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Feb2007

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					CASE OUTLINES (MISSOURI) CONSENT ANNEXATION PETITIONS MUST BE VERIFIED: The city of Lake Lotawana and the city of Lee’s Summit have been engaged in a long-standing annexation dispute over some 1,200 acres, located between the two cities known as the Barber tract (property). Lee’s Summit filed a quo warranto action to oust Lake Lotawana from jurisdiction over the property and a petition for injunction and declaratory judgment requesting a declaration that Lee’s Summit had taken the first valid step towards annexation under section 71.860 to 71.992. Lee’s Summit claimed that the Lake Lotawana’s annexation was not valid because the voluntary annexation petition of the property by Lake Lotawanna was not verified as required by section 70.012. Lee’s Summit also claimed that it took the first valid step towards annexation because it started annexation procedures that predated the commencement of voluntary annexation proceedings by Lake Lotawanna, although Lake Lotawanna completed its annexation first. The circuit court granted the quo warranto petition ousting Lake Lotawana from the property, granted the declaratory judgment by holding that Lee’s Summit took the first valid step towards annexation and enjoined Lake Lotawana from taking any further action with respect to the property. Lake Lotawana appealed to the Western District, which held that the verification requirement in section 70.012 required the annexation petition to be confirmed or substantiated under oath or affidavit as to its truth. Failure to verify the annexation petition made it void. The court held that the exclusive remedy to challenge a completed annexation is quo warranto and that Lee’s Summit took the first valid step towards annexation. The Western District reversed the circuit court’s decision granting the declaratory judgment and the injunction because quo warranto is the exclusive remedy. State of Missouri, ex inf. Michael Sanders, ex rel. City of Lee’s Summit v. City of Lake Lotawana, (WD66758, 02/06/07). Comment Howard: This is a very significant case, full of important legal principles. Lake Lotawana argued that if its annexation is invalidated due to the lack of verification that lots of other annexations will be invalid because they just followed the MML form that was not verified. This argument did not get a sympathetic ear from the court. The MML form has now been corrected. This raises the question of what to do to inoculate unverified voluntary annexations from future attack. Certainly the first step is to do an inventory and to assess the risk. Two things come to mind. First, Chris Williams suggests that since the Attorney General or the county prosecutor must authorize the action, you may have some insulation. Of course, maybe the other side has more sway, so this is not a sure fire fix. If you think the voluntary annexation is critical and could be challenged in a quo warranto action you may want to redo the annexation before another community acts so that your community has taken the first valid step. I am not sure why the court felt compelled to call the petition “void” since it seems like the annexation stands until it is challenged; therefore, maybe the term “voidable” would have been a better term. It also

