182.480.
b)
Separate independent unit of government; can “sue
and be sued.”
c)
Probably the library board can set its tax levy
independently of the city council, although in most
cities the city council sets the tax rate. Also the
library board can set its own budget, etc., because it
has been converted to a separate unit of
government.
Housing authority §§99.010 – 99.230
Board members may only be removed “for cause”
§99.070
Separate independent unit of government; can “sue
and be sued.” §99.080
a)
b)
5)
c)
Under thumb of HUD
d)
Has separate audit, because feds say so. §99.055
Cemetery board
a)
Beware of inadequate records, unmarked graves,
potential for gross embarrassment and [limited] tort
liability.
b)
Separate cemeteries for different races? Religions?
c)
“City cemetery” considered a demeaning name by
persons from big cities.
6)
Planning & Zoning (discussed later in Part VIII)
7)
Others
Page 15 of 149
3.
Third class city – 4 or more “councilmen”, mayor, other officers maybe –
Chapter 77 RSMo
a.
Maybe with a city administrator §77.042
b.
Maybe with a city manager §§ 78.430 to 78.720
c.
Maybe with a commission form of government §§ 78.010 to
78.400
d.
Maybe with a chief of police – and a police personnel board §§
86.541 to 85.571
e.
Maybe an elected CITY prosecuting attorney (who is called “city
attorney” by the statutes, while an appointed attorney is called the
“city counselor.”) §77.370 It isn’t clear from reading the statutes
that the elected “city attorney” must be relegated to the position of
city prosecutor, but that is the way it works in every Third Class
city we know about. Certainly the title “city counselor” implies
that individual has primarily civil responsibilities.
f.
Maybe with an elected (or appointed?) Assessor
g.
1.
No authority to deviate from county assessor’s assessment
NOTE: Recall possible, but high voter signature required §77.655
f.
Maybe with various independent or semi-independent boards –
Same as discussed above for 4th Class City, except items 7 & 8.
(Pay for board members? §79.365; §77.440)
1)
Board of public works
2)
Park board
3)
Library board
4)
Housing authority
5)
Cemetery board
6)
Planning and zoning
7)
Airport Board §305.230
Page 16 of 149
8)
Hospital Board §96.160
9)
Others
4.
Special Charter city – Chapter 81 RSMo and individual Legislative
5.
Home Rule city – Art. VI, §19(a) of Missouri Constitution and Chapter 82
RSMo, and individual city charter (and perhaps drafting notes? Minutes?)
Charter
a.
Usually very similar to “old” city operations because only 1 year to
draft charter
b.
Model City Charter, published by Missouri Municipal League
1)
B.
Commentary useful to interpret your city’s charter.
Authority of municipality
1.
Town or village – List of 40 powers including those “not repugnant to and
contrary to the laws of the state...” §80.090
2.
4th Class:
3.
3rd Class: §§ 77.470 to 77.590
4.
Special charter:
5.
SUMMARY: Generally courts do not wade through the various statutes,
but generalize to say that statutory cities possess a delegation of the
“police power” of the state. It might be better for a city litigating a
question to point to a specific statute than rely on the generalized “police
power” argument. In theory the “police power” of the city is equal to the
“police power” possessed by the Missouri General Assembly, because the
legislature hasn’t reserved or limited city police power. HOWEVER, this
is theory. Many judges believe their political views of what a city ought
to do limit cities to adopting only “reasonable” ordinances.
5.
PROBLEM: Dillon’s Rule.
6.
Home Rule: All the powers consent with the Missouri Constitution and
state laws. Dillon’s rule is reversed. Broad to tailor a form of government
that its citizens believe will best serve their interests, State ex rel Petti v.
Page 17 of 149
Goodwin-Raftery, 190 SW3d 501,505.
C.
D.
Authority of individual officers – mostly a matter of custom
1.
In all cases, city council wins (if they have the guts)
2.
In most cases, mayor wins (if he/she has the guts)
However, may require concurrence of council for mayor to remove
another officer.
b.
Example: Fourth class city, 5 person city council (mayor + 4
aldermen). Aldermen split 2 - 2 on most questions. Mayor wants
to get rid of city attorney. Two aldermen want to keep city
attorney, mostly because mayor wants to fire her. City attorney
gets to keep her job, if she wants it..
Authority over employees
1.
E.
a.
“no man can serve two masters...”
a.
Primary argument against accepting a city job.
b.
Presence of an advisory or supervisory board can exacerbate this
problem.
c.
City manager or city administrator can (if city council doesn’t
interfere too much) reduce this problem.
d.
Primary job of city attorney is to prevent these problems and try to
encourage a “chain of command”?
How a city speaks
1.
No individual speaks for city (i.e., no “apparent authority”)
2.
Paper required
a.
Ordinance – necessary to put people in jail
b.
Resolution – except for a resolution adopting a budget, a resolution
is simply an expression of the wishes of the person/group issuing
it.
Page 18 of 149
c.
d.
Motion
1)
“Roberts Rules of Order” is not law, and does NOT trump
the statutes.
2)
But it is essential to have a procedure to handle meetings,
to ensure fair discussion of the issues. This should be
established by ordinance, and may well be that the council
wants to adopt Robert Rules of Order as their meeting
rules.
3)
See also “Jefferson’s Rules” and others
4)
Roberts Rules of Order are designed for a large meeting
(i.e., 75 or more people). There is an appendix at the back
with changes for smaller meetings, primarily:
i)
No second required to a motion
ii)
Discussion can occur before a motion is made.
Proclamations, Awards, Certificates – “Ceremonial Documents”
1)
Does freedom of speech extend to “Government Speech?”
Can mayor issue a proclamation to favor one side of a
controversial question, and refuse to do the same for the
other side?
2)
Old GAP publication called “Ceremonial Documents”
available on MML website.
e.
Many cities discuss a proposal until a concensus develops, and
then move on to the next problem. This won’t work; it is
necessary for the presiding officer (mayor, or whomever) to
schedule and require a vote. Minutes of a meeting that report that
“the concensus was” to do this, or that “everyone agreed” to do
that will not work; the fault is not the city clerk or the individual
who took the minutes. The blame lies with the mayor and maybe
some with the city attorney.
f.
Differing procedures to “pay the bills” – discussed below under
“budget” requirements
g.
Contract (discussed below)
Page 19 of 149
III.
F.
Impeaching or Supplementing the Public Record
G.
De Facto and De Jure Officers
H.
Removing an Elected Official from Office
Who Votes and How Often? Technicalities
A.
General rule:
B.
Special rule: ordinance
C.
Mayor pro-tem votes twice?
D.
1.
Yes: AGO
2.
No: Cronan
3.
Try to avoid litigating this question
Formalities necessary to adopt an ordinance – these formalities
1.
Must be in writing
2.
“Magic words” §80.100; §79.130; §77.080
3.
“Read” multiple times (twice most places, three times in certain charter
cities).
4.
a.
Read by title only?
b.
Don’t record how was read in minutes.
Vote recorded by name in minutes
5.
Can correct with “nunc pro tunc” order. Fargo v. City of Irondale,
364 Mo 500
Ordinance signed (even where mayor has no veto)
6.
Title required in most charter cities – not in statutory cities
a.
Page 20 of 149
a.
IV.
Mostly because included in MML’s Model Charter.
7.
Penalty
8.
Severability Clause
Meetings
A.
No requirement when or how often meetings are held
B.
Very little about meeting procedure – should have ordinance
1.
Robert’s Rules of Order is not law, and people’s perception that a motion
dies for lack of a second, or that the presiding officer cannot express an
opinion, or other so-called “truths” from Robert’s are not necessarily
correct.
2.
Not required to let audience talk, but most cities do. People only have a
“right” to attend the meeting, watch, and listen. They are not elected to
office and have no “right” to speak. So, you can limit time allotted to each
speaker, or limit number of speeches that one speaker is allowed to make
on a single topic.
a.
If you permit people to talk you have created a “limited public
forum” and you have to be open to adverse criticism, and be
careful not to stifle free speech. See Wilson and Alcarez, “Arrest
That Woman for Disrupting the Hearing!” – Handling the Unruly
Speaker, 52 Municipal Lawyer, No. 1, page 6.
1)
Reasonable to remove a disruptive speaker, who won’t stay
on topic. Steinburg v. Chesterfield County Planning
Commission, 527 F.3d 377 (4th Cir., 2008). Or who is
repetitive and truculent, and repeatedly interrupted the
chairman of the meeting. Eichenlaub v. Township of
Indiana, 385 F.3d 274 (3d Cir., 2004)
2)
Unreasonable to arrest speaker who gave a silent Nazi
salute, when a ruling from the chair upset him. Norse v.
City of Santa Cruz, 118 Fed. Appx. 177, 2004 WL
27557528 (9th Cir., Dec. 3, 2004 (Unpublished decision).
Page 21 of 149
Or for saying “God damn!” when addressing the council,
and thus “using the Lord’s name in vain,” to the distress of
the mayor. Leonard v. Robinson, 477 F,3d 347 (6th Cir.,
2007).
2.
C.
Should not permit audience to interrupt council members.
“Sunshine Law” – Open Meetings and Records Law – Chapter 610 RSMo
1.
Must have a written policy. Otherwise everything is open.
a.
AG’s suggested policy is probably the worst, but is most
frequently adopted.
b.
Two suggested policies on MML web site
c.
Should not be misplaced or lost – therefor suggest an ordinance be
used.
2.
See definition of “governing body”
3.
Advance 24 hour notice of agenda
4.
a.
Any “agenda packet” should be available to public on request &
payment
b.
Any “standing requests” don’t have to be honored, but should.
How to have a closed meeting
a.
Advanced 24 hour notice
1)
Do you have to give reason? Cite statute? AG’s office
says “yes”
b.
Motion (and second?) required.
c.
Roll call vote, recorded by name in minutes
d.
Must take (minimal) minutes of closed meeting
e.
Do not make audio or video tape of closed (or for that matter an
open) meeting!!
Page 22 of 149
d.
e.
Must vote to end the closed meeting and return to open session.
Disclose result of closed meeting, within time limit.
f.
Adjourn open meeting.
g.
Council should not stray from closed meeting topic
– but how do you stop them? No answer from Bar “Advisory”
committee.
5.
6.
Records
a.
Do not have to conduct a “search” – do have to produce records if
requested
b.
Fees – cannot exceed 10 cents per page, and salary of lowest paid
employee.
Never believe what the AG, a reporter, or Jean Meinke tell you about the
Sunshine Law.
a.
V.
Useful book: Schwing, Open Meeting Laws 2d, Falcon Publishing
Co., 2002. No discussion of FOI issues. Have not found a good
FOI text.
Finances
A.
CONSTITUTION: “Public purpose” for expenditure
B.
“Warrants” and checks
1.
Statutes pre-date banking
2.
Three finance officials
3.
a.
Clerk
b.
Treasurer
c.
Collector
AG says cannot consolidate two or three offices into one individual. Most
small cities do.
Page 23 of 149
4.
State auditor says must have two signatures on checks – some banks
refuse to allow two signature accounts.
Page 24 of 149
C.
Budget – must have one §§67.010 to 67.100
The budget must include
information about the current year (estimates of income and expenses – since you
will only have 8 - 10 months of data when you begin the process), previous year
(actual income and expenses), and estimates of income and expenses for next
year.
1.
Budget hammer rule §67.080 If you don’t have a budget, a court will
enjoin any expenditures (including normal payroll), which would probably
encourage city to do what the law requires.
2.
Budget must be balanced § 67.010.2 A balanced budget is easy, since you
can over-estimate income. However, if the city is reasonably honest,
balancing may be harder.
3.
Adopting budget usually appropriates the money §67.020.2 This means
that the council only considers expenditures once a year? That is actually
the way it works in larger cities, but as noted below in ¶5, many smaller
towns find literal compliance with the budget statute unacceptable.
4.
MML publishes “Technical Bulletin” on budgeting, free to city officials.
5.
However, most small town ignore statute and have a custom about how
bills are paid – wide variety of customs, almost all permissible. (Example:
perhaps city clerk passes arround a folder containing all bills received for
current month, or perhaps a list of current checks is prepared, or perhaps
the checks themselves are presented for council members to sign.) It
would be better if the custom were written down somewhere, but often
that is not the case. Controversy is often created when the custom is not
followed, even though the individual who failed to follow the custom
might have done nothing illegal.
a.
Can department heads spend money w/o advance approval?
Budget law implies that answer is yes, because money has already
been appropriated. However, usually small city councils expect
department heads to ask specifically for each purchase, or at least
those purchases which are not routine.
Page 25 of 149
D.
b.
Can mayor or city manager authorize purchases to a pre-set limit?
Again, budget law implies that mayor or city manager have
authority to spend once budget approved. However, many city
councils in small towns will limit that authority to a set amount.
c.
Can mayor or city manager purchase outside budget in a real or
perceived emergency? Budget law implies a “no” answer to this
question, unless there is a contingency fund line-item in the
budget. However, sometimes it is necessary to be practical. A
skillful politician can get by with more in this area than someone
who the council considers an adversary.
Security for public money
1.
$100,000 (“Temporarily” $250,000) FDIC Insurance per city, not per
account.
2.
“Collateral pledge” for over FDIC. A collateral pledge is similar to what
happens at a pawn shop. The bank has to pledge “stuff” to secure the
city’s money which your city is lending to the bank. The “stuff” that is
pledged should be things suitable for direct city investment (i.e., U.S.
Gov’t bills and notes, investment grade Missouri bonds, etc.). The “stuff”
is placed in the custody of an independent third party (often the Federal
Reserve Bank) which gives its receipt (similar to a pawn ticket) to the city.
a.
Suggest get 110% of amount over the FDIC Insurance
b.
Check collateral daily? Weekly? Never?
E.
“Bid” for depository?
F.
Liability of treasurer – almost absolute!
I.
Investment policy – required – sample at www.treasurer.mo.gov.
G.
MoSIP, www.mosip.org.
H.
C-DAR program for certificate of deposits
Page 26 of 149
I.
Borrowing
1.
Voter approval required
2.
Get around vote by lease/purchase
3.
If you don’t really need the money
4.
Your opinion letter
a.
Discuss with your malpractice carrier
b.
Obtain specialized help?
J.
Petition audits
K.
L.
Fixing ad valorum property tax rates §67.110
Semi-Annual Financial Statement §77.110;
M.
Bankruptcy §427.100
N..
Does Your City Need to Have an Audit?
1.
Missouri Constitution says a firm “maybe”
2.
No state statute requires it.
3.
Receipt of federal money (either pass-through-state or directly) in excess
of $_______ triggers federal requirement for audit.
4.
Your opinion letter to accounting firm.
a.
Insist request is signed by your city, and on the city’s letterhead
(i.e., partial waiver of attorney/client and work-product privileges)
b..
ABA Standards for contents of audit letter.
Page 27 of 149
c.
VI.
“Unasserted claims”
Contracts and Cooperative Agreements
A.
B.
Difference –
1.
“Contract” as used in this document means and agreement between a city
and a private person or firm.
2.
“Cooperative Agreement” is an agreement between two units of
government. A cooperative agreement is, of course, a type of contract.
But there are several unique points of law about an inter-governmental
contract and for that reason they are discussed separately.
Authority to Enter into Contract
1.
Contract must be in writing – §432.070 (Public Contract Statute of Frauds)
All contracts by a city, town, or village must be:
•
Within the scope of its powers or be expressly
authorized by law.
•
Made upon a Iconsideration wholly to be performed
or executed subsequent to the marking of the contract.
•
In writing including the consideration
•
Dated when made
•
Subscribed by the parties thereto, or their agents
authorized by law and duly appointed.
•
Authority to sign agreement must also be in writing.
Although it ought to be self-evident from the forgoing, to say this another
way AN ORAL CONTRACTS WITH A LOCAL GOVERNMENT IS
WORTHLESS AND UNENFORCEABLE. THERE IS NO SUCH
THING AS A “QUASI-CONTRACT” OR “IMPLIED CONTRACT”
CAUSE OF ACTION AGAINST A LOCAL GOVERNMENT
a.
The provisions of §432.070 “are mandatory, not merely
directory...and...a contract made in violation of them is void rather
Page 28 of 149
than voidable.” City of Fenton v. Executive Intern. Inn, Inc., 740
S.W.2d 388, (Mo. App. E.D. 1987).
b.
Written authorization to sign contract cannot be: “vague and
uncertain...[and]...broad in scope,” and must “specifically
authorize certain terms..., be specific and definite, and must
include an outline of the terms of the proposed contract.”
Moynihan v. City of Manchester, 265 S.W.3d 350 (Mo. App. E.D.
2008).
c.
The contract must be approved by the governing body as a
governing body. Gathering piecemeal approvals of majority of
members of governing body does not constitute valid approval of
contract. See Moynihan v. City of Manchester.
d.
The minutes of a governing body may be part of the “writing”
showing express authorization of the governing body to execute.
United Cooperatives, Inc. v. City of Smithville, 630 S.W.2d 255
(Mo. App. W.D. 1982)
1)
However, minutes must show that requirements of the
statute were met. City of Gainesville v. Gilliland, 718
S,W,2d 553 (Mo. App. S,D, 1986)
Contract was
unenforceable where minutes did not adequately state
consideration supporting city’s execution of contract.
e.
NOTE: Contracts are unenforceable where contract is not executed
by public official and there is no ordinance authorizing execution
of contract. Sorkin v. Cit of St. Clair, 800 S.W.2d 817 (Mo. App.
E.D. 1990) We believe the court was wrong when it said an
“ordinance” was required – statute only requires a writing, and a
resolution or even in limited circumstances the minutes can be that
writing. However, even we recognize that it might be safer to use
an ordinance.
f.
Contracts that are outside the scope of authority of a political
subdivision cannot be ratified by partial performance. St. Charles
County v. A Joint Bd. Or Com’n, 184 S.W.3d 161 (Mo. App. E.D.
Page 29 of 149
2006), County was 12th county signatory to cooperative agreement
where statute only authorized 10 county signatories.
g.
1)
“It is ultra vires for a Missouri municipality to incur a
liability not within the scope of its corporate powers or one
not expressly authorized by law.”
2)
“The contract cannot be ratified by either party, because it
could not have been authorized by either. No performance
on either side can give the unlawful contract any validity,
or be the foundation of any right of action upon it.”
Contracts made in violation of local requirements are also void.
Riney v. City of Hannibal, 712 S.W.2d 49 (Mo. App. E.D. 1986) In
purchasing materials for road project, City exceeded limit
contained in City Charter for purchases without bidding; supplier
could not be paid for materials supplied in excess of Charter limit.
1)
“As to the contention equity demands payment, concrete
supplier is presumed to have knowledge of the restrictions
contained in the city charter. Thus, it is not inequitable to
deny concrete supplier any recovery in excess of the charter
restrictions.”
RECOMMENDATIONS –
In your resolution or ordinance, have provisions that
1.
Approves the contract (attach the contract to your
approval
document
to
ensure
that
all
terms/consideration is incorporated into your
document.
2.
Identify a specific public official (usually the
Mayor) to execute the contract.
3.
Give that official the authority to sign the contract.
(Use the phrase that mayor is “authorized and
Page 30 of 149
directed” very sparingly – maybe after the meeting
someone will realize a mistake is about to be made,
and if mayor is “directed” to sign that might be
enough for mandamus to compel signature.)
4.
You might also want to give the mayor authority to
take “such other actions as necessary and proper to
effect the contract.”
The city cannot afford to have you draft each contract as a separate
document, nor can the city afford to have you review every
contract some vendor insists has to be used. To reduce costs and to
ensure that the proper provisions are in the agreement, you should
have a standard form contract that the CITY uses for everything.
See Appendix 6, at the end of this document, for a sample form
contract.
2.
C.
No extra compensation can be paid for work that is already performed, or
for which there is already a contract.
a.
Mo. Const., Art. III, §39(3) says that “The general assembly shall
not have power:
...to grant or to authorize any county or
municipal authority to grant any extra compensation, fee or
allowance to a public officer, agent, servant or contractor after
service has been rendered or [after] a contract has been entered
into and performed in whole or in part;”
b.
Kizior v. City of St. Joseph, 329 S.W.2d. 605 (Mo. 1959) Where
city had entered into an exclusive contract with private corporation
for the collection and disposal of city garbage for a ten year period
at a specified annual sum, amendatory contract providing for
increased compensation to corporation which agreed to do nothing
but to continue to collect and dispose of garbage in accordance
with original contract was violative of constitution.
Bidding – Not required, but probably a good idea. If you desire to establish a
bidding or purchasing policy, suggest you consider permitting informal bidding
(by consulting catalogues, the internet, or telephoning suppliers) for purchases
Page 31 of 149
less than $10,000 (or some other threshold).
1.
Bidding is not required by statute, except for cities over 500,000
population. §8.250 RSMo
a.
2.
Consider complications caused by “once saved, always saved”
statute. Does this provision still mean that the City of St. Louis is
still required to bid in manner provided by statute? Yes
State Auditor, if they ever do a petition audit of your city, will suggest you
should have a formal written purchasing policy, perhaps an ordinance.
a.
They will also argue that position of city attorney and of city
accounting firm should be rebid every 3 years or so.
b.
There is no legal basis for these suggestions, except for the general
belief that a prudent custodian of taxpayer money would do these
things to avoid wasting tax money.
3.
Missouri’s Prevailing Wage law implies (but does not explicitly require)
that bids be taken on contracts for “public works.” §105.xxx. See
discussion of this law below at item D.7
4.
State and Federal grant programs generally include a requirement that a
city take bids when spending the grant money. Usually the requirements
are quite detailed, and the city is expected to follow the grant’s
requirements even if doing so conflicts with an existing city purchasing
ordinance.
5.
The following specific statutes require bidding:
a.
Purchase of any insurance policy – bid every 6 years. §
b.
All employee health/life insurance – 3 years §67.150
1)
If an independent agent who takes bids annually for a city,
is this enough to comply with statute? Cronan thinks
“yes.”
Page 32 of 149
D.
c.
Engineering services – w/o regard to price §§8.285 – 8.291 Also
see Hellman v. St. Louis County, 302 SW2d 911 (Mo. 1957)
d.
Construction management – §8.679
e.
Industrial Development Projects must be bid. §100.170
f.
Fourth class cities street improvement with special assessments
§88.700
g.
Constitutional Charter Cities, pop. between 75,000 and 80,000
must bid “all city improvements of whatever kind or character.”
§88.940
h.
Roads – bidding required. §229.050 This provision, by its terms,
applies only to county, township, and district officials, although it
is included in a chapter of RSMo entitled “Provisions Applying to
All Roads.” Perhaps in this context, a road is something different
from a street and not a synonym.
i.
Waterworks improvements, cities of 3,000 to 150,000 pop. — but
only when “there are no waterworks in operation in any such city.”
§91.170
Specific provisions that may be required in contracts. This subpart of the outline is
heavily influenced by the excellent article “Statutory Requirements for Public Works
Contracts” by Rost and Moehlman, Missouri Municipal Review, September 2009 which
you are invited to review.
1.
“Buy American” – §34.350-34.359
a.
“Each contract made by a public ageency for construction,
alteration repair, or maintenace of any public works shall contain a
provision that any manufacured goods or commodities used or
supplied in the performance of that contract on any subcontract
thereto shall be manufactured or produced in the United States.”
§34.353.
Page 33 of 149
2.
b.
Law provides exceptions for contracts for less than $25,000 or
various situations where certain American products are of limited
available or would impose specified increases in cost.
c..
Ten percent preference §34.350.3(2)
d.
It is possible that the GATT and NAFTA treaties forbid this type
of preference. Such treaties are – with the US Constitution – the
“Supreme Law of the Land.” So you might be able to argue that
you don’t have to follow this statute.
e.
However there is an easier way to avoid the statute. A
municipality my opt out of the requirements of this law if the
“executive head of the public agency certifies in writing that.... the
political subdivision has adopted a formal written policy to
encourage the purchase of products manufactured or produced in
the United States.” Such a policy might be included in any local
purchasing policy or ordinance. For example, see Harrisonville
City Code §130.020.E.13, Holister City Code §145.100; Warson
Woods City Code §130.150.
f.
Although Rost and Moehlman don’t say so in their article, this
statute doesn’t only apply to public works contracts, but to every
purchase or contracting decision made by your city, if the price
exceeds $25,000.
g.
State purchasing department requires vendors to certify their
product is made in the US or that an existing treaty excuses
compliance. This avoids a burdensome bureaucracy overseeing
the vendor’s manufacturing process. Your city might want to do
the same.
Missouri Preference
a.
Not much of a preference: “everything being equal...” §34.073
1)
Can you have a local preference? Cronan argues that one
Page 34 of 149
cannot grant a preference to “every” Missouri firm, as the
statute requires, if you in fact prefer only local firms.
However, there is no city in Missouri that is known to
follow this opinion.
