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Case Summary for December 2, 2014
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.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Tuesday, December 2, 2014
____________________________________________________________________________________________________

SC94085
City of Moline Acres v. Charles W. Brennan
St. Louis County
Validity of local automated traffic camera enforcement system for speeding tickets
Listen to the oral argument: SC94085.mp3SC94085.mp3
The city was represented during arguments by Carl J. Lumley of Curtis, Heinz, Garrett & O'Keefe PC in St. Louis; Brennan was represented by Hugh A. Eastwood, a sole practitioner in St. Louis.

Judge Roger M. Prokes, presiding judge of the 4th Judicial Circuit (Atchison, Gentry, Holt, Nodaway and Worth counties), sat in this case by special designation in place of Judge Zel M. Fischer.

In June 2012, the Moline Acres board of aldermen adopted a municipal ordinance making it a violation to drive in excess of the posted speed limit when the violation is captured by an automated traffic enforcement system. In July 2012, the automated system captured video and photographic images of a vehicle owned by Charles Brennan traveling 11 miles faster than the speed limit on a portion of Highway 367 within the city’s limits. The next month, after reviewing the images, a city police officer issued Brennan a notice of violation. The notice advised Brennan that, if he did not pay the fine by the due date, his case would be referred to the city prosecutor. In December 2012, Brennan filed a motion in the circuit court to dismiss the violation, alleging in part that he had been deprived of procedural due process. During a February 2013 hearing, the parties stipulated that Brennan owned the vehicle identified in the notice of violation, that the city did not know who was driving the vehicle at the time the violation occurred and that Brennan faced a $124 fine. In March 2013, the circuit court sustained Brennan’s motion to dismiss, finding that, although the city had the authority to enact traffic regulations, its ordinance conflicted with state statutes governing speeding by vehicle operators. The city appeals.

The city argues the circuit court erred in dismissing the city’s prosecution of the municipal ordinance. The city contends the ordinance is enacted validly pursuant to its police powers for the health, safety and welfare of its citizenry. It asserts the ordinance imposes a municipal infraction on vehicle owners that is in addition to – and not in conflict with – the state statutes governing speeding by vehicle operators. The city argues the ordinance does not conflict with the point-reporting requirements of state law because it addresses a non-moving violation of the responsibility of vehicle ownership and not a moving violation committed by vehicle operators. It contends that, because the ordinance itself does not state that points shall not be assessed, any conflict with state law with respect to the reporting of points arises from the application of the ordinance and not the ordinance as enacted. The city asserts that the ordinance does not violate Brennan’s due process rights. It argues he waived notice with respect to his right to a hearing. It contends that, because the ordinance is civil rather than criminal in nature, it does not require the heightened due process protections afforded in state criminal matters. The city asserts it had probable cause to issue the initial violation notice to Brennan as the vehicle’s record owner. The city further argues its ordinance does not shift the burden of proof to Brennan.

Brennan responds that the circuit court properly dismissed the city’s prosecution of him under the ordinance. He argues the ordinance conflicts with state statutes governing speeding by vehicle operators and, therefore, is void. He contends that, although the ordinance itself does not assess points, state law requires the assessment of points when a local jurisdiction obtains a conviction for a moving violation. He asserts that the circuit court correctly noted that one cannot speed without moving. Brennan responds that state law requires a speeding vehicle’s operator to be penalized and, therefore, the city’s attempt to penalize the vehicle’s owner is an irreconcilable conflict with state law. He argues the ordinance carries with it the threat of incarceration, the stigma of a moving violation, a more sizable fine than a mere parking ticket, and the effect of points on a driver’s license and insurance rates. He contends that, because of the multiple ways in which the ordinance conflicts with state law, it is not a valid exercise of the city’s police power to regulate public safety. Brennan responds that the ordinance and the violation notice issued under it violate his due process rights. He asserts that the notice failed to give him the option of pleading not guilty and appearing at a trial. He contends his appearance did not waive this argument because he might have been arrested had he not appeared. Brennan responds that the city does not know the identity of the driver who was speeding. He argues that, regardless of whether the ordinance is deemed civil or criminal, the ordinance impermissibly shifts the burden of proving an element of the offense to him, as the owner of the vehicle. Brennan contends that criminal and quasi-criminal defendants enjoy heightened protections required by the federal and state constitutions. He asserts that neither the legislature nor the courts ever have penalized vehicle owners with strict liability civil penalties for moving traffic violations.

