Lead Opinion
CHIEF JUSTICE
After Sarah K. Tupper and Sandra L. Thurmond each received notices that she had violated ordinance 66868, the City of St. Louis’s red light camera ordinance, they filed suit challenging the validity of the ordinance. They named as defendants the city, city officials, American Traffic Solutions, Inc. (ATS), Linebarger Goggan Blair & Samponson, LLC (law firm), and the Missouri director of revenue challenging the validity of the ordinance. In the suit, Ms. Tupper and Ms. Thurmon sought a declaratory judgment that ordinance 66868 is invalid and an injunction prohibiting its enforcement.
After a bench trial, the circuit court found that Ms. Tupper and Ms. Thurmond do not have an adequate remedy at law. The circuit court also found that the enforcement of the red light camera ordinance is an issue of general public interest and there is a reasonable expectation that the city will continue еnforcing ordinance 66868 even though it dismissed the tickets against Ms. Tupper and Ms. Thurmond to avoid issuance of an injunction in this matter. The circuit court then found that ordinance 66868 is invalid because it was found to be void in Smith v. City of St. Louis,
The city, Ms. Tupper, Ms. Thurmond, and the director of revenue all appeal. This Court affirms the circuit court’s finding that Ms. Tupper and Ms. Thurmond
Factual and Procedural Background
In 2005, the city enacted ordinance 66868, codified at section 17.07.010 of the city’s code, to authorize the creation and operation of a red light camera enforcement system. Section four of ordinance 66868 permits the red light camera enforcement system to be used in prosecuting violations of the city’s traffic code, stating:
In a prosecution for a violation of the traffic Code Ordinance as codified in Section 17 et seq. of the Revised Code of the City of St. Louis based on an Automated Traffic Control System Record:
A. If the City proves: 1) that a motor vehicle was being operated or used; 2) that the operation or use of the motor vehicle was in violation of the Traffic Code Ordinance as codified [in] Section 17 et seq. of the Revised Code and 3) that the defendant is the Owner оf the motor vehicle in question, then:
B. A rebuttable presumption exists that such Owner of the motor vehicle operated or used in violation of the Traffic Code Ordinance as codified in Section 17 et seq. of the Revised Code was the operator of the vehicle at the time and place the violation was captured by the Automated Traffic Control System Record.
The city and ATS entered into a contract under which ATS employees watch videos of motor vehicles driving through the intersections with red light cameras and identify possible red light violations. When a possible violation is observed, the ATS employee will use the department of revenue license plate records to identify the owner of the offending motor vehicle and will forward the video and identity of the owner of the motor vehicle to the city’s poliсe department. A police officer will then review the video and determine whether there is probable cause to issue a notice of violation. A notice of violatio'n is then sent to the owner stating that the owner’s vehicle was captured failing to stop at a red light by a red light camera and the fine for the violation is $100.
Upon receiving her first notice of violation, Ms. Tupper did not pay the fine but appeared at her court appearance and certified. the case to the circuit court. Ms. Tupper was found guilty by the circuit court, but she filed a renewed motion for acquittal based on recent court of appeals decisions invalidating other red light camera ordinаnces. The circuit court granted the motion and acquitted Ms. Tupper.
Ms. Tupper did not, however, respond to the second notice of violation, and Ms. Thurmond did not respond to either of her two notices, They received summonses to appear, but neither Ms. Tupper nor Ms. Thurmond appeared on the scheduled dates. Ms. Tupper and Ms. Thurmond subsequently received letters from the law firm informing them that they owed the city the $100 fine for each violation. Ms. Tupper and Ms. Thurmond admit that red light violations occurred in each case and that they were the owners of record for the respective motor vehicles involved in the violations.
On November 25, 2013, Ms. Tupper and Ms. Thurmond filed suit in the circuit court of St. Louis City against the city, the city’s mayor, the police chief of the city’s police department, the director of revenue, ATS, and the law firm. Ms. Tupper and Ms. Thurmond sought a temporary restraining order, preliminary injunction, and a permanent injunction to enjoin the defendants from prosecuting violations of ordinance 66868 and sought declaratory relief finding the ordinance unenforceable. In their petition, Ms. Tupper and Ms. Thurmon asserted ordinance 66868 was unlawful because the ordinance: (1) conflicts with state law by failing to assess points for a moving violation; (2) relies on a charge code for red light camera tickets that was created by an improper rulemak-ing process; (3) uses an inadequate form of notice that violates Rule 37.33 and their due process rights; (4) contains an unconstitutional presumption that the owner of the motor vehicle was driving the vehicle at the time and place of the violation; and (5) contains a “rat out provision” that unconstitutionally shifts the city’s burden of proof. Ms. Tupper and Ms. Thurmond also sought attorney’s fees.