2)
This provision also probably violates the GATT and
NAFTA treaties, which requires that there be no
discrimination against any businesses of a signatory power
by any other power.
3.
Coal from Missouri or adjoining states required to be purchased,
“everything being equal...” §34.080
4,
Proof that contractor (not his employees) is lawfully present in Missouri.
§208.009. Hidden away in chapter on public health and welfare benefits,
requires proof at the time of application. A public contract qualifies as a
public health and welfare benefit, because legislature says so.
5.
Prompt Payment Act – §34.057
a.
Perhaps not necessary to recite in contract, but city needs to be
aware of this requirement.
b.
Requires public owner to make at least monthly progress payments
(unless contract provides for one lump sum),
c.
Contract retention set at a maximum of 10% although in most
cases a 5% maximum is specified, unless the public owner and
architect jointly determine that a higher rate is “needed to ensure
performance of the contract.”
d.
Bills must be paid within a 30-day time limit, and final payment on
completion of the project.
1)
Failure to pay within time limit subject to a 1.5% per month
interest charge, and perhaps payment of contractors
attorney fees.
Page 35 of 149
6.
Reciprocity – out-of-state contractors for public works subject to same
penalty as Missouri bidders in their state. §34.076
7.
When unemployment > 5%, use only Missouri labor, or labor from a
“nonrestrictive state” – §290.360 - .580. According to Rost and
Mehlman, the restrictive states as of July 29, 2009 were Alaska, Arizona,
California, Colorado, Connecticut, Delaware, District of Columbia,
Florida, Idaho, Illinois, Iowa, Maine, Massachusetts, Mississippi,
Montana, Nevada, New Jersey, North Dakota, Oklahoma, South Dakota,
U.S. Virgin Islands, West Virginia and Wyoming. Op. cit, fn 16. For a
more
current
list
see
www.dolir.mo.gov.ls/faq/faq_PublicWorksEmplyment.asp.
8.
When contract > $5K, immigration check §282.530. Affidavits need to
be received before contract is awarded. See “Statutory Requirements for
Public Works Contracts” by Rost and Moehlman, Missouri Municipal
Review, September 2009
a.
Note that by regulation, attempt is made to limit this provision only
to service contracts. 15 CSR §16-15.020(4). However a
regulation cannot conflict with a statute and if it does, the
regulation must fail. State ex rel. Doe Run Co v. Brown, 918
SW2d 303, 306, overruled on other grounds by Farmer v. Barlow
Truck Lines, Inc. 979 SW2d 160 (Mo 1998)
9.
OSHA Training – §292.675. Effective August 28, 2009 requires that “onsite employees” of contractors and subcontractors working on a public
works projects to have taken a ten-hour, OSHA-approved construction
safety course. This course is a one-time requirement for each employee.
See “Statutory Requirements for Public Works Contracts” by Rost and
Moehlman, Missouri Municipal Review, September 2009
10.
“Public work” requires prevailing wage be made part of the specifications
for the project. – §290.210.et seq. While the responsibility to pay the
prevailing wage to laborers work on public works projects ultimately falls
on a contractor, the Missouri Prevailing Wage Law imposes several
requirements on municipalities and other public bodies who let contracts
for such projects.
Page 36 of 149
a.
A municipality’s duties start before a contract is even let. “Before
advertising for bids or undertaking such construction,“ a public
body must request MoDOLIR to “determine the prevailing rates of
wages for workmen for the class or type of work called for by the
public works, in the locality where the work is to be
performed.Ӥ290.580.
1)
b.
11.
The method by which MoDOLIR makes these
determinations is flawed, in a way which discourages nonunion firms from submitting information about their wage
rates.
In theory a city could submit information to
MoDOLIR to result in a lower prevailing wage
determination, but getting cooperation from non-union
contractors is almost impossible, because participation in
the process almost guarantees a union organizing effort.
The wage rate determination must be “attached to and made a part
of the specifications for the work” and the public body must
specify the prevailing wages (including the rate for holiday and
overtime work) in the resolution or ordinance and in the call for
bids for the contract. §292.050.1
Payment surety bonds – when required – §107.170
a.
Mechanic’s liens cannot be filed on public projects Collins &
Herman, Inc. v. TM2 Cost. Co., Inc., 263 S.W.3d 793 (2008)
b.
To address this inequity, all public owners must require a payment
bond on every project with estimated costs in excess of $25,000.
The bond must be conditioned “for the payment of any and all
materials, incorporated, consumed or used in connection with the
construction of such work, and all insurance premiums, both for
compensation and all other kinds of insurance, said work, and for
all labor performed in such work whether by subcontractor or
otherwise.”
c.
Penalty: personal liability for the public officials who fail to
Page 37 of 149
require the bond. Union Pacific R. Co. v. St. Louis Marketplace,
Ltd. Partnership, 212 F.3d 386 (8th Cir., 2000).
d.
12.
The statute provides express authority for public entities to
indemnify public officials charged with enforcing this law, so
theoretically a public body could use tax money to pay for their
officer’s error.
1)
However, Missouri Constitution forbids the expenditure of
any public funds for which there is no corresponding public
benefit. Presumably the Constitution trumps a statute.
2)
If your city is going to indemnify its officials for failing to
do their duty, suggest it would be better for there to be a
before-the-fact indemnification ordinance when it would be
possible to argue that the city is in fact receiving something
of value in return for the indemnification (i.e., employees
and officials willing to serve). See discussion below in
Chapter VII.
3)
There is a serious problem of counterfeit payment bonds, as
bidders can photocopy an old bond and edit out the old
project and type in the new. This counterfeiting will not be
disclosed (and the contractor will save the expense of a
premium) if the project goes as planned. Considering the
penalty if a counterfeit bond is used (personal liability for
the people who hired you) Cronan suggests you should be
extremely hesitant to “approve” a contract with a payment
bond unless you have satisfied yourself that the bond is not
a counterfeit. This is more difficult to do than you might
think.
Performance bond. No statute requires a public owner to obtain a
performance bond. However, you should keep in mind that the winning
bidder on a construction contract is often the firm that is most desperate
for work, and most willing to shave its profit margin. The worst thing that
can happen in a construction project is for the general contractor to go
broke, and leave the job half finished. A performance bond protects
Page 38 of 149
against that happening, and provides money to finish the job if that proves
necessary. Obviously the cost of the bond adds to the cost of the project.
Also, those firms which are the least solvent have to pay the highest
premium for such a bond. It is suggested that a performance bond is
beneficial to a local government in most circumstances.
E.
Specific problem to avoid in contracts
1.
Venue
2.
Arbitration
3.
Indemnification – violates constitution? Missouri Attorney General
opinion says Yes. AGO # 138-87 (Dec. 18, 1987) Fowler v. Bd. of
Regents for Central Missouri State Univ., 637 S.W.2d 352 (Mo. App.
1982).
Also note that the Missouri legislature has said that all
indemnification agreements are against public policy, with only 8
exceptions. §434.100
a.
If the deal is about to go south, because they claim an
indemnification agreement is critical, consider modifying the
agreement to say “to the extent permitted by law” we will
indemnify you. That will leave the argument for a later day.
5.
Completion doctrine
6.
Warranty
7.
VII
Torts
A.
Indemnification – How firmly, and for how long do you stand behind your
employees? Often no one thinks about this until things have already gone to hell.
This is a bad way to figure things out.
Page 39 of 149
1.
Usually your insurance policy has partially answered the question, because
the named insured is usually the city, its officers, its employees and
(maybe) its agents. So, you have provided insurance to your employees at
least when they are acting in the course and scope of their employment,
and haven’t been grossly or criminally negligent.
2.
Often a tort claim will be made against both the city (i.e., employer) and
the employee. In this respect, tort claims against government differ from
claims against private corporations.
Recognize that the city and its
employee do not always enjoy common defenses (i.e., the employee does
not have the defense of sovereign immunity, while the city does not have
the defense of official immunity). Recognize, too, that the city and its
employee may not always have a common goal (i.e., the city may have
charged the city employee with a traffic offense for running a stop sign.)
a.
Almost always, however, a common defense is cheaper than a fight
among the defendants as to which one has responsibility. And, of
course, the insurance company is going to be in no hurry to pay for
two lawyers.
b.
When the city (or its insurance company) provides a defense to an
employee, the employee should understand that the defense
continues only so long as the employee and the city do not become
adversaries, and that if the potential becomes an actual conflict you
(or the insurance provided attorney) will continue by representing
the city only. (It would be best if this understanding were in
writing.)
1)
3.
Even where there is a clear conflict (e.g., the state
prosecutor has charged your employee with manslaughter
and she is clearly guilty), it is sometimes in the best interest
of the city [i.e., cheaper] for the city to pay for two civil
attorneys and maybe even pay for the criminal defense at
least for a while.
Employee defenses:
a.
Official immunity
Page 40 of 149
B.
b.
Public duty rule.
c.
Comparative fault.
d.
Lack of causation
Common Law Torts
1.
City may be the victim of a tort, and so you shouldn’t forget that your
client might end up a plaintiff. Many times cities interested in pursuing a
tort claim will abandon the claim because of the cost of litigation.
However, don’t forget the possibility of class actions. For example, there
may be a class action lawsuit involving defective ambulances, or a class
action over failure to pay a tax, or a class action over a continual trespass
(i.e., phone companies putting lines in your street right-of-way without
having obtained permission to do so.) which you can join. Or you might
initiate your own class action.
a.
2.
City should make claims against persons who damage city
property due to negligence or through intention! This would
include persons who hit bridge abutments, damage traffic control
signs, pull down utility poles and lines, etc. This policy, of course,
is an easier thing to establish if the first couple of claims are made
against nonresident nonvoters (i.e., out-of-state corporations).
City as defendant – this is the most common way in which a city finds
itself involved in tort litigation, and will be the focus of the remainder of
this subchapter.
a.
By statute, city enjoys the defense of “sovereign immunity.”
§537.600.1 says that “such sovereign or governmental tort
immunity as existed at common law in this state prior to
September 12, 1977, except to the extent waived, abrogated or
modified by statutes in effect prior to that date, shall remain in full
force and effect....” But it is a defense and the city must raise it.
However, once the city has raised the issue, plaintiff must plead
sufficient facts to overcome the defense. Sovereign immunity is a
Page 41 of 149
legal question and does not go to the jury. Thus, it is possible to get
out of a tort claim on a motion for summary judgment, even in
state court.
There are 4 exceptions to sovereign immunity (3 created by statute,
and 1 part of the common law as of September 12, 1977) as
discussed below:
1)
EXCEPTION: Operation of motor vehicle. §537.600.1(1)
a)
b)
2)
Motor or motorized vehicle. Examples:
i.
Motor boat
ii,
Garbage truck’s trash compactor
iii.
Tow bar attached to towing vehicle.
iv.
Bicycle police officers? I think not, as no
motor
Operation
i.
Actual use of vehicle or any of its parts
ii.
Not – injury by bus driver trying to break up
fight on the bus
EXCEPTION: Dangerous Condition of Public Property
§537.600.1(2)
a)
Property of public entity. May own or rent, but
must occupy. Example: election authority leases
polling place space from a church, county may be
sued.
b)
Property in “dangerous condition”
Page 42 of 149
3)
i.
Condition includes physical defect or the
layout of the property.
ii.
Not reasonably safe = physical threat
iii.
Plaintiffs prove the existence of a dangerous
condition by referring to design standards:
MUTCD, AASHTO, etc. NOTE: beware of
park equipment CPSC regulations regarding
safe placement of park equipment. Almost
every park in Missouri violates these CFRs.
c)
Injury directly resulted
condition
from
the
dangerous
d)
Injury was reasonably foreseeable given the
dangerous condition
e)
Injury was either:
i.
Caused by negligence of public entity
employee, or
ii.
Public entity had actual or constructive
knowledge of condition it time to protect
against it.
EXCEPTION: Proprietary Function
a)
The determination of whether a particular function
of a municipality is governmental or proprietary
depends upon whether the function is “performed
for the common good of all.” Parish v. Novus
Equities Co., 231 S.W.3d 236, 242 (Mo. App. E.D.
2007) “Acts performed by the municipality as aqn
agent of the state, including the establishment and
operation of schools and hospitals, the creation of
municipal fire departments and the exercise of
Page 43 of 149
legislative or judicial powers, have been found to be
governmental functions.” Id.
4)
b)
Proprietary functions, on the other hand, are those
performed by the municipality for profit or for the
special benefit of the municipality. Aiello v. St.
Louis Cmty. Coll. Dist, 830 S.W.2d 556, 558 (Mo.
App. E.D. 1992).
These functions often involve
the provision of services or conveniences to a
municipality’s own citizens. Id.
.
c)
The distinction between governmental functions
and proprietary ones if often obscure, however, and
many municipal actions have a dual function.
Gregg v. City of Kansas City, 272 S.W.3d 353, 361
(Mo. App, W.D. 2008) A city’s operation of a water
plant is a perfect example of an activity with such a
dual function. To the extent that a municipality
sells water to its citizens for profit, it is performing
a proprietary function. Junior Coll. Dist. of St.
Louis v. City of St. Louis, 149 S.W.3d 442, 448
(Mo. Banc 2004) But when a municipality provides
water for preventing or fighting firest, or for
keeping the city sanitary and healthful, it performs a
governmental function. Lober v. Kansas City, 74
S.W. 815, 823 (Mo. 1934). The Supreme Court has
expressly found that a city mmay have “dual
purpose[s]” in owning and operating a waterworks
system. Id. at 821
EXCEPTION: Procuring Insurance. If the municipality
was engaged in a governmental function, the defense of
sovereign immunity applies unless the municipality has by
implication waved immunity by purchasing insurance.
§71.185 or §537.610.
a)
Most insurance companies that sell to cities are
smart enough to write their policies so they do not
Page 44 of 149
provide coverage where sovereign immunity would
be a defense. However, occasionally an insurance
company will screw up.
Counsel for local
government may wish to check the policy to make
certain you haven’t inadvertently enlarged your risk
exposure.
b.
2..
C.
Sections 71.185 and 637.610 both permit a public
entity to purchase tort liability insurance. Brennan
by and through Brennan v. Curators of the Univ. Of
Mo., 942 S.W.2d 432, 436 (Mo. App. 1997) Despite
differences in language and the fact that section
71.185 applies to municipalities only and section
537.610 applies to all political subdivisions of the
State, the courts have reasoned that the purchase of
liability insurance may function as a waiver of
sovereign immunity under either statute. Ib.
A city may also have a defense, if it did not promptly receive notice of the
claim. Notice of claim statutes §77.060
Constitutional Torts – Often called a “Civil Rights” lawsuit
1.
“...under color of law...” 42 USC §1983
2.
Prevailing party may be awarded attorney fees 42 USC §1988
3.
State (by statute or reg) or City (by ordinance) may create additional “civil
rights”
4.
City is liable if its has a “policy” to violate civil rights, even if that policy
is created by someone other than the city council.
a.
5.
Inadequate training can in some instances be so pervasive and
willful that is rises to a status of a “policy” of the city
Very expensive, even if you win. Seldom is there adequate insurance
Page 45 of 149
coverage. Best coverage for civil rights for a small city probably available
from MoPERM.
D.
Inverse Condemnation. When a local government creates a common-law
nuisance, the exclusive remedy for the property owner when private property is
damaged is to bring an inverse condemnation lawsuit. Theory is that local
government, by creating the nuisance, has worked a “taking” of private property
without paying compensation. Typical example: sewer back-up claim.
1.
According to jury instruction, elements of a claim are:
a.
City had notice of the problem.
b.
City was unreasonable in the way it operated its facility after the
notice.
c.
This unreasonable operation caused injury to plaintiff, and
d.
This injury resulted in plaintiff’s damages.
2.
According to the theory behind inverse condemnation, damages should be
limited to difference in value of the property before and after. However,
this doesn’t appear to be discussed in the cases, and doesn’t appear to be
the way the cases are litigated.
3.
When you settle one of these cases, you should record an easement or
other document that conveys to city whatever it is you have purchased.
4.
Court of Appeals recently rejected argument that the failure to maintain
and inspect the sewer system creates exposure to liability for inverse
condemnation. Christ v. Metro. Sewer Dist., 287 S.W.3d at 713.
“Essentially plaintiffs’ argument is based upon the alleged ‘inaction’ of
MSD in failing to have an inspection program in place. However,
Missouri courts have indicated that absent an affirmative act, plaintiffs
cannot sustain an action for inverse condemnation.” 287 S.W.3d at 713.
Page 46 of 149
VIII.
Planning and Zoning – See Mike White’s books published by the UMKC Law School,
Planning and Zoning in Missouri. For information about obtaining a copy contact Jim
Hohensee, Director of Continuing Legal Education, School of Law, University of
Missouri at Kansas City, 500 E. 52nd St., Kansas City, Mo. 64110, phone (816) 2351617 or e-mail hohenseej@umkc.edu
A.
Part of Lyndon Johnson’s plan for the “Great Society”
1.
Zoning in Missouri actually pre-dates the 1960s, and even pre-dates 1946,
when the legislature authorized it. Zoning in St. Louis city goes back to at
least 1919.
2.
In 1932 the US Supreme Court said that zoning was OK, as long as it was
logical (“in accordance with a comprehensive plan”) and didn’t go too far.
Euclid Realty v. Village of Ambler
3.
However, Lyndon paid 90% of the cost of drafting zoning and subdivision
ordinances and also the preparation of a master plan, and made the
presence of P&Z a condition for federal grants. Naturally, many P&Z
ordinances began during that era.
a.
4.
B.
Over time, outstate communities have begun to appreciate these
ordinances, and suburban communities have begun to actually use
them for the common good.
In Missouri, churches are exempt from zoning, but are not exempt from
the “health and safety” regulations that may be incorporated into the
zoning ordinance.
Divided into three parts: legislative, executive, and judicial.
1.
Legislative part is called the “Planning and Zoning Commission.” When
acting in a legislative capacity, the commission has a great deal of
discretion.
2.
Executive part is the “building inspector.” The executive branch has no
discretion, and must carry out the law.
Page 47 of 149
3.
C.
IX.
Judicial part is “Board of Adjustment” or (in western part of Missouri) the
BZA, or “Board of Zoning Appeals.”
Complications – often creates legal problems because P&Z is not acting
legislatively, but in an administrative (executive) fashion.
1.
Subdivision Approval
2.
Planned unit development
3.
Conditional use permit
4.
Floating zones
5.
Historical preservation ordinances
Taxation and Revenue
A.
Ad valorem property taxes
B.
Sales taxes
C.
Franchise and PILOTs
D.
Licenses and Fees
E.
Cigarette Taxes
F.
Taxes on Alcoholic Beverages
G.
Gasoline Taxes – Both state and local
Page 48 of 149
X.
Basic Election Laws
A.
“Comprehensive Elections Act of 1977" – Chapters 110 to 115 RSMo
B.
Not really comprehensive
a.
Excludes local elections from many important provisions §115.305
b.
Better to pretend it is really comprehensive.
1.
Example: visit hospital to get candidate to sign up?
2.
Example: allow favored candidates favored access?
a)
3.
Might also create constitutional problems
Example: first day filing procedures
C.
Primary election?
D.
Partisan elections?
E.
Qualifications for Office
1.
No filing fee
2.
File with city clerk
3.
City to prepare “notice of election” and publish in newspaper prior
to opening of filing.
a.
4.
Suggest more “voter friendly” notice than minimum statute
requires. See Appendix 10.
Filing opening date and time, and closing date and time are set by
statute.
Page 49 of 149
4.
5.
a.
City hall usually closes at 4:30 p.m.? Suggest should stay
open until 5:00 p.m. on last day only.
b.
No office hours for city clerk? Suggest allow candidates to
file at clerks home (even if outside city limits) and to open
city hall for 2 hours or so on last day.
Candidate qualifications
a.
Listed in statutes, charter
b.
Additionally, cannot be a felon Not so, says O’Keefe
c.
Additionally, cannot be a federal misdemeanant Not so,
says O’Keefe.
d.
Cannot be delinquent on any debt to city. Even O’Keefe
agrees.
Who checks on qualifications?
a.
First line of defense: candidate swears he/she is qualified.
b.
Second line of defense: city clerk checks.
c.
1)
Some city attorneys discourage or forbid city clerks
from disqualifying a candidate.
2)
Cronan is willing to disregard Southern District and
take people off ballot.
3)
However, when we have disqualified someone, I
have had entire council to vote in open session
before reporters, so clerk doesn’t have to take the
heat alone.
Third line of defense: county clerk or election board checks
(almost always defers to city clerk)
Page 50 of 149
XI.
d.
Fourth line of defense: opposing candidate can sue to block
other candidate from ballot.
e.
Fifth line of defense: voters can throw out the unqualified
candidate
f.
Sixth line of defense: if unqualified candidate wins,
opposing candidate can file election contest, providing
he/she does so within 30 days of election resulting being
“final.”
g.
Seventh line of defense: Can city council refuse to seat an
unqualified candidate?
F.
There is (and should be) a bias in the published cases in favor of
democracy. If you are going to opine that someone is to be disqualified
from running for office, you should be sure of your facts.
G.
Issue Elections (tax increases, bond issues, etc.)
1.
The Court of Appeals decision in Levinson v. City of Kansas City,
43 SW3d 312 (W.D., 2001) suggests that the city can’t even pass
an ordinance to hold an election until after the effective date of the
authorizing statute. It has been suggested that this case is
inconsistent with the Missouri Supreme Court decision in Vrooman
v. City of St. Louis, 88 SW2d 189 (Mo, 1935).
2.
Spending City Money to Influence Issue Elections
3.
Most statutes authorizing issue election says city must use
Language of the statute, or something “substantially similar” in
form. The “substantially similar” language gives a fairly broad
amount of discretion
Employee discharge rights
Page 51 of 149
A.
Almost all public employees are employed “at will” meaning their employment
may be ended at any time, for almost any reason or for no reason at all. Amann v.
City of Eureka.
B.
However, a public employee may not be discharged for an “improper” reason. In
general these improper reasons can be divided into 5 different categories [4 of
which are recognized for Missouri public employees – and one (the Handbook
exception) which is often asserted but not recognized in our state]. Remainder of
this chapter discusses, in some detail, these categories.
1.
Contract exception. Sometimes a city will grant an employee greater
protection than the law requires, by entering into a written contract with
that employee. If a city enters into such a contract, it is required to follow
it. Such written contracts may exist for a city manager, city administrator,
chief of police, city attorney or any other city employee who has the
ability to convince the city that a contract is a good idea.
a.
2.
However, an employee may attempt to assert an oral contract,
claiming that the mayor (for example) promised he would only be
dismissed “for cause.” There are two basic problems with such an
assertion:
1)
§432.070 requires that any contract must be in writing, and
2)
For the city to be bound by any promise made by the mayor
(even if that promise is in writing) §432.080 requires that
the mayors authority to make such a promise must also be
in writing. In other words there is no “apparent agency” or
“implied authority” of the mayor -- or any other city
official -- to make employment promises.
Public Policy Exception. Although this exception has been around since
a court of appeals decision in 1985, it was only recently that the Missouri
Supreme Court agreed. Fieshner v. Pepose, 404 SW3 81 (Mo., 2010).
The public policy of Missouri is that no at-will employee may be
terminated for:
Page 52 of 149
•
Refusing to violate the law or any well-recognized and
clear mandate of public policy as expressed in the
constitution, statutes, regulations promulgated pursuant to
statute, or rules by of governmental body, or
•
Reporting wrongdoing or violations of law to superiors or
public authorities.
A suit for a firing because of a public policy exception lies in tort.
Punitive damages are available (at least from a private employer).
“Contributing factors” is the test for causation. (Older cases use a “sole
cause” test.)
3.
a.
This exception also applies to the termination of an independent
contractor. Keveney v. Missouri Military Academy, 304 SW3d 98
(Mo¸ 2010).
b.
It may be more useful to understand the limits of this exception to
examine cases where the exception was held not to apply. See
Margiotta v. Christian Hospital Northeast, ___ SW3d ___, (Mo,
2010).
U. S. Constitutional Protections. Public employees have several
protections not available to other employees because the US Constitution
provides protections that restrict government action. These will be
discussed according to the various “rights” involved
a.
1st Amendment – Free speech.
1)
b.
A public employee nay not be fired for speaking out on a
matter of “Public Concern”
1st Amendment -- Religious freedom.
1)
A public employee may be disciplined for expressing
his/her religious opinions in the workplace, where those
opinions becomes disruptive.
Page 53 of 149
c.
2)
A public employee may be disciplined for expressing
his/her religious opinions to member of the public, where
that opinion is likely to be assumed to be that of the
governmental unit. Example: ending all conversations with
“have a blessed day”
3)
A public employee may be disciplined who fails to follow a
published grooming or dress code for religious reasons.
