*1 TUPPER, al., et Sarah
Respondents/Cross-
Appellants, al., LOUIS, et
CITY OF ST.
Appellants/Cross-
Respondents.
No. SC Missouri,
Supreme Court banc.
en 18, 2015
Opinion August issued *4 BRECKENRIDGE,
PATRICIA CHIEF JUSTICE K. L. After Sandra Sarah notices that each received she Thurmond had violated ordinance ordinance, Louis’s red validity challenging suit filed They as defendants named ordinance. officials, Traffic city, city American (ATS), Solutions, Goggan Linebarger Inc. (law firm), Samponson, Blair LLC & challeng- director of revenue Missouri validity the ordinance. suit, sought Tupper and Thurmon declaratory judgment prohibit- an injunction 66868 invalid and ing its enforcement. trial, circuit
After a bench found *5 adequate an at remedy not have
do law. court also the en- circuit found that light of the red forcement ordi- by city Michael A. represented was general public nance an interest issue Garvin, K. L. Erin and Christine McGowan is a expectation and there reasonable city of the counselor’s office St. Hodzic enforcing city the continue will Louis. it though the tickets even dismissed against Tupper Ms. Ms. Thurmond to and representеd The director was revenue injunction in avoid this mat- issuance an Layton R. by General James Solicitor circuit ter. The court then found that attorney general’s office the Jefferson ordinance 66868 invalid because was City. found to be void Smith St. represent- Tupper Thurmond were Louis, 409 404 (Mo.App.2013), the Schock, Hugh by Bevis A. East- ed W. city not the notice had fixed deficiencies wood, Louis. St. Smith, issue in con- and ordinance 66868 presumption tains a rebuttable the entities briefs as Several filed friends driving owner of the motor vehicle was Hazelwood, Ferguson the Court: enjoined The court vehicle. by represented Coeur Kevin Creve were enforcing the denied ordinance but Ms. O’Keefe, Lumley, Stephanie Carl E. M. J. as petition and Ms. Thurmond’s Curtis, Sluys of Karr and Edward J. the rest defendants. circuit PC, Louis; Heinz, & St. Garrett O’Keefe Ms. also denied by represented St. Peters was V. Scott request attorney’s for fees. Thurmond’s and Nicholas J. Komoroski of Williams Charles; LLC, Tupper, Thurmond, The city, & Hazelwood Weber League appeal. all Municipal and the Missouri and the director revenue Garner, by Indepen- B. Allen This Court affirms circuit court’s find- represented ing and Ms. Thurmond dence. 1) City proves: their action for declarato- A. If that a could maintain motor because, injunctive used; 2) relief ry judgment being or operated vehicle was prosecutions after the dismissed the operation that the use motor violations, they longer the ordinance vehicle was violation of the Traffic remedy. Further, legal an adequate Code Ordinance codified Section [in] this 66868 is consti- Court 3) finds ordinance et seq. of the Revised Code and tutionally because it creates a re- invalid that the defendant is the Owner of the presumption buttable that shifts the bur- question, motor vehicle in then: persuasion den of onto the defendant to B. A rebuttable exists prove operat- not the defendant was that such Owner of motor vehicle vehicle at time of the motor operated or used in violation of the Traf- Nonetheless, city’s prior violation. en- fic Code Ordinance as in Section codified forcement of the ordinance was inten- seq. 17 et of the Revised Code was the to justify tional sufficient misconduct operator of the vehicle the time and fees; therefore, attorney’s award place the violation was captured circuit court abuse discretion in did System Traffic Automated Control Rec- attorney’s Lastly, awarding fees. ord. standing lacks to ap- director of revenue peal cоurt’s circuit The city and ATS into a entered con- the court the relief denied tract which employees under ATS watch requested respect to Ms. Thurmond videos of driving motor vehicles through except city. According- all defendants intersections with red cameras affirms ly, this Court the circuit court’s identify possible red violations. judgment. observed, possible When a violation is department employee ATS will use Background
Factual and Procedural plate identify revenue license records *6 In the enacted ordinance the motor offending owner of the vehicle at section of codified 17.07.010 the and will identity forward the and of video code, city’s creation to authorize and the the to city’s owner the motor the vehicle operation light of a red camera enforce- police depаrtment. police A officer will system. ment Section four then review the and video determine permits light the red camera en- probable whether cause to there issue a prosecut- to system forcement be used notice of violation. A of violatio'n is notice code, city’s traffic violations the stating then sent the to owner the stating: owner’s was captured failing vehicle prosecution stop light