The American Civil Liberties Union of Missouri argues, as a friend of the Court, that certain minimum procedural safeguards are required under Rule 37 when a person is accused of an ordinance violation. It contends that the notice the city provided does not comply with those minimum procedural safeguards. The organization asserts these deficiencies are not mere administrative flaws but rather comport with the language of the ordinance. It argues this Court should reject the notion that the citation was a mere courtesy notice that need not comply with the requirements of Rule 37. It contends that the notice’s failure to advise the accused of available procedural safeguards cannot be cured by a subsequent notice.

The Missouri Municipal League argues, as a friend of the Court, that the circuit court erred in holding that the ordinance conflicts with state law. It contends the ordinance is authorized by the city’s police powers. It asserts the ordinance is silent regarding the assessment of points and, therefore, cannot conflict with state law regarding the assessment of points. The organization argues that the circuit court should not have sustained Brennan’s motion to dismiss. It contends the ordinance is civil and not criminal in nature and, therefore, does not require heightened due process protections.

SC94085_Moline_Acres_brief.pdfSC94085_Moline_Acres_brief.pdfSC94085_Brennan_brief.pdfSC94085_Moline_Acres_reply_brief.pdf
SC94085_MO_Municipal_League_amicus_brief.pdfSC94085_ACLU_Amicus_brief.pdfSC94085_ACLU_Amicus_brief.pdf



SC94379
City of St. Peters, Missouri v. Bonnie A. Roeder
St. Charles County
Validity of local automated traffic camera enforcement system for red light tickets
Listen to the oral argument: SC94379.mp3SC94379.mp3
The city was represented during arguments by W. Scott Williams of Hazelwood & Weber LLC in St. Charles; Roeder was represented by W. Bevis Schock, a sole practitioner in St. Louis.

Judge Roger M. Prokes, presiding judge of the 4th Judicial Circuit (Atchison, Gentry, Holt, Nodaway and Worth counties), sat in this case by special designation in place of Judge Zel M. Fischer.

A St. Peters city ordinance authorizes the use of automated photographs and video of vehicles that enter an intersection in violation of a red traffic signal or otherwise violate the city’s traffic code. Pursuant to this ordinance, the city issued a citation to Bonnie Roeder for traveling into and through an intersection after the traffic control light had turned red in June 2012. She asked the circuit court for a jury trial. Before trial, Roeder filed a motion to dismiss the municipal charge against her, alleging in part that the camera ordinance was void. The court overruled her motion and held the ordinance is not void. At trial, the city presented still photographs showing Roeder’s vehicle traveling toward an intersection, showing the vehicle traveling beyond the white line at which drivers are to stop while waiting for a red light and into the intersection, showing Roeder’s face as she drove her vehicle into the intersection and showing the rear of Roeder’s vehicle, including the license plate. In September 2013, the jury unanimously found that Roeder failed to stop at a red light and that this failure was detected through the automated red light enforcement system. It recommended she pay a $110 fine. Roeder subsequently asked the court to enter a judgment acquitting her of the charges. In October 2013, the court issued its judgment dismissing the citation against Roeder, finding the ordinance conflicts with state law. The city appeals.

The city argues the circuit court erred in dismissing the citation against Roeder. It contends its camera ordinance does not conflict with state law because, as required by state law, the city refrains from reporting or assessing points against a violator’s driving record for charges of red light camera safety violations under the city’s camera ordinance. The city asserts that Missouri law permits the director of revenue to classify certain offenses as non-point offenses pursuant to state law and that the director has designated red light violations detected by automated cameras as non-point violations. The city argues that any alleged conflict between the ordinance and state law does not provide Roeder with a defense to the municipal citation because the statutory obligation to impose points for a moving violation is directory and not mandatory. The city contends that, in dismissing the citation, the circuit court failed to enforce the camera ordinance’s severability clause. It asserts this clause expressly provides that the camera ordinance shall remain valid and enforceable except for the term, condition or provision held to be invalid and unenforceable. It argues, therefore, that the circuit court should have severed any provision it found to be in conflict with state law and applied the remainder of the camera ordinance.