Example: a woman refuses to wear a bus driver’s uniform
because her religious belief forbid a woman wearing pants;
or man refuses to be clean shaved, because his religion
requires beard
2nd Amendment – Right to Bear Arms
1)
d.
e.
Unknown if public employee can be disciplined for
carrying concealed, or for wearing a pistol and holster
while working.
4th Amendment – Unreasonable searches
1)
Employer must make absolutely clear that employee does
not have a reasonable expectation of privacy in “his” cell
phone, “his” computer, “his” desk, “his” locker, “his”
vehicle, or “his” office.
2)
Low level managers must not deviate from this policy by
saying things such as “we never have” checked e-mails, or
“once you put your lock on your locker, we won’t get in it.”
4th Amendment – Drug testing
1)
A PUBLIC EMPLOYEE MAY BE REQUIRED TO
PARTICIPATE IN A RANDOM DRUG TESTING
PROGRAM
Page 54 of 149
e.
2)
A public employee may be required to participate in a drug
test when they is an articulatable suspension that the
employee has been using drugs
3)
A public employee engaged in certain high risk
occupations (police, transportation) may be subject to drug
testing even where no suspicion following certain extreme
events.
5th Amendment – Incrimination
1)
f.
6th Amendment – Right to Counsel
1)
g.
A public employee may be disciplined for failure to answer
questions about a workplace incident, even if those
answers might incriminate him//her, providing certain
procedures are followed. Garrity v. New Jersey;
LaChance v. Erickson
A public employee doesn’t have a right to have an attorney
present at any meeting simply because he wants one.
14th Amendment – Due Process (property)
1)
A public employee who has a reasonable expectation of
continued employment, has a “property” right in that job,
and that job cannot be taken away without a pretermination “hearing” at which the employee has a right to
hear the evidence against him and offer whatever
explanation he might have. Cleveland Board of Education
v. Laudermill,
a)
This “hearing” is an informal process, closed to the
public and/or the press, and is not a “hearing” for
administrative procedures act purposes.
b)
Because the employee is always going to claim that
a reasonable expectation of continued existed, and
Page 55 of 149
because the hearing process is relatively simple, it is
always advisable to provide the pre-termination
hearing to every discharged employee.
f.
14th Amendment – Due Process (liberty)
1)
j.
XII.
Every public employee has the “liberty” of seeking
employment elsewhere. This liberty can be impacted by a
press release, a public statement made by a city official, or
by discussion at a council meeting which creates a negative
public perception of the former public employer, which
impacts his/her ability to get a job elsewhere. If that
happens, the former public employee has the right to a
“name clearing hearing” in a public forum (usually that
means before the governing body).
a)
For this reason, everyone connected with the city
should be quiet about why a former employee was
discharged. This can be a very difficult instruction
for a politician to follow. I suggest you tell them to
say “I would love to tell you why, but the damn
city attorney won’t let me.”
b.
If you do get a demand for a “name clearing
hearing” remember that this hearing is an
opportunity for the former employee to clear his
name—that is, there is no obligation for anyone on
the city’s side to speak. The purpose of the hearing
is to assist the former employee in his search for
new work – not to rehash why he/she was
discharged.
“Penumbra” – Political affiliation
Employee rights to wages
A.
Fair Labor Standards Act
Page 56 of 149
XIII.
First Amendment Problems (most of the items in this chapter come from the First
Amendment Center’s website – see address in Chapter 1)
A.
Fliers & leafleting. Leafleting is a time-honored and inexpensive way to spread
political, religious and commercial messages. In its traditional form, in which
leaflets, fliers or pamphlets are handed to people face-to-face on the street,
leafleting is a method of speech protected by the First Amendment.
Another form of leafleting has come into fashion — placing information on car
windshields. No federal statute prohibits placement of leaflets on windshields, but
the activity is not specifically protected, either — the federal government has left
any regulation up to the states. One state — New York — does prohibit the
practice, as do ordinances in many cities and towns.
If the constitutionality of such an ordinance is challenged, a court must determine
whether the ordinance is content-based or content-neutral; that is, if it restricts
speech on the basis of its content or message or if its restrictions apply to all
speech regardless of the content or message. If the ordinance is deemed contentbased, it will be subject to strict scrutiny, which means it must serve a compelling
government interest and employ the least-restrictive means to achieve that
interest. Content-based ordinances are least likely to withstand a First
Amendment challenge.
Content-neutral restrictions, on the other hand, are subject to a lesser, intermediate
level of scrutiny. Intermediate scrutiny means any restriction must be
substantially related to an important government purpose. Content-neutral
ordinances are also subject to time, place and manner restrictions. Such
restrictions merely limit when and where speech can take place in order to reduce
or prevent annoyance or inconvenience to the public. Restrictions on written
forms of expression must be 1) content-neutral, 2) narrowly tailored to serve a
significant government interest, and 3) leave open ample alternative channels of
communication. This three-part test was adapted from several court rulings.
One more principle needs to be considered regarding restrictions on speech:
public-forum doctrine. There are three types of forums under this doctrine: the
traditional public forum, the designated public forum (one created by the
government) and the non-public forum. The traditional public forum consists of
Page 57 of 149
“government property that has traditionally been available for public expression,”
such as public streets and parks. The designated public forum consists of public
property “that the State has opened for expressive activity by part or all of the
public,” as defined in a 6th U.S. Circuit Court of Appeals decision, Jobe v. City of
Catlettsburg (2005). The non-public forum is all remaining public property.
Various courts have heard cases concerning distribution and/or posting of leaflets.
The 1984 U.S. Supreme Court decision City Council of Los Angeles v. Taxpayers
for Vincent involved political signs on telephone poles rather than leaflets on cars,
but it does indicate the Supreme Court’s view concerning the public forum and a
government’s interest in aesthetic values.
Aesthetic concerns are often brought up as a government interest when antileafleting ordinances are passed. In Taxpayers for Vincent, the Supreme Court
cited its precedents in ruling that municipalities have a legitimate interest in
prohibiting “intrusive and unpleasant formats of expression” for aesthetic reasons.
The high court wrote, “The problem addressed by this ordinance — the visual
assault on the citizens of Los Angeles presented by an accumulation of signs
posted on public property — constitutes a significant substantive evil within the
City’s power to prohibit.”
The Court also tackled the question of public forum. The group Taxpayers for
Vincent argued that the public property covered by the ordinance, such as
telephone poles, should be considered a traditional public forum or at least be
treated as such. The Court disagreed, saying:
“Appellees’ reliance on the public forum doctrine is misplaced. They fail
to demonstrate the existence of a traditional right of access respecting such
items as utility poles for purposes of their communication comparable to
that recognized for public streets and parks, and it is clear that ‘the First
Amendment does not guarantee access to government property simply
because it is owned or controlled by the government.’ United States Postal
Service v. Greenburgh Civic Assns., 453 U.S. 114, 129 (1981).
“Lampposts can of course be used as signposts, but the mere fact that
government property can be used as a vehicle for communication does not
mean that the Constitution requires such uses to be permitted. Cf. United
States Postal Service v. Greenburgh Civic Assns., 453 U.S., at 131. Public
property which is not by tradition or designation a forum for public
communication may be reserved by the State ‘for its intended purposes,
Page 58 of 149
communicative or otherwise, as long as the regulation on speech is
reasonable and not an effort to suppress expression merely because public
officials oppose the speaker’s view.’ Perry Education Assn. v. Perry Local
Educators’ Assn., 460 U.S., at 46.”
Although Taxpayers for Vincent did not address windshield leaflets, two U.S.
circuit courts and one district court did. In 1998, the 8th Circuit struck down four
Arkansas town ordinances prohibiting vehicle leafleting as unconstitutional in
Krantz v. City of Fort Smith. Members of the Twentieth Century Holiness
Tabernacle Church, including Albert Krantz, were arrested for distributing
religious leaflets under the windshield wipers of parked cars. Analyzing the
ordinances using the three-part test for written forms of expression, the 8th Circuit
found the ordinances content-neutral. However, it also found they were not
narrowly tailored to serve a significant government interest and therefore declared
them unconstitutional.
The 8th Circuit ruled that “the ordinances suppress considerably more speech than
is necessary to serve the stated governmental purpose of preventing litter.” First,
the court seemed to question whether the prevention of litter was indeed a
legitimate governmental interest. The court cited Schneider v. New Jersey, a 1939
U.S. Supreme Court decision that said preventing litter was insufficient
justification for an ordinance prohibiting individuals from handing out literature
to those willing to receive it. Oddly, the 8th Circuit did not mention the more
recent case, Taxpayers for Vincent.
Next the 8th Circuit noted that “the narrowly tailored analysis, where appropriate,
takes into consideration the opportunity for the would-be recipient to provide
effective notice that the communications are not wanted.” This “effective notice”
was the final consideration for the 8th Circuit, which wrote, “When that factor is
considered in the present case, the balance tips in favor of striking the ordinances
as overbroad because those individuals who do not want handbills placed on their
vehicles can quite easily and effectively provide notice, for example, by placing a
sign on the dashboard.” The opinion added: “As the Supreme Court reasoned in
Martin [v. City of Struthers (319 U.S. 141 (1943))] and Schneider, defendants’
goal of preventing litter can be accomplished by punishing the handbill
distributors who defy such notices, as well as the ‘litterbugs’ who choose to throw
papers on the ground.”
The 8th Circuit did not consider the public-forum doctrine in its decision, as all
parties in the case conceded that public streets and parking lots were public
Page 59 of 149
forums. Still, the city of Fort Smith, speaking for the other municipalities,
maintained “that they have both the duty and the power to regulate activities
affecting the safety and aesthetics of such public areas through direct or indirect
regulation,” according to the opinion. Despite this contention, no discussion of the
public forum took place.
However, in 2005, the 6th Circuit came to a different conclusion in Jobe v. City of
Catlettsburg, ruling against a Kentucky windshield leafleter. In this case, Leonard
Jobe placed leaflets for the American Legion under the windshield wipers of cars
parked on public property. Jobe was cited and fined for violating a city ordinance.
The court analyzed the ordinance using the three-part test for written forms of
expression. Both parties agreed that the ordinance was content-neutral, thus
satisfying the first part of the test. The court then decided that the ordinance was
narrowly tailored, left open other channels of communication and advanced the
government’s interests in “prohibiting litter and visual blight” and in allowing
individuals to have “their private property left alone by those who do not have
permission to use it.” The 6th Circuit also looked at the Taxpayers for Vincent
case and cited the Supreme Court’s discussion of aesthetic interests and of the
public forum.
Concerning the public forum, the 6th Circuit said (all emphasis added by the
court):
“If the public-forum doctrine does not apply to public items (e.g., utility
poles) permanently located on public streets and sidewalks, it assuredly
does not apply to private cars temporarily parked on public streets. And if
Taxpayers for Vincent was wary about permitting citizens to co-opt utility
poles to serve as bulletin boards and signposts, one would expect the
Court to be equally wary, if not more wary, of permitting citizens to coopt privately owned cars to serve as receptacles for the distribution or
display of literature and other information. See [Taxpayers for Vincent] at
815 n.31 (noting that ‘appellees could not seriously claim the right to
attach “Taxpayer for Vincent” bumper stickers to city-owned automobiles’
and reiterating that ‘the State, “no less than a private owner of property,
has power to preserve the property under its control for the use to which it
is lawfully dedicated”’). In neither of these settings, whether the utility
pole or the car, does the ostensible public forum deal with a method of
communication for which one can say there has been a ‘traditional right of
access’ and in neither instance does it offer an apt analogy to the forms of
Page 60 of 149
communication that have long taken place on our ‘public streets and
parks.’”
Defendant Jobe urged the 6th Circuit to follow the precedent set by the 8th Circuit
in Krantz. The 6th Circuit refused, saying it disagreed with three facets of the 8th
Circuit’s opinion.
First, in Krantz the 8th Circuit did not consider putting leaflets on cars to be
littering. In contrast, the 6th Circuit’s view was that “Placing unrequested fliers on
a car windshield (or some other part of the car) shares as many qualities with
littering as placing the fliers on the front lawn of a residence, on the top of a boat
or for that matter on top of any piece of private property that is not otherwise
designed by intent or usage to receive and hold literature distributed by others.”
Second, the 8th Circuit did not address, or distinguish, the case Taxpayers for
Vincent in its Krantz opinion. The 6th Circuit pointed out: “Taxpayers established
that not all items that appear on public streets are transformed into public fora. If
public utility poles and private mailboxes located on public streets and sidewalks
are not public fora, neither is a car windshield.”
Third, the 6th Circuit took issue with the 8th Circuit’s failure to “account for the
fundamental difference between traditional leafleting,” hand-to-hand on the street
or door-to-door, “and the activities of Jobe and Krantz,” which “unlike traditional
leafleting … do not readily allow the recipient to opt out of receiving the flier and
to opt out of the responsibility for disposing of it.”
The 6th Circuit thus concluded that the Catlettsburg ordinance was constitutional.
In 2001 a U.S. District Court in Wisconsin found unconstitutional a Milwaukee ordinance
that prohibited placing pamphlets or leaflets on cars in Deida v. City of Milwaukee (176
F. Supp. 2d 859, (E.D. Wis. 2001)).
Under the ordinance, all pamphlets or leaflets were prohibited except for those containing
“educational material … approved by the council on physical disabilities…related to the
parking privileges of physically disabled persons.” The district court ruled that this
exception made it a content-based ordinance and therefore subject to strict scrutiny. The
court wrote: “Under strict scrutiny, laws regulating the content of speech will be upheld
only when they are justified by compelling governmental interests and employ the least
restrictive means to effectuate those interests.”
Page 61 of 149
The opinion quoted the U.S. Supreme Court in Swanner v. Anchorage Equal
Rights Commission (1994): “A compelling interest is a ‘paramount [interest,] …
[an] interest of the highest order.’” The district court ruled that the interests
claimed by the city were substantial but not compelling and that the ordinance
was unconstitutional.
Unless and until the U.S. Supreme Court hands down a definitive ruling on the
subject, placing leaflets on cars will be subject to local laws and lower courts,
although cities in Missouri will have to face convincing the 8th Circuit not to
follow its own precedent.
B.
Speaking at public meetings. A citizen feels strongly about an issue in the
community. He or she attends a city council meeting to voice those concerns.
Unfortunately, the powers that be prohibit the citizen from addressing the
controversial topic. Have the citizen’s First Amendment rights been violated?
Sometimes government officials need to silence disruptive citizens or to prohibit
endless repetition. However, other times the officials may be squelching citizen
speech because they want to suppress the message. This article seeks to explain
the legal parameters surrounding the regulation of citizen speech.
Many government meetings are open to the public and reserve a “public
comment” time for citizen commentary on issues. The 9th U.S. Circuit Court of
Appeals explained in its 1990 decision White v. City of Norwalk: “Citizens have
an enormous First Amendment interest in directing speech about public issues to
those who govern their city.” These meetings, particularly the “public comment”
period, are at the very least a limited public forum during which free-speech rights
receive heightened protection.
In First Amendment jurisprudence, government property that has by tradition or
by government operation served as a place for public expression is called a
traditional public forum or a limited public forum. In a traditional public forum,
such as a public street, speech receives the most protection and the government
generally must allow nearly all types of speech. Restrictions on speech based on
content (called content-based restrictions) are presumptively unconstitutional in a
traditional public forum. This means that the government can justify them only by
showing that it has a compelling state interest in imposing them, and that it has
done so in a very narrowly tailored way.
Page 62 of 149
At limited or designated public forums, however, the government designates
certain types of subject matter. One court explained as follows: “After the
government has created a designated public forum, setting boundaries on classes
of speakers or topics, designated public fora are treated like traditional public
fora.” This again means that content-based exclusions face a high constitutional
hurdle. Even in nonpublic forums, restrictions on speech must be reasonable and
viewpoint-neutral.
One must be careful in discussing the public-forum doctrine, because courts do
not apply the doctrine with consistency. For example, some courts equate a
limited public forum with a designated public forum. Other courts distinguish
between the two, as a 2001 federal district court in Pennsylvania did in Zapach v.
Dismuke. That court noted that “there is some uncertainty whether limited public
fora are a subset of designated public fora or a type of nonpublic fora.”
Just because something is called a public forum doesn’t guarantee a person
unfettered freedom to utter whatever is on his mind. Public bodies can limit their
meetings to specified subject matters. Also, the government may impose
reasonable time, place and manner restrictions on speech as long as those
restrictions are content-neutral and are narrowly tailored to serve a significant
government interest.
In other words, the government could impose a 15-minute time limit on all
participants as long as it did not selectively apply the rule to certain speakers.
Council members would violate the First Amendment if they allowed speakers
with whom they agreed to speak a full 15 minutes, but allowed speakers they did
not agree with to speak for only five minutes.
It bears stressing that First Amendment rights are not absolute during publiccomment periods of open meetings. Speakers can be silenced if they are
disruptive. Disruption has been defined to include far more than noisiness and
interference. For example, a federal district court in Ohio wrote in Luckett v. City
of Grand Prairie (2001) that “being disruptive is not confined to physical
violence or conduct, but also encompasses any type of conduct that seriously
violates rules of procedure that the council has established to government conduct
at its meetings.”
“A speaker may disrupt a Council meeting by speaking too long, by being unduly
repetitious, or by extending discussion of irrelevancies,” the 9th Circuit wrote in
Page 63 of 149
White v. City of Norwalk. “The meeting is disrupted because the Council is
prevented from accomplishing its business in a reasonably efficient manner.
Indeed, such conduct may interfere with the rights of other speakers.”
Unfortunately, many situations arise in which citizens are silenced because of the
content of their speech or because they have disagreed previously with a
government official. This raises the specter of censorship. Government officials
may not silence speech because it criticizes them. They may not open a “public
comment” period up to other topics and then carefully pick and choose which
topics they want to hear. They may not even silence someone because they
consider him a gadfly or a troublemaker.
In City of Madison Joint School District No. 8 v. Wisconsin Employment
Relations Commission, (1976) the U.S. Supreme Court said in a collectivebargaining dispute case arising out of teachers’ speaking at a board of education
meeting:
“Regardless of the extent to which the true contract negotiations between a
public body and its employees may be regulated — an issue we need not
consider at this time — the participation in public discussion of public
business cannot be confined to one category of interested individuals. To
permit one side of a debatable public question to have a monopoly in
expressing its views to the government is the antithesis of constitutional
guarantees. Whatever its duties as an employer, when the board sits in
public meetings to conduct public business and hear the views of citizens,
it may not be required to discriminate between speakers on the basis of
their employment, or the content of their speech.”
A federal district court in Pennsylvania explained in the 1993 decision Wilkinson
v. Bensalem Township: “Allowing the state to restrict a person’s right to speak
based on their identity could quickly lead to the censorship of particular points of
view.”
An Ohio appeals court refused to dismiss the lawsuit of an individual who sued
city officials after being thrown out of a city commission meeting for wearing a
ninja mask. In City of Dayton v. Esrati (1997), the Ohio appeals court reasoned
that the individual wore the mask to convey his dissatisfaction with the
commission. “The public nature of the legislative process and the right of citizens
to participate in and voice their opinions about that process are at the heart of
Page 64 of 149
democratic government,” the court wrote. “The government may not impose
viewpoint-based restrictions on expression in a limited public forum unless those
restrictions serve a compelling state interest and are narrowly drawn to achieve
that end.”
Courts have also been wary of laws, rules or regulations that prohibit criticism or
personal attacks against government officials. A federal district court in California
invalidated a school district bylaw that prohibited people at school board meetings
from criticizing school district employees. In Leventhal v. Vista Unified School
District (1997), the court wrote: “It seems clear that the Bylaw’s prohibition on
criticism of District employees is a content-based regulation. … It is equally clear
that the District’s concerns and interests in proscribing public commentary cannot
outweigh the public’s fundamental right to engage in robust public discourse on
school issues.”
Similarly, a federal district court in Virginia struck down a school board bylaw
that prohibited personal attacks during public comments at meetings. (See Bach v.
School Board of the City of Virginia Beach, 2001.)
Another kind of restriction on citizen speech at public meetings involves
residency. One federal appeals court determined that a city council rule
prohibiting nonresidents from addressing the city council was constitutional. In
Rowe v. City of Cocoa (2004), a three-judge panel of the 4th U.S. Circuit Court of
Appeals determined that a resident rule was reasonable and viewpoint neutral. “A
bona fide residency requirement … does not restrict speech based on a speaker’s
viewpoint but instead restricts speech at meetings on the basis of residency.”
C.
Political yard signs. Many people like to express their support for a political
candidate with a yard sign. Sometimes this form of freedom of expression
conflicts with a city law banning or limiting the time in which political signs may
be displayed. The question becomes whether such city laws infringe upon
citizens’ and perhaps the candidates’ First Amendment rights.
Some city officials claim that putting limits on yard signs furthers a variety of
state interests, including aesthetics and traffic safety. However, opponents of such
regulations counter that yard signs, unlike perhaps large billboards too close to
public streets, do not in any way reduce traffic safety. They also contend that
aesthetic interests pale in comparison to the importance of political speech
expressed in campaign signs.
Page 65 of 149
In 1994, the U.S. Supreme Court struck down a Missouri city law prohibiting
signs at private residences. Margaret Gilleo ran afoul of the law when she placed
a 24-by-36-inch sign in her front lawn with the words, “Say No to War in the
Persian Gulf, Call Congress Now” and an 8 ½-by-11-inch sign in the second-story
window of her home that read, “For Peace in the Gulf.”
A unanimous U.S. Supreme Court rejected the ordinance in City of Ladue v.
Gilleo, writing that residential yard signs were “a venerable means of
communication that is both unique and important.” The Court explained:
“Displaying a sign from one’s own residence often carries a message quite
distinct from placing the sign someplace else, or conveying the same text
or picture by other means. … Residential signs are an unusually cheap and
convenient form of communication. Especially for persons of modest
means or limited mobility, a yard or window sign may have no practical
substitute. … Even for the affluent, the added costs in money or time of
taking out a newspaper advertisement, handing out leaflets on the street, or
standing in front of one’s house with a handheld sign may make the
difference between participating and not participating in some public
debate.”
Lower courts have cited the Gilleo precedent with great success in challenging
city bans on political yard signs. In Curry v. Prince George’s County (1999), a
federal district court in Maryland invalidated a sign ordinance that limited the
posting of political campaign signs in private residences to 45 days before and up
to 10 days after an election. “There is no distinction to be made between the
political campaign signs in the present case and the ‘cause’ sign in City of
Ladue,” the court wrote. “When political campaign signs are posted on private
residences, they merit the same special solicitude and protection established for
cause signs in City of Ladue.”
In Arlington County Republican Committee v. Arlington County (1993), a threejudge panel of the 4th U.S. Circuit Court of Appeals invalidated a county law that
imposed a two-sign limit on temporary signs for each residence. The court noted
that “the two-sign limit infringes on this speech by preventing homeowners from
expressing support for more than two candidates when there are numerous
contested elections.”
Page 66 of 149
Taking another example, the Supreme Court of Ohio ruled in City of Painesville
Building Department v. Dworken & Bernstein Co. (2000) that a city law requiring
the removal of political signs within 48 hours after an election is unconstitutional
as applied to the posting of such signs on private property. “Although the
Supreme Court has not considered the issue, the overwhelming majority of courts
that have reviewed sign ordinances imposing durational limits for temporary
political signs tied to a specific election date have found them to be
unconstitutional,” the court wrote.
This does not mean that cities can never legislate in the area of political signs. A
city may regulate the size, shape and location of yard signs. Such regulations may
very well qualify as content-neutral and reasonable “time, place and manner”
restrictions on speech. Similarly, a city may be able to establish a 10-sign limit
per residence on yard signs. At some point, the sheer number of signs might
realistically impair the aesthetics of a neighborhood.
1.
Homeowner, condo associations: different situation Although cities and
other government entities are constrained by the First Amendment in
regulating political yard signs, there is no similar restraint imposed on
private homeowner and condominium associations.
Cities are considered state actors subject to the provisions of the U.S.
Constitution. Homeowner associations are private parties that do not
qualify as state actors. The First Amendment generally protects people
only from government interference with speech.
For example, a Pennsylvania state court ruled in Midlake on Big Boulder
Lake, Condominium Association v. Cappuccio (1996) that a condominium
association did not violate the First Amendment by removing political
yard signs in accordance with a section of the association’s declaration of
rules prohibiting the posting of signs at individual units. The court
reasoned that there was no state action, because the association was a
private party. The court wrote:
“The courts of this Commonwealth have vigorously defended the
rights which are guaranteed to our citizens by both the federal and
our Commonwealth’s constitutions. One of the fundamental
precepts which we recognize, however, is the individual’s freedom
to contractually restrict, or even give up, those rights. The
Page 67 of 149
Cappuccios contractually agreed to abide by the provisions in the
Declaration at the time of purchase, thereby relinquishing their
freedom of speech concerns regarding placing signs on this
property.”
