Pаul Damon (“Damon”) and Natalia Oli-netchouk (“Olinetehouk”), on behalf of themselves and others similarly situated, appeal the trial court’s dismissal of their class action petition for declaratory relief, injunctive relief, and damages against the City of Kansas City and American Traffic Solutions, Inc. We hold that the ordinance is invalid because it conflicts with state law. We further hold that Damon and Olinetehouk are not barred from asserting their claims. The judgment is reversed and the cause remanded.
FACTUAL AND PROCEDURAL HISTORY
This class-action lawsuit questions the validity of an ordinance (and corresponding notices of violations) governing a municipality’s automated traffic control signals, commonly referred to as red-light cameras. Appellants Damon and Olinet-chouk brought suit in the Jackson County Circuit Court against the City of Kansas City (the “City”) and the company with which it contracts, American Traffic Solutions (“ATS”) (collectively, “Respondents”).
Appellants seek declaratory relief, in-junctive relief and damages from the municipality and from ATS, which set up and operates the traffic enforcement cameras. ATS is a private, for-profit company that markets, installs, operates, and/or maintains red-light camera products and services to municipal governments throughout the country.
The petition includes two subclasses of plaintiffs (collectively, “Appellants” or the “subclasses”). Subclass One, consisting of Damon and others similarly situated, received a Notice of Violation and paid the fine and costs without going to court. Subclass Two, consisting of Olinet-chouk and others similarly situated, received a Notice of Violation but have not paid the fine or tried the underlying municipal case and currently face prosecution.
The city ordinance governing automated traffic control systems is section 70-961.
Also, as set out further below, additional contested ordinance language provides in part: “No vehicle shall be driven into an intersection controlled by a traffic control signal at which an automated traffic control system is installed while the traffic control signal facing the vehicle displays a steady red signal.... ” (emphasis added). Appellants allege that because of this language, a violation of this ordinance constitutes a moving violation and thus must be governed by state law rather than by an ordinance. Also, Appellants allege:
The Ordinance, despite Defendants’ attempts to make it appear civil, is criminal in nature because the Ordinance seeks to regulate and prosecute violations predicated solely on failure to obey traffic signals, violations that are criminal under Missouri law, and/or is criminal in effect because the Ordinance authorizes arrest as a mechanism for enforcing the Ordinance.
As notification that he violated the ordinance, Damon was issued solely a Notice of Violation, and Olinetchouk was issued both a Notice of Violation and a Summons. The documents in both cases included instructions for paying the fine or for submitting an affidavit either that a person other than the owner was the driver of the vehicle or that the notice was otherwise received in error. The style of Damon’s Notice of Violation read:
Kansas City Missouri
Photo Enforcement Program
PO Box 22081
Tempe, AZ 85285-2091
(Emphasis added.)
As noted above, Damon’s Notice of Violation encouraged online payment of the fine to an ATS-run website (www. violationinfo.com) — and required an additional $4 “convenience fee” for the privi
The Notice of Violation — again, nowhere delineated “Summons” — mailed to Damon stated that if he wished to “dispute this notice or plead not guilty ” (emphasis added), the owner was not to send payment, and a “Summons” would appear in the mail. But Damon’s Notice of Violation also instructed him to contact the City by way of a municipal website (www.kcmo. org/court) or by way of a local Kansas City telephone number to request a court date to plead not guilty, stating that “[i]f you fail to pay or set a court date, you will be summoned to court on a date certain. Your failure to appear at that time may result in the issuance of a warrant for your arrest and further penalties” (emphasis added).
Olinetchouk’s documents included a separate “Summons” and indicated she should appear on the scheduled court date set forth in the Summons if she wished to dispute the notice or plead not guilty. Olinetchouk’s Summons stated also: “Your failure to appear on the date below may result in the issuance of a warrant for your arrest and further penalties” (emphasis added). Olinetchouk’s documents allowed online payment through the same ATS-run website as Damon’s with the same “convenience fee.” The address for mailing payment or a not guilty plea under Olinetchouk’s documents was the address of the City’s municipal division of the Sixteenth Judicial Circuit Court, but it included the ATS Tempe, Arizona address for rental-car companies. It also included the “Customer Service” toll-free number operated by ATS for any questions regarding payment.
The documents provided to both subclasses indicate that “no points will be assessed” for a violation of this ordinance. The ordinance provides for a fine in the amount of $100. Damon’s documents provide that the “Penalty is a Fine and Costs of $100,” while Olinetchouk’s documents provide “Penalty is a Fine of $100” but makes no mention of “costs.”
Relevant to this appeal, Appellants further allege the following:
—“ATS is the first party to receive and review images of potential red light camera violations before sending those images to KC police officers, who then issue a citation in the form of a Notice of Violation.”
—“[Tjhere are times when [City’s] police officers do not review these images to determine whether a violation has actually occurred, which results in employees of ATS, not officers of the law, determining whether a violation occurred and then issuing a citation.”
