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City Law Missouri Municipal League

VIEWS: 68 PAGES: 149

                                   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

 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.

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

                                          Page 1 of 149
I.   CONGRATULATIONS!! – Now what?

     A.   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.)

     B.   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.     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.)

     5.     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.

     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

     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.

6.   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).

7.   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.     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.
            b.     Municipal league web site has a few such injunctions – would be a
                   good place for others to be posted.

     4.     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

                               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

     2.     IMLA (or IMLA “lite”)

     3.     APA and “Planning Advisory Service” 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, and its Missouri chapter,
            These organizations are particularly helpful in providing sample contract

     7.     Other city attorneys. See list at Appendix 1.

     8.     On-line ordinance codes and other resources

            a.      Missouri Municipal League. 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.
     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.

     1)     Municipal Code Corporation – codifies ordinances of cities
            of   all   sizes,   but    mostly      mid-size    cities.

     2)     Sullivan Publications – codifies ordinances of Missouri and
            some         other        Midwestern          communities.

     3)     American Legal Publishing Co. – codifies ordinances,
            mostly larger cities.

     4)     Municipal Research and Services Center – centered in
            Washington state, has a extensive internet library and
            numerous city codes.    Affiliated with University of

d.   Internet “think tanks” and “public interest law firms” with useful
     material (but with risk of a decided political bias) that you might

     1)     First Amendment Center.
            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

     2)     Community Defense Center.
   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.
        Describes itself  as
            “progressive,” this group has absorbed the former
            Community Rights Reporter. It opposes the burgeoning

                Page 7 of 149
                                   “property rights” movement.

                           4)      Rutherford Institute. A conservative
                                   group, concerned with religious freedom (particularly for
                                   conservative Christians).

                           5)      Traffic Calming 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) 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

                           7)      National Public Employer Labor Relations Association and
                                   its Missouri Chapter. Membership
                                   required to access web site.

            9.     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

                   a.      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.

G.   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

     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.

4.   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.

5.   May

     a.      Financial disclosure reports due

6.   June

                        Page 9 of 149
      a.       If city collects its own taxes, begin preparation for delinquent tax

7.    July

      a.       Publish semi-annual financial statement.*

8.    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

9.    September

      a.       City plans for municipal election, adopts ordinance (?), and clerk
               publishes notice of election. May extend into October or

10.   October

      a.       Budget preparation should be well underway

                          Page 10 of 149
                   b.      Adopt annual ordinance imposing tax liens for services such as
                           mowing, building demolition, unpaid sewer bills, etc. and record in
                           land records.

            11.    November

                   a.      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

            12.    December

                   a.      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.

      H.    If you want to get paid when city is ready to fire you, prepare a contract.

            1.     Then you need a new contract if you raise rates, etc.
                   See below, part VI

      G.    Ethics: More than “Code of Professional Responsibility.” See below, part XXIII.

II.   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

                   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.    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

     c.    Chairman is supposed to “print and publish” ordinances.

           1)     Is ordinance invalid if isn’t “printed and published”?

           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

2.   Fourth class city – 4 or more “aldermen,” mayor, others – Chapter 79

     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.

     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

b.   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

b.   Maybe without wards (>1,000 pop.)

c.   Maybe 4 year terms for mayor and collector (by ordinance)

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

i.   NOTE: May collect attorney fee for nuisance abatement §79.383

     i)     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

j.   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)      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

            b)      Operate some or all of city utilities

            c)      Sets utility rates without reference to city council.

            d)      Cannot “sue or be sued”

     2)     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

     b)       Cannot “sue or be sued”

3)   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

4)   Housing authority §§99.010 – 99.230

     a)       Board members may only be removed “for cause”
     b)       Separate independent unit of government; can “sue
              and be sued.” §99.080

     c)       Under thumb of HUD

     d)       Has separate audit, because feds say so. §99.055

5)   Cemetery board

     a)       Beware of inadequate records, unmarked graves,
              potential for gross embarrassment and [limited] tort

     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

     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

            1.   No authority to deviate from county assessor’s assessment
     g.     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?)