A hearing on the motion for a temporary restraining order was held on November 27, 2013. On that date, the city dismissed the pending prosecutions against Ms. Tup-per and Ms. Thurmond. The circuit court then continued Ms. Tupper and Ms. Thurmond’s declaratory judgment action. The defendants each moved to dismiss. The city, the mayor, the police chief, ATS, and the law firm alleged the matter was moot, there was no justiciable controversy, Ms.
A bench trial was held on January 13, 2014. In discussing preliminary matters, counsel for Ms. Tupper and Ms. Thurmond stated that they were “going to drop” the issue in the petition relating to the form of notice, stating that the current form of notice is lawful. Counsel also stated that Ms. Tupper and Ms. Thurmond were dropping the issue regarding the charge code because counsel had been assured that the code was created properly. The parties filed joint stipulations of fact for trial along with stipulated exhibits,
The circuit court entered its order and judgment on February 11, 2014. The court first addressed the defendants’ motions to dismiss, finding: (1) the case is not moot because it falls within the “general public interest” exception to the mootness doctrine and the “voluntary cessation” doctrine; (2) Ms. Tupper and Ms. Thurmond do not have an adequate remedy at law because the ordinance subjects them to a multiplicity of suits and because the municipal division lacks jurisdiction over prosecution of a void ordinance; (3) Ms. Tupper and Ms. Thurmond have standing because they have been affected by ordinance 66868; (4)- the constitutional claims were not waived because Ms. Tup-per and Ms. Thurmond presented their claims at the first reasonable opportunity; (5) Ms. Tupper and Ms. Thurmond are not seeking relief for a class; ■ and' (6) the director of revenue is a proper party because his role in promulgating and applying the charge codes related to ordinance 66868 could be affected by а declaration of invalidity of the ordinance. Accordingly, the court overruled the motions to dismiss.
The circuit court then found Ms. Tupper and Ms. Thurmond were entitled to an injunction because ordinance 66868 was void. The court relied on Smith, in which the court of appeals found ordinance 66868 “void for failure to comply with the Supreme Court rules.” See
Ms. Tupper and Ms. Thurmond moved to correct and amend the judgment to enjoin defendants other than the city from taking action. The circuit court declined to enjоin the other parties from taking action because the “other parties lack the power or authority to take the actions prohibited by the order and judgment.” The court amended its judgment to deny Ms. Tupper and Ms. Thurmond’s petition with respect to the other defendants. Ms. Tupper and Ms. Thurmond also filed a motion for attorney’s fees, which the court overruled.
The city, Ms. Tupper and Ms. Thurmond, and the director of revenue appealed the circuit court’s judgment to the court of appeals. The court of appeals consolidated the three appeals. This Court granted transfer prior to opinion. Mo. Const, art. V, sec. 10.
City’s Appeal
On appeal, the city asserts the circuit court erred in declaring ordinance 66868 invalid and enjoining enforcement of the ordinance because Ms. Tupper and Ms. Thurmond have an adequаte remedy at law. The city further asserts the circuit court erred in finding ordinance 66868 invalid because: (1) the rebuttable presumption does not violate due process; (2) the circuit court misapplied the court of appeals’ holding in Smith; (3) the revised notice of violation form complies with Rule 37.33; and (4) ordinance 66868 does not conflict with state law requiring the assessment of points for a moving violation.
The standard of review for a declaratory judgment is the same as for court-tried cases. Guyer v. City of Kirkwood,
A. No Adequate Legal Remedy
The city maintains that Ms. Tup-per and Ms. Thurmond were not entitled to a declaratory judgment action because they had an adequate remedy at law in that they could have challenged ordinance 66868 in their municipal proceedings. A declaratory judgment action has been found to be a proper action to challenge the constitutional validity of a criminal statute or ordinance. State ex rel. Eagleton v. McQueen,
(1) a justiciable controversy that presents a real, substantial, presently-existing controversy admitting of specific relief, as distinguished from an advisory decree upon a purely hypothetical situation; (2) a plaintiff with a legally pro-tectable interest at stake, consisting of a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief; (3) a controversy ripe for judicial determination; and (4) an inadequаte remedy at law.