Some litigants have sought to satisfy the state-action doctrine by invoking
the plight of homeowners in the landmark U.S. Supreme Court case
Shelley v. Kraemer (1948). In that case, the U.S. Supreme Court found
state action in the enforcement of racially discriminatory restrictive
covenants that limited the sale of residential property to a specific race.
The Court found that such odious provisions smacked of flagrant racial
discrimination, and that judicial enforcement of such restrictive covenants
violated the 14th Amendment and its principle of equal protection. The
11th Circuit wrote in a case involving an association’s prohibition on “for
sale” signs that “Shelley has not been extended beyond race
discrimination” (see Loren v. Sasser (2002)). [NOTE: since 2002 decision
cited here, the Shelley rule has been extended to strike down homeowner
association prohibitions on group homes for disabled persons.]
This means that government restrictions on political campaign signs are
problematical under the First Amendment. However, homeowner/condoassociation restrictions on yard or window signs may very well not raise a
valid constitutional-law issue unless there is a very close nexus, or
connection, to a government entity.
Meanwhile, in 2004 President George W. Bush signed a bill preventing
condominium and homeowner associations from restricting display of the
United States flag by individual unit owners. Rep. Roscoe Bartlett, R-Md.,
sponsored H.R. 42, which was passed unanimously by both the House and
the Senate. In a statement about the bill, Bush said, “Americans have long
flown our flag as an expression of their appreciation for our freedoms and
their pride in our nation. As our brave men and women continue to fight to
protect our country overseas, Congress has passed an important measure
to protect our citizens’ right to express their patriotism here at home
without burdensome restrictions.”
Some state legislatures [but not Missouri] have passed provisions that
protect the display of flags and signs on condominium-association
property.
Page 68 of 149
D.
Public funding of controversial art. Throughout history artists have produced
works which tested society’s standards of decency. Society, or parts of it, may
respond to these controversial works with harsh criticism and scorn. In free
societies, artists may produce any type of work that their talent, imagination and
means can support, whether it is controversial or not. However, the question
arises: Do artists have the same freedom when their art is publicly funded by
taxpayer dollars?
The U.S. Supreme Court has made clear that the government is not required to
subsidize artistic expression with public funds.1 But the Court has also found that
once it does decide to provide funds for arts programs, the government cannot
withdraw that funding, thus censoring certain works, because it disagrees with the
viewpoint expressed in the work. In other words, while the government has great
flexibility in determining which artists and programs to fund, it must do so in a
manner consistent with the First Amendment and cannot do so in a vague or
viewpoint-based way. As stated by the National Coalition Against Censorship,
public funding for the arts does not allow the government to play the role of
censor.
That being said, in 1989 Congress amended the law that created the National
Endowment of the Arts to bar the use of NEA funds “to promote, disseminate, or
produce materials which in the judgment of [the NEA] may be considered
obscene,
including but not limited to, depictions of sadomasochism, homoeroticism, the
sexual exploitation of children, or individuals engaged in sex acts and which,
when taken as a whole, do not have serious literary, artistic, political, or
scientific value.” The NEA required all grant recipients to certify in advance
that none of the funds would be used “to promote, disseminate, or produce
materials which in the judgment of the NEA … may be considered obscene.” In
addition, Congress eliminated $45,000 from the NEA’s budget.
The changes to the law came about as a reaction to two controversial works
that were being shown in various U.S. cities in 1989. The first was the infamous
“Piss Christ,” a photograph of a crucifix immersed in urine, by Andres Serrano,
who had received a $15,000 grant from the Southeast Center for Contemporary
Art which in turn received funding from the NEA. The second was a retrospective
exhibit of photographs by Robert Mapplethorpe titled “The Perfect Moment.”
This exhibit was arranged by the Institute of Contemporary Art at the University
of Pennsylvania using $30,000 of an NEA grant. The exhibit included homoerotic
Page 69 of 149
photographs, images of sadomasochism and, according to critics, child
pornography.
The uproar over the Mapplethorpe exhibit led to its cancellation at the
Corcoran Gallery of Art in Washington, D.C., and to the arrest and trial of the
director of Cincinnati’s Contemporary Art Center on charges of pandering and
obscenity after he allowed the exhibit to open at the center. The director,
Dennis Barrie, was acquitted after a much-publicized six-month trial.
The 1989 NEA rules were challenged and found to be unconstitutionally vague
by a U.S. District Court in California because the determination of what was
obscene was left in the hands of the NEA. Even before the 1991 ruling — Bella
Lewitzky Dance Foundation v. National Endowment for the Arts, 754 F. Supp.
774 (C.D. Cal. 1991) — members of Congress were debating ways to reform the
NEA’s grant process. In 1990, Congress adopted an amendment which directed
the NEA to take into consideration “general standards of decency and respect for
the diverse beliefs and values of the American public.” This amendment led to a
1998 U.S. Supreme Court decision upholding the decency standard enacted by
Congress. The ruling in National Endowment for the Arts v. Finley initially
seemed a heavy blow to the First Amendment as a bulwark protecting artistic
expression. In NEA v. Finley, the Court held that the NEA may consider public
standards of decency in deciding which artists should receive federal grants.
However, Justice Sandra Day O’Connor, writing for the majority, took the
sting out of the law. She explained that the decency standard was merely
advisory and simply added one more consideration to a variety of pre-existing
subjective criteria.
Though some might argue that the decency standard infringes upon free speech
because it allows the NEA to favor certain viewpoints over others, the consensus
is that the law poses no real threat given that the high court has characterized
it as a mere piece of advice rather than a law that must be enforced.
Art controversies didn’t end with the Finley case. In 1999, the
city-funded Brooklyn Museum of Art came under fire when it exhibited a Chris
Ofili painting of the Virgin Mary that featured sexually explicit cutouts
covered with elephant dung. The Catholic Church, as well as New York City
Mayor Rudolph Giuliani, were outraged. Giuliani denounced the exhibit as
morally offensive and threatened to cut off funding to the museum and terminate
Page 70 of 149
its lease if it did not cancel the exhibit that included Ofili’s painting. The city
followed through and withheld the museum’s rent payment for October and filed
a state lawsuit to get the lease revoked.
The museum filed a suit in federal court against Giuliani claiming First
Amendment violations and seeking a permanent injunction against the city to
keep it from withholding funds. U.S. District Judge Nina Gershon, finding that
Giuliani’s actions violated the First Amendment, granted the museum a
preliminary injunction. Gershon also ordered the city to restore the museum’s
funding and stop eviction proceedings.
In February 2001, Giuliani again was offended by a piece of controversial
art. “Yo Mama’s Last Supper” is a 15-foot-tall photograph of a nude
African-American woman portraying Jesus surrounded by 12 black men
portraying the disciples. In his weekly radio address Giuliani stated, “If you want
to desecrate religion in a disgusting way, if you want to promote racism, if you
want to promote anti-Semitism, if you want to promote anti-Catholicism, if you
want to promote anti-Islamism, then do it on your own money. Do not use the
taxpayers’ money to do that.”
Giuliani then appointed a 20-member “decency commission” to review publicly
funded art and determine the works’ moral content. If the commission deemed an
artwork offensive to any religious, racial or ethnic group, the city could
withdraw funding. Giuliani based his authority to form the commission on an
obscure section of the City Charter that allowed him to appoint members of a
cultural-affairs committee to review art subsidized by the public. The
commission, which held some meetings but failed to do anything noteworthy, was
abolished in early 2002 by Giuliani’s successor, Michael Bloomberg.
Another work that inspired art-rage in some critics was Alma Lopez’s collage
of the Virgin of Guadalupe in a floral bikini. The work was displayed in 2001 at
a state-run museum in Santa, Fe, N.M. Santa Fe Archbishop Michael Sheehan,
finding the portrayal insulting, expressed frustration that Catholic images were
being singled out by artists. “No one would dream of putting Martin Luther King
in Speedos and desecrating his memory by putting him in some outlandish outfit
… But somehow it seems open season on Catholic symbols.” Although efforts
were made to banish “Our Lady” from the museum, a state judge refused to order
its removal.
Page 71 of 149
More recent controversies haven’t been confined to art with religious themes.
In 2001, the 9th U.S. Circuit Court of Appeals ruled that the city of Pasco,
Wash., had violated the rights of two artists when their works were censored by
the city. Even though the city had made an agreement with the artists to display
their work City Hall, the city prevented artist Janette Hopper from displaying
her work and ordered the work of artist Sharon Rupp to be taken down. The
pieces, which included nudity, were censored because of their “sexual” nature.
ACLU attorney Paul Lawrence summed up the case by saying, “The city of Pasco
had decided to open City Hall as a public forum for art. The courts have said
clearly that once government officials make such a decision, they cannot make
choices based on the content of the art — whether it’s controversial or offends
someone’s political sensibilities.”
Also in 2001, California State Fair officials determined that a work, which
had won “best sculpture,” was unfit for exhibition and was banned. Peter
Langenbach’s satirical sculpture depicts former President Clinton and Monica
Lewinsky in a bathtub. One fair official remarked that the work was “offensive
to some people and inappropriate for children.”
During the last few years, battles over censorship involving taxpayer funding
have mostly faded away, giving way to fights involving people offended by
certain works who have sought to have the pieces removed from public display.
Museums and galleries are still targets of would be censors, but increasingly,
any public space which displays art has become a target.
For instance, an anti-Bush painting included in an exhibit at the California
Department of Justice cafeteria in August 2005 generated controversy, leading to
complaints and the eventual removal of the painting. The painting shows the
continental United States, decorated with the American flag, sticking out of a
toilet with the words “T’anks to Mr. Bush” next to it. The painting was removed,
California’s attorney general said, out of sensitivity to the situation in the
Middle East, not because of public complaints.
In May 2006, the 44th annual Young People’s Art Exhibition in Colorado
Springs, Colo., considered by many in the area as the premier student art
exhibit in the region, was the scene of controversy. A 5-foot-by-4-foot painting
titled “Dismantled Stereotype” by Fountain Valley School senior Addie Green
was considered too controversial because it included an image associated with
gay pride and was banned from the show. The painting depicts a high school
Page 72 of 149
football player standing near the back of a pickup. On the bumper is a small
football-shaped rainbow bumper sticker.
Also in May 2006, Brooklyn Borough Parks Commissioner Julius Spiegel ordered
an exhibition of art from graduate students of the Brooklyn College closed
because some of the works were “not appropriate for families.” Spiegel said the
exhibit violated a verbal agreement reached six years ago by the Parks
Department and Brooklyn College over use of the city-owned Brooklyn War
Memorial building. The student exhibit was relocated to another venue and reopened a few days later.
E.
Public Employee Speech.
F.
Curfews, loitering & freedom of association. The freedom of assembly is one of
the few constitutional liberties that the Framers graced with an adverb, securing
the right of the people “peaceably to assemble.” Were the freedom of assembly
limited to orderly gatherings in public parks, however, exercise of this right would
implicate only clean streets and crowd control. But ideas, and the rights that
protect them, are far more important.
The civil rights era in this country prompted the Supreme Court to consider the
collective beliefs that animate crowds and the voice — be it roar or oration —
with which the group speaks. This emphasis on a conceptual in addition to a
corporeal right to meet and discuss ideas led to the recognition of a right of
association. As the Supreme Court observed in 1958, “It is beyond debate that
freedom to engage in association for the advancement of beliefs and ideas is an
inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the
Fourteenth Amendment, which embraces freedom of speech.”
Though the Constitution does not expressly set forth a freedom of association, at
least three strands of law intersect at the junction of group speech: the right of
assembly, the privacy of intimate bonds, and freedom of expression.
Appropriately, the association doctrine reflects its subject: Constitutional
protection for the group involves diverse principles speaking in chorus.
Because assembly involves free expression, the congregational aspects of this
First Amendment guarantee fit neatly in the “time, place, and manner” doctrine
set forth in United States v. O’Brien (1968). As long as people “peaceably”
convene to picket, protest, or distribute handbills, the state may not penalize the
assembly. (See, e.g., De Jonge v. Oregon, a 1937 case that reversed a conviction
Page 73 of 149
under Oregon’s criminal syndicalism statute because it was based on mere
attendance at an orderly meeting of the Communist Party.) However, this
protection does not immunize the gathering from generally applicable health,
safety and welfare laws designed to protect private property, eliminate litter, curb
visual blight, facilitate traffic, control noise or minimize congestion.
Though the time-place-manner concept may be easily articulated, associational
interests still present challenges when the doctrine is applied. Courts must
examine the government’s justification to ensure that the challenged regulation is
indeed indifferent to the content of the speech. The scope of that inquiry depends
on where the assembly takes place. Courts will strictly scrutinize regulations that
attempt to limit assembly in places traditionally open to the public such as parks
or sidewalks. Strict scrutiny is the highest level of review and requires the
government to show that the ordinance is narrowly tailored to achieve a
compelling government interest. License or permit requirements that favor or
discourage certain groups, or that vest total discretion in officials to grant such
permits, are usually struck down.
Shuttlesworth v. Birmingham (1969), for instance, struck down a parade
ordinance that “conferred upon the City Commission virtually unbridled and
absolute power to prohibit any ‘parade,’ ‘procession,’ or ‘demonstration’ on the
city’s streets or public ways.”
Procedural safeguards must protect the rights of all speakers or none — even
members of the Nazi party who intend to march through a predominantly Jewish
section of an Illinois city, as the 1977 U.S. Supreme Court ruled in National
Socialist Party v. Skokie. The fact-sensitive balancing between regulators and
those who assemble requires careful line-drawing — sometimes literally. In cases
concerning anti-abortion protests, for example, restrictions have been allowed to
keep protesters a certain distance away from women approaching abortion clinics
(see the section on buffer zones).
1.
Juvenile curfews. Particularly suspect are blanket regulations that upset
the balance O’Brien strikes between the government interest asserted and
the incidental burden on First Amendment rights. In City of Chicago v.
Morales, for example, the Supreme Court in 1999 struck down a
municipal code that criminalized loitering, which was defined as “to
remain in any one place with no apparent purpose.” Though the law was
enacted to fight gang activity, it improperly penalized much harmless
Page 74 of 149
activity and granted officers immense discretion in assessing which kinds
of behavior violated the ordinance. Similarly, juvenile curfew laws have
been challenged for trampling on the rights of minors to meet and gather.
Such ordinances have survived only because they exempt activities
protected under the First Amendment. (See Schleifer v. City of
Charlottesville, a 4th U.S. Circuit Court of Appeals case from 1998.)
In 1993, the 5th U.S. Circuit Court of Appeals ruled in favor of a Dallas
curfew ordinance in Qutb v. Strauss. The 5th Circuit examined the
ordinance under strict-scrutiny review and upheld it. The court concluded
that the city, by including exceptions to the ordinance, most notably
exceptions for minors exercising their First Amendment rights, had
enacted a narrowly drawn ordinance that respected the rights of juveniles
and allowed the city to meet its goal of increasing juvenile safety and
decreasing juvenile crime.
The Dallas ordinance became the model for cities around the country
wishing to enact curfew ordinances. The 9th Circuit underscored the
importance of the exceptions when, in its 1997 ruling Nunez v. San Diego,
it declared a San Diego curfew ordinance unconstitutional. The 9th Circuit
ruled, in part, that the ordinance was not narrowly tailored to minimize
burdens on fundamental rights. The court, in particular, noted that “San
Diego rejected a proposal to tailor the ordinance more narrowly by
adopting the broader exceptions used in the ordinance upheld in Qutb.”
However, there is quite a difference of opinion among various courts as to
what standard applies when analyzing curfew statutes. Some, including
the 5th and 9th Circuits and the Florida Supreme Court, use strict scrutiny
because fundamental rights such as speech and assembly are implicated,
as well as the right to freedom of movement. Although other courts may
agree that fundamental rights are implicated, they have a different opinion
as to the status of minors.
The U.S. Supreme Court has recognized that the rights of minors are not
as wide-ranging as those of adults. (For example, see the 1944 ruling
Prince v. Massachusetts and the 1979 ruling Bellotti v. Baird.) Minors
enjoy the same constitutional protections as adults, but due to “their
unique vulnerability, immaturity, and need for parental guidance,” the
state is within its bounds to exercise greater control over their activities.
Page 75 of 149
Following this rationale, many courts, including the 2nd, 4th, 7th and D.C.
Circuits, have used intermediate scrutiny to review curfew laws.
Intermediate scrutiny requires the government to show that a law is
substantially related to an important government interest.
Due to the inconsistencies and disagreements within the courts, the
standards for what is an acceptable curfew law and what is unacceptable
are not clear.
While some of the ordinances modeled after the Dallas law survived
constitutional challenges (see Schleifer v. City of Charlottesville, a 1998
4th Circuit ruling; Hutchins v. District of Columbia, a 1999 D.C. Circuit
ruling; and Treacy v. Municipality of Anchorage, a 2004 Alaska Supreme
Court ruling), not all did.
In June 2003, the 2nd Circuit declared a curfew ordinance in Vernon,
Conn., unconstitutional because it infringed on the rights of minors under
the 14th Amendment’s equal-protection clause. (The clause is essentially a
directive that all persons similarly situated should be treated alike. See the
Supreme Court’s 1985 ruling in Cleburne v. Cleburne Living Center.) In
this particular case, the writing of the ordinance and the exceptions it
contained were not the issue, rather it was the necessity of the ordinance.
The town of Vernon passed the ordinance to reduce juvenile crime and
victimization at night but, according to the court, failed to provide the
requisite proof that the ordinance was needed. Since the curfew restricted
constitutional rights of juveniles, the town had to show that the ordinance
was substantially related to an important government interest. While all
parties agreed with the aims of the ordinance, the town failed to show that
juvenile crime was a problem during the curfew hours, thus the 2nd
Circuit found in Ramos v. Town of Vernon that the ordinance was not
substantially related to the town’s interest in preventing juvenile crime.
In January 2004 another curfew ordinance fell when the 7th Circuit
declared an Indianapolis law unconstitutional. Indianapolis amended its
curfew ordinance in 2001 to include exceptions for the exercise of First
Amendment rights. The 7th Circuit, however, found that the First
Amendment defense provided in the statute was inadequate since it did not
require a law enforcement official to look into whether any exceptions
included in the statute applied before making an arrest. So, if an officer
Page 76 of 149
came across a juvenile walking down the street returning from a late night
protest, the officer could arrest him without even inquiring into why he
was out. The court ruled in Hodgkins v. Peterson that the possibility of
arrest was intimidating enough to chill a juvenile’s exercise of his First
Amendment rights.
Two curfew ordinances were thrown out by the Florida Supreme Court in
November 2004. This case consolidated challenges to ordinances in
Tampa and Pinellas Park. In Florida v. J.P., the court used strict-scrutiny
analysis when looking at the laws and found that neither were “narrowly
tailored” and the criminal penalties both ordinances called for were
contrary to the stated purpose of protecting minors from victimization.
Many cities enact curfews with the hope that they will prevent minors
from committing, or being the victim of, late night crime. Opponents
challenge curfew ordinances citing the restriction of minors’ First
Amendment rights. Although curfews do affect these rights, such as the
right to associate with friends, courts have found these restrictions can be
justified if the city proves the need for such a law.
2.
Expressive association. The right to free association extends beyond
intimate relationships. Groups peaceably joined to engage in First
Amendment activities also enjoy protection from government interference.
To constitute “expressive association,” such interaction must be defined
by common political, cultural or economic activism. Social gatherings that
are intended for leisure and diversion do not qualify and may be regulated
by the government for any rational purpose. For instance, in the 1989 case
City of Dallas v. Stanglin, the Supreme Court upheld a local ordinance
limiting use of dance halls to teens between ages 14 and 18.
When people in an expressive association object to government action on
First Amendment grounds, courts consider the extent to which the
challenged regulation or statute interferes with the advocacy of the group.
In NAACP v. Alabama (1958), the Court concluded that the state could not
compel disclosure of the group’s membership list under a statute that
required such information from out-of-state corporations. In the
tumultuous civil rights era, the Court recognized that divulging the names
of NAACP members would expose them to attack and so undermine the
ability of the group to advocate its message.
Page 77 of 149
For some expressive groups, the membership is the message. Generally
applicable public-accommodation laws designed to foster inclusiveness
can have the effect of forced speech in derogation of an organization’s
principles. In Boy Scouts of America v. Dale, the Court in 2000 agreed
with the scouting organization that inclusion of an openly gay scoutmaster
— otherwise required under New Jersey’s public-accommodation law —
would unconstitutionally undermine the organization’s promotion of
“morally straight and clean values” in youth.
Likewise, in Hurley v. Irish-American Gay, Lesbian & Bisexual Group,
the 1995 Court held that a state public-accommodation law could not
require the South Boston Allied War Veterans’ Council to include gay
marchers in its St. Patrick’s Day parade. According to the Court,
application of this law would interfere with the group’s social and
religious agenda and violate its First Amendment rights as parade sponsor.
In such cases, the Court examines the tradition, practices and selection
criteria of the group to determine if these cohere into shared speech. If so,
the Court will then assess whether state regulation of the internal
organization and affairs of the group would impair the group’s common
expression. In Roberts v. United States Jaycees, the Supreme Court
determined in 1984 that Minnesota’s interest in outlawing gender
discrimination would not significantly undermine the educational and
charitable mission of the historically all-male organization. Thus, the state
could constitutionally require the group to admit women as full members.
The Court reached the same result in applying the California Unruh Act
against the Rotary Club, concluding that inclusion of women would not
require the all-male members to “abandon their basic goals of
humanitarian service, high ethical standards in all vocations, good will,
and peace” ( 1987).
3.
Political association. A different problem arises when the government
seeks to punish or reward public employees based on their group
affiliations. To condition a benefit — the employment contract — on a
state employee’s participation in or disavowal of a certain political party
violates the First Amendment. In Rutan v. Republican Party of Illinois
(1990) the Court extended this prohibition to promotions, transfers and
recalls of government employees on the basis of patronage. The only
Page 78 of 149
exception is for government workers who hold policy-level or confidential
positions.
The state may, however, require public employees to declare an oath
affirming allegiance to the constitutional processes of government.
Negative oaths that disavow past conduct or belief are constitutional only
to the extent that the activity disclaimed could have resulted in the denial
of public employment, such as knowing advocacy of the violent overthrow
of the United States. Public employees and others subject to state
regulation also have a right not to associate. Thus, lawyers subject to
mandatory bar fees and workers who pay required union dues may not be
compelled to finance political and ideological causes they oppose. Though
the conduct described here involves speech, it could be termed
associational speech — in that conditioning public benefits (a job) on an
oath concerning whether a person does or does not belong or harbor
loyalty to certain groups implicates the right to join or not join these
causes.
Citizens who wish to oppose Democrats and Republicans alike have a
right, under their freedom of association, “to create and develop new
political parties,” the Supreme Court said in the 1992 case Norman v.
Reed. However, this freedom is checked by the state’s interest in
preventing voter confusion, promoting legitimate competition in light of
limited ballot space, preventing ballot manipulation, and discouraging
party splintering. In balancing the need for an orderly election process
against the citizens’ right to associate in political parties of their choosing,
the Court weighs the “character and magnitude” of the burden on
associational interests against the state interest in imposing that burden. In
Timmons v. Twin Cities Area New Party (1997), that balance tilted in
favor of the state. Upholding Minnesota’s “antifusion” laws that
prohibited candidates from representing multiple parties on the ballot, the
Court held that the need for ballot integrity and stability outweighed the
burden on candidates aspiring to multiparty nomination.
4.
When extremists assemble. Extremism has a voice, too. Advanced
technology allows like-minded believers to share ideas, distribute
messages cheaply and pervasively, and coordinate public campaigns. This
trend promises an upcoming test between gatherings of fringe groups and
the need for a secure, democratic society. The impulse to suppress
Page 79 of 149
unpopular and unsavory messages confirms the importance of the First
Amendment to organizations with views to which many people object.
The Boy Scouts are perhaps the most benign example of such a group.
Certainly, the state may intervene if alarming messages would incite
violent or lawless action. But as to the functioning of groups — their
membership and internal affairs — Boy Scouts of America v. Dale
suggests that the state may not impose even generally applicable,
otherwise neutral laws that could impair the group’s freedom of
expression. Doing so not only might frustrate state regulators and law
enforcement officials, turning radical groups into impenetrable “black
boxes,” but would also appear inconsistent with the Supreme Court’s freeexercise jurisprudence, which does not exempt religious groups from the
effect of neutral, generally applicable laws. The Court will be faced with a
difficult decision when, for example, a condominium association claims
that its common purpose and continuing mission are to keep the races
apart and that, under Dale, the state may not force it to accept minority
residents.
Should discrimination be any more tolerated simply because it is
genuinely believed and consistently shared within a group?