                      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)      Commentary useful to interpret your city’s charter.

          B.   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.   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)

            a.     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..

D.   Authority over employees

     1.     “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

            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”?

E.   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

                                Page 18 of 149
c.   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

     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.

d.   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
       F.    Impeaching or Supplementing the Public Record

       G.    De Facto and De Jure Officers

       H.    Removing an Elected Official from Office

III.   Who Votes and How Often? Technicalities

       A.    General rule:

       B.    Special rule: ordinance

       C.    Mayor pro-tem votes twice?

             1.     Yes: AGO

             2.     No: Cronan

             3.     Try to avoid litigating this question

       D.    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

                    a.       Read by title only?

                    b.       Don’t record how was read in minutes.

             4.     Vote recorded by name in minutes

                    a.    Can correct with “nunc pro tunc” order. Fargo v. City of Irondale,
                          364 Mo 500
             5.     Ordinance signed (even where mayor has no veto)

             6.     Title required in most charter cities – not in statutory cities

                                         Page 20 of 149
                   a.     Mostly because included in MML’s Model Charter.

            7.     Penalty

            8.     Severability Clause

IV.   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

            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.,

           2.     Should not permit audience to interrupt council members.

C.   “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

           2.     See definition of “governing body”

           3.     Advance 24 hour notice of agenda

                  a.     Any “agenda packet” should be available to public on request &

                  b.     Any “standing requests” don’t have to be honored, but should.

           4.     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.     Must vote to end the closed meeting and return to open session.
                 e.     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”

           5.    Records

                 a.     Do not have to conduct a “search” – do have to produce records if

                 b.     Fees – cannot exceed 10 cents per page, and salary of lowest paid

           6.    Never believe what the AG, a reporter, or Jean Meinke tell you about the
                 Sunshine Law.

                 a.     Useful book: Schwing, Open Meeting Laws 2d, Falcon Publishing
                        Co., 2002. No discussion of FOI issues. Have not found a good
                        FOI text.

V.   Finances

     A.    CONSTITUTION: “Public purpose” for expenditure

     B.    “Warrants” and checks

           1.    Statutes pre-date banking

           2.    Three finance officials

                 a.     Clerk

                 b.     Treasurer

                 c.     Collector

           3.    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

     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
            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.

D.   Security for public money

     1.     $100,000 (“Temporarily” $250,000) FDIC Insurance per city, not per

     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

G.   MoSIP,

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.    Fixing ad valorum property tax rates §67.110
L.    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.      “Unasserted claims”

VI.   Contracts and Cooperative Agreements

      A.    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.

      B.    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

                   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.

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.

     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.”

g.   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


     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

            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

     2.     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: 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.

C.   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.      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

2.     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.” § 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

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
                          Page 32 of 149
                   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

                   g.     Constitutional Charter Cities, pop. between 75,000 and 80,000
                          must bid “all city improvements of whatever kind or character.”

                   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.”

D.   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.”
                                     Page 33 of 149
     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.

2.   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

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 “on-
      site 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. – § 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

            1)     The method by which MoDOLIR makes these
                   determinations is flawed, in a way which discourages non-
                   union 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.

      b.    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

11.   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

      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.     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

12.   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


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

            1)     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.

3.   Employee defenses:

     a.     Official immunity
                       Page 40 of 149
          b.     Public duty rule.

          c.     Comparative fault.

          d.     Lack of causation

B.   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.     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).

     2.   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)      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

       b)      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

2)     EXCEPTION: Dangerous Condition of Public Property

       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

       b)      Property in “dangerous condition”

            Page 42 of 149
             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    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.

3)   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.

     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

4)   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

                            b.      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.