In a for a at a by light violation of the red a red camera traffic Code Ordinance as codified and the fine for the violation is $100.1 seq. of the of notice photograph Section 17 et Revised Code also includes a of the the Louis on based an rear the motor Auto- vehicle that committed the violation.2 System mated Traffic Control Record: parties stipulated 1. Neither the ordinance 2. The rear of the nor that the running prohibiting light provide pen- a a red photographed vehicle is the driver and that order, By alty judge municipal or a fine. the vehicle is not. the division of 22nd Judicial the light Circuit fine for violations $100 set a red system pursuant issued to the enforce ordinance. motor vehicles involved respective the September 2012 and Between March each violations. and Ms. Thurmond the Tupper Ms. stating of violations two notices received 25, 2013, and Tupper Ms. On November cause to believe probable there was suit in the filed circuit Ms. Thurmond by stop failing violated City against city, the court of St. Louis the the notice light. a Each stated at red city’s mayor, police chief of the city’s no- was for the fine violation $100. revenue, department, police the director recipient pay stated thаt could tices ATS, Tupper firm. Ms. and and law mail, by or online person, the fine sought a re- temporary Ms. Thurmond dispute appearing notice without could order, injunction, straining preliminary by out an of non- filling in court “affidavit injunction enjoin the permanent and a stating why recipient is responsibility” prosecuting violations defendants naming responsible for the violation or sought declaratory and ordinance 66868 mo- operating individual was who finding ordinance unenforceable. relief tor vehicle at the time of the violation. petition, Tupper their Ms. Ms. notices provided further that failure Thurmon asserted ordinance of sum- respond would result service (1) con- unlawful because the ordinance: required appearance, mons and by failing flicts with state law to assess recipient plea time which could enter violation; (2) for a on points moving relies guilty request of not a trial. charge for red camera tickets code Upon receiving her first notice of viola- by improper that was an rulemak- created tion, but pay Ms. did the fine (3) form ing process; inadequate uses appeared appearance her court and cer- Rule violates 37.33 and notice to the Ms. tified. case circuit court. (4) process rights; due contains an uncon- guilty circuit was found owner of stitutional court, for but filed a motion she renewed driving vehicle motor vehicle was acquittal appeals on recent based court of violation; place at the time and invalidating other cam- decisions red (5) provision” contains a “rat out that un- granted The circuit court era ordinances. constitutionally city’s shifts burden acquitted motion Tupper.3 Thurmond proof. not, however, respond did sought attorney’s fees. also violation, second notice hearing A temporary the motion respond of her to either did *7 restraining held order was on November notices, They received summonses to two date, 2013. the city On that dismissed Ms. nor Ms. appear, Tupper but neither pending prosecutions against Tup- the Ms. on Thurmond scheduled appeared and Ms. per Thurmond. The circuit Tupper Ms. and Ms. Thurmond dates. Tupper then Ms. Ms. Thur- from the law and subsequently letters continued received judgment the mond’s action. The they firm them that owed informing defendants each moved to dismiss. The for each violation. Ms. city the fine $100 chief, ATS, mayor, city, police Thurmond that red and Tupper admit Ms. moot, firm alleged case and the law occurred each matter was violations for nо they justiciable controversy, owners of record there was Ms. that were the during acquitting pendency Ms. appealed The the order of this 3. case. voluntarily Tupper appeal but dismissed the municipal stand- Tupper jurisdiction and Ms. Thurmond lacked division lacks were ing, Tupper ordinance; (3) Ms. prosecution of a void over raising claims estopped from constitutional Ms. and Ms. Thurmond have division, in the not asserted standing they because been affected have impermissibly sought class- petition (4)- 66868; ordinance constitutional utilizing procedure wide relief without were not Tup- claims waived because Ms. for certifying a class.4 The director per presented and Ms. Thurmond on revenue moved to dismiss the basis claims at the first opportunity; reasonable sought him there was relief (5) Tupper and Ms. Thurmond are n adjudicated that the claims should be with- class; (6) relief for seeking and' out him. proper director revenue party be- January 13, A bench trial was held on promulgating his role in apply- cause matters, discussing 2014. preliminary charge codes related for counsel Ms. and Ms. Thurmond by a 66868 could be affected declaration “going drop” were stated invalidity of Accordingly, the ordinance. petition relating issue in the form of to the the court motions overruled the dismiss. notice, stating that the current form of The circuit court found then notice is lawful. Counsel