seems to me that the statements holding that the case could have been decided on the issue of who took the first valid step towards annexation without reaching the issue of the validity of the consent annexation petition. FLAG ANNEXATION ILLEGAL: The city of Wentzville (city) seeks voluntary annexation of a large tract of land that was not contiguous to the city limits. In order to connect this property to the city limits, the City condemned a strip of land 40 foot wide by 2,038 foot long from the Dodson property that ran along their southern boundary. The Dodson property is between the city limits and the large tract of land. After condemnation of the Dodson tract the City sought to voluntary annex the land it acquired from the Dodson’s and the large tract of land. Dodson filed a declaratory judgment challenging the voluntary annexation of these properties claiming that they were not “contiguous and compact” as required by section 71.014. The circuit court sustained the City’s motion to dismiss and Dodson appealed to the Eastern District. The Eastern District Court of Appeals concluded that the annexed properties were not “compact” to the existing corporate limits of the City. The word “compact” means firmly put together, joined, or integrated marked by parts or units grouped or knit together with very slight intervals. In addition, cases interpreting this word in other annexation cases support the conclusion that the annexation by the City was not compact. The court likened the annexation to a flag with the long 40 foot wide and 2,038 foot long like a flag pole connecting the City to the larger tract to be annexed (the coveted flag) which when viewed from the air looks like a flag. Because the City failed to satisfy the statutory requirement of compactness the decision of the circuit court is reversed. Dodson v. City of Wentzville, (ED87249, 02/06/07). Comment Howard: When this case is combined with the Lee’s Summit case there is potential for some serious disputes. FAILURE TO PROVIDE TRAFFIC CONTROL DEVICE AT DANGEROUS INTERSECTION MAKES CITY LIABALE: Student attending Conservancy of Music in Kansas City was hit and killed by a speeding car when she was walking in a pedestrian crosswalk at Troost Avenue and 53rd Street. Parents of student sued the city of Kansas City alleging that the intersection was a dangerous condition because the City failed to provide proper warnings and traffic control devices. Jury returned verdict of $1.25 million and entered judgment against the City in the amount of the statutory limit of $328,011. On appeal to the Eastern District, the City contended it is protected by sovereign immunity for the design of a road. The Court rejected this argument by holding that the 1985 amendment to 537.600 and case law make it clear that cities have liability for the “negligent, defective, or dangerous design” of roadways although there is a conditional defense for roads designed prior to 1977 if the design meets 1977 road design standards. City further contended that the driver’s negligence in speeding through the intersection and not observing the pedestrian entering the crosswalk was a “third party intervention.” The Eastern District determined that the use of the phrase “directly resulting from” in section 536.600 equates to the common law concept of “proximate cause” meaning that “third party intervention” is really a test of proximate cause. The City also argued that it has immunity for discretionary acts such as the decision as to whether or not to place a traffic control device (stop sign or light) at an intersection. Again, the court rejected this argument holding that the City failed to show any legislative action supporting the exercise of discretion. Of some considerable importance, was the testimony by the city engineer who according to the Court

agreed that the intersection was dangerous and the City did nothing to correct the condition. Haifang and Zhiping v. City of Kansas City, (WD65806, 1/23/07). Comment Howard: This is a very tough case for local government. In my mind, this case expands the law in this area making cities liable for failure to install traffic control devices at intersections where there are accidents. You may want to review this case and your analysis with your traffic engineer. Comment Ragan: This is a tough case but what gives this case muscle is that the court found that there was sufficient notice to the city that there existed a problem where this cross-walk was located and multiple opportunities to correct the problem. DANGEROUS CONDITION OF PROPERTY REQUIRES EXCLUSIVE CONTROL AND POSSESSION OF THE PROPERTY: Plaintiff was riding a motorcycle on County Road 145 and had an accident when he lost control of his motorcycle and was killed. Plaintiff sued Cedar County alleging dangerous condition. Circuit court sustains motion for summary judgment of Cedar County on grounds that it did not have exclusive control of the property since the road district had control of the property. The Southern District affirmed the decision on the grounds that the first element of a dangerous condition requires that the governmental agency have “exclusive control and possession of the property.” Ford and Claypool, v. Cedar County, (SD27409, 12/18/06). CIRCUMSTANTIAL EVIDENCE SUFFICIENT TO INFER CAUSATION: Pam Brown was injured when she fell down a staircase inside the Morgan County Courthouse. She was in the courthouse and used the stairs about three times a month since 1996. There was nothing on the stairs that tripped her, neither the carpet nor the boards on the stairs were loose, and there was no foreign substance. Her only recollection of falling was flying through the air and landing. She does not know how she fell. There were no eyewitnesses. She claimed to have fallen once before about one year earlier. She sued Morgan County on grounds that the stairs are a dangerous condition. Morgan County filed a motion for summary judgment. To counter the motion Brown filed an affidavit from an architect showing that the risers on the stairs were not horizontal, having a two to three degree deviation from the left hand side to the right hand side of the stairs. The architect stated that the slope could have been sufficient to get a person out of balance. The motion for summary judgment by Morgan County was sustained by the circuit court on the grounds that she could not prove causation. On appeal to the Western District the decision was reversed. The Western District noted that circumstantial evidence could create an inference of causation that the defect caused the accident. The court held that the architect’s affidavit was sufficient to create a genuine issue of fact for the jury as to the cause of the fall. Brown v. Morgan County, (WD66601, 01/30/07). CASE OUTLINES (FEDERAL) ST. LOUIS FEES FOR USE OF R/O/W ARE UPHELD UNDER FEDERAL LAW: Level 3 and the city of St Louis (city) entered into a licensing agreement to pay fees and meet other obligations before accessing streets and right-of-ways owned or controlled by the City. The fee is calculated on the number of linear feet of conduit and the number of active conduits within each linear foot. In late 2003, Level 3 refused to continue to pay the fees and filed a suit against the City seeking a declaration that the fee and the non-fee related obligations violated state law,