The city argues that Ms. Tupper and Ms. Thurmond were not entitled to a declaratory judgment or an injunction because they could have challenged' ordinance 66868 in the municipal proceedings. In response, Ms. Tupper and Ms. Thurmond rely on Brunner v. City of Arnold, in which the court of appeals held a pending prosecution for violation of an ordinance is not an adequate opportunity to challenge the ordinance when the ordinance is found to be void because the municipal division lacks subject matter jurisdiction over the proceedings.
court’s subject matter jurisdic-jurisdicis governed by the Missouri Constitu-ConstituJ.C.W. ex rel. Webb v. Wyciskalla,
[5] the constitution provides that municipal judges “shall hear and de-deviolations of municipal ordinances in one or more municipalities,” Mo. Const, art. V, sec. 23, the subject matter juris-jurisof a municipal division of the circuit court is not dependent on whether an ordi-ordiis invalid. Otherwise, a municipal judge would have to consider whether the ordinance on which a prosecution is based conflicts with any state law before pro-prowith any case. Further, a lack of subject matter jurisdiction in the municipal division would limit the method for adjudi-adjudiсlaims that an ordinance conflicts with state law to declaratory judgment actions, which is not the case. See City of St. Peters v. Roeder,
[6] the municipal division pro-promay have provided an adequate legal remedy sufficient to preclude a de-dejudgment, see Schaefer v. Koster,
Ms. Tupper and Ms. Thurmond are not currently facing prosecution under ordinance 66868. Nevertheless, a pre-en-forcement challenge to a law is sufficiently ripe to raise a justiciable controversy when: “(1) the facts necessary to adjudicate the underlying claims [are] fully developed and (2) the laws at issue [are] affecting the plaintiffs in a manner that [gives] rise to an immediate, concrete dispute.” Foster v. State,
Ms. Tupper and Ms. Thurmond’s claims regarding the validity of ordinance 66868 present predominately legal questions. In particular, their claim that the rebuttable presumption in ordinance 66868 is unconstitutional is a legal question that does nоt require further factual development. Additionally, ordinance 66868 has already affected Ms. Tupper and Ms. Thurmond in that they were previously subject to prosecutions under ordinance 66868, and Ms. Tupper and Ms. Thurmond are still subject to ordinance 66868 because the city is currently enforcing the ordinance. Accordingly, there exists a genuine disagreement among the parties regarding the validity of ordinance 66868 that presents a substantial controversy ripe for review.
B. Unconstitutional Rebuttable Presumption
The city next asserts the circuit court erred in finding 66868 is invalid for containing a rebuttable presumption that the owner of the motor vehicle was operating the vehicle at the time of the violation. The city maintains that the rebuttable presumption is lawful in that it is a reasonable and proper means of shifting the burden of production for prosecutions of red light camerа ordinance violations.
Because the term “presumption” is used to describe different types of evidentiary devices used in criminal and civil cases, it is necessary to determine the nature of the presumption to assess it its validity. See Cnty. Court. of Ulster Cnty., New York v. Allen,
The presumption in this case is found in section four of ordinance 66868, which states, in pertinent part:
A. If the City proves: 1) that a motor vehicle was being operated or used; 2) that the operation or use of the motor vehicle was in violation of the Traffic Code Ordinance as codified [in] Section 17 et seq. of the Revised Code and 3) that the defendant is the Owner of the motor vehicle in question, then:
B. A rebuttable presumption exists that such Owner of the motor vehicle operated or used in violation of the Traffic Code Ordinance as codified in Section 17 et seq. of the Revised Code was the operator of the vehicle at the time and place the violation was captured by the Automated Traffic Control System Record.