also stated and Ms. Thurmond were entitled to an Ms. Tupper drop- and Ms. Thurmond were injunction because ordinance regarding charge ping the issue code Smith, The court void. relied on in which because counsel had been assured appeals the court found properly. pаrties code was created comply “void for failure to with the Su- joint stipulations along filed fact for trial See preme Court rules.” exhibits,5 stipulated and the court circuit court found that testimony heard from both subse- relating sides changes quent to the notice of reasonableness violation to that a motor vehicle’s owner was the driv- comply with the were rules irrelevant er at the time of the violation. when the court appeals already found void, ordinance 66868 which the court in-
The circuit court entered its order and terpreted meaning that the never February 2014. The authority had to create the ordinance. court first addressed the defendants’ mo- court further found the defendants dismiss, (1) tions to finding: case is The. failed to show the notice been revised not moot “gen- within the falls comply with the rules. The court also public exception eral moot- interest” to the on court of appeals finding relied decisions ness “voluntary doctrine and the cessa- (2) doctrine; other red tion” ordinances invalid containing adequate presump- Thurmond do not have an “rebuttable reme- dy court, subjects therefore, law because the tion.” The declared or- to a multiplicity them suits and because dinance invalid. court found *8 dismiss; city 4. ATS filed a to motion 6.The circuit court City relied v. Brunner collectively Arnold, 201, (Mo. its official filed to dis- a motion App. 231-33 miss, and the firm filed motion to law a .2013); City City, Damon v. Kansas dismiss. 2013); (Mo. App. 190-91 S.W.3d. Florissant, City 419 S.W.3d Unverferth joint stipula- The 5. director of revenue filed a (Mo. 2013) J., App. (Mooney, dissent tion of facts from filed on separate the one ing). behalf of the other defendants. Smith; (3) revised pre- peals’ holding to injunction аn was warranted form with Rule proceed- complies or of violation of actions notice multiplicity vent 37.33; (4) 66868 does 66868 be- ordinance for of ordinance ings violation as- law requiring continues to enforce conflict with state city cause the granted Accordingly, moving the court for a violation. points sessment ordinance. at- city from injunction prohibiting an for a de The standard review ordinance, to tempting the enforce for is the same as claratory judgment sum- sending of violations and out notice City Kirk Guyer v. court-tried cases. red ordinance violating for mons wood, 38 S.W.3d cameras, pay- by processing detected as af be trial court’s decision should “[T]he violations, and alleged for ments such is no evi firmed unless there substantial relating to red sending collection letters it, against support to unless it is denсe tickets. evidence, weight of it errone unless Thurmond moved Ms. and Ms. law, ously or declares the unless errone to judgment amend the to correct and ously Id. applies the law.” city than from other enjoin defendants circuit taking action. The court declined Legal Remedy Adequate A. No taking enjoin parties from other parties “other lack the Tup- action because the maintains that Ms. city The or the actions power authority take Ms. Thurmond were not per and entitled judgment.” the order and prohibited declaratory judgment to a action because judgment deny The court amended an law in they adequate remedy at petition Ms. Thurmond’s challenged have ordinance could respect other with to the defendants. proceedings. A a Tupper and Thurmond also filed judgment action has been fees, for which the court attorney’s motion challenge to be proper found a action validity overruled. of a criminal constitutional Eagle statute or State ex rel. ordinance. city, Thur- and Ms. McQueen, 449, 452 ton v. mond, appeal- and the director revenue 1964); Sta-Whip Sales Co. circuit to the court ed the court’s (Mo.1957). Louis, appeals. court consoli- appeals declaratory judgment To maintain ac a This appeals. the three Court dated tion, there must exist: Mo. granted prior opinion. transfer Const, V, (1) art. sec. pres- justiciable controversy a real, substantial, presently-exist- ents a
City’s Appeal re- controversy admitting specific lief, advisory appeal, distinguished circuit On asserts the an declaring hypothetical upon purely erred in decree a situa- court (2) tion; legally рro- enjoining plaintiff invalid and enforcement stake, consisting of because Ms. tectable at interest adequate remedy pecuniary personal directly an at Thurmond have interest subject circuit to immediate or further asserts the issue and law. (3) relief; in- finding prospective consequential court erred in (1) judicial presump- controversy ripe valid because: determina- rebuttable (2) tion; (4) inadequate remedy process; tion does violate due ap- misapplied court law. circuit
369
Missouri
Soybean
Ass’n
v.