—In bringing the class action, the Subclasses “seek to expose what they and other Missouri citizens believe is an unscrupulous business venture between an out-of-state for profit corporation and a municipal government seeking new ways to fill city coffers.”
—Elected representatives of the City have admitted that the purpose behind the camera program is to “make money” but that “most of the income from the fines are [sic] going to the vendor, [ATS].”
—Both Respondents “deliberately circumvented Missouri state laws intended to keep dangerous drivers off the road ... at the peril of Missouri citizens” in that the ordinance “does not actually promote public safety because Defendant KC has converted misdemeanor moving violations into non-moving infractions to avoid reporting guilty pleas and convictions, whiсh means that no driver will ever be assessed points and removed from the road for what KC calls public safety violations.”
“ ‘[I]njury wrecks, rear-end wrecks and overall wrecks all increased’ after Defendants installed the cameras” because cameras increase crashes and injuries; cameras do little or nothing to reduce accidents due to distracted or drunk drivers, which are at the root of many red-light violations.
—The cameras “replace live police officers — whose purpose is to enforce the laws and who can combat all crimes not just red light violations — with automatons capable of only one purpose: photograph the backside of vehicles in order to funnel revenue to KC and ATS.” In that vein, the subclasses also allege that the program “requires pulling police officers off the street and placing them in front of a computer to review red light camera images,” and, therefore, there are fewer officers on the street. The subclasses also allege that, unlike officers, the cameras do not stop drunk drivers who run red lights.
—Better traffic engineering is more effective and efficient than red-light cameras.
—The City opted to implement a “rear-only” system rather than a system with multiple cameras, which could capture images of the driver, because it was less expensive and because a single-camera system was the most “cost-effective means of turning a profit at the expense of Missourians.”
—Sometimes ATS receives “well over 50%” of each fine paid, and the Federal Highway Administration states that ‘where a private contractor is responsible for the processing of citations, compensation based on thе number of citations should be avoided’ because that system invites corruption and undermines fair administration of justice.
—The City deliberately and unlawfully misclassified moving violations of red-light signals as “non-moving infraction[s]” without assessing points against a driver’s license.
—ATS had secured legal advice from the law firm of Stinson Morrison Hecker on whether municipalities possess the authority to adopt an ordinance that would permit circumvention of the Missouri Department of Revenue’s point system found in Chapter 302.
[W]e do not believe a constitutional charter city or statutory city, town or village could adopt an ordinance which circumvents the Director of Revenue’s point system for the suspension and revocation of motor vehicle licenses without legislative authorization to do so. The mandatory language used in the text of the statute [section 302.225 7 ] supports a conclusion that an ordinance of this nature would conñict with state law. This conclusion is augmented also by the clear legislative intent to broaden this reporting requirement to any court with jurisdiction over any offense committed involving a vehicle, as seen in the General Assembly’s recent amendment of § 302.225.
(Emphasis added.)
⅛ ⅜ ⅜ ⅜ ⅜ ⅜
In seeking declaratory relief, injunctive relief, and damages, Appellants raise a number of contentions regarding the constitutionality of the ordinance. The petition is composed of six counts.
In Count I, Appellants seek a declaratory judgment that the ordinance is contrary to a number of Missouri statutes and/or to the Missouri Constitution. Specifically, Appellants contest the validity of the ordinance and seek a declaratory judgment on: (a) whether the ordinance was void because it conflicts with Missouri statutes regulating traffic (primаrily section 304.281.1); (b) whether the City had the authority to enact the ordinance; (c) whether the ordinance is an additional rule of the road or traffic regulation and accordingly conflicts with state law; (d) whether Respondent(s) circumvented Missouri law mandating points for moving violations (sections 302.225, 302.302, 302.010(13)); (e) whether Respondents(s) have authority to reclassify a violation of a steady red-light signal from a moving violation under state law to a non-moving infraction; (f) whether it is lawful for the City to create a rule of evidence by establishing liability based on vehicle ownership; (g) whether Respondent(s) can lawfully prosecute vehicle owners if the owner was not driving at the time of the offense; (h) whether the ordinance and/or Respondent(s)’s conduct violates Article I, section 19 of the Missouri constitution by compelling testimony to prove innocence; (i) whether the ordinance violates Article 1, section 10 of the Missouri constitution in depriving Appellants of life, liberty, or property without due process of law; (j) whether the ordinance is invalid because it exists to generate revenue; (k) whether the ordinance and/or Respondents’ conduct violates public policy; (l) whether Subclass One is entitled to recover payments made pursuant to the ordinance if the ordinance is found to be void or unlawful.
In Count II, Subclass One alleges unjust enrichment against the City on the premise that the ordinance is “void, invalid, and/or unconstitutional” and accordingly seeks a return of “fines, costs, and fees” paid by class members.
In Count IV, Appellants seek legal damages and equitable relief based on an alleged violation of Article I, section 10 of the Missouri Constitution, which prohibits the deprivation of life, liberty, or property without due process of law by establishing an unreasonable presumption of guilt and shifting the burden of proof. (This allegation was duplicated in Count I, but the relief requested distinguishes the two counts.)
