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Case Summary for March 7-8, 2000

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.


DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Tuesday, March 7, 2000

SC82175
Beverly J. Hamby v. City of Liberty, Missouri, et al.
Clay County
Terminated police officer's discrimination claim under administrative law

Beverly Hamby seeks judicial review of her termination from Liberty's police department. She seeks review as an administrative decision under section 536.150. The court awarded summary judgment in the city's favor. She appeals.

Hamby argues: (1) Several inferences could be drawn from the facts. One such inference is that the termination was unreasonable, which precludes summary judgment. (2) Hamby had a property interest in her employment that mandated that she receive due process before terminating her, yet she received none. (3) The administrative decision is a noncontested case. The basis for her termination was sex discrimination. The exhaustion of administrative remedies is not a prerequisite to judicial review of noncontested cases. (4) Dismissal is improper because Hamby alleged all elements to obtain judicial review of a noncontested case.

The City of Liberty responds that the court rightly found Hamby had no right to judicial review. As a discharged at-will employee, she failed to comply with the prerequisites to file a sex discrimination claim under the applicable statutes and may not now bring such a claim under administrative statutes. (1) Judicial review of an administrative decision under the statute Hamby relies upon, section 536.150, is available only if there is no other provision for judicial inquiry, according to its explicit language. Hamby's sex discrimination claim is subject to judicial review in another statute, section 213.111. (2) Hamby had no property interest in her employment so as to require due process. The employee handbook cannot alter her at-will status.

The Missouri Municipal League filed a brief of amicus curiae. The League submits that Hamby did not have a property interest in her position so as to require due process. The employment at will doctrine in Missouri does not recognize a handbook exception to give an employee the right to maintain a position with a public employer.


SC81985
Joshua Avidan v. Transit Casualty Co, etc.
Cole County
Employment termination claim against the receivership

Transit Casualty Company in Receivership's special deputy receiver terminated Joshua Avidan from his employment with the receivership. Avidan sued for breach of contract and deprivation of civil rights. The circuit court transferred his claims to the pending receivership action to be treated as timely-filed claims against the receivership. He appeals.

Avidan argues: (1) The court had jurisdiction to hear his claim. With the court's approval, Avidan contracted for the right to have any disputes heard before the court. Any contrary construction deprives Avidan of his right to a jury trial. The liquidation order and insurance statutes do not defeat the court's jurisdiction over this claim. (2) Avidan's claims against the special deputy receiver are not barred by judicial immunity. Judicial immunity applies only to parties performing judicial functions and not automatically to judicial actors. The decision to discharge an employee is not the performance of a judicial act.

Transit responds that because the court transferred Avidan's claims to the receivership action, his claims are still pending before the circuit court. (1) The court properly held that Avidan's claims against the receiver should be treated as all other claims against it, not as a separate action with priority over all other claims. Statutes and the receivership order require claims against the receiver to be brought in the receivership court. Avidan has no right to a jury trial, either by constitution or contract. (2) The court properly dismissed Avidan's civil rights claim against the special deputy receiver. Missouri law provides him absolute judicial immunity. His actions are not under color of state law and, therefore, not actionable under the civil right statute 42 U.S.C. section 1983.


SC81907
United Gamefowl Breeders Association of Missouri v. Jeremiah W. (Jay) Nixon, et al.
Andrew County
Constitutional challenge to initiative petition on baiting and fighting animals

The United Gamefowl Breeders challenge the constitutionality of Proposition A, the initiative petition to ban cockfighting, animal fighting and related activities. (The initiative petition was adopted at the general election of November 3, 1998.) The circuit court rejected the challenge. United Gamefowl Breeders appeal.

The United Gamefowl Breeders argue the ballot title of the initiative petition contained more that one subject in violation of the Missouri Constitution's Article III section 50. The proposition contains numerous statutes on different subjects, including for example, cockfighting, bear-fighting, and simply possessing certain implements, the latter of which was not stated in the title.

The Attorney General responds: (1) The trial court did not have jurisdiction to consider this post-election, one subject and clear title challenge to the initiative petition. The exclusive remedy was a pre-election challenge to prevent the initiative form being on the ballot. Any challenge must have been filed within 10 days after the Secretary of State certified the initiative as sufficient, according to statute. (2) In any event, the initiative contained one subject clearly expressed in its title. All the initiative's provisions make effective its central purpose of prohibiting cruelty to animals, and the title gives adequate notice of such purpose.