Missouri
[5]
the constitution provides
10,
Comm’n,
that municipal judges
“shall
Water
S.W.3d
hear
de-
Clean
and
2003)
(Mo.
(internal
de
quotation
municipal
omit
violations
banc
ordinances
Const,
ted).
municipalities,”
one or more
injunction
Mo.
Similarly,
is an ex
“[a]n
V,
23,
art.
subject
sec.
remedy
juris-
matter
traordinary and harsh
and should
juris of a municipal division of
circuit
employed
not be
there is an ade
where
court is not
on
dependent whether an ordi-
remedy at
Farm Bureau Town
quate
law.”
Otherwise,
ordi
municipal
invalid.
Country
and
Ins.
Missouri v. An
Co. of
(Mo.
judge
348,
would
have
consider whether the
goff,
S.W.2d
banc
a prosecution
ordinance on which
is based
city argues
that Ms.
conflicts with any
pro-
state law before
Ms. Thurmond
not entitled to a
were
de-
pro
Further,
any
case.
a lack
claratory judgment
injunction
an
be-
subject
jurisdiction in municipal
matter
they
challenged'
cause
could have
ordi-
division
limit the
would
adjudi-
method for
municipal proceedings.
nance 66868
adjudi claims that an ordinance conflicts
response,
In
Ms.
Thur-
declaratory
with state law to
judgment
rely
Arnold,
City
mond
v.
Brunner
actions,
which is
the case.
City
See
pend-
in which the court of
appeals held
Roeder,
(Mo.
St. Petеrs
v.
S.W.3d 538
prosecution
of an
for violation
ordi-
2015);
banc
State ex rel. Sunshine Enter-
nance is not an adequate opportunity to
Missouri, Inc. v.
Adjust-
Bd.
Enter of
challenge the ordinance when the ordi- Adjust
Ann,
City
nance
found to
void because the
be
(Mo.
2002);
LaRose,
banc
City
Kansas
v.
municipal
subject
ju-
division lacks
matter
(Mo.
1975).7
Therefore, court did not err ordinance 66868 the circuit for controversy ripe tial review. Thurmond did Tupper and Ms. finding Ms. remedy. legal an adequate not have B. Rebuttable Unconstitutional Presumption Ms. Thurmond Tupper and city next the circuit The asserts facing prosecution under currently not are finding for in is invalid erred 66868 Nevertheless, pre-en- a ordinance containing presumption that rebuttable sufficiently to a law challenge forcement operat motor owner of the vehicle controversy justiciable to raise a ripe at the of the violation. the vehicle time “(1) necessary adjudi facts when: pre that the rebuttable maintаins fully underlying claims de [are] cate sumption is that it is a reasonable lawful (2) laws at veloped [are] issue burden of proper shifting means plaintiffs in a affecting the manner prosecutions for of red production immediate, to an [gives] rise concrete dis camera ordinance violations. State, 357, pute.” Foster v. (internal (Mo. 2011) quotations “presump banc Because the 360 term omitted) (substitutions types tion” to describe different original). used evidentiary devices used in criminal and legal presenting predominantly “Cases cases, necessary civil it is to determine particularly to a are amenable questions presumption nature to assess pre-enforce determination conclusive validity. Cnty. Cnty., See Court. Ulster context, generally require less ment Allen, 140, 156, New 442 99 York v. U.S. development.” Planned Parent factual (1979). 2213, S.Ct. 60 On L.Ed.2d 777 оne 732, Nixon, 220 hood Kansas v. infer spectrum permissive end is a 2007) (internal quotations ence, re “which allows—but does omitted). quire trier of fact to infer the ele —the claims and Ms. Thurmond’s proof by prosecutor mental fact from regarding validity ordinance 66868 of the bur places basic one and which In predominately legal questions. present on the Id. On any den kind defendant.” that the particular, claim rebuttable conclusory, the other is a or irrebutta- end presumption is uncon- ble, presumption a fact establishes legal question is a stitutional does such cannot be addi that it overcome development. require further factual Ad- tional argument. or Black’s Law evidence ditionally, already has af- (10th 2014). Dictionary be ed. fected mandatory tween externes but subject previously prose- were presumption. rebuttable Francis under cutions Franklin, n.2, 471 U.S. 105 S.Ct. subject are still Tupper and Ms. Thurmond (1985). amount L.Ed.2d is cur- to ordinance 66868 because presented by that must evidence be rently enforcing Accord- the ordinance. presumption defendant to rebut the affects ingly, genuine disagreement only there exists a whether the shifts among parties regarding validity production burden of the ultimate shifts Arts, party when failed to avail- available exhaust provided by able remedies stat- administrative exhaustion administrative remedies Anesthetists, See Assn Nurse ute. Missouri apply doctrine case. does in this Registration Healing v. State