In Count V, Appellants seek legal damages based on a “civil conspiracy’ against both Respondents to generate revenue illegally, which is premised on the assertion that Respondents knew and discussed the likelihood or potential that the ordinance was “void, unlawful, and/or unconstitutional.”
In Count VI, Subclass One seeks legal damages and equitable relief, alleging unjust enrichment against ATS for receiving money paid pursuant to an ordinance that is “unlawful, void, conflicts] with Missouri state law, and violate[s] the Missouri constitution for multiple reasons.”
The trial court entered its written judgment dismissing the petition with prejudice, without explanation or analysis.
Further facts are set forth below as necessary.
OUR JURISDICTION
We note first that this case involves a challenge to the constitutionality of a municipal ordinance. Although not raised by the parties, we have a duty to examine our jurisdiction sua sponte. Walker v. Brownel,
The Missouri Supreme Court has exclusive appellate jurisdiction in cases involving the validity of a statute or provision of the constitution of this state. Mo. Const. ART. V, § 3. We have general appellate jurisdiction in all cases not within the exclusive jurisdiction of the Missouri Supreme Court. Id.
Under prior decisions, appellаte review of the constitutionality of a municipal ordinance fell exclusively in the Supreme Court. See, e.g., Marshall v. Kansas City,
As we are bound to follow the most recent Supreme Court precedent, jurisdic
STANDARD OF REVIEW
“The standard of review for a trial court’s grant of a motion to dismiss is de novo.” Lynch v. Lynch,
ANALYSIS
On appeal, Appellants and Respondents both briefed in considerable detail the validity of the ordinance, seeking a declaration of either its constitutionality and/or its general lawfulness from this court. Where the question can be addressed as a matter of law, we resolve the dispute. Otherwise, our review is merely whether the petition states a claim for relief, and, under that standard, the judgment of the trial court dismissing the action must be reversed on several grounds.
THRESHOLD ISSUES
As noted above, Counts I, III, and IV raise constitutional challenges and/or questions regarding the lawfulness of the ordinance. Respondents argue on appeal that Subclass I does not have standing to bring these claims, that Subclass One has waived and/or is estopped from bringing these claims, and that Subclass Two has an adequate remedy at law.
A. Standing (Subclass One)
While the members of Subclass One argue that they have standing to bring these claims, Respondents argue that there is no standing to bring an action for a declaratory judgment or a violation of either of two constitutional provisions. Many of Respondents’ arguments as to standing blur into waiver arguments, which we address infra. As to the pure issue of standing, we hold that Subclass One has established that it has standing to bring these claims.
Standing is question of law, and review is therefore de novo. Mo. State Med. Ass’n v. State,
Second, as to the declaratory judgment and also as to Counts III and IV, members of Subclass One have already paid fines. These fines (or a fíne and costs) of $100
Noting anew that standing is established even where a party’s “interest is
B. Waiver and Estoppel (Subclass One)
Respondents argue that Subclass One waived any constitutional objections because they were not raised at the earliest possible opportunity, and that Subclass One should be estopped to bring this challenge because the members did not do so before the municipal court, opting instead to pay their fíne voluntarily. We address these arguments together and find them unpersuasive.
“There are stringent procedural requirements regarding the raising and preservation of constitutional issues.” MB Town Center, LP v. Clayton Forsyth Foods, Inc.,
As Subclass One did not raise any challenge to the constitutionality of the ordinance before the municipal court, we are faced now with whether its members have sufficiently alleged facts that would overcome the waiver doctrine as to the claims alleging constitutional matters, Counts I, III, and IV. “The critical question in determining whether waiver occurs is whether the party affected had a reasonable opportunity to raise the unconstitutional act or statute by timely asserting the claim before a court of law.” State ex rel. York v. Daugherty,
Per Daugherty, in determining whether Subclass One stated a claim upon which relief can be granted, we note first the allegations in the petition regarding lack of proper notice so as to prevent a “reasonable opportunity” to challenge the constitutionality of the ordinance in a “court of law.”
Missouri courts have likewise held that “[c]onstitutional due process requires that for a judgment entered against a party not in default to be valid, there must have been notice of the trial setting and an opportunity to be heard must have been granted at a meaningful time and in a meaningful manner.” Kerth v. Polestar Entm’t,
With those principles in mind, we confront the critical question of whether Subclass One had a “reasonable opportunity” to raise its constitutional challenges before a “court of law.” Daugherty,
Pursuant to the Notice of Violation, if Damon wished to “dispute this notice or plead not guilty,” then he was instructed to not send payment and to await a Summons in the mail. But to confuse matters, in addition to instructing him to await a Summons with a court date, Damon’s notice also indicated that he should contact the City to request a court date. As noted above, the notice stated further: “If you fail to pay or set a court date, you will be summoned to court on a date certain. Your failure to appear at that time may result in the issuance of a warrant for your arrest and further penalties.” See Smith v. City of St. Louis,
Given the detailed allegations regarding the various and contradictory avenues of correcting or defending against the alleged threats — paying an allegedly criminal fíne and a convenience fee under a municipal ordinance by way of a private company’s website, mailing a payment to a post office box in Ohio or Arizona, contacting the City to set a court date, or waiting for a Summons to be mailed — Subclass One has advanced sufficient allegations to survive a motion to dismiss as to whether it had a “reasonable opportunity” to raise its constitutional challenges before a “court of law.” Therefore, we determine that Subclass One did not waive its right (nor are its members estopped) to raise constitutional challenges in a court of law in this action.