Roeder responds that the circuit court properly found the city’s ordinance does conflict with state law. She argues that the state law requiring points to be assessed for moving violations trumps the state law allowing a system of charge codes for moving and non-moving violations. She contends that, when these state laws are read together, a charge code manual cannot create new crimes or offenses but is merely part of a system of reporting conduct the legislature already has made criminal. Roeder responds that, although the ordinance itself does not assess points, state law requires the assessment of points when a local jurisdiction obtains a conviction for a moving violation. She asserts that one cannot run a red light without moving, making the ordinance void. Roeder argues that the use of the word “shall” in the statute regarding the obligation to assess points makes the statute mandatory, not directory, and that this distinction does not save the ordinance from being void on its face and as applied to her. She contends that due process prevents this Court from severing the ordinance provisions as the city suggests. She asserts that the ordinance does not provide sufficient guidance for how a city law enforcement officer is to determine the driver of a vehicle identified under the camera ordinance and that there was no way the officer issuing the ticket could tell, from her driver’s license photograph alone, whether she was the person running the red light. Roeder responds that the notice of violation of the ordinance fails to meet the procedural requirements of Rule 37, rendering the notice of violation unlawful and preventing prosecution of the charge. She argues its failure to notify that a driver has the option of pleading not guilty and appearing at trial, impermissibly shifting the burden of proving an element of the offense to her. She contends the ordinance violates equal protection guarantees because, in application, a driver of a vehicle owned by a trust, company or corporation will not be prosecuted and because there is no rational basis for having the ownership of the vehicle form the basis for determining whether the driver is ticketed.

SC94379_St_Peters_brief.pdfSC94379_St_Peters_brief.pdfSC94379_Roeder_brief.pdfSC94379_Roeder_brief.pdfSC94379_St_Peters_reply_brief.pdfSC94379_St_Peters_reply_brief.pdf



SC94212
Sarah Tupper, et al. v. City of St. Louis, et al.
St. Louis city
Validity of local automated traffic camera enforcement system for red light tickets
Listen to the oral argument: SC94212.mp3SC94212.mp3
The city was represented during arguments by Michael Garvin of the St. Louis city counselor's office in St. Louis; and the director of revenue was represented by State Solicitor James R. Layton of the attorney general's office in Jefferson City. Tupper and Thurmond were represented by W. Bevis Schock, a sole practitioner in St. Louis.

Judge Roger M. Prokes, presiding judge of the 4th Judicial Circuit (Atchison, Gentry, Holt, Nodaway and Worth counties), sat in this case by special designation in place of Judge Zel M. Fischer.

In 2005, the city of St. Louis enacted an ordinance allowing police officers reviewing video recordings of suspected red light violations to determine whether probable cause exists to issue a notice of violation. The ordinance also creates the rebuttable presumption that the vehicle’s registered owner was operating the vehicle at the time of the violation. The ordinance does not classify red light camera violations as moving or non-moving and is silent as to whether points should be assessed against the driver’s license. The maximum penalty for a violation of the ordinance is a $100 fine. Sandra Thurmond and Sarah Tupper each was accused of violating the red light camera ordinance. The notices of their violations included a probable cause statement as well as options for paying the fine, procedures for disputing the notices without appearing in court, and the option of pleading not guilty and requesting a trial. In November 2013, Tupper and Thurmond sued the city, the director of revenue and others, attacking the validity of the city’s red light camera enforcement program. The municipal charges against them were dismissed two days later. The director moved to dismiss the allegations against him, alleging Thurmond and Tupper failed to state a claim against him. The court overruled the director’s motion, citing the authority of the attorney general – counsel for the director – to be heard in a case involving the constitutional validity of a statute or ordinance. Following a January 2014 trial by a judge rather than a jury, the court in February 2014 issued its judgment declaring the ordinance invalid and enjoining the city from enforcing it. The court stayed its judgment pending appeal but required that fines paid for violations occurring after the date of the judgment be escrowed while the stay is in effect. In March 2014, the court amended its judgment to award costs in favor of Thurmond and Tupper but denied their request for attorney fees. The parties appeal.

The director of revenue’s appeal

The director argues the circuit court erred in overruling the director’s motion to dismiss. The director contends Thurmond and Tupper failed to state a claim against the director because their petition sought no relief from and made no allegations that the director caused injury to them that could be remedied. The director notes that any authority for the director’s counsel – the attorney general – to be heard in this case is irrelevant to whether the director was a proper defendant and that there is no sufficient basis to compel the director to appear as a defendant.