Inc. Bd. *11 persuasion.9 of v. See Sandstrom ordinance does define a term “uses burden but Montana, 2450, 510, 518, 442 U.S. 99 S.Ct. that have a words definite and well-known (1979). law, 39 61 L.Ed.2d common meaning pre- it will be sumed that the terms are in the used presumption in this case is in sense which were undеrstood at 66868, four found in section of ordinance law, common and the be so words will states, pertinent in part: which it clearly appears construed unless 1) City proves: A. If the that a motor such a construction was not intended.” so 2) used; being operated vehicle was or State, (Mo. 294, Belcher v. 299 296 S.W.3d operation that the or of the motor use 2009). banc pre- term “rebuttable in vehicle was violation of the Traffic sumption” is understood at common law to Code Ordinance as codified Section [in] mandatory presumption, be a than rather 3) of seq. 17 et Code and Revised inference, permissive requires the of that the defendant is the Owner to produce party other sufficient evidence motor in question, vehicle then: Deck v. Teasley, rebut. See 322 S.W.3d B. A rebuttable presumption exists (Mo. 536, 2010); 549-50 banc ex State rel. thаt such Owner of the motor vehicle Saynes, 258, Cook v. 713 261-62 S.W.2d operated used in of the Traf- violation (Mo. 1986); banc Great S. v. Stafford fic in Code Ordinance as codified Section Bank, 370, (Mo.App. 417 S.W.3d 376-77 seq. of 17 et the Revised was the Code 2014); Danter, 690, Berra v. 299 S.W.3d of the operator vehicle at the time and (Mo.App.2009); 697 State ex rel. Heidel- place captured by the violation was Holden, (Mo. berg 116, v. S.W.3d 119 98 Traffic System Automated Control Rec- App.2003). ord. interpre governing The rules Rebuttable in presumptions a tation of statute are employed when n civil generally permitted. cases are See interpreting an ex ordinance. State rel. Deck, 549-50; 2 322 S.W.3d S. Kenneth Bd. Teefey Zoning Adjustment v. of of Broun, McCormicks on section Evidence (Mo. 681, City, Kansas banc 2013). (7th ed. Prosecutions for mu 2000). Accordingly, the Court will “ascer nicipal pro are civil viоlations. give tain effect to of the intent quasicriminal ceedings aspects. State legislative enacting body” as reflected ex City Meyers, rel. Kansas v. 513 S.W.2d plain ordinary meaning of the (Mo. 1974). quasi-crimi banc language ordinance’s absent a definition apparent nal aspect way Rule Id. Municipal ordinance. ordinances violations, which mir governs ordinance valid, presumed are McCollum Dir. of governing rors proceed the rules criminal (Mo. Revenue, bane ings. example, For rules use 1995), and will be of construed commonly terms associated with criminal validity, Reprod. of see cases, “prosecutor,” “arraign such Health Servs. Planned Parenthood of ment,” 37.34, “plea.” Rules 37.48 Nixon, Region, St. Louis Inc. v. notice of violation state 37.58. The must 2006). a supporting finding probable facts not de Ordinance 66868 does cause tо violated the believe accused presumption.” fine has a “rebuttable When ordinance. Rule 37.33. The accused Revenue, proof composed 9. The burden Dir. suasion. White 298, production per- burden and the burden involving a fine. and, on a case circum- relied right $20 to counsel some fine is considered stances, many, For right to be counsel. appointed $100 Further, Moreover, qua- small. violation 37.50. Rule violations, li- nature affect the owner’s si-criminal 66868 will driver’s produce on the “to evi- running the burden is a red cense because convincing nature as to requires dence such the assess- moving violation that that defendant convince the trier facts points. Peters ment of two See *12 beyond charged a guilty of the was offense Roeder, 466 at 544. These fac- v. City Kansas v. City reasonable doubt.” tors, as the quasi-criminal as well nature 113, 114 Oxley, 579 S.W.2d proceedings, lead this municipal ordinance 1979) omitted); (internal quotations City the apply regarding presump- of Court law 927, Tyson, 928 City Kansas v. 169 S.W.3d tions in criminal cases.11 (Mo.App.2005). presumptions rules regarding guided by This Court further cases more be criminal are restrictive analysis parking of a previous ordinance pre such a evidentiary cause an device Corp., City Hertz 499 City Kansas sumption or “must not inference under (Mo.1973). deciding In wheth trial, responsibility mine factfinder’s at the parking imposing a strict lia er ordinance State, to by based on evidence the adduced bility process,10 on due the owner violated a beyond find facts reasonable the ultimate the this Court considered relevant Allen, 156, at 442 U.S. 99 S.Ct. doubt.” “relatively was penalty
maximum
a
small
2213.