section 1983 of the Civil Rights Act and the Federal Telecommunications Act of 1996 specifically 47 U. S. C. 253 (Act). The City also filed a declaratory judgment action asking that the agreement be declared valid under state law and federal law. The federal district court consolidated the cases and the parties filed motions for summary judgment. The district court found the fees valid under state law and there was no cause of action under section 1983. It also found that all of the other obligations under the agreement with respect to the use of the right-ofways were valid except for section 23.64 of the agreement which violated 42 U. S. C. sections 253 (a) and (c). The district court found that the linear-foot fee must be directly related to the actual costs incurred by the City under 253 (a) and (c) in order to meet the test of what is “fair and reasonable compensation.” On appeal, the 8th Circuit examined the relationship between sections 253 (a) and (c) of the Act. Section 253 (a) states: "No state or local statute or regulation, or other state or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." Under a plain reading of the statute, the 8th Circuit finds that a plaintiff suing a municipality under section 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition. Therefore a plaintiff suing a municipality under section 253 (a) must show actual or effective prohibition, rather than the mere possibility of prohibition although it need not show a complete or insurmountable prohibition, it must show an existing material interference with the ability to compete in a fair and balanced market. Since Level 3 admitted in its response to interrogatories that it can not state with specificity what additional services it might provide had it been able to freely use the money that it was forced to pay the City, Level 3 loses on this claim. In addition, the court upheld the district court’s granting of summary judgment for the City on the 1983 claim. Level 3 Communications, L.L.C. v. City of St. Louis, (Nos. 06-1398/06-1459, 02/05/07). Comment Howard: This is a very significant victory for the city of St. Louis. It won on all of the issues related to its regulation of the use of right-of-ways and the fees it charged for such use. The district court’s decision is also important because Level 3 did not appeal the district court’s ruling on a multitude of issues relating to the use of the rights-of-way covering the validity of such things like bonds, insurance, etc. Congratulations to the city of St. Louis. MANAGER DID NOT HAVE FREE SPEECH RIGHT TO MAKE COMMENTS CONCERNING MATTERS WITHIN THE SCOPE OF HIS DUTIES: McGee was the district manager (manager) for the Jefferson County Water Supply District #2 (district.) After contractors repaired a leaking septic tank at the district’s water treatment plant that threatened to contaminate a nearby river, the manager met with board members to inspect the work and asserted that raw sewage was continuing to contaminate the area because the tank had not been repaired properly. The board members said it was okay. The manager threatened to bull-doze the area to prevent further contamination. Testing completed two months later showed no contamination. In another incident, when a water pipe was being replaced due to asbestos, he told the board members that since the contractor was splicing the pipe instead of replacing the entire section, that after each cut a test of the water was required. Upon checking with MNDR it was determined that a test was not required. The board voted to eliminate the manager’s position. He sued claiming that his First Amendment Right of Free Speech was violated. The district court sustained the district’s motion for summary judgment. On appeal, the 8th Circuit affirmed citing and applying the rationale established by the United States Supreme Court in the last term holding that the First Amendment Right of Free Speech is not protected when the speech relates