When messages of opposition turn to acts of violence and lawlessness, the
Court has required “precision of regulation” before individual members
may be held liable by the fact of their belonging. (See the 1982 decision
NAACP v. Claiborne Hardware Co.) On Oct. 31, 1969, the NAACP
coordinated an economic boycott against white businesses in Port Gibson,
Miss., after negotiations for racial equality broke down. Though the
marches were generally peaceful and orderly, some individuals enforced
the boycott through violence and threats of violence. When suit was
brought, the Mississippi Supreme Court imposed liability against the
entire organization for the lawless acts of certain members. Reversing this
ruling, the U.S. Supreme Court said uncontrolled violence by a few
members could not be imputed to the group as a whole, which retained
constitutional protection for its peaceful demonstration.
As the Court noted:
Page 80 of 149
“Civil liability may not be imposed merely because an individual
belonged to a group, some members of which committed acts of
violence. For liability to be imposed by reason of association
alone, it is necessary to establish that the group itself possessed
unlawful goals and that the individual held a specific intent to
further those illegal goals.”
Fast-forward more than 30 years to when pro-life protesters coordinate
national demonstrations at abortion clinics. Some members engage in
violence, trespass and destruction of private property. The National
Organization for Women wins a unanimous jury verdict against prominent
pro-life groups under RICO — the Racketeering-Influenced and Corrupt
Organization statute, a federal law designed to prosecute organized crime.
However, the U.S. Supreme Court dealt a setback to abortion clinics in
2006 in its 8-0 decision in Scheidler v. National Organization for Women,
Inc., ending the two-decade-old legal fight over anti-abortion protests by
ruling that federal extortion and racketeering laws cannot be used to ban
demonstrations. (A 2003 ruling in the case had lifted a nationwide
injunction on anti-abortion groups led by Joseph Scheidler and others; the
2006 decision came after the 7th Circuit had kept the case alive.)
G.
News racks, The regulation of news racks presents an intriguing clash between
newspaper publishers’ First Amendment rights and cities’ interests in aesthetics
and safety. Publishers argue that news racks are an essential method of conveying
important information to the public. Many people buy their newspapers through
news racks.Cities counter that the regulation of news racks combats visual clutter.
They add that news racks can reduce pedestrian safety. Some cities have sought to
prohibit individual, free-standing news racks and replace them with multi-rack
units. Many times the disputes end up in federal court.
Newspaper publishers contend that news-rack regulations affect both
noncommercial and commercial speech. Because noncommercial speech, such as
political speech, receives greater protection under the First Amendment than
commercial speech, publishers often argue that city regulations should be treated
as restricting noncommercial speech. But some courts have determined that the
regulation of news racks more directly involves commercial speech.
Suffice it to say, news-rack disputes implicate many strands of First Amendment
jurisprudence. Many times it becomes important to determine on what type of
Page 81 of 149
property a disputed news rack is located. For instance, publishers and city
officials will often clash over news racks not only on sidewalks or along public
streets but also on various other kinds of city-owned property that are not public
forums.
In First Amendment law, the public-forum doctrine provides different levels of
protection against restrictions of expression on public property, depending on the
nature of the property. If someone engages in free expression — say, by erecting a
sign, giving a speech or installing a news rack — at a location considered to be a
traditional or limited public forum, a judge or court will closely scrutinize any
effort to restrict that expression. If the location is a non-public forum, then the
judicial review is less stringent. For non-public forums, the restrictions on speech
must be reasonable and not discriminate on the basis of viewpoint.
Whatever standard of review is applied, the courts must balance competing
concerns. The U.S. Supreme Court has twice decided cases involving news racks.
In its 1988 decision City of Lakewood v. Plain Dealer Publishing Co., the high
court invalidated a city ordinance that gave the mayor unbridled discretion to
determine whether publishers could place news racks in various locations.
The city ordinance provided that the mayor could deny a news-rack permit and
require publishers to abide by “such other terms and conditions deemed necessary
and reasonable by the Mayor.”
This provision, the Court said, gave the mayor “unfettered discretion” to issue
permits to certain newspapers and to deny permits to others. To the Court, this
was unacceptable under the First Amendment.
The Court next addressed the subject of news racks in its 1993 decision City of
Cincinnati v. Discovery Network, Inc. The city revoked the news-rack permits of
those publications that it called “commercial handbills.” Thus, the city allowed
traditional newspapers to remain in news racks but required the removal of other
publications that were devoted primarily to advertising.
The city justified its ordinance on its legitimate interests in safety and aesthetics.
The city argued that it was only revoking the permits for papers of lesser value.
The Supreme Court responded: “In our view, the city’s argument attaches more
importance to the distinction between commercial and noncommercial speech
than our cases warrant and seriously underestimates the value of commercial
speech.”
Page 82 of 149
The Court also noted the difficulty in defining commercial speech: “This very
case illustrates the difficulty of drawing bright lines that will clearly cabin
commercial speech in a distinct category.”
The city may have an interest in aesthetics, the Court noted, but the news racks of
the challenging parties “are no greater an eyesore than the news racks permitted to
remain on Cincinnati’s sidewalks. Each news rack, whether containing
‘newspapers’ or ‘commercial handbills,’ is equally unattractive.”
The city also argued that if it had the power to ban news racks, then it surely
could limit the number of news racks. The Court disagreed, asserting that “even if
we assume … that the city might entirely prohibit the use of news racks on public
property, as long as this avenue of communication remains open, these devices
continue to play a significant role in the dissemination of protected speech.”
Lower courts appear divided in how they resolve news-rack controversies. Some
have struck down regulations, while others have upheld them. For example, the
1st U.S. Circuit Court of Appeals upheld a ban on all “street furniture,” including
news racks in Boston’s historic Beacon Hill District.
The newspaper publishers involved in that case argued that the total ban on street
furniture violated their First Amendment rights. The 1st Circuit disagreed in
Globe Newspaper Company v. Beacon Hill Architectural Commission, writing:
“That the Street Furniture Guideline results in a total ban on news racks is nothing
more than an incidental effect of its stated aesthetic goal of enhancing the historic
architecture of the District by reducing visual clutter.” The appeals court also
reasoned that there were still ample alternative means for publishers to distribute
their newspapers in the district, including “home delivery, sales by stores, street
vendors, and mail.”
The 11th U.S. Circuit Court of Appeals upheld many news-rack regulations in
Gold Coast Publications, Inc. v. Corrigan. Several publishers challenged a variety
of restrictions imposed by the city of Coral Gables, Fla., including the required
use of a particular model of news rack, uniform color requirement for all racks,
and a uniform size of lettering on the racks.
The city, whose motto is “the City Beautiful,” sought to regulate the growing
number of news racks, which to many city leaders were becoming eyesores. The
city argued that the regulations were important for both safety and aesthetic
reasons.
Page 83 of 149
“It is well-settled that the right to distribute its newspapers through news racks is
protected under the First Amendment,” the appeals court acknowledged.
However, it also noted that “a newspaper publisher does not have complete
freedom in setting up a news rack distribution scheme.” The court concluded that
the city’s rules were valid restrictions on the time, place and manner of speech
that did not affect the content of the speech.
Sometimes news-rack ordinances are challenged by a particular type of
newspaper, which alleges that its First Amendment and equal-protection rights
have been violated because it is treated differently than other publications. This
resembles the types of claims advanced in Discovery Network.
For example, the Honolulu Weekly, a free publication, challenged the city’s
permitting scheme for the special district of Waikiki, which provided for separate
news racks (coin-operated and non-coin-operated) for publications that charged
readers and those that did not. The Honolulu Weekly bid for coin-operated space
because it wanted to be displayed closer to its competitors (paid daily
newspapers) and because the display windows for the coin-operated machines
were larger. The free weekly publication feared it would not be taken seriously as
a “credible media outlet” if it were lumped together with a host of other free
publications such as tourist promotional papers and advertising leaflets. The
Honolulu Weekly planned to obtain the right to distribute in coin-operated
machines and then disable the coin mechanism so its readers could access the
publication without charge.
After the city denied its permit for coin-operated racks, the weekly sued in federal
court, advancing a First Amendment claim in its complaint. A federal district
court granted partial summary judgment to the newspaper, reasoning that the
city’s ordinance was content-neutral but that it was not narrowly tailored to the
city’s substantial interests in safety and aesthetics. The court wrote that “there is
no relation between the act of dropping a coin into a box and aesthetics.” The
court reasoned that a better-designed ordinance would distinguish between
publications based on size, not whether it was free or not.
However, the 9th U.S. Circuit Court of Appeals reversed in Honolulu Weekly, Inc.
v. Harris (2002), ruling that the news-rack ordinance was both content-neutral
and narrowly tailored.
Page 84 of 149
The 9th Circuit agreed with the lower court that the ordinance was contentneutral. “This content-neutral scheme balances various needs and goals:
maximizing the uniformity in the appearance of newsracks, accommodating the
coin-collecting apparatus that the charging publications must use, and minimizing
the space newsracks require on city streets by requiring free publications that do
not need a coin-collecting apparatus to use the smaller, space-saving newsracks,”
the appeals court wrote.
The appeals court disagreed with the lower court on the question of whether the
ordinance was narrowly tailored. “The district court tried a little too hard to
imagine an ordinance that would best balance the goals of the city with the desires
of the publisher,” the 9th Circuit wrote. It emphasized that it would not “inquire
into whether the city’s method of addressing the problem was the best possible
solution.” According to the 9th Circuit, free publications still had “ample,
alternative channels of communication” to distribute their publications — through
noncoin-operated newsracks.”
Other courts have rejected cities’ plans to regulate news racks. An example is the
litigation between the Atlanta Journal-Constitution and Atlanta’s Department of
Aviation. The litigation began after the city’s Department of Aviation
implemented a plan in preparation for the 1996 Summer Olympic Games (held in
Atlanta) that would regulate the design, placement, location and fees for news
racks in the airport.
In this case, the city determined that it wanted to replace privately owned news
racks in the city airport with city-owned news racks. The city also arranged a deal
with Coca-Cola that provided that the city-owned news racks would carry Coke
ads.
Newspapers, led by the Atlanta Journal-Constitution, challenged the removal of
their news racks and the forced advertising scheme on First Amendment grounds.
In January 2002 a three-judge panel of the 11th Circuit agreed the city’s plan was
unconstitutional for several reasons in Atlanta Journal and Constitution v. City of
Atlanta Department of Aviation.
The appeals court noted that the city could not force newspapers to accept certain
ads. “Even if it is constitutional for government to ban advertisements on its news
racks completely, once it permits some commercial speech to be exhibited there,
Page 85 of 149
its prohibition of commercial speech ‘raises the danger of content and viewpoint
discrimination,’” the court wrote.
The appeals court also struck down an Atlanta license-fee plan for news racks as
imposing too high a price to pay for the exercise of First Amendment freedoms.
Citing an earlier decision, the appeals court reasoned that cities can charge
licensing fees as long as the fees do not cover more than what is needed to offset
administrative costs.
Finally, the appeals court determined that the city’s news-rack plan gave the city’s
Department of Aviation too much power over news racks, including unlimited
power to cancel licenses.
The appeals court concluded: “The Department’s plan impermissibly compels
some speech, prohibits other speech based upon its viewpoint, imposes a revenueraising fee on protected speech, and vests in government an unfettered discretion
to discriminate among speech based upon viewpoint and content.”
However, the full 11th Circuit set aside this decision and decided to review this
case on a full-panel basis (called en banc review). The full 11th Circuit disagreed
with part of the panel decision in its February 2003 opinion in Atlanta Journal
and Constitution v. City of Atlanta Department of Aviation. The 11th Circuit
determined that the city could charge fees that cover more than administrative
costs.
“In a proprietary capacity, the City has a substantial interest in the ‘bottom line,’
and, when the City acts as a proprietor, reasonable regulations may include profitconscious fees for access for expressive conduct, in a manner similar to fees that
would be charged if the forum was owned by a private party,” the court wrote.
The appeals court concluded that the fee was reasonable, constitutional and not a
special tax on the press. The panel did reinstate the part of the panel decision
concerning the broad discretion of the city’s department of aviation to determine
which publications are placed in news racks.
The court concluded: “[W]e find that the Department can impose a profitconscious fee on the use of newsracks in the Airport, but that the discretion
surrounding such fee must be restrained through procedures or instructions
designed to reduce or eliminate the possibility of viewpoint discrimination.”
Page 86 of 149
The court sent the case back down to the district court with instructions to give
the city “an opportunity to formulate ascertainable non-discriminatory standards
for the exercise of discretion by the appropriate Department official.”
On remand, the district court accepted the city aviation department’s modified
plan, awarded the city some restitution for fees that it was not able to collect
during the suit proceedings and awarded the publishers 80% of their attorney fees,
as they were the prevailing party in the litigation. The city once again appealed to
the 11th Circuit, contending the federal district court did not award them enough
money in restitution and should not have awarded the publishers 80% of their
attorney fees.
In March 2006, the 11th Circuit upheld the district court’s ruling on both issues.
On the attorney-fee issue, the appeals court wrote: “As the district court
recognized, we consider vindication of a constitutional right against a municipal
defendant an important measure of success. Thus, we agree with the district court
that the publishers’ success was significant.”
Larger newspaper companies and city governments often have the economic
resources to fund legal actions in these First Amendment disputes. Publishing
companies have a tremendous economic incentive to fight these battles, because
many consumers purchase their newspapers through free-standing news racks. On
the other hand, cities want to prevent a proliferation of news racks with multiple
colors that hurt the eyes and clog the sidewalks. In other locations, the cities want
to eliminate privately owned news racks and replace them with city-owned racks
for economic reasons.
In spring 2007, a group of newspaper publishers in Nashville, Tenn., objected to
Metro government’s proposed news-rack ordinance that would require $50 per
rack for initial permits and $10 per year after that. The publishers then countered
with a proposal to have a third party oversee the process.
As the Nashville example shows, it appears safe to say that publishers and
municipalities will continue to battle over news-rack regulations.
H.
Abortion protests & buffer zones. Freedom of speech often confronts, challenges,
provokes and revolts. Speech often serves as a catalyst for social change and
sometimes as a weapon to attack one’s enemies. Sometimes government officials
respond to speech by attempting to mitigate its effects on listeners and targets. A
common method is to pass buffer zones separating protesters from their targets or
Page 87 of 149
from designated areas. Buffer zones have been used repeatedly to attempt to
control anti-abortion demonstrators outside abortion clinics.
The abortion issue has been one of the most publicly and politically volatile issues
in American society, especially since the Supreme Court in 1973 found a
constitutional right to an abortion in Roe v. Wade. Violence has occurred at
abortion clinics and several physicians who perform abortions have been killed.
To protect women and abortion-clinic doctors and staff, Congress in 1994 passed
a law called F.A.C.E. — the Freedom of Access to Clinic Entrances Act (18
U.S.C., Sect. 248). The law prohibits injuring, intimidating or interfering with any
person who obtains or provides reproductive health services. It provides for civil
and criminal penalties against violators. The law has survived several First
Amendment challenges.
Sometimes courts will pass a special injunction providing for even greater control
over anti-abortion demonstrators. Many times these injunctions take the form of
buffer zones. The issue of buffer zones for anti-abortion demonstrators has
reached the Supreme Court several times in recent years beginning in 1994 with
Madsen v. Women’s Health Center.
A Florida state court ordered that anti-abortion demonstrators could not protest
within 36 feet of an abortion clinic, make loud noises within earshot of the clinic,
display images observable from the clinic, approach patients within 300 feet of
the clinic, or demonstrate within 300 feet of the residence of any clinic employee.
The Florida Supreme Court upheld the injunction in its entirety.
The U.S. Supreme Court upheld the restrictions against demonstrating within 36
feet of the clinic (to the extent that the 36-foot buffer did not include private
property), making loud noises within earshot of the clinic, and making loud noises
within 300 feet of an employee’s residence. The Court rejected the prohibitions
against displaying images, approaching patients within 300 feet of the clinic, and
peacefully picketing within 300 feet of an employee’s residence. In reaching its
decision, the Court announced a new test for cases in which speech is prohibited
by an injunction: The injunction will be upheld unless it burdens more speech
than is necessary to serve a significant government interest.
The Supreme Court examined the issue of buffer zones outside abortion clinics
again its 1997 decision Schenck v. Pro-Choice Network of Western New York.
Page 88 of 149
In Schenck, three doctors and four medical clinics near Rochester and Buffalo
filed a federal lawsuit against 50 individuals and three organizations — Operation
Rescue, Project Rescue Western New York and Project Life of Rochester — who
often engaged in heated anti-abortion demonstrations. The lawsuit alleged that the
protesters would block access to abortion clinics by kneeling or lying in
driveways and similar conduct.
Eventually, the federal district court issued an injunction against the protesters,
prohibiting them, with the exception of two sidewalk counselors, from
demonstrating within 15 feet of abortion-clinic entrances and driveways and
within 15 feet of vehicles and patients entering or leaving a clinic. The provision
prohibiting protesters within 15 feet of fixed physical locations (abortion clinics)
was called a fixed buffer zone, while the provision prohibiting them within 15 feet
of moving objects (cars or people) was called a floating buffer zone.
The Court applied the test it had developed in Madsen to determine whether the
fixed and floating buffer zones were constitutional. The Court held that the fixed
buffer zone did not burden any more speech than necessary to serve the
government interests of ensuring public safety and order, promoting the free flow
of traffic on streets and sidewalks, and protecting women’s freedom to seek
abortions or other health-related services. The Court struck down the floating
buffer zone, however, because it found the floating zone to be overbroad and
difficult to enforce. The Court reasoned in part that “the 15-foot floating buffer
zones would restrict the speech of those who simply line the sidewalk or curb in
an effort to chant, shout or hold signs peacefully.”
In 1993, the Colorado Legislature enacted a law requiring protesters to stay eight
feet from anyone entering or leaving an abortion clinic, as long as the clinic
visitor is within 100 feet of the entrance. In 1995, three anti-abortion activists
challenged the law, claiming it violated their free-speech rights. Both a trial court
and state appeals court upheld the statute.
When the Supreme Court of Colorado refused to hear their case, the petitioners
appealed to the U.S. Supreme Court. In light of its ruling against floating buffer
zones in Schenck, the U.S. Supreme Court in February 1997 ordered the Court of
Appeals of Colorado to re-examine the case. The state appeals court again upheld
the law.
Page 89 of 149
In February 1999, the Colorado Supreme Court affirmed the lower court’s ruling,
stating that the law places reasonable restrictions on the time, place and manner of
speech by anti-abortion demonstrators.
The case was appealed again to the U.S. Supreme Court. The issue before the
Court was whether the law prohibiting demonstrators from approaching within
eight feet of anyone coming to and from medical clinics violated the First
Amendment.
The Court upheld the law by a 6-3 vote in its 2000 decision Hill v. Colorado. The
majority reasoned that the law was not a speech regulation, but simply a
“regulation of the places where some speech may occur.” The Court also
emphasized that the law applied to all demonstrators regardless of viewpoint. The
majority determined that the state’s interests in protecting access and privacy
were unrelated to the suppression of certain types of speech. States and
municipalities have special government interests in certain areas, including
schools, courthouses, polling places, private homes and medical clinics, the Court
said.
Justice Antonin Scalia wrote a scathing dissent in which he accused the majority
of manipulating constitutional doctrine in order to provide further protection for
abortions: “What is before us, after all, is a speech regulation directed against the
opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc
nullification machine’ that the Court has set in motion to push aside whatever
doctrines of constitutional law that stand in the way of that highly favored
practice.”
Justice Anthony Kennedy also dissented, writing that the decision “contradicts
more than a half century of well-established First Amendment principles.”
Kennedy said the Colorado statute was a content-based law that restricted a
specific type of speech, anti-abortion speech.
In 2006 the U.S. Supreme Court dealt a setback to abortion clinics in its 8-0
decision in Scheidler v. National Organization for Women, Inc., ending a twodecade-old legal fight over anti-abortion protests by ruling that federal extortion
and racketeering laws cannot be used to ban demonstrations. (A 2003 ruling in the
case had lifted a nationwide injunction on anti-abortion groups led by Joseph
Scheidler and others; the 2006 decision came after the 7th Circuit had kept the
case alive.)
Page 90 of 149
Amid the continuing abortion debate, First Amendment constitutional arguments
will play a significant role.
XIV. Administrative Procedure Act and the Cities See Appendix 14 attached.
XV.
Economic Development Techniques
A.
Tax Increment Financing
B.
Community Improvement District
C.
Neighborhood Improvement District
D.
Transportation Development District
E.
Direct Subsidies
F.
XVI. Annexation
A.
Voluntary Annexation
Page 91 of 149
B.
Involuntary Annexation
XVII. Regulation of Businesses
XVIII. Water, Sewer, Electricity and other city-owned Utilities
A.
Water
B.
Sewer
1.
Unpaid sewer bill can become a lien against the real estate. §250.234.
Although this statute is located in a Chapter of the statutes called “Sewerage Systems and
Waterworks – City or District” most city attorneys do not think statute authorizes lien for
water service.
C.
Electricity
D.
Natural Gas
1.
E.
Unlike other municipal utilities, this one is subject to regulation by the
Missouri Public Service Commission.
Cable Television
XIX. Police and Traffic Regulations
A.
Police department
B.
Quasi-criminal type ordinances
C.
Juvenile Justice and Curfew Regulations
D.
Model Traffic Ordinance
Page 92 of 149
E.
Animal Regulations
F.
Municipal Court
1.
Municipal Court is a division of the circuit court, subject to supervision by
presiding judge of the circuit. Degree of supervision depends upon
personality and skills of the presiding judge.
a.
2.
City decides if it wants to run its own municipal court, or if wants state to
provide municipal court. Decision can be changed but only every 2 years.
a.
G.
XX.
State auditor conducts regular audits of municipal courts when
they do audit of the circuit court.
If city provides a “suitable courtroom” state judge supposed to
hold court at city’s location
3.
If city wants to have its own judge, City selects and pays municipal judge
for 2 year term; cannot remove.
4.
In theory the municipal judge appoints the court clerk, and supervises the
traffic violatioon bureau. In practice, City city usually does this.
5.
What happens if judge arrested for DWI or other politically unpopular
offense? Can be suspended by presiding judge (not city) pending plea.
6.
Jury trial allowed everywhere except Kansas City.
Civil Defense
Streets and Sidewalks – Privately owned utilities
A.
Streets
1.
Where do streets come from ?
Page 93 of 149
a.
Streets may be given to the city -- Dedication
1)
Property is frequently dedicated to public use by plat.
Chapter 445, RSMo. This process of “statutory dedication”
serves to vest title in the public upon approval and
recording of a plat that indicates an intent by the owner to
allocate property to public use. Bates v. Mueller, 413
S.W.2d 853 (Mo. App. E.D. 1967). Dedication within a
municipality vests title in the municipality, while
dedication outside city limits vests title in the county for
public purposes.
2)
For a dedication to be effective, the signer or signers of the
plat must have fee simple title. Granite Bituminous Paving
Co. v. McManus, 129 S.W. 448, 453 (Mo. App. S.D. 1910).
Neither the owner of an easement nor the owner of property
burdened by an easement can make a valid dedication
without the other. City of Sarcoxie v. Wild, 64 Mo. App.
403 (W.D. 1896), rule recognized (but distinguished) in
Bateman v. Owens, WD71053 (Mo App. WD 5-31-11). A
dedicator cannot attach conditions or limitations
inconsistent with the character of the dedication or
conditions or limitations that would exclude public control
of the property. City of St. Louis v. Meier, 77 Mo. 13
(1882); City of Camdenton v. Sho-Me Power Corp., 237
S.W.2d 94 (Mo. 1951). In Camdenton the Supreme Court
held that an attempt by the property owner to reserve the
power to grant utility easements across and under dedicated
streets was ineffective. Conditions that are not inconsistent
with public use and control are valid and binding on the
municipality. Sch. Dist. of Kansas City v. Kansas City, 382
S.W.2d 688 (Mo. banc 1964).
Page 94 of 149
2.
b.
Property may also be dedicated to public use by common-law dedication (i.e., no written document)
when the owner manifests an intent to devote land to public use and the public accepts the dedication by
actual use of the property. Ackerman v. Roufa, 584 S.W.2d 100 (Mo. App. E.D. 1979). Frequently, a
common law dedication happens because of some defect in an attempted dedication by plat.
c.
The quantum of title that a municipality receives by dedication is variously described. Section 445.070,
RSMo, says that a dedication by plat vests a fee in trust for the purposes indicated, but numerous cases
have described the interest as an easement. E.g., State ex rel. State Highway Comm’n v. Johns, 507
S.W.2d 75 (Mo. App. W.D. 1974). However described, the municipality does not receive a conveyable
interest or the power to devote the land to some other public use. Village. of Climax Springs v. Camp,
681 S.W.2d 529 (Mo. App. S.D. 1984); Cummings v. City of St. Louis, 2 S.W. 130 (Mo. 1886).
d.