The rules governing interpretation of a statute are employed when interpreting an ordinance. State ex rel. Teefey v. Bd. of Zoning Adjustment of Kansas City,
Ordinance 66868 does not define “rebuttable presumption.” When an ordinance does not define a term but “uses words that have a definite and well-known meaning at common law, it will be presumed that the terms are used in the sense in which they were understood at common law, and the words will be so construed unless it clearly appears that suсh a construction was not so intended.” Belcher v. State,
Rebuttable presumptions in civil cases are generally ■ permitted. See Deck,
This Court is further guided by its previous analysis of a parking ordinance in City of Kansas City v. Hertz Corp.,
The rules regarding presumptions in criminal cases are more restrictive because an evidentiary dеvice such as a presumption or inference “must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Allen,
In its brief, the city characterizes the rebuttable presumption in ordinance 66868 as shifting the burden of production, rather than the burden of persuasion. The Supreme Court has not expressly ruled whether a presumption shifting only the burden of production is constitutional. In Sandstrom, however, the Supreme Court noted that the burden of production “is significantly different for the defendant and prosecution.” Id. at 516 n.5,
In any event, the Court disagrees with the city’s contention that the rebuttable presumption in ordinance 66868 operates to shift only the burden of production. The language of the provision containing the rebuttable presumption does not indicate what is sufficient to overcome the presumption, but this Court will consider other provisions in the ordinance to ascertain the meaning of the rebuttable presumption. See Union Elec. Co. v. Dir. of Revenue,
[I]f at the time and place of the violation, the motor vehicle was being operated by a person other than the Owner, or the vehicle or the license plate captured by the Automated Traffic Control System Record was stolen, the Owner may submit information to that effect by affidavit, on a form provided by the City, prior to the municipal court proceeding, or under oath at the municipal court proceeding. If an Oumer furnishes satisfactory evidence pursuant to this paragraph, the City Court or City Counselor’s office may terminate the prosecution of the citation issued to the Owner....
(Emphasis added).
This provision of ordinance 66868 contemplates that the municipal division of the circuit court would terminate proceedings if the owner of the motor vehicle proves that the owner wаs not the driver. It demonstrates the city’s intent to enact an ordinance creating a rebuttable presumption that shifts the burden of persuasion, requiring the owner to prove to the factfin-der — the municipal division in this case— that he or she was not operating the vehicle at the time of the violation. The presumption relieves the prosecution from proving an element of the violation charged beyond a reasonable doubt and is impermissible under Sandstrom,
Ms. Tupper and Ms. Thurmond appeal the circuit court’s judgment, asserting the court erred in overruling their motion for attorney’s fees. “Where the award of attorneys’ fees is not mandatory, the granting or refusal to grant attorneys’ fees by the trial judge is primarily discretionary and will not be disturbed absent the showing of an abuse of discretion.” Lapponese v. Carts of Colorado, Inc.,
Missouri follows the “American Rule” regarding attorney’s fees, which provides that, absent statutory authorization or contractual agreement, each party bears the expense of his or her own attorney’s fees. David Ranken, Jr. Technical Institute v. Boykins,
To the contrary, Ms. Tupper and Ms. Thurmond filed their petition in this case while the municipal division proceedings on the ordinance violation were pending. They could have raised these claims as defenses in that action, see Roeder,
Ms. Tupper and Ms. Thurmond also contend the city’s continued enforcement of ordinance 66868 after decisions from the court of appeals invalidated similar ordinances constituted intentional misconduct. Intentional misconduct is a “special circumstance” that may justify an award of attorney’s fees. O’Riley v. U.S. Bank, N.A.,
By the time Ms. Tupper and Ms. Thurmond filed their petition in this case, the court of appeals had considered the validity of similar red light ordinances in Smith,
In Unverferth, the court of appeals held that the trial court erred in dismissing a claim that Florissant’s red light camera ordinance was not enacted with proper authority because the ordinance was part of a revenue-generating scheme and erred in dismissing due process claims regarding the notice.
Lastly, in Edwards, the court of appeals found the plaintiffs would be entitled to further discovery on their claim that Ellis-ville’s red light camera ordinance was part of a revenue-generating scheme but did not remand for further discovery because it found the ordinance invalid for imposing strict liability on owners of motor vehicles when state law prohibiting running red lights regulates the conduct of only drivers and pedestrians.
By revising its notice-of-violation form after Smith, the city did not engage in intentional misconduct, notwithstanding decisions of the court of aрpeals. Ms. Tupper and Ms. Thurmond fail to show they fall within an exception to the rule requiring each party pay his or her own attorney’s fees, and the circuit court did not abuse its discretion in overruling Ms. Tupper and Ms. Thurmond’s motion for attorney’s fees.