to the duties of the manager. McGee v. Public Water Supply District #2 of Jefferson County, Missouri, et al., (8th Circuit No. 06-1368, December 27, 2006). AUTOMATED RED LIGHT CAMERAS FOUND TO BE VALID: Plaintiffs challenged the Washington, D.C., Automated Traffic Enforcement System (ATE) on the grounds that it violated their due process under the Fifth Amendment of the Constitution. The ATE system detects moving violations under the district’s traffic law through the use of photographs taken by automated cameras installed at various locations throughout the district. More specifically plaintiffs alleged that assessing liability preliminarily to the owner of the car through a “presumption of liability” violates the D.C. code (that requires clear and convincing evidence to prove a moving violation) and their due process rights. Plaintiffs also alleged the compensation arrangements with a private corporation to manage the system violated due process by creating an adjudicatory tribunal tainted by financial considerations. On a motion for summary judgment, the district court ruled in favor of the district and the case was appealed to the District of Columbia, Court of Appeals. With respect to the due process claim the court noted that the proceeding is civil and not a criminal proceeding and that the presumption of innocence has no place in a civil proceeding. The court examined in detail the legal basis for the presumption finding numerous analogies in civil proceedings supported by decisions of the United States Supreme Court. The court concluded that the rebuttal presumption which created vicarious liability is consistent with due process of law. With respect to the financial arrangement tainting the process, the court noted that all the system does is generate a picture of the car’s license plate, measures the speed of the vehicle, and generate letters to the owner of the vehicle that gives the owner the option of paying the civil penalty or the right to contest the case which is heard before a judge. The plaintiffs failed to show how the financial arrangements tainted the system since payments to the administrator has nothing to do with the fines that are generated. Amomo et al., v. Fenty and the District of Columbia, (Nos. 03-CV-813, 02/01/07). Comment Howard: This is a very useful case with respect to the validity of automated traffic enforcement systems because the opinion is comprehensive and it cites important legal principles in this arcane area of the law. It also contains extensive analysis of the ordinances of Washington, D.C. and an appreciation of the importance of public policy issues. LEGISLATION, NEWS, AND OTHER MATTERS SALES TAX REDUCTIONS: The February 12, 2007, edition of Missouri Lawyers Weekly notes that the telephone companies have been racking up large refunds (like in the 500 milliondollar range) on sales tax refund claims against state and local taxes due to a December 2006 Missouri Supreme Court decision. It would seem that local government will be faced with a reduction in sales taxes much like we experienced a decade ago when the use tax was declared unconstitutional. The State is apparently arguing for a refund that takes place over a number of years to lessen the impact on the state budget. It would seem that budget and finance officers may need to show an anticipated reduction in sales taxes in anticipation of the refunds which no doubt will be deducted from sales tax collections. In the meantime the telephone companies are asking the General Assembly to forgive retroactively hundreds of millions of dollars of local telephone taxes. Is there no shame?

ATTORNEY-CLIENT PRIVILEGE: In recent years this has been a very contentious subject and of great interest to local government lawyers. Patricia Salkin and Allyson Phillips have written a 54-page article that discusses this subject in great detail. It can be found online at: http://www.dcappeals.gov/dccourts/appeals/pdf/03-CV-813.PDF PROSELYTIZING IN THE WORKPLACE: An article has been written on this subject by Michael Starr and Christine M. Wilson for the National Law Journal and is available at: http://www.law.com/jsp/article.jsp?id=1167904927807 . HOW TO OBTAIN OPINIONS The material contained in this Newsletter is summarized as a service to MMAA members. Almost everything cited in the Newsletter can be found on the Internet. There are a variety of places to search for cases on the internet. Below are several sites that I use for searches. If you have questions or comments please feel free to email me at howardcwright@mchsi.com. Missouri: http://www.courts.mo.gov/courts/pubopinions.nsf., Federal: http://www.ca8.uscourts.gov/onestop.html. Other sources: www.findlaw.com and http://www.molawyersweekly.com/. The opinions cited in this Newsletter may be subject to revision or withdrawal prior to publication.


				
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