Thurmond and Tupper respond that, while they take no formal position regarding the director’s argument, the director lacks standing (legal ability to proceed) in the appeal because the trial court entered no binding ruling against the director.

The city’s appeal

The city argues the trial court erred in declaring the camera ordinance void and enjoining its enforcement. The city contends the court misapplied uncontested facts to the law in finding that the rebuttable presumption provisions of the ordinance are unlawful. It asserts that uncontested evidence at trial conclusively demonstrated the reasonableness of the rebuttable presumption. It argues that red light camera matters in the municipal court division are civil proceedings, with quasi-criminal aspects, in which rebuttable presumptions are a proper means of shifting the burden of evidence. The city contends Thurmond and Tupper had an adequate remedy at law that precludes equitable relief such as an injunction. It asserts that its municipal division provides a forum in which Thurmond and Tupper should have contested their red light camera violations, including raising any challenge to the validity of the ordinance under which they were charged. The city argues the trial court erred in concluding that the ordinance conflicts with state law regarding the assessment of points for moving violations. It contends the ordinance does not mention, require or prohibit the assessment of points. It asserts the municipal division reports ordinance violations to the director of revenue using a state charge code that categorizes red light camera violations as “no point” violations. The city argues that, pursuant to state law, the decision whether to assess points for red light camera violations is made by the director of revenue. The city contends the trial court erred in declaring the ordinance void on its face under one court of appeals opinion and in applying another court of appeals opinion. The city asserts that the opinions on which the trial court relied are erroneous and that the holding of one, that ordinance violations are criminal rather than civil proceedings, is contrary to binding Missouri precedent. The city argues the trial court erred in determining the ordinance provides improper notice. It contends the court ignored the city’s notice revisions that corrected the deficiencies in the notice cited in a court of appeals opinion. The city asserts the court improperly granted prospective injunctive relief despite Thurmond and Tupper’s admission that the city’s current violation notices comply with Rule 37.

Thurmond and Tupper respond that the trial court properly declared the ordinance void and enjoined its enforcement. They argue the ordinance’s rebuttable presumption, which does not require the prosecution to bear the full burden of proof, violates the state and federal constitutions. They contend the ordinance is criminal rather than civil in nature, noting the use of the word “prosecution” throughout the ordinance, notice of violation and summons to appear in the municipal division as well as a letter from the municipal division clerk to Tupper stating that, should Tupper fail to appear in court, a warrant would be issued for her arrest. Thurmond and Tupper assert that the ordinance, however, is not rationally related to public safety. They respond that there is an irreconcilable difference between the state and federal constitutional rights they should be afforded in criminal proceedings and the ordinance’s rebuttable presumption, which does not require the prosecution to bear the full burden of proof. They argue the city’s process in determining whether to issue a violation falls short of the due process requirements of Rule 37. Thurmond and Tupper contend that the city’s failure to assess points for red light violations makes the ordinance unlawful. They assert that state law requires points to be assessed for any moving violation and that any car that runs a red light is moving. They respond that, by permitting red light violations without assessing points, in violation of state law, the city permits what the state law prohibits, making the ordinance void. Thurmond and Tupper argue that because they faced multiple violations of the ordinance and stood to lose $100 per violation, they lacked an adequate remedy at law and properly sought injunctive relief in the circuit court. They contend the trial court properly relied on court of appeals opinions, noting that other appellate opinions reached similar holdings. As to any revision in the city’s violation notice, Thurmond and Tupper assert that the current form used by the city was not part of the record in the trial court and that the notice issue was not a determinative factor in the trial court’s judgment in their favor. Thurmond and Tupper further respond that the fact that a private company holds an improper financial stake in each of the city’s right light camera tickets provides an additional ground for this Court to affirm the trial court’s judgment.

Thurmond and Tupper’s cross-appeal

Thurmond and Tupper argue that the trial court abused its discretion in overruling their request for attorney fees. They contend they prevailed against the city and seek attorney fees only from the city. They assert that they meet and exceed the standard for awarding fees because of special circumstances. Thurmond and Tupper argue the city engaged in intentional misconduct by issuing them red light camera tickets despite several appeals court opinions that, they contend, were sufficient to inform the city that red light camera ticket ordinances with a rebuttal presumption were void and unenforceable. They assert that these circumstances left them with no choice but to file this suit to stop the city from prosecuting their tickets.