The city may buy the streets. Leading to and from municipality and within five miles of city limits,
including power of eminent domain, § 71.340, RSMo; State ex rel. Norton v. Rush, 637 S.W.2d 7, 9
(Mo. banc 1982).
e.
The city may acquire the streets by eminent domain
 Third class cities, including power of eminent domain, § 88.497.
 Fourth class cities, including power of eminent domain, § 88.667.
 Special charter cities between 10,000 and 30,000 population, within or without city limits, including
eminent domain, § 81.190.
 The Attorney General has opined that towns and villages have the power to condemn property for
street purposes. Op. Att’y Gen. 21 (1960).
What can you do with them and what are your responsibilities?
a.
You can improve them. Once established, streets may be improved or repaired either out of the city’s
funds or by special assessment against abutting property, see Section 88.680ff. RSMo. (fourth class
cities); 88.640ff RSMo (third class cities). Villages are also mentioned in various sections scattered
through Chapter 88.
Page 95 of 149
Improvement of streets is a “public work,” which means it is subject to numerous statutes, both state and
federal: For more information, review Part VI, Contracts and Cooperative Agreements
b.
You can allow others to make limited use of them. Part of municipal authority over streets includes the
power to allow use of the streets for public utilities and other purposes by granting franchises for that
purpose. Sections 71.520, 393.010 RSMo. (Note, AT&T claims, and has successfully defended, a
corporate charter right to use public roads and streets granted previously to statutory grants to cities and
counties.) Since 2001, municipalities must consent to public utility use of the ROW, see Sections
67.1830ff RSMo. For discussion of the fee implications of these sections, see XO Missouri v. City of
Maryland Heights, 256 F. Supp. 976 (ED Mo 2003), aff’d 362 F.2d 1023 (8th Cir. 2004). Even after
granting a franchise to allow utilities to use the streets, the municipality retains substantial control: for
instance, the city may require the utility to relocate its facilities at its own expense when necessary to
accommodate a street improvement, Bridgeton v. Missouri-American Water Co., 219 SW3d 226 (Mo.
banc. 2007).
c.
You can regulate their use. The basic authority of municipalities to manage their streets is statutory.
General authority to manage the city’s property is found in § 77.260, RSMo (third class cities), and
§ 79.110, RSMo (fourth class cities). (These are important general police power statutes, which you
need to remind judges of every chance you get.) Fourth class cities are also expressly vested with
exclusive authority to control and regulate city streets and other public ways, § 88.670, RSMo, and the
same authority is implicit in third class cities, City of Caruthersville v. Cantrell, 230 S.W.2d 160 (Mo.
App. E.D. 1950).
1)
Regulation of traffic is fundamental to street management. Many cities adopt the model traffic
ordinance, Chapter 300 RSMo. as authorized by Section 300.600, but adoption of the MTO is
not mandatory, see, e.g., Southers v. City of Farmington, 263 SW3d 603, 617(n.20) (Mo. banc
2008). The MTO applies to “streets,” which is defined in section 300.010(36) as "way publicly
maintained,” but city also has right to regulate traffic on privately owned ways open to the
Page 96 of 149
public, City of Clayton v. Nemours, 353 Mo. 61, 182 S.W.2d 57 (1944). Section 304.120 RSMo
grants cities traffic regulation authority which is not limited to public streets.
d.
3.
You have to take care of them! Cities can be liable for what happens on their streets and sidewalks. See
Part VII, Torts, and Section 537.600 RSMo. But before you start worrying about the merits of a case
alleging that the city’s street was in a “dangerous condition,” remember to check all the records you can
find to make sure it’s really the city’s street or (especially) sidewalk. Old records can be your friends.
Keep in mind that city streets may have been taken over by the state or the county. Keep in mind that
the city or public may never have “accepted” what everybody assumes is a city street.
How do you get rid of them?
a.
Deed. Most of the time, the city will have no conveyable interest in a street. Neil v. Indep. Realty Co.,
298 S.W. 363 (Mo. 1927). Even if the city received a general warranty deed that looks like it conveyed
fee simple title, the particular facts might lead a court to hold that only an easement was conveyed,
Schuermann Enterprises v. St. Louis County, 436 SW2d 666 (Mo. 1969). Instead of being deeded to an
interested person, a street will normally be “vacated” by ordinance and the ordinance can be recorded,
which “transfers” the property to whomever is entitled to it. No matter how much interested property
owners or the title company pleads, “no conveyable interest” means the city should not execute a deed,
not even a quit claim deed.
b.
Vacation. “Vacation” is the term of legal art describing the act of relinquishment or abandonment of
public property (usually streets) not owned in fee simple title by the municipality. The power to vacate
streets must be granted in express terms or by necessary implication. Bingham v. Kollman, 165 S.W.
1097 (Mo. 1914). Specific statutory provisions authorize vacation by:
third class cities (§ 88.637, RSMo);
fourth class cities (§ 88.673, RSMo); and
constitutional charter cities (§ 82.190, RSMo).
Page 97 of 149
There is no comparable statute for towns and villages, but the county commission (county court) can
vacate streets and roads even if they are located within a city or town. Sections 71.240, et seq., RSMo;
see also §§ 228.110 and 228.160, RSMo.
The authority of a city to vacate streets applies only to city streets; it does not include county or state
roads that run through the city. Kroeger v. St. Louis County, 218 S.W.2d 118 (Mo. 1949). A vacation
ordinance may be made contingent on the dedication by an affected property owner of a substitute street
or alley, Knapp, Stout & Co. v. City of St. Louis, 55 S.W. 104 (Mo. 1900), or on the payment of money,
cf. Heman Constr. Co. v. Loevy, 64 Mo. App. 430 (E.D. 1896). But a purported vacation of a street
conditioned on rededication of the surface rights was held to be a grant of public property to a private
person in violation of MO. CONST. art. VI, § 25. St. Louis Children’s Hosp. v. Conway, 582 S.W.2d 687
(Mo. banc 1979).
Vacation must be by ordinance; a resolution adopted by a board majority is not sufficient. Rice v. Huff,
22 S.W.3d 774 (Mo. App. W.D. 2000). No deed by the municipality is necessary to carry out the
transfer of title incident to a street vacation; usually, instead, the vacation ordinance is recorded by an
abutting landowner. When a street is vacated, title usually reverts to the abutting property owners in
equal shares, but it will revert to the successor in title to the original dedicator or grantor if the property
was owned by the owner on only one side of the street. Neil v. Indep. Realty Co., 298 S.W. 363 (Mo.
1927).
c.
Abandonment. Abandonment is similar to vacation. A dedicated street is not abandoned by nonuse.
Winschel v. County of St. Louis, 352 S.W.2d 652 (Mo. 1961), but query whether this rule survives
McCullough v. Doss, 318 SW3d 676 (Mo. banc 2010). If streets cannot be abandoned by non-use,
abandonment must be by clear and unambiguous enactment of the city’s governing body. Mitchell v.
City of Everton, 655 S.W.2d 864 (Mo. App. S.D. 1983).
A conveyance of a public road to private owners in an attempt to delegate maintenance responsibilities
is void as a breach of the trust in which title to public roads is held. Miller County v. Groves, 801
S.W.2d 777 (Mo. App. W.D. 1991).
Page 98 of 149
d.
Adverse Possession. A municipality’s rights in real estate, including its streets cannot be extinguished
by adverse possession because the statute of limitations does not run against lands devoted to public use.
Section 516.090, RSMo; City of Gaine sville v. Gilliland, 718 S.W.2d 553 (Mo. App. S.D. 1986); City of
Poplar Bluff v. Knox, 410 S.W.2d 100 (Mo. App. S.D. 1966).
However, a municipality may acquire title to real estate by adverse possession. Horvath v. City of
Richmond Heights, 674 S.W.2d 146 (Mo. App. E.D. 1984). When you’re talking about streets, it’s hard
to tell the difference between this and common law dedication.
e.
Execution Against Municipal Property. In general, property of a municipality used for a public purpose
is not subject to seizure and execution, § 513.455, RSMo, or to mechanic’s liens. Union Reddi-Mix Co.
v. Specialty Concrete Contractor, 476 S.W.2d 160 (Mo. App. E.D. 1972); Burgess v. Kansas City, 259
S.W.2d 702 (Mo. App. W.D. 1953).
B.
Sidewalks
C.
“Parking” – the unpaved portion of the right of way.
a.
City may, by ordinance, require adjoining land owner to mow grass [Overland v. Wade, 85 SW3d 70
(E.D., 2002)] or shovel snow off sidewalks [Robinson v. Arnold, 985 SW2d 801 (E.D., 1998)].
However, city remains liable in tort for injuries caused by snow/ice on sidewalks, even with such an
ordinance – because sidewalks is a proprietary function.
Page 99 of 149
XXI. Public Nuisances and Public Health Regulations
NOTE: Fourth class city may collect attorney fee for nuisance abatement §79.383 May a third class city or constitutional charter city
charge for attorney fee? No statute authorizes it. Cronan: I have a third-class city that does so; will a court agree it is permitted?
Maybe, but I’m going to fold if challenged.
XXII. Creating a New Village or City
A.
Establishing a Village
B.
Establishing a City
C.
Consolidation
D.
Dissolution
E.
XXIII. Ethics
A.
More than the MoBar “Code of Professional Responsibility”
1.
Mayor can’t vote if “interested in the result.”
B.
Criminal liability
Page 100 of 149
1.
Bribery
a.
2.
Report of bribes to Missouri Ethics Commission (a/k/a “Missouri Paperwork Commission”) if budget
>$1,000,000.
Conflict of Interest
a.
“Interest” is receipt of $6,000 per year from a business, or ownership of 10% of business
C.
Attorney Legislators and their law firms disqualified to receive payment from city/county
D.
First Amendment right to “petition for redress of grievances” and Sixth Amendment “right to counsel” may trump CPR
prohibition on attorneys contacting your client. See appendix 25.
E.
Nepotism
F.
Incompatible Offices
Page 101 of 149
Appendicies
1.
2.
3.
4.
5.
6.
6A.
7.
8.
9.
10a.
10b.
11.
12.
13.
14.
15.
16.
17.
18.
19.
19F-1.
19F-2.
20a.
21a.
22b.
22c.
List of City Attorneys (Members of MMAA-Can be found at www.mocities.com click on conferences and 2011 MMAA
Conference Handouts).
Sample Purchase Contract (MAFPD)
Special Warranty Deed
Motion for Election (Late Notice)
Petition for Election (Late Notice)
Advantages and Disadvantages – Municipal Court
Ordinance selecting associate circuit court as municipal court.
Ordinance closing street
Petition to Enforce Nuisance Ordinance in Circuit Court
Release of Nuisance Lien
Thank you certificate
Page 102 of 149
Appendix 6 – Sample Purchase Contract (MAFPD)
MISSOURI ASSOCIATION OF FIRE PROTECTION DISTRICTS
SAMPLE PURCHASE CONTRACT
1. PARTIES: This agreement is between
________________ Fire Protection District
(hereinafter called “Buyer” or “District”)
And
(“Seller”)
2. ITEM(S) PURCHASED: Seller sells to district, and District buys the following item(s):
This description of the item(s) purchased is simply a summary. The details about the item(s) are contained in the
“Specifications” or “Request for Proposals” attached to this document and marked as Exhibit A, and the Seller’s “Bid” or
“Proposal” attached to this document and marked as Exhibit B. [If there is a variance in language between Exhibits A and B,
the language in Exhibit A will control, unless
a.
b.
the first page of Exhibit B is the location of the differing language, or
the first page of Exhibit B contains a reference to the differing language in a way that reasonably identifies for the
district that the product being offered differs from the product specified, or
c.
the language in Exhibit A has been marked through, and the change initialed by the same representative of the District
as identified on the last page of this agreement, and dated and timed prior to the date and time of this agreement,
Page 103 of 149
in which case Exhibit B will control.
3. DELIVERY: (only the language identified by a check mark is part of this agreement)
□ The items shall be ready for delivery F.O.B. seller’s facility in ______________
within _______ days from the date of this agreement.
□ The item(s) will be delivered to the District at ___________________________ within
_________ days of this agreement.
4. PRICE: The total contract price is $__________________________.
5. PAYMENT (TERMS): (only the language identified by a check mark is part of this agreement)
□ Payment of the full amount is due the date the items are picked-up at the seller’s
location identified above.
□ Payment of the full amount is due the date the items are delivered to the district’s location identified above.
□ Seller will send an invoice to the District’s business office at _____________________ and Buyer will pay the same
within 30 days following receipt of the invoice.
□ Other: ________________________________________________________________
6. IMPOSSIBILITY OF PERFORMANCE (FORCE MAJEURE)
If performance of this contract is prevented, restricted, or interfered with by causes beyond either party’s reasonable control,
and if the party who is unable to carry out its obligations gives the other party prompt notice of such an event, then the
obligation of the party invoking this provision shall be suspended to the extent necessary by such event. The term “Force
Majeure” shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or
acts of civil or military authority or by national or state emergencies, insurrections, riots, wars, strikes, lock-outs, work
stoppages, or other labor disputes, and unusual and unexpected supplier failures, shortages, breaches, or delays The excused
party shall use reasonable effort under circumstances to avoid or remove such causes of non-performance and shall proceed
with reasonable dispatch whenever such causes are removed or cease. An act or omission shall be deemed within the
reasonable control of a party if committed, omitted or caused by such party or its employees, officers, agents or affiliates.
Page 104 of 149
7.
BUYER’S ASSURANCES:
Buyer assures the Seller that (1) these purchases are within the Districts printed budget, and that funds have been budgeted to
pay for these items, (2) that the District’s board of directors has authorized it to execute this contract, (3) that the District exists
as a political subdivision of the State of Missouri and (4) that the District is exempt from taxation, and this transaction is not
subject to any direct Missouri tax.
8. SELLER’S ASSURANCES:
Seller assures the District that (1) the state within the United States or nation where Seller has the office that has submitted the
bid that preceded this contract DOES NOT impose a penalty or prohibition against any MISSOURI company from selling
goods or services to governmental units within that state or nation (It being understood that if it should develop that there is a
penalty or prohibition, the same shall likewise apply to Seller as a reduction or elimination of the price paid), and (2) that the
item(s) described in this contract were produced in the United States as required by the MISSOURI BUY AMERICAN ACT
[RSMo §34.350-359] or if of non-United States origin are authorized by the MISSOURI BUY AMERICAN ACT to be
purchased by a Missouri political subdivision because of the non-availability of U.S. sourced items within 10% of the purchase
price specified, or because compliance is excused by a treaty (insert name of treaty: __________________________) to which
the United States is a party.
9. WARRANTY:
The warranty for the item(s) purchased is described in the attached Exhibits A and B. If there is a variance between those two exhibits,
the same resolution of the difference provided in Section 2 above shall apply to the Warranty. The so-called “acceptance doctrine” shall
not apply to relieve Seller of any warranty made in this agreement.
10. CONTROLLING LAW:
This agreement, including its exhibits, shall be interpreted according to the law of the state of Missouri. The venue for enforcing this
contract shall be in the Circuit Court of that county in which the District (or the largest portion of its territory) is located.
Page 105 of 149
11. MEDIATION:
In the event the parties have a dispute regarding this transaction, the parties shall attempt to mediate their dispute prior to resorting to
a lawsuit. The cost of mediation shall be divided equally between the parties. The Mediator shall be selected from those that have
minimum training and are recognized by the Missouri Supreme Court as approved mediators.
12. ATTORNEY FEES:
If either party must sue the other to enforce this agreement, or for damages for breach of this agreement, the successful party shall
receive its attorney fees and other costs from the other party.
13. ENTIRE AGREEMENT; AMENDMENTS:
This agreement, together with the two Exhibits, embodies the entire agreement between the parties relating to the subject
matter contained herein, and merges all prior discussions and agreements between them. No agent or representative of
either party has any authority to make any representations, statements, warranties or agreements not herein expressed. All
modifications or amendments to this agreement must be in writing and signed by an authorized representative of each of the
parties hereto. (No alleged course of conduct by the parties at variance from the requirement of a written amendment shall
be used to excuse the requirement of writing for any amendment.) If there is any ambiguity discovered in this agreement,
there shall be no presumption against either party used to resolve said ambiguity.
14. DATE AND TIME OF AGREEMENT
This agreement is effective as of its signing on the _____ day of _____________, 20___ at ______________________ o’clock Missouri
time.
FOR DISTRICT:
By _________________________________________
Page 106 of 149
FOR SELLER:
By _________________________________________
Comments Regarding Sample Contract
1.
2.
3.
4.
5.
6.
This contract is based upon one which was submitted to a fire district for the purchase of a new tanker. However, it has been
changed to reflect some Missouri statutes, and to make certain it can be enforced in Missouri. I believe this is an even-handed
agreement, reasonable for both sides. If you have questions that are not answered in these comments, you may call Patrick Cronan
at 573-698-3074 for answers.
You will need to fill in the blanks in the first section with the name of the fire district, and with the correct legal name of the
seller. Don’t use the name of the salesman, for example. Use the name that is included on the bid, including any letters or
abbreviations. (If you get the name wrong, the seller can claim that the contract “doesn’t apply to us, because that isn’t our name.”)
This contract is intended to be an integral part of a district purchasing department, to be used together with a sample bidding
document and a sample purchasing policy. Some assumptions in the contract are based upon what is expected to be included in
your bid documents.
Section 2 of the contract needs to be filled out with a brief description of the items purchased. The bid specifications need to be
marked as “Exhibit A” and attached to this contract, and the bid received need to be marked as “Exhibit B” and included as part of
the contract. (They do not have to be stapled or otherwise physically attached to this piece of paper, but it does need to be
understood they are a part of the contract documents.)
Section 3 – check the appropriate box, or if you retype the contract, leave out the part that doesn’t apply.
Section 4 – Insert the total price. If the price includes various options or other matters not yet decided, insert “price determined
per Exhibit B” instead of a definite dollar amount.
Page 107 of 149
7.
Section 5 – When to pay is almost as important as how much you pay. Sometimes you can get a discount if you pay early, and
often times that discount may be more than you can earn on your money while you wait. With a vendor you trust, it may be
reasonable to pre-pay and get the discount. A vendor who is new, whom you don’t know, might not be offered the same
prepayment option. This is a judgment call, and your Board of Directors should make the final decision on this one.
8.
Section 6 – This is a fairly standard part of most contracts, although it obviously favors the sellers. Most sellers have to rely
upon suppliers and normal business conditions to produce the goods you need. This particular provision also excuses the seller from
complying with his contract if there is a work stoppage or a strike, but only if that strike does not involve its own workers. Some
sellers, who may be anticipating a upcoming contract negotiation, will want to expand this clause to include a strike by its own
workers. You would have to decide if such a modification was OK with you.
9.
Sections 7 and 8 – These assurances are things that each party might not know about the other, and can reasonably expect the
other to guarantee. If one of these assurances proves to be false, you might expect to party who gave the false assurance to have to
pay for it.
a.
The requirement that all from outside Missouri who sell to Missouri local governments be penalized equal to what a
Missouri company would suffer in the other state is found at RSMo §34.076. The statute doesn’t say which party of the
agreement should be responsible for proving compliance. I arbitrarily decided it should be the job of the seller. If you wish
you can delete this requirement, but then you would be expected to assume the responsibility for making certain yourself.
Usually you can determine this by examining a chart found on the internet at both the Oregon and the North Carolina
purchasing departments. If you find out that a Missouri company would be penalized, then you must reevaluate the bids, a
reject this seller if the second-lowest bidder is within the specified range of this bidder. See
b.
In this contract we require the seller to promise that the goods it is selling comply with the state’s “Buy American Act.”
This law is found at RSMo §34.350 thru §34.359. You are not permitted to waive this requirements (§34.355).
10.
Sections 11 and 12 – These are added because I think they would be useful to help resolve disputes, and are helpful to our fire
district. “Mediation” is not the same as arbitration, because you cannot be forced to accept a result you don’t like. But it may be
cheaper than a lawsuit, and certainly if one side says they wish to submit the matter to mediation you have an early hint that
litigation might follow. The provision about attorney fees obviously will only help the party that wins the lawsuit, but it also may
help encourage the mediation to bring about a resolution of your dispute without litigation. You could, if you wish, delete these two
sections.
Page 108 of 149
11.
Section 13 – This section is fairly standard in contracts, and it is also what the law usually imposes on any contract. But it is
contrary to what many people expect. If the salesman makes some statement like “we guarantee you will have this stuff by
Tuesday” but it isn’t in the written documents, then it didn’t happen. Often copy machine salesmen will promise “our service man
will respond to any call within 4 hours.” Then, often the service department takes 24 or 48 hours to respond. If the salesman has
said anything which is important to you, make certain it is included in the written documents.
12.
Section 14 – The reason to include the time you sign the agreement, is because earlier in this document (Section 2) there is a
requirement that any changes to the specifications or bid have to occur earlier in time than when the agreement is signed. If you
only put a date on the agreement, you would have to date any changes to the specifications or bid at least the day before. It is
easier to put a date and time on everything, and make certain all changes that must be made to account for differences in the
document have a time earlier than the time for the final signature.
13.
Signature – Missouri law requires that the person who signs a contract for a government must have written authority to do so.
See RSMo §432.070. This means (at a minimum) that the minutes of the Board of Directors must reflect an agreement by the board
to allow the Board President (or whomever) to sign. It is also possible for written authority to be contained in an ordinance,
resolution, or motion with vote. Our sample purchasing ordinance, for example, specifies who has authority to sign contracts for the
District. (NOTE: there is no similar requirement for written authority on behalf of people who sign for a private business. In other
words “apparent authority” of the agent is good enough to hold the business to the contract.)
Page 109 of 149
Appendix 6A – Special Warranty Deed
Special Warranty Deed
This Special Warranty Deed, made and entered this ___ day of __________, 1998, by and between [GRANTOR], a body
corporate and politic and a political subdivision of the State of Missouri, duly organized under [LAW] (hereafter "Grantor"), of
_________ County, Missouri, and [GRANTEE], (hereafter "Grantee"), whose mailing address is: _______
;
Witnesseth, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt
of which is hereby acknowledged, and by virtue of and pursuant to [GRANTOR] Ordinance Number
;
Grantor does hereby Sell and convey to Grantee, and Grantee's successors and assigns, the following described real property in
County, Missouri, to wit:
[DESCRIPTION].
To have and to hold the same, together with all rights, immunities, privileges and appurtenances, unto Grantee and Grantee's
successors and assigns, forever;
And the Grantor hereby covenants that Grantor will warrant and defend the title to these premises unto the Grantee, and
Grantee's successors and assigns, forever, against the lawful claims of all persons claiming through the Grantor but none other,
excepting, however, the general taxes for the calendar year whensoever levied, and thereafter, and the special taxes becoming a lien
after the date of this Deed.
In Witness Whereof, the said Grantor has caused this Deed to be executed by its [CHIEF EXECUTIVE], and its Seal, attested
to by its [CLERK], to be hereto affixed, the day and year first above written.
GRANTOR:
By:________________________________
Page 110 of 149
_______________________________
[CLERK]
APPROVED AS TO LEGAL FORM:
_______________________________
[ATTORNEY]
STATE OF MISSOURI )
) SS
COUNTY OF
)
I, [NAME OF CLERK, CLERK] of [GRANTOR], Missouri, do hereby certify that [CHIEF EXECUTIVE, who executed the
above instrument, is the [CHIEF EXECUTIVE TITLE] OF [GRANTOR], Missouri, and that he is duly authorized to make such
execution by Ordinance Number
, adopted by the [GRANTOR LEGISLATIVE BODY] on [DATE], and that the
subscription to the same is his genuine signature.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the official seal of [GRANTOR], Missouri, this
__________ day of _______________, .
_______________________________
[CLERK] (seal)
Page 111 of 149
STATE OF MISSOURI )
) SS
COUNTY OF
)
On this __________ day of _______________, , before me appeared [CHIEF EXECUTIVE], to me personally known, who
by me duly sworn did say that he is the [TITLE]of [GRANTOR], Missouri, a body corporate and politic and a political subdivision of
the State of Missouri, and that the seal affixed to the foregoing instrument is the corporate seal of said [GRANTOR], Missouri, and
that the said instrument was signed and sealed on behalf of said [GRANTOR] by authority of its [LEGISLATIVE BODY]; and the
said [CHIEF EXECUTIVE] acknowledged said instrument to be the free act and deed of said [GRANTOR], Missouri.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, this
__________ day of _______________, .
_______________________________
Notary Public
My Commission expires:______________________________
(seal)
Page 112 of 149
Appendix 10 a – Motion for Election
IN THE CIRCUIT COURT OF TANEY COUNTY,
AT FORSYTH, MISSOURI
______ DIVISION
In the Matter of:
THE HISTORIC DOWNTOWN
BRANSON COMMUNITY
IMPROVEMENT DISTRICT
DISTRICT SALES TAX ELECTION
THE HISTORIC DOWNTOWN BRANSON
COMMUNITY IMPROVEMENT DISTRICT
119 West Pacific Street,
Branson, Missouri 65616,
Movant.