in Sandstrom v. Mon
Specifically,
fine,” that
no potential
there was
incаrcer
tana,
Supreme
United
Court
the
States
ation, and that the
had no effect on
penalty
mandatory
held unconstitutional
rebutta-
the owner’s driver’s
insurance
license
presumptions that have
ble
the effect
cost.
Id.
453. Such factors are also
shifting
persuasion
the burden
to the
determining
relevant in
whether criminal
on an
element
the crime
defendant
regarding
applies
law
to a
presumptions
charged because it violates the accused’s
municipal
Specifically,
pen
ordinance.
process right
prosecution
alty
violating
for
due
to have
ordinance 66868
$100.
every
prove beyond
a
doubt
identify
did
reasonable
While
Court Hertz
“relatively
fine,”
necessary to
small
fact
constitute
crime
what
considered a
so,
presumed.
distinguished
parking
doing
Id. at
In
10. The Court
ordi-
470.
nance
one like
аp
ordinance 66868 that
relied
criminal and civil
Court
cases
imposes liability
Mobile,
on the driver and contains a
plying
(citing
that standard.
Id.
presumption
rebuttable
that the owner was
City
Turnip
& Kansas
R.R. Co.
Jackson
Hertz,
the driver.
at 452.
136,
35,
seed, 219 U.S.
31 S.Ct.
[the
directed verdict
favor of
circuit court would
terminate
consequence
proceedings
defense
Such a
results.
if the
owner
possible upon
failure,
is not
the motor vehicle proves
defendant’s
however,
the owner
may
verdicts
was not
be directed
the driver.
It
against
city’s
defendants in criminal
demonstrates
Id.
cases.”
intent to enact an
ordinance creating a rebuttable presump-
event,
any
disagrees
the Court
tion that shifts the
persuasion,
burden of
city’s
contention that
the rebuttable
requiring the owner
prove
to
to the factfin-
presumption in
operates
ordinance 66868
der —thе municipal
division
this case—
to
only
shift
production.
the burden of
he
she was not operating the vehi-
language
provision
containing
cle at the time of the violation.
pre-
presumption
the rebuttable
does
indi-
sumption
prosecution
relieves the
cate
what
sufficient to overcome the
proving an element of
the violation
presumption,
this
but
Court will consider
charged beyond a reasonable doubt and is
provisions
other
in the ordinance to ascer-
impermissible
Sandstrom,
under
442
tain
U.S.
meaning
pre-
rebuttable
517-18,
Therefore,
[I]f at the time and
she was the driver
the viola-
unconstitutional).
tion,
the motor
being oper-
vehicle was
Because this Court
by person
Owner,
affirms
ated
other than
the circuit
court’s
on this
basis,
or the vehicle or the
plate cap-
license
it need not
city’s
consider the
other
by the
points
tured
Automated Traffic
appeal.
Control
driver,
12. A
Roeder,
rebuttable
like the one in
like the one at issue in
required
,the
66868 is not
enforce
photo-
could use the
instance,
light
red
camera ordinance. For
if
graphs
prove
identity
of the driver.
system
the red
photographs
took
Tupper and Ms. Thurmond
Thurmond’s
and Ms.
city’s
also
continued enforce
contend
Appeal
after decisions
ment of ordinance 66868
Ms. Thur
appeals
simi
from the court
invalidated
judgment,
court’s
the circuit
appeal
mond
lar
intentional mis
ordinances constituted
overruling
asserting the court erred
“spe
is a
conduct. Intentional misconduct
attorney’s
fees. “Where
motion
may justify an
cial
circumstance”
is not
attorneys’ fees
manda
the award
O’Riley v.
attorney’s
fees.