The city responds that the trial court did not abuse its discretion in overruling Thurmond and Tupper’s request for attorney fees because of special exceptions. The city argues it acted properly in administering its red light camera program in accordance with the one appellate court decision that had become final prior to Thurmond and Tupper filing suit and that pertained to the city’s ordinance. The city contends it took steps to adjust its camera program to this opinion. The city further asserts that the other appellate cases on which Thurmond and Tupper rely did not become final until later and that, of those cases, only one involved an ordinance with a rebuttable presumption similar to that in the city’s ordinance. The city responds that no other grounds on which to award attorney fees exist in this case.

SC94212_Director_of_Revenue_brief.pdfSC94212_Director_of_Revenue_brief.pdfSC94212_St_Louis_first_brief.pdfSC94212_St_Louis_first_brief.pdfSC94212_Tupper_&_Thurmond_first_brief.pdfSC94212_Tupper_&_Thurmond_first_brief.pdfSC94212_St_Louis_second_brief.pdfSC94212_St_Louis_second_brief.pdfSC94212_Tupper_&_Thurmond_second_brief.PDFSC94212_Tupper_&_Thurmond_second_brief.PDF
SC94212_Hazelwood_Ferguson_Creve_Coeur_amici_brief.pdfSC94212_Hazelwood_Ferguson_Creve_Coeur_amici_brief.pdfSC94212_St._Peters_amicus_brief.pdfSC94212_St._Peters_amicus_brief.pdfSC94212_MO_Municipal_League_amicus_brief.pdf



SC94260
Tatson LLC d/b/a Powerhouse Gym of Joplin v. Director of Revenue
Jasper County
Applicability of sales tax to monthly payments
Listen to the oral argument: SC94260.mp3SC94260.mp3
The director was represented during arguments by Evan J. Buchheim of the attorney general's office in Jefferson City; Powerhouse was represented by Paul A. Boudreau of Brydon, Swearengen & England PC in Jefferson City.

Powerhouse Gym of Joplin owned a building in which it operated a full-service fitness facility used only by persons with paid memberships. It charged membership fees on a monthly basis under one- or two-year contracts and paid sales tax on these membership fees. Powerhouse subsequently entered into an agreement with Custom Built. Under the agreement, Custom paid Powerhouse $6,000 per month and in return received office space, use of Powerhouse’s fitness equipment, and the right to sell and provide personal training and other fitness services to Powerhouse members. Following an audit, the director of revenue concluded that the $6,000 monthly fee Custom paid to Powerhouse was subject to sales tax and assessed Powerhouse approximately $12,200 in unpaid sales tax. Powerhouse challenged the assessment. The administrative hearing commission found that Powerhouse was not selling or renting tangible personal property or providing a taxable service at retail to Custom and, therefore, was not liable for sales taxes on Custom’s monthly payments. The director appeals.

The director argues that the commission’s determination that the monthly fees Powerhouse collected from Custom were not taxable is not authorized by law or supported by competent and substantial evidence. The director contends the relevant state statute imposes a sales tax on all fees paid to or in a place of recreation. The director asserts competent and substantial evidence showed that Powerhouse operated a place of recreation – a fitness facility. The director argues the monthly fees Powerhouse collected from Custom were subject to sales tax. The director contends these monthly fees gave Custom and its employees access to Powerhouse’s facility and use of Powerhouse’s facility and fitness equipment for the purpose of selling and providing personal training services to Powerhouse’s members.

Powerhouse responds that the commission’s decision is authorized by law and supported by competent and substantial evidence. Powerhouse argues the commission did not err in determining the monthly payments Powerhouse received from Custom were lease payments for rent or occupancy and were not for a sale or rental of tangible personal property or a fee paid to Powerhouse for a taxable service rendered at retail. Accordingly, Powerhouse contends, the commission correctly concluded the monthly payments were not subject to state sales tax.

SC94260_Director_of_revenue_brief.pdfSC94260_Director_of_revenue_brief.pdfSC94260_Powerhouse_Gym_brief.PDFSC94260_Powerhouse_Gym_brief.PDFSC94260_Director_of_revenue_reply_brief.pdfSC94260_Director_of_revenue_reply_brief.pdf

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