C. Inadequate Remedy at Law (Subclass Two)
Respondents argue that Subclass Two cannot state a claim for declaratory relief because the members have an adequate remedy at law by way of a municipal court proceeding. However, some of the claims raised by Subclass Two are equitable in nature. Upon review of the grant of the motion to dismiss, we agree with Subclass Two and reverse.
The general rule is that “equity will not intercede if there is an adequate remedy at law.” Hammons v. Ehney,
We begin our analysis by noting that “[ojrdinarily it is said that equity will enjoin the enforcement of an invalid ordinance to protect the individual citizen from multiple prosecutions, or to prevent irreparable injury to his property rights where he has no adequate remedy at law.” Browning v. City of Poplar Bluff,
Bearing that precedent in mind, we see several related flaws in Respondents’ argument. First, as noted above,
Finally, we note this case differs in significant ways from an action addressing some of the same issues recently before the Eastern District of this court in Smith v. City of St. Louis,
We additionally disagree with Unver-ferth and Edwards, supra, and with Ballard v. City of Creve Coeur,
The purposes behind the Declaratory Judgment Act support our holding. Under section 527.120, the stated purpose of such an action is to “afford relief from uncertainty and insecurity with respect to rights, status and other legal relations.” Further, “[o]ne of the purposes of the Declaratory Judgment Act is to reduce litigation.” Planned Parenthood of Kansas v. Donnelly,
We accordingly hold that Subclass Two has alleged that it is without an adequate remedy at law and its allegations survive Respondent City’s and Respondent ATS’s motion to dismiss.
COUNTS I, III, and IV — LAWFULNESS and CONSTITUTIONAL CLAIMS
(Subclasses 1 and 2)
Having addressed the threshold claims, we next consider Appellants’ substantive challenges to the constitutionality and lawfulness of the ordinance. We address whether those claims survive Respondents’ motion to dismiss.
A. City’s authority to enact under its police power
Appellants raise a number of challenges to the City’s authority to enact the ordinance. They argue that the ordinance was not validly enacted pursuant to section 304.120.2(1) because it is not an “additional rule[ ] of the road.” They also argue that
Municipalities are creatures of the legislature. Anderson v. City of Olivette,
The legislature has granted municipalities the power to regulate traffic in section 304.120.2, where it empowered municipalities to make “additional rules of the road or traffic regulations to meet their needs and traffic conditions.” Nottebrok,
On this point, we agree with the Unverferth court, which concluded that Florissant’s ordinance amounted to a proper exercise of control over traffic on city streets.
Appellants next argue that even if the ordinance was appropriately enacted pursuant to section 304.120, the ordinance has no “substantial and rational relationship to the health, safety, peace, comfort and general welfare” of its citizens. “Generally, the function of the police power has been held to promote the health, welfare, and safety of the people by regulating all threats either to the comfort, safety, and welfare of the populace or harmful to the public interest.” City of Kansas City v. Jordan,
[The] police power in its final analysis is nothing more nor less than the power to govern and in all cases where a matter is affected with a public interest a sovereign is authorized to exercise the police power. Such power is incapable of exact definition, but the existence of it is essential to every well ordered government. This is so for the reason that the police power of a state is that power which is necessary for its preservation and without which it cannot serve the purpose for which it was formed. As has been well said, the police power of a state may be shortly defined to be the power of the legislature to make such regulations relating to personal and property rights as appertain to the public health, the public safety, and the public morals. These principles are so well known that it is unnecessary to cite the authorities.
Jordan,
But even though a municipality may enact an ordinance pursuant to its police power, and even though the police power is broad, the police power is not unlimited and cannot lessen constitutional protections. Id. “[T]he exercise of the police power cannot be made a cloak under which to overthrow or disregard constitutional rights.” Id. (citation omitted). “The police power is limited by: (1) the rights guaranteed by the Constitution, (2) the necessity of a legitimate public purpose, and (3) a reasonable exercise of the power.” President Riverboat Casino-Mo., Inc. v. Mo. Gaming Comm’n,
“Statutes enacted under the police power for the protection of the public health or safety, for the prevention of fraud and for the public welfare, must have some substantial relation to those objects.” Id. at 41-42 (citation omitted). “From its very nature the police power is a power to be exercised within wide limits of legislative discretion and if a statute appears to be within the apparent scope of this power the courts will not inquire into its wisdom and policy, or undertake to substitute their discretion for that of the legislature.” Id. at 42. “If reasonable minds might differ as whether an ordinance has a substantial relationship to the health, safety, or welfare of the public, then the issue must be decided in favor of the ordinance” Id. (emphasis added).