Director of Revenue’s Appeal
Lastly, the director of revenue appeals the circuit court’s judgment, asserting the court erred in overruling the director of revenue’s motion to dismiss on the basis that Ms. Tupper and Ms. Thur-rhond did not seek relief from or allege remediable injury caused by the director. “The right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists.” Buemi v. Kerckhoff,
In its initial judgment, the circuit court prohibited the city from enforcing ordinance 66868. The court subsequently amended its judgment to state that “the relief requested in the Petition, as amended, with respect to all named Respondents other than the City of St. Louis is hereby DENIED.” While the circuit court overruled the director of revenue’s motion to dismiss, it denied Ms. Tupper and Ms. Thurmond’s claims against him. The director of revenue fails to show that he was aggrieved by the circuit court’s judgment. Moreover, the director of revenue’s argument that the Ms. Tupper and Ms. Thurmond sought no relief from the director of
Conclusion
This Court finds Ms. Tupper and Ms. Thurmond could maintain their action for declaratory judgment and injunctive relief because, after the city dismissed the prosecutions against them for the ordinance violations, they no longer had an adequate legal remedy. This Court further finds ordinance 66868 is unconstitutional because it creates a rebuttable presumption that improperly shifts the burden of persuasion onto the defendant to prove that he or she was not operating the motor vehicle at the time of the violation. Nonetheless, the city’s prior enforcement of the ordinance was not intentional misconduct sufficient to justify an award of attorney’s fees; therefоre, the circuit court did not abuse its discretion in not awarding attorney’s fees. Lastly, the director of revenue does not have standing to appeal the circuit court’s judgment because the circuit court denied the relief Ms. Tupper and Ms. Thurmond requested with respect to all defendants except the city. Accordingly, this Court affirms the circuit court’s judgment.
Notes
. Neither ordinance 66868 nor the ordinance prohibiting running a red light provide a penalty or fine. By municipal order, a judge of the municipal division of the 22nd Judicial Circuit set a $100 fine for red light violations issued pursuant to the camera enforce system ordinancе.
. The parties stipulated that the rear of the vehicle is photographed and that the driver of the vehicle is not.
. The city appealed the order acquitting Ms. Tupper but voluntarily dismissed the appeal during the pendency of this case.
. ATS filed a motion to dismiss; the city and its official collectively filed a motion to dismiss, and the law firm filed a motion to dismiss.
. The director of revenue filed a joint stipulation of facts separate from the one filed on behalf of the other defendants.
.The circuit court relied on Brunner v. City of Arnold,
. Brunner,
. The only case cited by the city in which an "adequate legal remedy” was no longer an option for the party seeking declaratory judgment is State ex rel. Freeway Media, L.L.C. v. City of Kansas City,
. The burden of proof is composed of the burden of production and the burden of persuasion. White v. Dir. of Revenue,
. The Court distinguished the parking ordinance from one like ordinance 66868 that imposes liability on the driver and contains a rebuttable presumption that the owner was the driver. Hertz,
. In City of St. Louis v. Cook, this Court interpreted a parking ordinance under which the presencе of a motor vehicle in a prohibited zone would constitute “prima fa-cie evidence” that the registered owner of the vehicle parked the vehicle and found the ordinance merely shifted the burden of production onto the defendant.
. A rebuttable presumption like the one in ordinance 66868 is not required to enforce a red light camera ordinance. For instance, if the red light camera system took photographs of the driver, like the one at issue in Roeder,
Dissenting Opinion
dissenting
Plaintiffs Sarah Tupper and Sandra Thurmond are not entitled to bring this declaratory judgment action. They each had an adequate remedy at law because they could have raised their claims in response to the City’s prosecutions in the municipal division of the circuit court. Schaefer v. Roster,
It is true that, when the City dismissed those cases, Plaintiffs lost their adequate remedies at law. But the City’s dismissals also removed any “justiciable contrоversy that presents a real, substantial, presently-existing controversy admitting of specific relief, as distinguished from an advisory decree upon a purely hypothetical situation!;.]” Missouri Soybean Ass’n v. Missouri Clean Water Com’n,
Foster v. State,
To avoid application of this well-settled law, the principal opinion cites State ex rel. Eagleton v. McQueen,
Plaintiffs will not be prejudiced by dismissal of this action. If the City prosecutes them for alleged violations in the past, Plaintiffs will be able to assert their claims in defense of those prosecutions. If the City foregoes further prosecution, Plaintiffs have no need for a declaratory judgment because they have no presently existing controversy with the City. Either way, they are not entitled to maintain this present action.
Concurrence Opinion
concurring in part and dissenting in part
I concur with the principal opinion’s holding, except to the extent footnote 12 assumes the validity of the red light camera ordinance in Bonnie A. Roeder v. City of St. Peters,