The United Gamefowl Breeders reply that the pre-election challenge is not the exclusive remedy for violation of the single subject rule.


SC82174
Larry Jones v. City of Kansas City
Jackson County
Notice requirement for injury due to streets, etc.


When a car failed to yield at a yield sign on Brookside Street and 77th Terrace in Kansas City, two cars collided, injuring nearby pedestrian Larry Jones. Jones sued Kansas City, alleging his injury was caused by a dangerous condition of property, which waives the city's sovereign immunity, and that having only the yield sign to control traffic created a dangerous condition. The court granted summary judgment to the city because Jones failed to comply with section 82.210 requiring a person to notify the mayor of the claim. Jones appeals.

Jones argues: (1) He was not required to give notice under section 82.210. That statute applies to defects in the condition of any bridge, boulevard, street, sidewalk, or thoroughfare. Traffic signs are not included. The court cannot extend the statute's plain meaning. (2) Traffic control signs are not inextricably linked with streets so as to trigger the notice requirement. At the least, whether the sign is part of the street is a question of fact for the jury.

The city responds: (1) Publicly maintained exterior improvements to facilitate travel, which include street signs, are part of the list of defective property, such as streets, that trigger the notice requirement. (2) Traffic signs are inextricably linked to the streets, triggering the notice requirement.



Wednesday, March 8, 2000

SC82219
James W. Hovis, et al. v. Lavern H. Daves, Wayne County Collector, et al.
Wayne County
Challenge to county capital improvements tax

Various Wayne County residents, property owners, and taxpayers seek to terminate the capital improvements sales tax passed in 1993 on the grounds that it does not contain a termination date. The court dismissed the action. The taxpayers appeal.

The taxpayers contend: (1) This is not a ballot dispute that had to be brought under section 115.577 within 30 days of certification of the election. This claim is not that the ballot language was incorrect or misleading but, rather, that the statutory authorization for the tax is lacking. The Hancock Amendment prohibits counties from levying any tax not authorized by law and authorizes taxpayers to bring actions to enforce the Hancock Amendment. (2) Section 67.700, which allows capital improvement sales tax on a vote, requires that the ballot contain a termination date for the tax, which the Wayne County ballot did not contain.

The county counters: (1) The taxpayers are arguing about ballot's wording, the statute of limitations for which has expired. The Hancock Amendment is inapplicable. It prohibits taxes not authorized by law; the taxpayers are not arguing about an unauthorized tax but merely the mechanism for the tax. (2) Section 67.700 has no requirement that the ballot state a specific number of years for the duration of the tax, although the statute permits the ballot to contain a duration.


SC82087
Zip Mail Services, Inc. v. Director of Revenue
Use tax on mailing machinery

Zip Mail receives mail from customers; uses sorting, reading, and printing machinery to apply a bar code to each envelope; delivers the mail to the U.S. Postal Service; and receives payment from customers and the USPS for its services. The Director of Revenue assessed use tax on mailing machinery used in this process. The Administrative Hearing Commission upheld the Director's decision, and Zip Mail seeks review.

Zip Mail contends: (1) Certain mailing machinery is exempt from use tax, because it was purchased and used to expand an existing manufacturing plant in Missouri, which is exempt under sections 144.615(3) and 144.030.2(5). (2) The USPS receives title to the bar codes manufactured by the mailing machinery in exchange for rebates. This constitutes a sale under section 144.010.1(8).

The Director responds: (1) The section 144.030.2(5) exemption does not apply. The machinery was not purchased to expand an existing plant or manufacturing. Zip Mail did not manufacture products intended to be sold ultimately for final use or consumption. Or, Zip Mail does not "manufacture" bar codes. (2) Zip Mail is not entitled to exemption under section 144.00.2(6) for its purchase of the mailing machinery. The machinery was not used "exclusively" in manufacturing products sold to the government. Zip Mail does not "manufacture" and "sell" property to the USPS. The USPS did not receive ownership of the bar codes.

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