Appellants allege numerous facts that call into question whether the ordinance has a substantial relationship to the health, safety, peace, comfort, and general welfare of the public or, put another way, whether the ordinance was reasonable. Specifically, as noted above, Appellants allege the ordinance does not actually promote public safety for several reasons, which we repeat here:
—Defendant KC “converted misdemeanor moving violations into non-moving infractions to avoid reporting guilty pleas and convictions, which means that no driver will ever be assessed points and removed from the road for what KC calls public safety violations.”
—“ ‘[I]njury wrecks, rear-end wrecks and overall wrecks all increased’ after Defendants installed the cameras” because cameras increase crashes and injuries; cameras do little or nothing to reduce accidents due to distracted or drunk drivers, which are at the root of many red-light violations.
—The cameras “replace live police officers — whose purpose is to enforce the laws and who can combat all crimes not just red light violations — with automatons capable of only one purpose: photograph the backside of vehicles in order to funnel revenue to KC and ATS.” In that vein, the subclasses also allege that the program “requires pulling police officers off the street and placing them in front of a computer to review red light camera images,” and, therefore, there are fewer officers on the street. The subclasses also allege that, unlike officers, the cameras do not stop drunk drivers who run red lights.
—Better traffic engineering is more effective and efficient than red-light cameras.
—Sometimes ATS receives “well over 50%” of each fine paid, and the Federal Highway Administration states that ‘where a private contractor is responsible for the processing of citations, compensation based on the number of citations should be avoided’ because that system invites corruption and undermines fair administration of justice.
In short, Appellants have alleged facts so as to survive Respondents’ motion to dismiss. In reversing the trial court for this error, we recognize that our conclusion differs on this point from that of the Eastern District. We understand that an ordinance enacted pursuant to a municipality’s police power is presumed valid and that the challenging party bears the burden of proving its invalidity. Unverferth,
Appellants additionally alleged facts that call into question whether the ordinance was enacted merely as a revenue-raising scheme and is thus an invalid ordinance. As in Unverferth, Appellants rely on Automobile Club of Mo. v. City of St. Louis in arguing that the ordinance was created for the purpose of generating income and is thus invalid.
In this case, Appellants alleged that the ordinance exists for the purpose of generating revenue and not to promote public safety. Specifically, Appellants allege that elected representatives of the City have admitted that the purpose behind the camera program is to “make money” and that “most of the income from the fines are [sic] going to the vendor, [ATS].” To that end, as with allegations surrounding public safety, Appellants have advanced factual allegations that survive a motion to dismiss. Accordingly, the trial court erred in
B. Conflict with Sections 302.225, 302.302, 302.010(12) on Assessment of Points
Appellants argue that the ordinance in this case directly confliсts with state statutes regarding the assessment of points for the offense.
Section 302.010(13) defines a “moving violation” as the “character of traffic violation where at the time of violation the motor vehicle involved is in motion” with certain exceptions not applicable here. Section 302.225.1 requires the municipal courts, as well as other courts, to report any moving violation to the state Department of Revenue within seven days of any plea or finding of guilt. Section 302.302.1(1) requires the Department of Revenue to assess two points against the driver’s license of any person convicted of a moving violation. Unverferth,
In this case, the ordinance and notices of violation state that no points will be assessed against the defendant’s license.
As was the case in Unverferth, the plain language of the ordinance indicates no real attempt to characterize the conduct as a non-moving violation.
As noted above, a municipal ordinance that conflicts with state statute is void. Miller,
C. Alleged Criminal Nature of Ordinance; Rebuttable Presumption
As set out above, Appellants contest the rebuttable presumption portion of the ordinance as an unconstitutional burden-shifting mechanism.
The rebuttable presumption set out in City’s ordinance states:
A rebuttable presumption exists that the owner of a motor vehicle operated or used in the violation of this section was the operator of the vehicle at the time and place the violation was captured by the automated traffic control system record if the following things are proved:
(1) That a motor vehicle was being operated or used;
(2) That the operation or use of the motor vehicle was in violation of this section; and
(3) That the defendant is the owner of the motor vehicle in question.
The rules of criminal procedure apply to prosecution of municipal ordinances, including the criminal standard of proof beyond a reasonable doubt. McGary,
A presumption is analyzed differently depending on whether the context is criminal or civil. Ulster Cnty. Court v. Allen,
What is denominated a civil proceeding may in fact be criminal. “Even in those cases where the legislature ‘has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect,’ as to ‘transform what was clearly intended as a civil remedy into a criminal penalty.’ ” Hudson v. U.S.,
(1) the ordinance includes express language indicating a municipality’s intention to consider a violation of the ordinance to be civil in nature; (2) the ordinance imposes a sanction that does not involve an affirmative disability or restraint on the individual but merely imposes a fine without assessing points against an individual's driver’s license; (3) the civil, non-point penalty for violating the ordinance is assessed without regard to the individual’s knowledge or state of mind at the time of the violation; (4) the presence of the deterrent purpose of the sanction may serve civil as well as punitive goals; (5) the behavior to which the sanction applies is not already a crime; (6) the ordinance is rationally connected to the broader, legitimate non-punitive purpose of promoting public safety; and (7) the sanction imposed by the ordinance does not appear excessive in relation to the ordinance’s purpose of promoting public safety.