     2..    A city may also have a defense, if it did not promptly receive notice of the
            claim. Notice of claim statutes §77.060

C.   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

     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.      Inadequate training can in some instances be so pervasive and
                    willful that is rises to a status of a “policy” of the city

     5.     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

            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) 235-
        1617 or e-mail

        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.      Over time, outstate communities have begun to appreciate these
                             ordinances, and suburban communities have begun to actually use
                             them for the common good.

              4.     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.

        B.    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

              2.     Executive part is the “building inspector.” The executive branch has no
                     discretion, and must carry out the law.

                                         Page 47 of 149
            3.     Judicial part is “Board of Adjustment” or (in western part of Missouri) the
                   BZA, or “Board of Zoning Appeals.”

      C.    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

IX.   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)     Might also create constitutional problems

                  3.       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.     Suggest more “voter friendly” notice than minimum statute
                                  requires. See Appendix 10.

                  4.       Filing opening date and time, and closing date and time are set by

                                        Page 49 of 149
     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.

4.   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

5.   Who checks on qualifications?

     a.     First line of defense: candidate swears he/she is qualified.

     b.     Second line of defense: city clerk checks.

            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.

     c.     Third line of defense: county clerk or election board checks
            (almost always defers to city clerk)
                 Page 50 of 149
                           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

                           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

                           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

XI.   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.     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

                   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.

     2.     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.)

     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,

3.   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)       A public employee nay not be fired for speaking out on a
                     matter of “Public Concern”

     b.     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
     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

c.   2nd Amendment – Right to Bear Arms

     1)    Unknown if public employee can be disciplined for
           carrying concealed, or for wearing a pistol and holster
           while working.

d.   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.”

e.   4th Amendment – Drug testing


               Page 54 of 149
     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

e.   5th Amendment – Incrimination

     1)    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

f.   6th Amendment – Right to Counsel

     1)    A public employee doesn’t have a right to have an attorney
           present at any meeting simply because he wants one.

g.   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 pre-
           termination “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)     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

                    j.     “Penumbra” – Political affiliation

XII.   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 content-
              based, 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 anti-
leafleting 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
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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
       “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 co-
       opt 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
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               communication that have long taken place on our ‘public streets and
       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.”

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     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.

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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
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 public-
comment 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 collective-
bargaining dispute case arising out of teachers’ speaking at a board of education
       “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
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

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     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
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 three-
judge 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.”

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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

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       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
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/condo-
association 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
                  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
     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
     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
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

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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.

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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
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     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 re-
     opened 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
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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
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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.
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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
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     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.
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     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

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     exception is for government workers who hold policy-level or confidential
     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
     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
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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 free-
exercise 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
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:

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                    “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
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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
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
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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
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“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.

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The 9th Circuit agreed with the lower court that the ordinance was content-
neutral. “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
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 revenue-
raising 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
“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 profit-
conscious 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 profit-
conscious 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
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
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
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 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.)

                           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


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.      Unlike other municipal utilities, this one is subject to regulation by the
                      Missouri Public Service Commission.

       E.     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.     State auditor conducts regular audits of municipal courts when
                              they do audit of the circuit court.

             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.     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.

      G.     Civil Defense

XX.   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
     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).

2.   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.     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.

3.   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.

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


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.     Report of bribes to Missouri Ethics Commission (a/k/a “Missouri Paperwork Commission”) if budget

     2.     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
1.       List of City Attorneys (Members of MMAA-Can be found at click on conferences and 2011 MMAA
                 Conference Handouts).
6.       Sample Purchase Contract (MAFPD)
6A.      Special Warranty Deed
10a.     Motion for Election (Late Notice)
10b.     Petition for Election (Late Notice)
19F-1.   Advantages and Disadvantages – Municipal Court
19F-2.   Ordinance selecting associate circuit court as municipal court.
20a.     Ordinance closing street
21a.     Petition to Enforce Nuisance Ordinance in Circuit Court
22b.     Release of Nuisance Lien
22c.     Thank you certificate
                                                             Page 102 of 149
                           Appendix 6 – Sample Purchase Contract (MAFPD)
                                           SAMPLE PURCHASE CONTRACT

1. PARTIES: This agreement is between
                  ________________ Fire Protection District
                                 (hereinafter called “Buyer” or “District”)

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.      the first page of Exhibit B is the location of the differing language, or
            b.      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: ________________________________________________________________


    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

     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.