U.S.
award
grant
attor
or refusal
tory,
granting
Bank, N.A.,
400, 419 (Mo.App.
412 S.W.3d
primarily
neys’
judge
trial
fees
Thurmond,
discretionary be disturbed
will
however,
city engaged in
fail to show the
abuse of
showing
of an
discretion.”
absent
justify
intentional
award
misconduct
Lap
Colorado,
ponese
Carts
v.
fees.
attorney’s
Inc.,
401 (Mp.App.2013)
By
Ms. Thur-
time Ms.
omitted).
(internal quotations
case,
petition
mond
in this
filed their
court of
aрpeals
considered
validi-
the “Ameri
Missouri follows
Smith,
ty
ordinances
red
similar
fees,
attorney’s
regarding
which
can Rule”
404;
City
Unverferth
that,
provides
statutory authoriza
absent
Florissant,
(Mo.App.2013);
tion to those two it dismiss Appeal Director discovery remanded the case for further Revenue’s fact-finding on those issues. Id. Simi- Lastly, the director revenue larly, appeals the court of in Ballard found appeals judgment, the circuit court’s as pleaded sufficient facts to overcome a mo- serting thе court erred in overruling the tion a claim to dismiss that Creve Coeur’s director of revenue’s motion dismiss on light red was not prop- the basis that Ms. Tupper and Ms. Thur- erly pursuant police power enacted rhond seek allege did not relief from or the case pro- and remanded for further injury by remediable caused director. ceedings. 419 at 113. Neither right appeal “The purely statutory nor Ballard that the held re- and, give where a statute does not a right Unverferth spective red camera ordinances at to appeal, right exists.” Buemi v. actually issue were invalid. Kerckhoff, 359 S.W.3d 2011) (internal omitted). quotations Sec Edwards, Lastly, appeals the court 512.020, tion Supp. provides RSMo plaintiffs found the entitled to would be right appeal judgment “[a]ny final discovery further on their claim that Ellis- party aggrieved any judgment to a suit ville’s pаrt red camera ordinance any in any trial court civil cause from of a revenue-generating but did scheme which an appeal prohibited by discovery for further remand constitution, nor clearly special limited in for imposing found the ordinance invalid statutory proceedings.”' A party ag liability strict on owners motor vehicles grieved by judgment when the when law prohibiting running state red appealed “operate directly preju- will lights regulates only the conduct of drivers dicially party’s personal or property pedestrians. 662- rights of interests with immediate effect.” deciding 63. Without whether Edwards Lensmeyer, Lane v. 224 n. *15 decided, correctly this Court finds the (Mo. 2005) (internal quotations banc city properly distinguished could have or- omitted). dinance 66868 the to found be one judgment, In its initial circuit court the in invalid Edwards because ordinancе prohibited city from enforcing ordi- in imposes liability Edivards strict on the nance subsequently court vehicle, owner while ordi- motor judgment its amended to that “the state places liability nance 66868 the driver Petition, in requested relief as amend- presumption and contains a rebuttable that ed, with to respect Respondents all named the owner was the driver. City other than hereby St. Louis is By revising notice-of-violation form DENIED.” While the circuit court over- Smith, after not engage did ruled the director revenue’s motion to misconduct, notwithstanding intentional dismiss, it denied Ms. Tupper and Ms. appeals. decisions of the court of Ms. against Thurmond’s claims him. The di- Ms. fail Thurmond to show rector of revenue fails to that show he was they exception fall within an to the rule aggrieved by the judgment. circuit court’s requiring Moreover, his or party pay each her оwn director argu- of revenue’s fees, attorney’s and the circuit court did ment that the Ms. Tupper and Ms. Thur- overruling abuse its discretion in no sought Ms. mond relief from the director City Roeder v. in Bonnie A. era acknowledge to seems that revenue (Mo. Peters, 466 banc by the circuit adversely affected 2015). Roeder, separately I to wrote Accordingly, the di- judgment. court’s that there- express my belief the ordinance right not have of revenue does rector implied presump- an contains rebuttable appeal. rendering the ordinance applied, tion as Conclusion as those grounds ex- invalid on the same here. Ac- pressed principal opinion in the finds This Court and dissent in part I concur cordingly, their action could maintain Thurmond part. injunctive declaratory judgment and relief