Nottebrok,
As with some questions surrounding the validity of the ordinance, resolution of whether the ordinance is criminal or quasi-criminal is not appropriate for review on a motion to dismiss.
In so holding, we reject Respondents’ blanket argument that the rebuttable presumption merely shifts the burden of evidence, not the burden of proof. Respondents rely primarily on 1949 authority indicating that a municipality may use a rebuttable presumption in its ordinances governing parking tickets. In City of St. Louis v. Cook, as here, the defendant argued that the municipality’s rebuttable presumption that the owner of an illegally parked vehicle violates due process in that a defendant is presumed innocent, that the burden of proof is guilt beyond a reasonable doubt, and that a defendant cannot be prejudiced by a failure to testify.
From a practical standpoint it would be impossible for the police department of the City of St. Louis to keep a watchover all parked vehicles to ascertain who in fact operates them. In such a situation and in view of the purpose of City’s traffic regulations, the City having shown the vehicle to have been parked in violatiоn of the regulatory ordinance and having shown a defendant to be the person in whose name the vehicle is registered, it would seem an owner-registrant, a defendant, could not be said to be put to too great an inconvenience or to an unreasonable hardship in making an explanation if he desires. The connection between the registered owner of an automobile and its operation is a natural one.
Id. at 470-71.
The Cook court applied a rational-basis analysis: “It is ‘only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed (or inferred), and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.’ ”
The trial court thus erred in dismissing Appellants’ petition on this issue.
D. Due Process
As set out above in our discussion relating to threshold matters, the subclasses allege numerous due process deficiencies both with regard to the Notice of Violation and its compliance with Missouri Supreme Court rules, and the ordinance’s compliance with due process as set out in Article I, Section 10 of the Missouri Constitution. To be clear, these due process deficiencies are raised not only to address threshold matters, but also they independently constitute claims in the petition.
As to allegations of violations of the Missouri Supreme Court rules, we note that “though constitutional charter cities may legislate for themselves as long as they do so consistently with the state statute, ‘that does not mean that suits by such cities in the courts of this state are not subject to rules of practice and procedure promulgated by the Supreme Court....’” Bueche v. Kansas City,
Similar factual issues remain as to Appellants’ allegations of violations of Article I, Section 10 of the Missouri Constitution, which prohibits the deprivation of life, liberty or property without due process. At very least, Appellants are entitled to a resolution of whether the rebuttable presumption is violative of due process, supra. Allegations related to due process are likewise best suited for consideration by the trial court.
As Appellants’ allegations of violations of due process are wrought with factual determinations necessitating remand, the trial court erred in granting Respondents’ motion to dismiss in this regard. See generally Unverferth,
COUNTS II and VI: UNJUST ENRICHMENT
In Count II, Subclass One alleges unjust enrichment against the City. In Count IV, Subclass One alleges unjust enrichment against ATS. Subclass One seeks restitution as part of the damages for both counts. “A right to restitution is established under unjust enrichment if the following elements are satisfied: (1) that the defendant was enriched by the receipt of a benefit; (2) that the enrichment was at the expense of the plaintiff; (3) that it would be unjust to allow the defendant to retain the benefit.” Homecomings Fin. Network, Inc. v. Brown,
Respondents argue that Subclass One did not allege the elements of unjust enrichment. As to the first element, Subclass One alleges that it conferred a benefit to the City and to ATS by making payments pursuant to the unlawful and void ordinance. As to the second element, Subclass One alleges that the City and ATS were unjustly enriched by the receipt of those payments. As to the third element, Subclass One alleges that the enriсhment was at the expense of Subclass One in that the ordinance is invalid and it would be unjust to allow Respondents to retain any collection therefrom. “The essence of unjust enrichment is that the defendant has received a benefit that it would be inequitable for him to retain.” Jennings v. SSM Health Care St. Louis,
Respondents argue that the affirmative defense of the voluntary payment doctrine bars Subclass One from bringing a claim for unjust enrichment. That doctrine provides that a person who voluntarily pays money with full knowledge of all of the facts in the case, and in the absence of fraud and duress, cannot recover it back, even though the payment is made without sufficient consideration and under protest. See Huch v. Charter Communications,
[The voluntary payment doctrine] is a recognized defense to an action for money had and received. Unless there is fraud or duress, the voluntary payment doctrine prohibits a person who voluntarily pays money with full knowledge of the facts from recovering the money. When evaluating the rationale behind this rule of law, courts emphasize that a person who, induced thereto solely by a mistake of law, has conferred a benefit upon another to satisfy in whole or in part an honest claim of the other to the performance given, is not entitled to restitution. The underlying reason for those requirements is that it would be inequitable to give such person the privilege of selecting his own time and convenience for litigation short of the bar of the statute of limitations, and thereby subject the payee to the uncertainties and casualties of human affairs likely to affect his means of defending the claim.