     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.

   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.

    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
    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.

    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.

    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.

    This agreement is effective as of its signing on the _____ day of _____________, 20___ at ______________________ o’clock Missouri

                                             FOR DISTRICT:

                                             By _________________________________________

                                                             Page 106 of 149
                                          FOR SELLER:

                                          By _________________________________________

                                                   Comments Regarding Sample Contract

1.        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.
2.        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.”)
3.        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.
4.        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.)
5.        Section 3 – check the appropriate box, or if you retype the contract, leave out the part that doesn’t apply.
6.        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

                                                        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:


       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.



                                                           Page 110 of 149



             ) 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
         ) 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:______________________________


                                                          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                      )      Case No. _____________
119 West Pacific Street,                           )
Branson, Missouri 65616,                           )
                      Movant.                      )

                                  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,

        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.

                                                               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 above-
requested 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.

                                                     Joseph G. Lauber MO #52809
                                                     2405 Grand Boulevard, Suite 1100
                                                     Kansas City, Missouri 64108
                                                     Telephone: (816) 221-1000
                                                     Facsimile: (816) 221-1018
                                                     Email address:

                                             Attorney for Movant, the Historic Downtown Branson Community Improvement District.

                                                            Page 115 of 149
                                       Appendix 10 b -- Petition for Election
                                                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
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

                                                            Page 117 of 149
                               Appendix 10c – Ordinance Calling Election
Bill No. _______                                             Ordinance No. _______


       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,


      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

      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,
       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
              shall not relieve any candidate of the responsibility of insuring that he/she
              complies with Missouri election statutes.
       7.     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.
       8.     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

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 non-
partisan 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,

       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,
       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.                2. Less opportunity for police to interact
Perception may even be a Fact.                         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

                                                      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,


       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

City Clerk

                                  Page 128 of 149
                 Appendix 20a – Ordinance Closing Street
                                      Ordinance # ______

                          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,


        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.



                                        Page 129 of 149
City Clerk

                                   Page 130 of 149
  Appendix 22a – Petition in Circuit Court to Enforce Nuisance
                            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        )


        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.
106.   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.

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.     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 dwelling,
       g.     For such other relief as to the Court seem just and proper, and
       h.     a Judgement for plaintiffs costs in this action.

                                  Count Three – Kevin Head
                                      316 Short Street


                                  Count Four – Cindy Nold
                                  410 and 402 Central Street


                    Count Five – Trustees of St. Paul Free Baptist Church
                                   536 Blackstone Street


                             Count Six – John and Christine Smith
                                       429 West Maple


                               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.     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
       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 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.

                         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


                    Count Ten – Hubert Dee Griffitt and Cheryl Dee Griffitt
                                      327 S. Jefferson


                                Count Eleven – Helen S. Bennett
                                       111 N. Jefferson


                                        Page 140 of 149
                                 Count Twelve – Martin Green
                                  Gilliam Chevrolet Building


                          Count Thirteen – Carroll County Trust Bank
                                    Debra and Tim Murray
                                       220 Clyde Street


                          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

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


                                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

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

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

                 ( ss

        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)


                       (Name of parties subject to order)


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
YOU ARE REQUIRED TO DO ALL OF THIS BY 9 A.M. ON ________________________.

O’CLOCK ON _______________________________ AT A HEARING WHERE I WILL

                                      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__

(SEAL)                                                          City Administrator, Gene Griffith

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,
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

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