because, prose- dismissed the after Wilson, Judge, dissenting Paul C. ordinance vio- against them for the cutions Plaintiffs Sandra lations, an Sarah adequate they longer bring this are entitled further Thurmond legal remedy. This finds Court They judgment action. each be- unconstitutional remedy at law because adequate had an it creates rebuttable cause raised claims re- have per- could improperly shifts the burden sponse City’s prosecutions prove to the onto the suasion defendant circuit court. the motor division he or she was not operating Roster, time the violation. None- vehicle at the Schaefer opinion principal theless, city’s prior enforcement of the controlling avoid the effect seeks to was not intentional misconduct noting City attorney’s dismissed justify award sufficient Schaefer therefore, disagree. I fees; prosecutiоns. not Plaintiffs’ circuit did awarding abuse its discretion in not attor- that, It true when the dismissed Lastly, revenue ney’s fees. the director cases, adequate Plaintiffs lost their those cir- standing appeal does not have City’s But dismissals remedies law. circuit cuit court’s “justiciable any controversy also removed court denied the relief real, substantial, presents presently- requested respect to all controversy admitting specific existing except city. Accordingly, defendants relief, distinguished advisory from an judg- this affirms court’s Court the circuit purely hypothetical situa- upon decree ment. tion!;.]” Soybean Ass’n Mis- Missouri Com’n, souri Clean Water Russell, JJ., Stith, Teitelman and 2003) (internal quotations *16 J., Prokes, concur; Sp.J., Draper, concurs omitted). City prose- If the reinstitutes in separate in in part part and dissents or for these against cution one both same filеd; Stith, J., in opinion opinion concurs violations, will to they be entitled assert J.; J., in Wilson, of Draper, dissents not, If there no their defenses there. J., Fischer, opinion not separate filed. controversy” between “presently-existing participating. (and City requires them and III, to) subject specific declaratory relief. Ac- George Draper Judge, W. petition for declarato- concurring part dissenting part cordingly, Plaintiffs’ ry judgment should be dismissed. principal opinion’s I concur with the State, to holding, except extent footnote Foster v. S.W.3d 2011), by principal opinion, cam- validity of the red cited assumes There, this no presently confirms this conclusion. have pre-enforcement existing controversy declara- City. Court held that with the Either sufficiently tory judgment they are not way, action was not to entitled maintain this and, therefore, ripе factually developed present action. adjudication, plaintiff where the alleged in con- engage he would trigger
duct enforcement could
act in here: the future. The same is true alleged plans to run red has legal
lights and can claim no the future Foster,
entitlement to do so. this Like “(1) case is not facts one which ‘the M.L.T., In the MATTER OF: necessary adjudicate underlying Child, a Female Minor (2) fully developed’ claims ‘the [are] affecting laws plaintiffs issue [are] C.S.H.B., D.W.B. in a [gives] manner to an rise immedi- Petitioners/Appellants, ” ate, Foster, dispute.’ B52 concrete 360; Principal Opinion S.W.3d at at 370. M.D.T.,
To application avoid of this well-settled Respondent/Respondent. law, opinion ex rel. principal cites State No. SD 33557 McQueen, Eagleton v. 1964), Star-Whip Co. Sales Missouri Appeals, Court of Louis, City District, Southern
(Mo.1957).
relevant here.
Neither
Division One.
McQueen
involved
unconstitutional
May
Filed:
chilling
protected
conduct.
effect
McQueen,
Star-
Whip, plaintiff needed
relief “very because there was a real dis-
pute going right to the appellant past[.]”
maintain its as in business
Sta-Whip, 498. Plaintiffs
do not right claim a in traffic engage Instead,
violations in the their future. solely
claims City’s ability relate
prosecute past violations. Such
claims do not declaratory judg- warrant McQueen
ment Star-Whip under
should be under dismissed Schaefer. prejudiced
Plaintiffs will be dis- prose-
missal this If action.
cutes alleged them for violations
past, Plaintiffs be will assert able prosecutions.
claims of those If defense foregoes prosecution, further
Plaintiffs have no need