Id. (internal citations and quotations omitted).
But the voluntary payment doctrine is not always available. Id. at 727. It was not available as a defense to the
Further, “[i]t is well settled that restitution will be granted to remedy a payment made because of a mistake of law if the surrounding facts raise an independent equity, as when the mistake is induced, or is accompanied by inequitable conduct of the other party.” W. Cas. & Sur. Co. v. Kohm,
We recognize that the Eastern District determinеd in similar actions that plaintiffs were not entitled to restitution based on the voluntary payment doctrine. In Smith, however, the procedural posture was summary judgment rather than a motion to dismiss. The Smith court, then, was working with undisputed facts, including an affidavit that a car owner “decided just to pay the violation and move on.” Smith,
Building on Smith, the Eastern District confronted this question in two additional cases that, similar to this action, were dismissed by the trial court. In Ballard, the Eastern District noted that no question of fact remained because in the petition, the plaintiff averred that she “paid the fine under the reasonable, but mistaken, belief that the Ordinance was valid.”
In Unverferth, the Eastern District determined that the voluntary payment doctrine barred recovery, reasoning that “it is not duress to do, or threaten to do, what one has a right to do” and that “until instructed otherwise by the courts, [the City of Florissant] was entitled to pursue legal action against [plaintiff] if she did not pay the fine or appear in municipal court to contest her violation.” Unverferth,
Edwards is similarly distinguishable because in that case nothing “suggests that the parties would be arrested for failing to pay the fine.” — S.W.3d at -,
We also remind that voluntary payment is an affirmative defense to a claim of unjust enrichment. Huch,
The trial court erred in granting Respondents’ motion to dismiss as to Counts II and VI.
Conclusion
We hold that the trial court erred in dismissing the claims of both subclasses based on standing, waiver and estoppel and the argument that Subclass Two has an adequate remedy at law. As to Count I, we hold that the ordinance is invalid on the ground that it conflicts with state law and is therefore void and unenforceable. We hold the rebuttable presumption contained within the ordinance, that the owner was the operator of the vehicle at the time of the offense, to be unconstitutional, if the ordinance is determined to be criminal in nature on remand. Additional questions remain yet as to whether the ordinance suffers additional constitutional defects and whether and what relief accordingly might be appropriate. Because the trial court erred in granting Respondents’ motion to dismiss, this cause is reversed and remanded for further proceedings consistent with this opinion.
All concur
Notes
. Because the trial court granted Respondents’ motion to dismiss this matter on the pleadings, we view the facts as set forth in the petition as true and construe the facts alleged liberally in favor of the plaintiff. Dujakovich v. Carnahan,
. Respondents filed a joint brief.
. At oral argument, the City alerted this court that after this action was filed in the circuit court and the trial court ruled on the motion to dismiss, the City dismissed the ordinance violation against Olinetehouk but did not dismiss the action against the other members of Subclass Two. The City did not indicate that it intends to dismiss the ordinance violations against the remainder of the class and makes no argument as to the continued viability of their claims. We note that no class has yet been certified, given the procedural posture of the case. "Missouri courts consistently recognize a certified class may subsequently be
. The City amended its ordinance effective November, 2012; the version described herein was in effect at the time the Appellants received their notices of violation.
. In a supрlement to the legal file, the City included documents to support its argument that the action against Olinetchouk had been dismissed and therefore she was no longer a proper party. See supra note 3. These documents also indicate that Olinetchouk had been subject to an arrest warrant for her offense prior to its dismissal.
. Section 302.302.1(1) requires the Director of Revenue to assess two points against the driver’s license of any person convicted of a moving violation of a municipal traffic ordi
Sections 302.302 and 302.304 instruct the Director of Revenue to establish a point system for traffic violations and provide for the suspension or revocation of an individual’s driver’s license due to accumulation of points within a certain period of time. Brown v. Dir. of Revenue,
. All statutory references are to RSMo 2000 as currently supplemented unless otherwise indicated.
. Respondent City did not raise the issue of sovereign immunity in the joint Respondents' brief with ATS, though the record indicates the issue was raised before the trial court. We nonetheless note that Appellants' petition sufficiently alleges facts that, at this juncture, survive the application of the doctrine.
Key to this issue is that a municipality has sovereign immunity from actions founded in common law tort in all but four cases:
(1) where a plaintiff’s injury arises from a public employee's negligent operation of a motor vehicle in the course of his employment (section 537.600.1(1)); (2) where the injury is caused by the dangerous condition of the municipality’s property (section 537.600.1(2)); (3) where the injury is caused by the municipality performing a proprietary function as opposed to a governmental function; and (4) to the extent the municipality has procured insurance, thereby waiving sovereign immunity up to but not beyond the policy limit and only for acts covered by the policy (section 537.610).