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. _____________
MOTION
FOR AN ORDER PERMITTING LATE NOTIFICATION OF AN ELECTION
AND SUGGESTIONS IN SUPPORT THEREOF
COMES NOW Movant, The Historic Downtown Branson Community Improvement District (the “District”), and pursuant to
Section 115.125.2, RSMo, respectfully moves the Court for an order permitting the District to make late notification to the election
Page 113 of 149
authority of Taney County, Missouri, of an election of the qualified voters of the District to consider the approval of a district-wide
sales and use tax at the June 6, 2006 public election.
In support of this Motion, Petitioners state as follows:
1.
The Historic Downtown Branson Community Improvement District (the “District”) was declared established by
Ordinance No. 2006-056 of the Board of Aldermen of the City of Branson, Missouri, on April 19, 2006, which approved the Petition
for Establishment of The Historic Downtown Branson Community Improvement District (the “Petition”).
2.
As so established, the District is a political subdivision of the State of Missouri.
3.
The District desires to fund, or assist in the funding of, certain services (the “District Services”), and public
improvements (the “District Projects”), as allowed by Sections 67.1401 to 67.1571, RSMo (the “CID Act”), which may include, are
not limited to, providing a mode of transportation within the boundaries of the District.
4.
The District’s Board of Directors did, on April 19, 2006, adopt Resolution No. 2006-05 (the “Resolution”) which
imposed, upon approval of the qualified voters of the District, a one percent (1.00%) sales tax (the “District Sales Tax”) on retail sales
in the District to the extent, but only to the extent, authorized by Section 67.1545, RSMo, for a period of twenty (20) years from the
date on which such tax is first imposed for the purpose of funding District administration, District Services and District Projects.
5.
The Resolution, Section 67.1545, RSMo, and the Petition authorize the Board of Directors of the District to submit a
sales and use tax proposal to an election of the qualified voters of the District.
6.
According to the registration records of the Taney County Clerk, registered voters reside within the boundaries of the
District, which requires the election to be held on a date specified in Section 115.123, RSMo; the next available date being June 6,
2006.
7.
Pursuant to Section 115.125, RSMo, notice of an election must be given to the election authority not later than the tenth
(10 ) Tuesday prior to the election, except where an order of the circuit court permits late notification to the election authority of the
election not less than the sixth (6th) Tuesday prior to the election.
th
Page 114 of 149
8.
The District will pay any costs for the printing of ballots, reasonably required by the election authority of Taney
County, Missouri, and has entered into an agreement with the Downtown Branson Main Street Association (the “Association”) for the
Association to advance the costs of the election to the District.
9.
Donna Neeley, the County Clerk and election authority of Taney County, Missouri, does not have good cause to, and
does not, oppose late notification of the subject election, pursuant to Section 115.125.2, RSMo. Neeley Affidavit at ¶ 5.
WHEREFORE, Movant prays that this Court issue its Order, in the form accompanying this Motion, taking the aboverequested action permitting the District to make late notification to the election authority of Taney County, Missouri, of an election of
the qualified voters of the District to consider the approval of a district-wide sales and use tax at the June 6, 2006 public election.
Respectfully submitted,
GILMORE & BELL, P.C.
By:
Joseph G. Lauber MO #52809
2405 Grand Boulevard, Suite 1100
Kansas City, Missouri 64108
Telephone: (816) 221-1000
Facsimile: (816) 221-1018
Email address: jlauber@gilmorebell.com
Attorney for Movant, the Historic Downtown Branson Community Improvement District.
Page 115 of 149
Appendix 10 b -- Petition for Election
IN THE CIRCUIT COURT OF RANDOLPH COUNTY, MISSOURI
AT HUNTSVILLE
THE CITY OF CLARK
)
A Missouri Municipal Corporation
)
Plaintiff
)
)
Vs.
)
Case #
)
THE HONORABLE WILL ELLIS
)
Randolph County Clerk
)
Defendant
)
Petition for Court Order for Municipal Election
1.
The plaintiff is a Missouri 4th Class City (generally subject to Chapter 79 RSMo) located in Randolph County, Missouri.
2.
Defendant is sued in his official capacity only, because under the election laws of the State of Missouri (generally Chapters
115-117 RSMo) he is the election authority of the county.
3.
The City is required to have an election every April, and it is the responsibility of the City and its clerk to (a) publish an
official notice in the newspaper inviting persons to file any elective offices that will be vacant in the city, (b) accept the filing of
candidates who wish to run for any vacant elective office, and (c) notify the county election authority the 14th Tuesday before the
election date (this year that would have been January 25, 2011) of those candidates who have filed, and the election that will be held in
the city.
4.
The City did accomplish (a) and (b) in the proper fashion, but delivered its notice to the election authority the day after it was
due.
5.
The election authority refused to accept the late filing and has indicated that he requires a court order before he can do so. The
City does not believe that anything that Will Ellis has done has been in any fashion improper, and in fact states that he has behaved in
a professional manner throughout this election cycle.
Page 116 of 149
6.
Attached to this petition are various documents relating to this election (Marked Exhibits A through I). Exhibit C is the
proposed official ballot for the city election.
WHEREFOR, the City prays for the Court to issue its order directing Defendant to accept the late filing of the city’s election
information, and to conduct the municipal election for the City of Clark so that the voters of the city will not be disenfranchised
because of the error of the City.
Respectfully submitted
William Patrick Cronan
City Attorney, Mo Bar # 22068
13750 Highway BB
Rocheport, MO 65279
Phone: 573/698-3074
e-mail: wpcronan@aol.com
Page 117 of 149
Appendix 10c – Ordinance Calling Election
Bill No. _______
Ordinance No. _______
AN ORDINANCE CALLING FOR A GENERAL MUNICIPAL ELECTION TO BE HELD IN APRIL 2010 FOR THE
CITY OF CLARK, MISSOURI
WHEREAS, each April the City has a Municipal Election and the City desires to have adequate time for people to
discuss the possibility of a candidate running for office and ample opportunity for citizens to choose to assist in the
operation of the City’s government, and
WHEREAS, the time for the election is rapidly approaching, and
WHEREAS, the Missouri Statute does not provide sufficient specific guidance as to filing procedures to be followed
in city elections,
NOW, THEREFORE BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF CLARK, MISSOURI,
AS FOLLOWS:
Section 1. Election Ordered. The Board of Aldermen hereby orders that a Municipal Election be held on April 6,
2010 at which time the voters will elect:
1.
Two Aldermen for a two year term,
2.
A Mayor for a two year term, and
3.
A City Collector for a two year term.
Section 2. Qualifications for Office Those persons who desire to be candidate for any of these offices may file
for office any time between 8:00 am on December 15, 2009 and 5:00 pm on January 19, 2010. Persons file for office with
the City Clerk at City Hall. There is no filing fee or other monetary requirement in order to file for office.
Page 118 of 149
According to the Revised Statutes of Missouri (§79.070) the qualifications for a person who desires to run for the
position of Alderman must have the following qualifications:
1.
Be at least twenty-one years of age prior to taking office for the positions of Alderman & City Collector and
twenty-five years of age for the position of Mayor,
2.
Be a citizen of the United States,
3.
Be an inhabitant of the city for one year next preceding his/her election, and
4.
Be a resident at the time he/she files and during the time he/she serves, of the ward from which he/she is
elected..
The city collector candidates must have these qualifications:
Page 119 of 149
In addition to these qualifications the candidate must not have been convicted of
a felony in the State of Missouri, or an offense in another state which would be a felony
if it occurred in the State of Missouri (RSMo Section 115.___ ). Furthermore a person
filing for this office can not be delinquent in failing to pay any taxes or other charges
imposed by the City of Clark, Missouri (RSMo Section 115.___ ).
Section 3. Duties of the City Clerk. The City Clerk shall perform the following
duties with respect to this election:
1.
Accept the filing of candidates for the offices as stated above between the
hours of 8:00 am on December 15, 2009 through 5:00 pm on January 19,
2010.
2.
(Option A) Candidates shall be listed on the ballot in the order that they
filed for office, or
2.
(Option B) Candidates will be listed on the ballot in the order in which they
filed for office, except that those candidates who filed on the first day shall
be asked to draw a number from a basket and the candidate filing on the
first day who has drawn the lowest number will be listed first and the
remaining candidates who filed on that day will be listed in order from
lowest to highest based upon the number drawn.
3.
(Option A) The City Clerk is not permitted to travel from City Hall to accept
filings of persons at other locations, and filings will only be permitted
during the hours that the City Hall is open to the public, or
3.
(Option B) The City Clerk is authorized to accept filings between 8:00 am
on December 15, 2009 through 5:00 pm on January 19, 2010 at City Hall,
or at his/her home, or if agreed with any perspective candidate at a
location inside or outside the city limits of Clark, Missouri.
4.
(Option A) A candidate who is in the hospital or who is unable to appear in
person because of a physical disability may file as provided in RSMo
115.355.2 (1), or
4.
(Option B) A candidate who is in the hospital or who is unable to appear in
person because of a physical disability may file as provided in RSMo
115.355.2 (1) except that a sworn statement of a licensed physician is not
required and the filing can be by facsimile, internet transmission or
certified mail.
5.
(Option A) A member of the armed forces on active duty may file for office
in the manner provided for in RSMo115.355.2 (2), or
5.
(Option B) A member of the armed forces on active duty may file for office
in the manner provided for in RSMo115.355.2 (2) except that a sworn
statement of the commanding officer is not required and the filing may be
done by facsimile, internet transmission or certified mail.
6.
Assist candidates in filing proper financial disclosure forms and campaign
finance reports as the law requires, although the City Clerk’s assistance
Page 120 of 149
7.
8.
shall not relieve any candidate of the responsibility of insuring that he/she
complies with Missouri election statutes.
To cause to be published in a newspaper circulated within the City a
notice of elections as required by RSMo Section 115.127.5 inviting
persons to file for office. That notice of election should be in the form of
the attached Exhibit A. In addition the City Clerk shall:
a.
Cause a copy of this notice to be published on the web page
for the City in a prominent location where it can be viewed by
persons visiting our web site on the internet, and
b.
Post the notice of election in ___ locations about the City
where citizens of the City are likely to see it.
Between the close of filing at 5:00 pm on January 19, 2010 and January
26, 2010 the City Clerk shall provide notice to the Election Authority for
Randolph County (the Honorable Jim Sears, County Clerk of Randolph
County Missouri) of those candidates who have filed for office and if there
is any office for which no candidate has filed indicate that a write-in
election will be held to fill that office.
Section 4. Conduct of the Election. The election shall be conducted by the
Randolph County Election Authority, that is by our County Clerk. The Election will be
conducted in accordance with the comprehensive election law of 1977, and in those
cases where the election law does not provide a procedure for how local elections are
conducted the City will endeavor to follow the same procedure that is prescribed for
candidates for office to the Missouri General Assembly, except as provided specifically
by Section 3 of this ordinance.
Section 5. Election to Office It has been the City’s practice in the past and will
continue to be our practice to swear in officers that are elected at this election at the
Board of Aldermen meeting held next after the municipal election. This may mean that
persons are sworn into office as based upon the unofficial election results prior to the
meeting of the Board of Election Canvassers to certify the official results which occurs
on the third Tuesday after the election. This means that a person may be sworn into
office who is not the individual who receives the highest vote total as determined by the
Board of Election Canvassers. If that happens the person who was originally seated in
the office will be removed from his/her position and the winner as determined by the
Board of Election Canvassers will be sworn in to take that position. Similarly, for thirty
days after an election it is possible that one of the losing candidates will file an election
contest contesting some irregularity in the election process. Again the apparent winner
from the unofficial election results announced the night of the election will be sworn in.
If an election contest is filed the person sworn into office will be permitted to exercise
his/her right to participate in the decisions of the Board of Aldermen and to vote on
matters that come before the Board of Aldermen, unless either the judge hearing the
election contest should order differently, and until the election contest lawsuit is finally
Page 121 of 149
decided. Once the election contest is finally decided, the order of the court regarding
the election will be followed and it may be that a different candidate is declared the
winner, the first apparent winner will be removed from his/her position and the order of
the court enforced with the new winner sworn into office.
Section 6. Effective Date. This Ordinance shall be in full force and effect from
and after its passage by the Board of Aldermen and approval by the Mayor.
PASSED THIS ____ DAY OF ____________________, 2009.
________________________________
Mayor Homer Colley
Attest:
___________________________________
City Clerk Mark Hibbs
Page 122 of 149
NOTICE OF ELECTION
An election will be held in the City of Clark, Missouri, on April 6, 2010, to elect the
following city officers:
1.
Two Aldermen for a two year term,
2.
A Mayor for a two year term, and
3.
A City Collector for a two year term.
You are invited to become a candidate for one of these offices. This is a nonpartisan election.
Persons wishing to file for election must file in person at the City Hall, 401 Main
Street, Clark, Missouri. Filing will open on Tuesday, December 15, 2009 at 8:00 am.
Filing will close on Tuesday, January 19, 2010 at 5:00 pm. Within this period of time you
can contact the City Clerk, Mark Hibbs at 660-269-9175 and make arrangements to file
for office. Also the City Hall will be open especially for persons wishing to file for office
between 3:00 pm and 5:00 pm on January 19, 2010 and the City Hall will be open for
the purpose of conducting a Board of Aldermen meeting on December 16, 2009. Also
one may contact City Collector, Betty Colley at 573-641-5561 and make arrangements
to file for office.
Potential candidates who are in active military service may file for office by mail,
provided that a sworn declaration of candidacy is received by 5:00 pm on January 19,
2010.
Candidates for the office of Alderman, Mayor or City Collector are required to:
1.
Be at least twenty-one years of age prior to taking office for the positions
of Alderman & City Collector and twenty-five years of age prior to taking
office for the position of Mayor,
2.
Be a citizen of the United States,
3.
Be an inhabitant of the city for one year next preceding his/her election,
and
4.
Be a resident at the time he/she files and during the time he/she serves, of
the ward from which he/she is elected..
Further, candidates may not be a convicted felon nor delinquent in any financial
obligation to the City.
A successful candidate will be required to swear or affirm allegiance to the
Constitution of the United States and to the Constitution of the State of Missouri before
he or she can take office.
The Board of Aldermen meets in regular session on the Third Wednesday of
each month beginning at 7:00 pm, and other meetings as required.
Page 123 of 149
An Alderman is paid $10.00 per meeting.
________________________________
City Clerk Mark Hibbs
Page 124 of 149
Appendix 19F-1 – Advantages and Disadvantages
– Municipal Court
Advantanges and Disadvantages to
Asking the State Court System to Handle Municipal Court
(in the opinion of Patrick Cronan)
Advantages
Disadvantages
____________
1. Lower Cost
1. Only if you don’t count the extra cost in
personnel time for police, city prosecutor.
(However, city gets to keep $20 court costs,
which may offset cost of paying municipal
judge & clerk.)
2. Perceived as more fair, evenhanded.
Perception may even be a Fact.
2. Less opportunity for police to interact
with judge, which may be a disadvantage in
that police don’t learn from mistakes as
easily. (Could be avoided, if desire to do so
exists.)
3. Warrants only provided to sheriff, not
forwarded to city police, and not actively
worked. (Could be avoided, if desire to do
so exists.)
4. More inconvenient to citizens, as
unlikely to include night court. (Could be
avoided, if desire to do so exists.)
5. Lower fines; lower court costs; less
opportunity for input on fines. (Could be
avoided, if desire to do so exists.)
6. Greater opportunities for creative sentencing.
6. Or maybe not. (It depends on the judge)
7. Listed on Case.Net at no cost to city.
7. Eventually all municipal courts will be
required to use Case.Net
Page 125 of 149
8. Greater restrictions on plea bargains (if
judge gets picky about factual basis for
reduced charge).
9. May create jealousy from Sheriff’s
department, if appears city cops more
aggressive than sheriff’s deputies.
Page 126 of 149
Appendix 19F-2 – Ordinance Selecting
Associate Circuit Court as Municipal Court
BILL NO. _________
ORDINANCE NO.________
An Ordinance
Establishing the Associate Circuit Court of Randolph County as the
Municipal Court for the City of Clark, Missouri
Whereas, the City of Clark does not at the present time have a Police Department or a
Municipal Court, and
Whereas, residence of the City have requested that a more vigorous approach to the
enforcement of ordinances be undertaken, and
Whereas, the Associate Circuit Court of Randolph County has indicated that it would be
agreeable to serving as the Municipal Court for the City of Clark,
NOW THEREFOR, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY
OF CLARK, MISSOURI AS FOLLOWS:
Section One. Court Established. The Associate Circuit Court of Randolph County is
hereby established as the Municipal Court of Clark, Missouri. The court shall be held at the
usual place of business for the Associate Circuit Court of Randolph County. The Associate
Circuit Court of Randolph County shall continue to serve as the Municipal Court for Clark
Missouri until such time as the City of Clark shall give six months advance notice of its intention
to terminate that arrangement.
Section Two. Effective Date. This ordinance shall be in full force and effect from and
after July 1, 2006.
READ TWO TIMES AND PASSED THIS ______ DAY OF _______________, 2006.
_____________________________________
Page 127 of 149
Mayor
ATTEST:
_______________________________
City Clerk
Page 128 of 149
Appendix 20a – Ordinance Closing Street
Ordinance # ______
AN ORDINANCE CLOSING GOVERNOR STREET
BETWEEN OKLAHOMA AND WABASH
WHEREAS. The City has received a request to close the eastern half of Governor Street
in a block where the western half has already been closed by the adjoining property owners
building a fence down the middle of the right of way, and
WHEREAS, Governor Street apparently was never opened to vehicular traffic, and there
are no houses facing this street, and
WHEREAS, the City can find no evidence that any of the street was formally closed by
action of the City Council,
NOW, THEREFOR BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY
OF CLARK, MISSOURI AS FOLLOWS:
Section I: Street Closed. Governor Street between Oklahoma and Wabash streets is
hereby closed, and the city abandons any claim to a street easement over this property.
However there is an existing alley, perpendicular to Governor Street on each side of the street.
The city retains the easement for the alley where it crosses the Governor Street easement. And
the city retains the easement for any water or sewer lines that may exist within the right of way
of Governor Street
Section 2: Recording in Land Records. A duplicate original of this ordinance shall be
provided to and requesting adjoining property owners, so it can record in the land records if the
owner wishes.
READ TWO TIMES AND PASSED THIS _____ DAY OF ____________, 2011.
________________________________
Mayor
ATTEST:
Page 129 of 149
________________________________
City Clerk
Page 130 of 149
Appendix 22a – Petition in Circuit Court to Enforce Nuisance
Ordinances
IN THE CIRCUIT COURT OF SALINE COUNTY, MISSOURI
AT MARSHALL, MISSOURI
City of Slater, 232 North Main Street, Slater, MO 65349
Plaintiff
versus
[Count One]
Norman Depue, 516 East Parker Street, Slater, MO 65349
Betty Depue, 516 East Parker Street, Slater, MO 65349
[Count Two]
Samuel Logan, 826 North Central Street, Slater, MO 65349
Giles Allen, 826 North Central Street, Slater, MO 65349
[Count Six]
Jerome Stabenow, Sullivan Hall Apartments, Slater, MO 65349
[Count Eight]
Charles R. Hockaday, 114 N. Central Street, Slater, MO 65349
Marilyn Hockaday, 114 N. Central Street, Slater, MO 65349
[Court Fourteen]
Ruth Wright, 115 South Jefferson Street, Slater, MO 65349
Chhachela Wright, 117 Boothe Street, Slater, MO 65349
[Count Sixteen]
Edith Vivian Campbell, probably deceased
Betty J. Watson, personal representative of the estate of Eugene
Kirtley, Jackson County Probate Estate # 181468, serve at:
1433 East 76th Terrace, Kansas City, MO 64131
Defendants
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
PETITION FOR MANDATORY INJUNCTION
TO REQUIRE IMMEDIATE CLEAN UP OF PROPERTY,
TO REQUIRE THE PROPERTY BE MAINTAINED IN CLEANED-UP CONDITION, FOR
FORECLOSURE OF EXISTING CLEAN-UP LIENSAND FOR A JUDGMENT FOR CLEANUP EXPENSES, ATTORNEY FEES AND COSTS
COMES NOW the City of Slater, Missouri, and for its petition against the defendants
listed herein, states to the Court:
Allegations Common to All Counts
Page 131 of 149
1.
The City of Slater is a municipal corporation of the third class, organized generally
pursuant to Chapter 77 of the state statutes.
2.
Defendants (more particularly described in the various counts below) are the legal and/or
equitable owners of real estate in Slater, Missouri. All of these individual properties are
uninhabitable, unsanitary, unsafe, and unsightly.
3.
The various defendants have been requested to cleanup their properties, generally with a
deadline for compliance, and have ignored these requests. A few have been prosecuted
previously in municipal court, and a few have also been prosecuted in an administrative
complaint procedure before the city’s administrative hearing officer. Some have been
ordered to clean up their properties, have in fact done so, and then have allowed their
property to revert to its previous condition.
4.
Obviously the maintenance of substandard property to bring it into compliance with city
requirements can be an expensive proposition.
5.
In every instance, each of these defendants has been offered the opportunity to convey
the property over to the City, with the city assuming 100% of the cost of demolition,
cleanup, or repair. In every instance, each of these defendants have declined to take the
affirmative steps necessary to accept that offer.
6.
The City has adopted what is known as a “dangerous building ordinance” which in
general requires that every building within the City to be safe and habitable. That
ordinance is Chapter 510 of the Ordinance Code of the City.
7.
The Missouri legislature has authorized all cities in the state to adopt such an ordinance,
at RSMo §67.410
8.
The City has adopted what is known as a “nuisance ordinance” which in generally
requires that no personal property be maintained or stored outdoors on any real estate in
the city, with some exceptions. Most notably the ordinance forbids the storage of
unlicensed motor vehicles, appliances, used automobile tires, lumber, building materials,
trash, debris, and similar items in the yard of any dwelling.
9.
The Missouri legislature has authorized all cities in the state to adopt such an ordinance,
and has repeatedly reaffirmed its grant of authority by statutes found at RSMo §§71.780
(general); 67.308 (debris); 71.285 (weeds, trash); 67.386 (debris); 67.398 (appliances,
tires, broken glass); 71.700, 71.710, 71.140, 79.390, 80.090 (general), and 236. 220 (old
well or cistern); Chapter 267 (diseased animals); 269.020 (dead animals); 701.010
(improper sewer disposal); 700.525 et seq. and Model Traffic Ordinance (towing and
storage of unclaimed vehicles or mobile home); 260.350 (removal of hazardous material)
Page 132 of 149
10.
The City has adopted what is known as a “weed ordinance” which in general requires that
no vegetation within the city (except for cultivated trees, bushes, gardens etc.) extend
more than 7 inches above the ground.
11.
The Missouri legislature has authorized all cities in the state to adopt such an ordinance,
at RSMo §67.398.
12.
To give teeth to these ordinances, the legislature has authorized cities to impose liens for
the expenses of abating nuisances as declared in the ordinance, generally giving these
liens the priority common to unpaid taxes, that is having priority over existing deeds of
trust or mortgages, existing court judgements, and existing property exemptions.
13.
Also, the legislature has specified that these liens are not merely taxes charged against the
property but are also personal debts of the individual property owners.
14.
To enforce its ordinances, the City has employed the undersigned as its attorney. Under
the existing ordinances of the City, and under the authority of the law of the State of
Missouri, the attorney fees incurred by the City in enforcing these ordinances are
chargeable to the property owners whose property becomes a nuisance. In order to
minimize these costs, the City has brought this action against numerous property owners,
in a variety of different counts, so that the attorney fee expenses can be minimized and
spread over a multitude of properties.
15.
The City has no adequate remedy at law. Municipal court prosecutions are useful with
the run-of-the-mill honest citizen who creates a temporary nuisance and promptly cleans
it up when prosecuted. But it has little effect upon a scofflaw who must be repeatedly
prosecuted over numerous occasions to effect a clean up of property. And because the
municipal court is one of limited jurisdiction (having the authority only to impose a fine
of up to $500), it lacks the leverage of using orders of probation to cause a cleanup of
nuisance property. Similarly, the administrative hearing process works when the
defendant desires to comply with the law. But because an administrative order is not
self-enforcing (with the resulting risk of violence when the city seeks to carry out the
order) and because the administrative hearing officer does not have continuing
jurisdiction to enforce its order, its effectiveness with scofflaws is dubious. In any event,
the courts of Missouri have concluded that a city is the arbiter of which remedy is
adequate for its purposes in any particular nuisance prosecution, and the courts have not
interfered with this choice.
16.
This is not to imply that these particular defendants have been prosecuted in municipal
court or served with an administrative hearing complaint. Some have, most have not.
17.
With the exception of two properties (Counts 1 and 12) these properties are residential in
character. None of the properties are used as dwellings. Most are vacant, and have no
Page 133 of 149
utility service. Most of these properties are held for reasons of investment or sentiment.
The cost of restoring the structures on these properties into a useable state far exceeds the
current fair market value of the property, and far exceeds 100 times the fair monthly
rental value of the property in a restored condition. No structures exist on the property
described in Count 16.
Count One – Norman and Betty Depue
Southwest Corner of Armstrong and Emerson Streets
101.
Norman Depue owns real estate on Emerson Street, the legal description of which is
described as:
East half of Lot 5, Block 11, East Extension to Eubanks
Addition to the City of Slater.
102.
Norman Depue also another parcel of real estate that is appears to be contiguous to the
first, which is described as:
Lot 4 and East half of Lot 6, Block 11. East Extension to Eubanks
Addition to the City of Slater
Although the legal description indicates that Norman Depue only owns the east half of
Lot 6, he occupies both halves and probably owns the West half by adverse possession.
Similarly Norman Depue occupies the west half of Lot 5 and probably owns that half by
adverse possession.
103.
There is no recent owner of record for the land occupied by Norman Depue but not
owned by him.
104.
Norman Depue is also shown in the real estate records of another parcel of real estate that
is contiguous to these other two parcels, which is described as:
Lot 4, Block 11, East Extension to Eubanks Addition to the
City of Slater
Norman Depue has repeatedly said that this property has been “sold” and that is “not
mine.” However the real estate records continue to show it in his name. Perhaps it has
been sold on a contract for deed. Plaintiff does not know the identity of the alleged
purchaser of this property. Note that this legal description overlaps the legal description
mentioned in paragraph 102. This particular property is better maintained than the
adjoining property, and is not the subject of this particular lawsuit, except as it may be
affected by any judgment lien credited hereby.
Page 134 of 149
104.
The property has been used as a junk yard, where Norman Depue stores various used
items which he has purchased, and from which he apparently sells things from time to
time. Mr. Depue was prosecuted in 2002 and 2003 about the condition of this property,
and there was over the course of that prosecution enormous improvements in the
appearance of the property. Mr. Depue built a fence, and indicated that he would place
all of the junk within the fenced enclosure. The prosecution was dismissed when Mr.
Depue had the fence about 90% completed, with the expectation that the fence would be
finished and the promise fulfilled.
105.
In fact the fence was finished, and everything would be fine at the property except that
numerous items have not been moved inside the fence, and so the property still violates
the nuisance ordinance of the city.
Betty Depue does not appear on the title for any of this real estate, and has often
proclaimed that she has no interest in this real estate and is not responsible for the
condition of the property. However, she is married to Norman Depue and has a marital
interest regardless of her statements.
106.
107.
The condition of this property is such that it adversely affects the health and welfare of
the people of Slater, has an adverse effect upon its neighboring properties by attracting
vermin to the area, reduces the property values of neighboring property, and needs to be
cleaned up.
108.
This property is a public nuisance.
WHEREFOR, the City of Slater, Missouri requests this court to:
a.
Order defendants to remove all junk and all personal property that is located on
this real estate outside the existing fence either to within the fence, or to remove it
from the corporate limits of the City of Slater, and
b.
To establish a date by which this order is to be obeyed, and
c.
Set a hearing for the date by which compliance is to be achieved, at which time
the court will enquire as to the status of the same, and
d.
If the work has not been accomplished, for the court to authorize the City of Slater
to remove all personal property exterior to the fence and to dispose of it, and
e.
To enter a judgement against both defendants for the costs incurred by the City of
Slater for this enforcement action, and for any required cleanup of the property, to
be a lien against all of the property of defendants and to have the same priority as
unpaid taxes, and
f.
To order defendants to maintain the property in the future such that at no time is
any personal property stored on said real estate outside of the existing fence, and
g.
For such other relief as to the Court seem just and proper, and
h.
a Judgement for plaintiffs costs in this action.
Page 135 of 149
Count Two – Samuel Logan and Giles Allen
Southwest Corner of Booth and Emerson Streets
201.
Samuel Logan and Gyles Allen own real estate in Slater, Missouri described as follows:
Lots 5 and 6, Block 12, of the East Extension to Eubanks Addition
to the City of Slater, Missouri.
202.
They use the property as a “party house;” they live elsewhere.
203.
Large amounts of personal property, junk, debris are stored at this house, including
several unlicensed motor vehicles.
204.
The two were prosecuted in 2002 for the personal property stored outside the building on
the property, and they gradually cleaned it up. When the work was about 85% finished,
the prosecution was dismissed. Almost immediately following the dismissal the property
began to go downhill, as more junk property was moved onto the real estate and left lying
in the yard.
205.
Clearly these defendants are scofflaws, who have no intention of complying with the
ordinance unless they are subject to continual supervision.
206.
This property is directly across the street from the property of the Slater Housing
Authority and seriously detracts from that property as a location for people to live, even
as a habitation of last resort.
207.
The condition of this property is such that it adversely affects the health and welfare of
the people of Slater, has an adverse effect upon its neighboring properties by attracting
vermin to the area, reduces the property values of neighboring property, and needs to be
cleaned up.
208.
This property is a public nuisance.
WHEREFOR, the City of Slater, Missouri requests this court to:
a.
Order defendants to remove all junk and all personal property that is located on
this real estate outside the existing dwelling either to within the dwelling, or to
remove it from the corporate limits of the City of Slater, and
b.
To establish a date by which this order is to be obeyed, and
c.
Set a hearing for the date by which compliance is to be achieved, at which time
the court will enquire as to the status of the same, and
d.
If the work has not been accomplished, for the court to authorize the City of Slater
to remove all personal property exterior to the dwelling and to dispose of it, and
Page 136 of 149
e.
f.
g.
h.
To enter a judgement against both defendants for the costs incurred by the City of
Slater for this enforcement action, and for any required cleanup of the property, to
be a lien against all of the property of defendants and to have the same priority as
unpaid taxes, and
To order defendants to maintain the property in the future such that at no time is
any personal property stored on said real estate outside of the existing dwelling,
and
For such other relief as to the Court seem just and proper, and
a Judgement for plaintiffs costs in this action.
Count Three – Kevin Head
316 Short Street
[THIS COUNT HAS BEEN WITHDRAWN; THE CITY HAS DECIDED TO GIVE THE
DEFENDANT ADDITIONAL TIME TO COMPLY WITH LOCAL ORDINANCES]
Count Four – Cindy Nold
410 and 402 Central Street
[THIS COUNT HAS BEEN RESOLVED TO THE SATISFACTION OF PLAINTIFF]
Count Five – Trustees of St. Paul Free Baptist Church
536 Blackstone Street
[THIS COUNT HAS BEEN RESOLVED TO THE SATISFACTION OF PLAINTIFF]
Count Six – John and Christine Smith
429 West Maple
[THIS COUNT HAS BEEN WITHDRAWN; THE CITY HAS DECIDED TO GIVE THE
DEFENDANT ADDITIONAL TIME TO COMPLY WITH LOCAL ORDINANCES]
Count Seven – Jerome Stabenow
508 Blackstone Street
701.
Jerome Stabenow owns real estate in Slater, Missouri described as follows:
A part of Lot Two (2) in Block Two (2) in Isabell Adddition to the
City of Slater, Saline County, Missouri, more particularly described
Page 137 of 149
as follows: beginning at the northwest corner of said Lot 2; running
thence south along the west line of said Lot 2 a distance of one
Hundred sixty-eight (168) feet; thence East and parallel to the North
line of said Lot to the East line of said Lot; thence North along the
said East Line of said Lot a distance of one hundred sixty-eight
(168) feet to the northeast corner of said lot; thence west along the
North line of said Lot to the Place of Beginning.
This property is popularly known as 508 Blackstone Street, Slater, Missouri.
702.
Jerome Stabenow is single and unmarried.
703.
Jerome Stabenow does not reside in the house located on this property. He resides at
Sullivan Hall Apartments. Jerome Stabenow keeps cats at this property. These cats are
numerous, and apparently roam at will from the property. These cats are well fed by Mr.
Stabenow, and as a consequence do not even keep under control the rodents and snakes
that the rodents attract that are a usual fixture of abandoned substandard housing.
704.
In the summer months the smell of cat feces is noticeable beyond the boundaries of the
real estate.
704.
The City conveyed by letter to Mr. Stabenow an offer to purchase this real estate for
$1,000 and to assume the full costs of demolition. Mr. Stabenow did not reply. The City
is uncertain if Mr. Stabenow understood the offer.
705.
The condition of this property is such that it adversely affects the health and welfare of
the people of Slater, has an adverse effect upon its neighboring properties by attracting
vermin to the area, reduces the property values of neighboring property, and needs to be
cleaned up.
706.
This property is a public nuisance.
WHEREFOR, the City of Slater, Missouri, requests the Court to:
a.
Order defendants to remove all structures, all vegetation having a height over 7
inches (except for established trees with a trunk diameter of 3 inches or more),
and all personal property that is located on this real estate from the same, to
remove the existing foundation, to fill with clean fill any basement that may be
under the dwelling, to fill with clean fill any cistern or well that may existing on
the property, to remove all debris left from the demolition, and
b.
To establish a date by which this order is to be obeyed, and
c.
Set a hearing for the date by which compliance is to be achieved, at which time
the court will enquire as to the status of the same, and
Page 138 of 149
d.
e.
f.
g.
h.
If the work has not been accomplished, for the court to authorize the City of Slater
to remove carry out the requirements of the court’s order, and
To enter a judgement against both defendants for the costs incurred by the City of
Slater for this enforcement action, and for any required cleanup of the property, to
be a lien against all of the property of defendants and to have the same priority as
unpaid taxes, and
To order defendants to maintain the property in the future such that at no time is
any personal property stored on said real estate and that the vegetation be
maintain at a height no greater than seven inches, and
For such other relief as to the Court seem just and proper, and
a Judgement for plaintiffs costs in this action.
Count Eight – Charles and Marilyn Hockaday
108 N. Emmerson Street
801.
Defendants Charles and Marilyn Hockaday own as tenants by the entireties the real estate
in Slater, Missouri, described as follows:
All of Block Three (3) of Isabell’s Addition, an addition to the City
of Slater, Saline, County, Missouri.
Also, the south half of Vacated Blackstone Street which lies North
of the said Block Three (3) of Isabell’s Addition, which street was
vacated by Ordinance No. 2364 as recorded in Book 410 at Page 186,
records of the Saline County Recorder’s office.
The street address of this property is 108 N. Emmerson.
802.
This real estate is “improved” by a vacant residential structure and by several abandoned
automobiles and other personal property. The vegetation on the property greatly exceeds
the maximum height of 7 inches.
803.
The vacant residential structure is uninhabitable.
804.
The City of Slater has offered to defendants to purchase their real estate for the sum of
$1,000 and to assume all expenses of demolition and clean-up, but the defendants have
not accepted that offer.
805.
The condition of this property is such that it adversely affects the health and welfare of
the people of Slater, has an adverse effect upon its neighboring properties by attracting
vermin to the area, reduces the property values of neighboring property, and needs to be
cleaned up.
Page 139 of 149
806.
This property is a public nuisance.
WHEREFOR, the City of Slater, Missouri, requests this Court to:
a.
Order defendants to remove all structures, all vegetation having a height over 7
inches (except for established trees with a trunk diameter of 3 inches or more),
and all personal property that is located on this real estate from the same, to
remove the existing foundation, to fill with clean fill any basement that may be
under the dwelling, to fill with clean fill any cistern or well that may be existing
on the property, to remove all debris left from the demolition, and
b.
To establish a date by which this order is to be obeyed, and
c.
Set a hearing for the date by which compliance is to be achieved, at which time
the court will enquire as to the status of the same, and
d.
If the work has not been accomplished, for the court to authorize the City of Slater
to carry out the requirements of the court’s order, and
e.
To enter a judgement against all defendants for the costs incurred by the City of
Slater for this enforcement action, and for any required cleanup of the property, to
be a lien against all of the property of defendants and to have the same priority as
unpaid taxes, and
f.
To order defendants to maintain the property in the future such that at no time is
any personal property stored on said real estate and that the vegetation be
maintain at a height no greater than seven inches, and
g.
For such other relief as to the Court seem just and proper, and
h.
a Judgement for plaintiffs costs in this action, and
i.
That the Court subordinate defendant Carroll County Trust Bank’s deed of trust to
the judgment for any cleanup expenses
Count Nine – Nylena Bennett
315 Short Street
[THIS COUNT HAS BEEN RESOLVED TO THE SATISFACTION OF PLAINTIFF]
Count Ten – Hubert Dee Griffitt and Cheryl Dee Griffitt
327 S. Jefferson
[THIS COUNT HAS BEEN RESOLVED TO THE SATISFACTION OF PLAINTIFF]
Count Eleven – Helen S. Bennett
111 N. Jefferson
[THIS COUNT HAS BEEN RESOLVED TO THE SATISFACTION OF PLAINTIFF]
Page 140 of 149
Count Twelve – Martin Green
Gilliam Chevrolet Building
[THIS PROPERTY WAS PURCHASED BY SALINE COUNTY AT THE RECENT TAX
SALE. PLAINTIFF IS WORKING WITH THE COUNTY REGARDING THIS PROBLEM]
Count Thirteen – Carroll County Trust Bank
Debra and Tim Murray
220 Clyde Street
[THE CITY HAS PURCHASED THIS PROPERTY AT A TAX SALE, AND IS CURRENTLY
ATTEMPTING TO OBTAIN A DEED FROM THE OWNER OF RECORD]
Court Fourteen – Ruth and Chachela Wright
115 North Central
1401. Defendants Ruth and Chachela Wright are owners as joint tenants with right of
survivorship of the following described real estate in Slater, Missouri
The North part of Lot One (1), Block One (1) in the Original Town
(Now city) of Slater, more particularly described as follows:
beginning at the Northwest corner of said lot and running in a
Southern direction along the West boundary line of said lot, a
distance of Twenty-two (22) feet; Thence due East to the East
boundary line of said Lot; Thence North along said East boundary
line to the Northeast corner of said lot; Thence in a western
direction along the North boundary line of said lot to the
Northwest corner thereof, the place of beginning. EXCEPT a
strip of land twenty (20) feet wide across the entire West
side as described in Book 161, Page 354, Office of the Recorder
of Deed of Saline County, Missouri.
The popular address for this property is 115 North Central Street, Slater.
1402. This property is “improved” by a residential structure. This property is no longer
occupied by its owners, who have not maintained it and have allowed it to deteriorate to
the point that it is unfit for human habitation. Apparently the owners have used the
residence as a storage shed, for additional personal property that they do not wish to have
at their existing homes.
Page 141 of 149
1403. Due to the irresponsibility of the owners of this property, it was necessary both in
calendar year 2003 and in calendar year 2004 for the City to mow the grass and weeds on
this property. There are outstanding liens against the property of $250.00.
1404. The property is such that it is an eyesore, and depreciates the value of adjoining
properties.
1405. The plaintiff has offered to purchase the property from defendants for $1,000 and to
assume all costs of demolition and clean up of the property. Defendants have not replied
to that offer.
1407. The condition of this property is such that it adversely affects the health and welfare of
the people of Slater, has an adverse effect upon its neighboring properties by attracting
vermin to the area, reduces the property values of neighboring property, and needs to be
cleaned up.
1408. This property is a public nuisance.
1406. The property, in its present condition, is a public nuisance.
WHEREFOR, the City of Slater, Missouri, requests this Court to:
a.
Order defendants to remove all structures, all vegetation having a height over 7
inches (except for established trees with a trunk diameter of 3 inches or more),
and all personal property that is located on this real estate from the same, to
remove the existing foundation, to fill with clean fill any basement that may be
under the dwelling, to fill with clean fill any cistern or well that may be existing
on the property, to remove all debris left from the demolition, and
b.
To require defendants to pay all outstanding mowing liens
b.
To establish a date by which this order is to be obeyed and the liens paid, and
c.
Set a hearing for the date by which compliance is to be achieved, at which time
the court will enquire as to the status of the same, and
d.
If the work has not been accomplished, for the court to authorize the City of Slater
to carry out the requirements of the court’s order, and
e.
To enter a judgement against all defendants for the costs incurred by the City of
Slater for this enforcement action, and for any required cleanup of the property, to
be a lien against all of the property of defendants and to have the same priority as
unpaid taxes, and
f.
To order the Sheriff of Saline County to offer the property for sale on a date and
time certain in order to satisfy such liens, or
g.
To order defendants to maintain the property in the future such that at no time is
any personal property stored on said real estate and that the vegetation be
maintain at a height no greater than seven inches, and
h.
For such other relief as to the Court seem just and proper, and
Page 142 of 149
i.
a Judgement for plaintiffs costs in this action.
Count Fifteen – 219 East Emma
No apparent owner
[THIS COUNT HAS BEEN WITHDRAWN; THE CITY IS IN THE PROCESS OF
OBTAINING TITLE TO THIS PROPERTY]
Count Sixteen – No obvious owner
Betty J. Watson
1601. There is some real estate in Slater, Missouri, described as follows:
Lot Four (4) in Block Seventeen (17) in the Second West Extension to
the West Addition to the City of Slater, Saline County, Missouri.
There is no popular address for this property, because it is a vacant lot.
1602. The last conveyance of this property to appear of record occurred in 1934 when Taylor
Campbell and Margaret Campbell appears to have conveyed the property to Edith Vivian
Campbell, reserving for themselves the “right to occupy the said premises during their
lives and in the event of the death of either to the survivor.”
1603. No record exists, apparently, to demonstrate that Taylor Campbell, Margaret Campbell or
Edith Vivian Campbell ever died.
1604. Recorded in the land records of Saline County is a stray document recorded August 29,
2003 that appears to be an order entered in the Estate of Eugene Kirtley (Jackson County
Probate Estate # 181468) purporting to authorize the sale of two lots in Jackson County
and this lot in Saline County, Missouri. No deed in conformity to the order has been
recorded.
1605. The taxes for this property are assessed and the bill for the same are mailed to Eugene
Kirtley, c/o Betty J. Watson,
1606. This vacant lot is not mowed by anyone except the City of Slater. The City has
accumulated liens for mowing the lot that by the time of a trial will amount to almost
$1,000.
1607. Betty J. Watson is the personal representative for the estate of Eugene Kirtley, Jackson
County Estate # 181468.
Page 143 of 149
1608. The City of Slater has corresponded with Betty J. Watson on several different occasions.
She has ignored all communications and failed to reply at any time.
1609. The City has contacted the attorney for the estate regarding the possibility of the city
purchasing the property, by phone and by letter. Although the attorney said in the phone
call that she would “get back to the city” about the problem, in the three months since the
phone call she has not done so.
1610. Because the defendant is unwilling to maintain or care for the real estate in a reasonable
manner, it is a public nuisance.
WHEREFOR, the City of Slater, Missouri, requests this Court to:
a.
Order defendants to maintain the property so that no vegetation shall have a
height over 7 inches, and
b.
Require defendant to pay the outstanding liens for mowing already provided, and
b.
To establish a date by which this order is to be obeyed, and
c.
Set a hearing for the date by which compliance is to be achieved, at which time
the court will enquire as to the status of the same, and
d.
If the property has not been brought into compliance with the ordinance, and the
mowing liens have not been paid, for the Court to order the Sheriff of Saline,
County, Missouri to sell the same to satisfy the lien of the city for the mowing
that has been done, and
e.
To enter a judgement against all defendants for the costs incurred by the City of
Slater for this enforcement action, and for any required cleanup of the property, to
be a lien against all of the property of defendants and to have the same priority as
unpaid taxes, and
f.
To order defendants to maintain the property in the future such that at no time is
any personal property stored on said real estate and that the vegetation be
maintain at a height no greater than seven inches, and
g.
For such other relief as to the Court seem just and proper, and
h.
a Judgement for plaintiffs costs in this action.
Respectfully submitted
Wm. Patrick Cronan, # 22068
Slater City Attorney
13750 Highway BB
Rocheport, MO 65279
Phone: 573/698-3074
Fax: 574/698-3314
Page 144 of 149
E-mail: wpcronan@aol.com
STATE OF MISSOURI)
( ss
COUNTY OF SALINE )
NOW COMES Russell E. Griffith, Assistant Administrator of the City of Slater,
Missouri, and having reviewed the forgoing petition states upon his oath that the facts alleged
therein are true and correct, to the best of his knowledge and belief.
_____________________________
SUBSCRIBED AND SWORN this _____ day of ___________, 2004.
_____________________________
Notary Public
My commission expires: ______________________
Page 145 of 149
(PROPOSED FORM OF INJUNCTION)
THE STATE OF MISSOURI TO:
___________________________________________________________
(Name of parties subject to order)
THIS IS AN ORDER REQUIRING YOU TO DO CERTAIN THINGS BY 9 A.M. ON THE
DATE SHOWN BELOW. YOU MUST DO WHAT IS REQUIRED. IF YOU DO NOT OBEY
THIS ORDER YOUR MAY BE FOUND IN CONTEMPT OF COURT AND PUNISHED BY
FINE, BY INCARCERATION IN JAIL, OR BY BOTH FINE AND JAIL. IT IS VERY
IMPORTANT THAT YOU TAKE THIS ORDER SERIOUSLY. IF YOU DO NOT
UNDERSTAND IT, TAKE IT TO A LAWYER WHO CAN INTERPRET IT FOR YOU AND
HELP YOU STAY OUT OF TROUBLE.
This order relates to real estate described as:
This
real
estate
has
a
popular
address
of
____________________________ in Slater, Saline County, Missouri.
The court has determined that you have own or have some control over
this property.
YOU ARE REQUIRED to do these things regarding this real estate:
1.
Demolish all buildings on the real estate. This includes the requirement that you
take out the foundation (if any) to the property and the fill up any excavation,
basement, well or cistern so that it is level with the ground. You must grade the
remaining land so that it is level, and you must seed it with grass to restore
vegetation to the exposed dirt.
2.
Remove all tangible personal property from the property or cause it to be
completely enclosed by a structure , except that any motor vehicle which has a
Page 146 of 149
valid Missouri license does not have to be removed from the property or enclosed
in a structure.
3.
Cut all vegetation on the property so it does not exceed a maximum height of 7
inches.
YOU ARE REQUIRED TO DO ALL OF THIS BY 9 A.M. ON ________________________.
IN ADDITION, YOU ARE COMMANDED TO APPEAR BEFORE ME AT ______________
O’CLOCK ON _______________________________ AT A HEARING WHERE I WILL
ENQUIRE AS TO YOUR COMPLIANCE WITH THIS ORDER. THIS HEARING WILL BE
HELD IN ROOM__________ OF THE SALINE COUNTY COURTHOUSE. IF YOU FAIL TO
APPEAR AT SUCH HEARING, YOU MAY HAVE TO SUFFER THE CONSEQUENCES OF
YOUR NON-APPEARANCE.
Page 147 of 149
Appendix 22b – Release of Nuisance Lien
(Don’t forget to leave 3” margin at top, to meet recording requirements)
RELEASE OF LIEN
KNOW ALL MEN BY THESE PRESENTS: That the City of Slater, Missouri, for and in
consideration of the payment of the sum of ___________________ dollars ($____________),
paid by _______________________, receipt of which is hereby acknowledged, does hereby
release and quit claim unto the said ____________________, and spouse if any, successors and
assigns, all liens, lien rights, claims or demands of any kind whatsoever which the City of Slater
now has against the premises legally described as:
for nuisance abatement liens previously filed by the City of Slater against said property and
recorded in Book _____, Page _____ of the land records of Saline County, Missouri.
IN WITNESS WHEREOF I have herefore set my hand as City Administrator for the City
of Slater, Missouri and seal of the City this ___ day of _________________, 20__
________________________________
City Administrator, Gene Griffith
(SEAL)
State of Missouri
County of Saline
)
)ss.
On this ______ day of ____________, 20__, before me personally appeared Gene
Griffith, City Administrator of the City of Slater, Missouri, to me known to be the person who
executed the foregoing instrument, and acknowledged that he executed the same on behalf of the
City of Slater, Missouri, that he is the City Administrator of said City, and has the authority from
the City’s City Council to execute the instrument as the free act and deed of the City.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in
the State aforesaid, the day and year first above written.
____________________________________
Notary Public
My term expires:____________________
Page 148 of 149
Appendix 22c – Thank you certificate
City of Slater,
Missouri
Thank You for Assisting
in the Year 2001
City Clean Up Campaign
Mayor Andreè Petersen
Assistant Administrator Russell Griffith
Council Members:
Stephen Allegri
J. H. Audsley
Brownell Bryant
Norman Depue
Cathy Jeffries
Terry Jordon
Harry Lightfoot
Ron Monnig
Page 149 of 149