Brooks v. City of Sugar Creek,
Here, the subclasses pled facts that impact the government’s proprietary function. Throughout the pleadings, Appellants allege that the red-light camera program was established purely as a money-making scheme and that it negatively impacts public safety. Thus, the facts as alleged at this juncture survive a sovereign immunity challenge where applicable.
. Count I also raises several issues involving the lawfulness of the ordinance in light of competing statutes. The sufficiency of the allegations in the petition to permit those allegations to withstand a motion to dismiss are discussed infra.
. Certain court costs are required by state statute to be assessed on municipal court violations. See Chapter 488. It is unclear from the record whether thеse required costs are properly being assessed on these offenses as the notice to Subclass One provided that the "Penalty is a Fine and Costs of $100,” while the notice to Subclass Two provided that the "Penalty is a Fine of $100” but makes no mention of "costs,” how much they are, or when/if they are assessed or paid. There is no statutory authorization for an assessment of a fee or court cost for the $4 convenience fee. The rule in criminal as in civil cases is that the recovery and allowance of costs rests entirely on statutory authority and that no right to or liability for costs exists in the absence of statutory authorization. Such statutes are penal in their nature and are to be strictly construed. Cramer v. Smith,
. We acknowledge throughout this opinion the allegations in the petition that the ordinance is criminal in nature and not quasi-criminal or quasi-civil. "A charging document satisfies the guarantees of the Fifth and Sixth Amendments ‘if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.’ ” State v. Miller,
Despite Appellants’ allegations that the ordinance is criminal and not quasi-criminal or quasi-civil, much of our resolution of this issue turns on precedent in the civil context because an ordinance of this nature thus far has been deemed only quasi-criminal and also because the threshold issues are resolved favorably to Appellants even under the lower standard. See Kansas City v. Bott,
. The arguments in this section apply equally to the lawfulness claims raised in Count I and discussed infra, as well as to the purely constitutional claims raised in Counts I, III, and IV. These arguments will not be repeated in that section.
. Even if the trial court could have correctly determined that Subclass Two had an adequate remedy at law as to the municipality, ATS makes no meaningful argument in its joint brief distinguishing its status or explaining how Subclass Two would have an adequate remedy at law as to the claims against ATS, when ATS is not a party to the underlying offense pending in the municipal court.
. As explained infra, we do not resolve here whether the ordinance in question was criminal or quasi-criminal in nature. We note, however, that some red-light ordinances in Missouri have been deemed quasi-criminal, thereby qualifying for rational-basis review. See, e.g., Mills,
. See supra note 6.
. The City offers no logical reason why it created this offense as a non-point offense. Appellants allege that the limited amount of the fine coupled with the non-point nature of the offense are solely designed to discourage the persons receiving these citations from challenging them in court or hiring lawyers to represent them in these actions. They argue that the time off of work and the attorney fees cannot be justified when the sole penalty is a $100 fine and no аssessment of points against the driver’s license. There does not appear to be any public safety reason why what is clearly a moving violation would be exempt from the point system, but that is not an issue that can be addressed on review of a motion to dismiss as it would require an evidentiary hearing before the lower court.
.Other states have deemed such an ordinance to be in conflict with state law. See, e.g., City of Orlando v. Udowychenko, 98 So.3d
. While not addressed in Nottebrok (apparently due to the parties’ failure to raise the issue), we do not see how the ordinance in that matter did not conflict with section 304.120.6, which provides in pertinent part, "No ordinance shall prohibit the operator of a motor vehicle from being in an intersection while a red signal is being displayed if the operator of the motor vehicle entered the intersection during a yellow signal interval. The provisions of this subsection shall super-cede any local laws, ordinances, orders, rules, or regulations enacted by a county, municipality, or other political subdivision that are to the contrary.” However, this issue is not before us.
. Appellants bootstrap the argument that the ordinance conflicts with section 304.281, governing traffic signal violations. Section 304.281 states in part that ”[w]henever traffic is controlled by traffic control signals exhibiting different colored lights ..., said lights shall indicate and apply to drivers of vehicles and pedestrians ...” (emphasis added). Appellants argue that this statutory provision indicates that traffic lights apply only to drivers and pedestrians, not owners. Appellants' argument is a challenge to the ordinance’s presumption that the driver was the owner. Because we remand on other grounds regarding the presumption, we do not address it further. We note, however, the Eastern District's recent determination that section 304.281 conflicts with an ordinance of the City of Ellisville. Edwards, — S.W.3d at -,
. Some jurisdictions have construed red-light ordinances in the context of criminal doctrine. See, e.g., Kuhlman,
. There is much room for argument that this rationale is outdated because when Cook was decided, often "the head of the household titled the vehicle in his own name and drove the car most frequently.” Unverferth,
. Given that the City must still prove elements of an ordinance beyond a reasonable doubt even if the ordinance is deemed quasi-criminal, we have questions about the viability of the mandatory rebuttable presumption in light of Sandstrom, which was decided after Cook. See, e.g., State v. Dahl,
. This may constitute the unauthorized practice of law, depending on the questions asked and advice given. § 484.010.